2007 FCA 199
A‐164‐06
Jorge Luis Restrepo Benitez (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
and
The Immigration and Refugee Board (Intervener)
A‐187‐06
Edwin Ernesto Carrillo Mejia (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
A‐188‐06
Juvinny Balmore Flores Gomez, Yaneth Beatrix Castillo Campos and Konny Beatrix Flores Castillo (Appellants)
v.
The Minister of Citizenship and Immigration (Respondent)
A‐196‐06
Majid Reza Yonge Savagoli (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
A‐197‐06
Gerardo Martin Rosales Rincon, Erlis Beatrix Delgado Ocando, Gerly Joanny Rosales Delgado and Wanda Sofia Rosales Delgado (Appellants)
v.
The Minister of Citizenship and Immigration (Respondent)
A‐198‐06
Mena Guirguis, Marie Goorgy, Monica Guirguis and Malak Guirguis (Appellants)
v.
The Minister of Citizenship and Immigration (Respondent)
A‐199‐06
Afua Gyankoma (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
A‐200‐06
Inthikhab Hussain Matheen (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Benitez v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Federal Court of Appeal, Décary, Evans and Sharlow JJ.A.—Toronto, April 17; Ottawa, May 25, 2007.
Citizenship and Immigration — Immigration Practice — Appeals from decisions dismissing judicial review applications of negative refugee decisions by Immigration and Refugee Board — Validity of Guideline 7, providing that in refugee protection hearing, claimant first questioned by Refugee Protection Officer and/or Refugee Protection Division member at issue — Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107 (F.C.), Thamotharem v. Canada (Minister of Citizenship and Immigration), (2007), 366 N.R. 301 applied — Guideline 7 not breaching duty of fairness, not giving rise to reasonable apprehension of bias — No merit to non‐Guideline 7 issues — Appeals dismissed.
Constitutional Law — Charter of Rights — Life, Liberty and Security — Guideline 7, issued by Immigration and Refugee Board Chairperson, providing that in refugee protection hearing, claimant first questioned by Refugee Protection Officer and/or Refugee Protection Division member — Guideline not infringing Charter, s. 7 — No legal authority for proposition fundamental justice requiring parties with burden of proof go first in proceedings to determine rights — Necessary to look at broader decision‐making context — Guideline 7 also not giving rise to reasonable apprehension of bias.
These were consolidated appeals from decisions of the Federal Court dismissing applications for judicial review of negative refugee decisions by the Immigration and Refugee Board. Such applications impugned the validity of Guideline 7, which was issued by the Chairperson of the Board and provides that at a refugee protection hearing, the standard order of questioning is for the claimant to be questioned first by the Refugee Protection officer (RPO) or by the Refugee Protection Division (RPD) member conducting the hearing (the standard order of questioning). Seven questions relating to Guideline 7 were certified for appeal. The majority of this Court recently held in Thamotharem v. Canada (Minister of Citizenship and Immigration), that Guideline 7 does not breach the duty of fairness either by denying claimants an effective opportunity to make representations or by distorting the role of the RPD member so as to give rise to a reasonable apprehension of bias. Nor is Guideline 7 an unlawful fetter on the discretion of RPD members, and it was not legally required to have been issued under the Chairperson’s statutory power to issue rules of procedure, subject to Cabinet approval.
The issues were whether Guideline 7 is not in accordance with the principles of fundamental justice because it denies those with the burden of proof the right to be questioned first by their counsel, and whether the Guideline 7 requirement that the initial questioning of a claimant be by RPD members gives rise to a reasonable apprehension of bias.
Held, the appeals should be dismissed.
Section 7 of the Canadian Charter of Rights and Freedoms guarantees the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. But there is no legal authority for the proposition that the principles of fundamental justice require that parties with the burden of proof have the right to go first in proceedings to determine their rights. Although the individual rights at stake in an administrative proceeding are important in determining the procedural content of the principles of fundamental justice, the broader decision‐making context from which the issue arises must also be considered. The inquisitorial nature of refugee protection hearings before the RPD must be taken into account. For the reasons expressed by the Federal Court below, and those of this Court in Thamotharem, Guideline 7 does not violate the right of claimants to participate at an RPD hearing conducted in accordance with the principles of procedural fairness.
Guideline 7 does not infringe section 7 of the Charter by creating a reasonable apprehension of bias, whether institutional or individual, again taking into account the context of the inquisitorial procedural model established for RPD hearings.
There was also no basis for disturbing the Federal Court’s decisions pertaining to non‐Guideline 7 issues.
Per Sharlow J.A. (concurring): Although the Chairperson erred in law in using the guideline‐making power in paragraph 159(1)(h) of the Immigration and Refugee Protection Act to establish a standard practice for refugee hearings, that error does not by itself justify setting aside a negative refugee determination made on the basis of a hearing in which the refugee claimant is required to submit to questioning by the RPO or RPD member before presenting his or her own case.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Federal Courts Immigration and Refugee Protection Rules, SOR/93‐22 (as am. by SOR/2005‐339, s. 1), s. 22 (as am. by SOR/2002‐232, s. 11).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 74(d), 159(1)(h), 167(2).
cases judicially considered
applied:
Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107; (2006), 40 Admin. L.R. (4th) 159; 290 F.T.R. 161; 54 Imm. L.R. (3d) 27; 2006 FC 461; Thamotharem v. Canada (Minister of Citizenship and Immigration), (2007), 366 N.R. 301; 2007 FCA 198.
considered:
Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168; 40 Admin. L.R. (4th) 221; 285 F.T.R. 45; 2006 FC 16; Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350; (2007), 276 D.L.R. (4th) 594; 54 Admin. L.R. (4th) 1; 44 C.R. (6th) 1; 152 C.R.R. (2d) 17; 59 Imm. L.R. (3d) 1; 358 N.R. 1; 2007 SCC 9; Stumf v. Canada (Minister of Citizenship and Immigration) (2002), 289 N.R. 165; 2002 FCA 148.
referred to:
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241.
authors cited
Canada. Immigration and Refugee Board. Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division: Guidelines Issued by the Chairperson Pursuant to Section 159(1)(h) of the Immigration and Refugee Protection Act. Ottawa: IRB, 2003.
APPEALS from the decision of the Federal Court (Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107; (2006), 40 Admin. L.R. (4th) 159; 290 F.T.R. 161; 54 Imm. L.R. (3d) 27; 2006 FC 461) dismissing consolidated applications for judicial review impugning the validity of Guideline 7 and from decisions of the Federal Court (Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 391; affg [2004] R.P.D.D. No. 838 (QL); Guirguis v. Canada (Minister of Citizenship and Immigration), 2006 FC 413; affg [2005] R.P.D.D. No. 303 (QL); Matheen v. Canada (Minister of Citizenship and Immigration), 2006 FC 395; affg Hussain Matheen v. Canada (Minister of Citizenship and Immigration), [2005] R.P.D.D. No. 96 (QL)) dismissing applications for judicial review of negative refugee decisions by the Immigration and Refugee Board. Appeals dismissed.
appearances:
Matthew Jeffrey for appellant in A‐164‐06.
Cynthia T. Mancia for appellants in A‐187‐06 and A‐188‐06.
Jack Davis for appellants in A‐196‐06 and A‐197‐06.
Hart A. Kaminker for appellants in A‐198‐06.
Kumar Sriskanda for appellant in A‐199‐06.
Amina S. Sherazee for appellant in A‐200‐06.
Jamie R. D. Todd and John Provart for respondent.
solicitors of record:
Matthew Jeffrey, Toronto, for appellant in A‐164‐06.
Mancia & Mancia, Toronto, for appellants in A‐187‐06 and A‐188‐06.
Davis & Associates, Toronto, for appellants in A‐196‐06 and A‐197‐06.
Hart A. Kaminker, Toronto, for appellants in A‐198‐06.
Kumar Sriskanda, Scarborough, Ontario, for appellant in A‐199‐06.
Downtown Legal Services, Toronto, for appellant in A‐200‐06.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1]These are consolidated appeals from decisions of the Federal Court dismissing the appellants’ applications for judicial review to set aside decisions by the Immigration and Refugee Board (the Board) rejecting their claims for refugee protection in Canada.
[2]The procedural history of this matter is somewhat unusual. The Federal Court consolidated a number of applications for judicial review impugning the validity of Guideline 7 [Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division: Guidelines Issued by the Chairperson Pursuant to Section 159(1)(h) of the Immigration and Refugee Protection Act. Ottawa: IRB, 2003]. Guideline 7 was issued by the Chairperson of the Board in 2003, pursuant to the power conferred by paragraph 159(1)(h) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), to issue guidelines to assist members of the Board in carrying out their duties (the Guideline 7 issue).
[3]Guideline 7 provides that the standard order of questioning at a refugee protection hearing by the Refugee Protection Division (RPD) of the Board will be that the claimant is questioned first by the refugee protection officer (RPO) and/or by the RPD member conducting the hearing. However, in exceptional cases, members may permit claimants to be questioned first by their own counsel.
[4]These consolidated applications for judicial review were heard in the Federal Court on the Guideline 7 issue by Justice Mosley, who held that Guideline 7 is valid: Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107. He certified the following seven questions for appeal pursuant to IRPA, paragraph 74(d) [at paragraph 243]:
1. Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms by unduly interfering with claimants’ right to be heard and right to counsel?
2. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice?
3. Has the implementation of Guideline 7 led to fettering of Refugee Protection Division members’ discretion?
4. Does a finding that Guideline 7 fetters a Refugee Protection Division member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?
5. Does the role of Refugee Protection Division members in questioning refugee claimants, as contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
6. Is Guideline 7 unlawful because it is ultra vires the guideline‐making authority of the Chairperson under paragraph 159(1)(h) of the Immigration and Refugee Protection Act?
7. When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
[5]We heard the appeals from Justice Mosley’s decision immediately after hearing an appeal from a decision of Justice Blanchard of the Federal Court, who found that Guideline 7 unlawfully fettered the discretion of members to determine the procedure to be followed at a refugee protection hearing: Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168.
[6]Although not unanimous in its reasons, this Court unanimously allowed the Minister’s appeal in Thamotharem, and dismissed Mr. Thamotharem’s cross‐appeal against Justice Blanchard’s conclusion that Guideline 7 does not mandate a breach of the duty of fairness. The decision of this Court is reported as Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007), 366 N.R. 301.
[7]All the issues in dispute in Thamotharem also arose in the consolidated appeals, and should be decided in the same manner and for the reasons given by the majority in Thamotharem. That is to say, Guideline 7 does not breach the duty of fairness by either denying claimants an effective opportunity to make representations or so distorting the role of the member of the RPD hearing the claim as to give rise to a reasonable apprehension of bias. Nor is it is an unlawful fetter on members’ discretion, and it was not legally required to have been issued under the Chairperson’s statutory power to issue rules of procedure, subject to Cabinet approval.
[8]It is unnecessary in these reasons to canvass these issues again. Arguments made by counsel in the consolidated appeals in respect of those issues were taken into account in the preparation of the reasons in Thamotharem. The present reasons deal with the issues raised in the consolidated appeals about the validity of Guideline 7 which were not raised in Thamotharem.
[9]In addition to the Guideline 7 issue, some of the applicants in the consolidated applications for judicial review raised non‐Guideline 7 issues for challenging the Board’s denial of their claims for refugee protection. The applications were heard on these issues by Justices Gibson and Snider of the Federal Court, who dismissed them. Some of the appellants in the consolidated appeals appealed the dismissal of their applications for judicial review on non‐Guideline 7 issues.
[10]In my opinion, all the consolidated appeals should be dismissed. I am not satisfied that the applications Judges made any material error on either the Guideline 7 issue or the non‐Guideline 7 issues.
B. ANALYSIS
1. Guideline 7
(i) Section 7 of the Charter
(a) Participatory rights
[11]Counsel argue that section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] applies to refugee protection hearings by the RPD, and that Guideline 7 is not in accordance with the principles of fundamental justice, because it denies those with the burden of proof (that is, the claimants) of the right to be questioned first by their counsel whenever they so choose.
[12]In support of this argument, counsel rely on the difficulty faced by vulnerable claimants in telling their story coherently after the RPO has already covered much of the ground through questioning and focussing on the weaknesses of the claim for refugee protection. Because of the relationship of trust that claimants establish with their counsel, who have knowledge of their case, they are likely to present their claim more effectively if questioned first by their own counsel.
[13]There is no legal authority for the proposition that the principles of fundamental justice require that parties with the burden of proof have the right to go first in proceedings to determine their rights. However, counsel says that the recent decision of the Supreme Court of Canada in Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350, states that the content of the principles of fundamental justice depends on the individual rights at stake. In the present case, the appellants say that the interests which may be affected by the outcome of RPD hearings are of the greatest importance: the potential deportation to countries where claimants fear for their lives, personal liberty, and bodily integrity.
[14]In my view, this is not quite correct. Although the individual rights at stake in an administrative proceeding are important in determining the procedural content of the principles of fundamental justice, the broader decision‐making context from which the issue arises must also be considered. Thus, McLachlin C.J. said in Charkaoui (at paragraph 20):
Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake. . . . The procedures required to meet the demands of fundamental justice depend on the context. . . . [Emphasis added.]
[15]In my opinion, the inquisitorial nature of refugee protection hearings before the RPD must be taken into account as part of “the nature of the proceedings.” Further, while most adjudication in Canada is conducted on the basis of an adversarial procedural model, I cannot agree that the inquisitorial procedural model, in and of itself, is contrary to the principles of fundamental justice.
[16]Substantially for the reasons given by Justice Mosley (at paragraphs 47‐67) for finding that there is no constitutional right for claimants to be questioned first by their own counsel, as well as for the reasons given in our decision in Thamotharem (at paragraphs 34‐51) for concluding that Guideline 7 does not prescribe a procedure which is in breach of the duty of fairness, it is my opinion that Guideline 7 does not violate claimants’ right to participate at an RPD hearing conducted in accordance with the principles of fundamental justice.
(b) Bias and lack of independence
[17]It is argued that the principles of fundamental justice also require that members of a tribunal, such as the RPD, which determines rights protected by section 7 of the Charter must be, and must be seen to be, impartial and independent, both individually and institutionally. Guideline 7 thrusts RPD members hearing refugee protection claims “into the fray,” especially when no RPO is present, by requiring them, in all but exceptional cases, to question claimants first. The initial questioning of claimants by members is liable to give rise in the mind of the reasonable person, who is informed of the facts and has thought the matter through in a practical manner, to an apprehension that members hearing refugee claims are not impartial.
[18]I cannot agree. As I have already noted, a determination of the content of the principles of fundamental justice must take into account the decision‐making context from which the dispute arises. In the present appeals, the context includes the inquisitorial procedural model established for hearings of the RPD. A consideration of context is as relevant for determining what constitutes disqualifying bias as for determining the extent of a person’s right to participate in the decision‐making process: compare Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at page 638 (common-law duty of impartiality).
[19]I explained in Thamotharem (at paragraphs 45‐48) why, in my opinion, Guideline 7 does not give rise to a reasonable apprehension of bias at common law. For the same reasons, I would conclude that Guideline 7 does not infringe section 7 of the Charter by creating a reasonable apprehension of bias, whether individual or institutional. The independence of RPD members is dealt with at paragraphs 83‐88 of the reasons in Thamotharem.
(ii) Costs
[20]Costs are not awarded in applications for judicial review or appeals brought under the Federal Courts Immigration and Refugee Protection Rules, SOR/93‐22 [as am. by SOR/2005‐339, s. 1], unless the Court orders a costs award “for special reasons”: rule 22 [as am. by SOR/2002‐232, s. 11]. In my opinion, “special reasons” do not exist in this case.
[21]First, no undue delays in the conduct of the litigation, or any other errors or misconduct, are attributable to the Minister. Second, while the appellants’ challenge to the validity of Guideline 7 raises issues which may affect the RPD’s conduct of refugee hearings across the country, the disposition of the appeals is based on the application of familiar existing legal principles. Third, although the consolidation of the proceedings and the unusual procedural step of bifurcating the Guideline 7 issues from the others may have given rise to a degree of complexity in the management of the litigation, they do not warrant the exercise of the Court’s residual discretion to award costs in immigration and refugee proceedings.
[22]Finally, I note that costs were not awarded by the Federal Court, and seem not to have been requested. On appeal, costs were specifically requested in only two of the memoranda of fact and law.
2. Non‐Guideline 7 Issues
[23]None of the non‐Guideline 7 questions raised in the consolidated appeals was certified by the applications Judge pursuant to IRPA, paragraph 74(d). This Court was not satisfied that there was merit in any of them, and did not find it necessary to call on counsel for the Minister to reply at the hearing. Nonetheless, I shall deal briefly in these reasons with the arguments made in the appeals which raised non‐Guideline 7 issues.
(i) Benitez (A‐164‐06)
[24]In a decision rendered on November 3, 2004 [[2004] R.P.D.D. No. 838 (QL)], the RPD rejected Mr. Benitez’ claim, on the ground that there was no credible evidence that he would be the subject of persecution if returned to Colombia. In particular, the RPD was concerned about unexplained discrepancies on significant factual issues between Mr. Benitez’ Personal Information Form and his oral testimony. Dismissing Mr. Benitez’ application for judicial review, Justice Gibson of the Federal Court held that the RPD’s finding of non‐credibility was not patently unreasonable: Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 391.
[25]In my view, there is no basis for disturbing Justice Gibson’s decision. Findings of fact are peculiarly within the expertise of the RPD, whether the finding is based on the claimant’s demeanour when testifying or on the way in which the claimant answered questions at the hearing, or on the implausibility of the evidence, which is typically an inference of fact. I would dismiss this appeal.
(ii) Guirguis (A‐198‐06)
[26]In a decision rendered on January 10, 2005 [[2005] R.P.D.D. No. 303 (QL)], the RPD rejected the claims of members of the Guirguis family, who are Coptic Christians and citizens of Egypt. The RPD found that there was insufficient trustworthy or credible evidence to discharge the claimants’ burden of proving a well-founded fear that, if returned to Egypt, they would be persecuted on the ground of religion.
[27]Of the incidents on which the claimants based their claim, the RPD said that one was isolated, and that the evidence respecting the others was speculative, vague, and unsupported by independent evidence, such as medical or police reports. In addition, the RPD found the principal claimant to be evasive in her answers to questions, and other aspects of the claimants’ story to be implausible.
[28]Justice Gibson dismissed the appellants’ applications for judicial review, on the ground that the RPD’s findings of fact were not patently unreasonable and the decision was not otherwise vitiated by reviewable error: Guirguis v. Canada (Minister of Citizenship and Immigration), 2006 FC 413. Justice Gibson emphasized that fact‐finding is at the heart of the RPD’s specialized expertise and that its reasons do not have to deal with every item of evidence adduced by a claimant.
[29]On appeal, counsel attempted, in effect, to persuade us to substitute our view of the evidence for that of the RPD. This is not the role either of the Federal Court on an application for judicial review, or of this Court on an appeal from an applications Judge. I would dismiss the appeal.
(iii) Gyankoma (A‐199‐06)
[30]Counsel for the appellant, Afua Gyankoma, sought to raise several non‐Guideline 7 issues which he had not raised before the Federal Court. The only decision rendered by the Federal Court on Ms. Gyankoma’s application for judicial review related to the validity of Guideline 7. When asked why he was raising other issues for the first time in this Court, counsel could only say that perhaps he had made a “tactical error” in not raising them below.
[31]An appellant may not normally raise issues for the first time on an appeal, because that would put the appellate court in the position of having to decide an issue without the benefit of the opinion of the lower court. The role of an appellate court is generally confined to examining the decision of the court below for reversible error.
[32]There are, however, exceptions. For example, in Stumf v. Canada (Minister of Citizenship and Immigration) (2002), 289 N.R. 165 (F.C.A.), this Court set aside a refusal by the Convention Refugee Determination Division (as it then was) (CRDD) to reopen an abandonment decision, on the ground that a designated representative should have been appointed for one of the refugee claimants, a minor. This issue had not been raised before either the CRDD, or the Federal Court on the application for judicial review. Speaking for this Court, Sharlow J.A. said (at paragraph 5):
We have determined that it is appropriate to consider this issue at this stage, despite the fact that it has not been raised before. The record discloses all the relevant facts, and there is no suggestion that the Minister would be prejudiced if this issue is considered. On the other hand, the designation of a representative in this case could have affected the outcome.
[33]It is essential for the protection of minors, and for ensuring the fairness of the hearing, that those determining refugee protection claims discharge their statutory duty to consider the appointment of a person to represent the interests of a minor child: see now IRPA, subsection 167(2). The CRDD in Stumf had clearly failed to discharge its duty in this respect.
[34]No comparable reasons exist in the present case for permitting counsel to raise non‐Guideline 7 issues for the first time in this Court, which he could and should have raised in the Federal Court. I would dismiss the appeal.
(iv) Matheen (A‐200‐06)
[35]Counsel for Inthikhab Hussain Matheen was unable to appear at the hearing of the appeal. However, on counsel’s behalf, another lawyer directed the Court to the paragraphs of counsel’s memorandum of fact and law which, she indicated, counsel regarded as particularly important. Although these did not include the paragraphs dealing with the non‐Guideline 7 issues, I shall, nonetheless, address them briefly on the basis of the parties’ written submissions.
[36]In a decision rendered on March 16, 2005 [[2005] R.P.D.D. No. 96], the RPD rejected Mr. Matheen’s claim for refugee protection, on the ground that he had provided no credible evidence to prove that he had a well‐founded fear of persecution if returned to Sri Lanka. The RPD concluded that Mr. Matheen had fabricated the incidents on which he based his claim, because of the evasive and contradictory nature of the appellant’s testimony on critical issues, and the absence of supporting documentary evidence which could and should have been adduced.
[37]Applying the patent unreasonableness standard of review, Justice Gibson found that there was ample evidence to support the Board’s findings of fact, and dismissed Mr. Matheen’s application for judicial review: Matheen v. Canada (Minister of Citizenship and Immigration), 2006 FC 395. I see no reason for interfering with Justice Gibson’s decision, and would dismiss the appeal.
C. CONCLUSIONS
[38]For these reasons, I would dismiss all the appeals, on both the Guideline 7 issue and the non‐Guideline 7 issues. A copy of these reasons should be inserted in each of the files consolidated in these appeals. I would answer as follows the questions certified by Justice Mosley in connection with the validity of Guideline 7:
1. Does Guideline 7, issued under the authority of the Chairperson of the Immigration and Refugee Board, violate the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms by unduly interfering with claimants’ right to be heard and right to counsel?
Answer: No.
2. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice?
Answer: No.
3. Has the implementation of Guideline 7 led to fettering of Refugee Protection Division members’ discretion?
Answer: No.
4. Does a finding that Guideline 7 fetters a Refugee Protection Division member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?
Answer: It is not necessary to answer this question.
5. Does the role of Refugee Protection Division members in questioning refugee claimants, as contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
Answer: No.
6. Is Guideline 7 unlawful because it is ultra vires the guideline‐making authority of the Chairperson under paragraph 159(1)(h) of the Immigration and Refugee Protection Act?
Answer: No.
7. When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
Answer: It is not necessary to answer this question.
Décary J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[39]Sharlow J.A.: I agree with my colleague Justice Evans that the appeals from the decision of Justice Mosley should be dismissed, and that none of the non‐Guideline 7 issues raised in Benitez (A‐164‐06), Guirguis (A‐198‐06), Gyankoma (A‐199‐06) and Matheen (A‐200‐06) justify a reversal of the decision of Justice Gibson.
[40]As for the certified questions, I would answer questions 1, 2, 3, 4, 5 and 7 as proposed by Justice Evans. I would decline to answer question 6. For the reasons set out in my concurring reasons in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, it is my view that although the Chairperson erred in law in using the guideline‐making power in paragraph 159(1)(h) of IRPA to establish a standard practice for refugee hearings, that error does not by itself justify setting aside a negative refugee determination made on the basis of a hearing in which the refugee claimant is required to submit to questioning by the RPO or the Member before presenting his or her own case.