TB3-04221

RAD File No. / N° de dossier de la SAR : TB3-04221 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXXXX XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 30, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister D. Morse Hearings Officer Conseil du (de la) ministre Reasons and Decision [1] Procedural fairness is a cornerstone of Canadian administrative law. Public decision-makers are required to act fairly in coming to decisions that affect the rights, privileges, or interests of an individual.1 Where a public authority has made representations about the procedure, it will follow in making a particular decision; the scope of duty of procedural fairness will be broader than it otherwise would have been.2 [2] The Minister of Public Safety (the Appellant) appeals a decision of the Refugee Protection Division (RPD) to grant refugee status to XXXXX XXXXX XXXXX XXXXX XXXXX (the Respondent). The Respondent is a young man from Somalia who alleges that he was kidnapped by the al-Shabaab extremist group, which intended to recruit him. He was able to escape and make his way to Canada, where he sought and was granted refugee protection. The Minister alleges that the RPD contravened its own policy when it heard and decided the Respondent's refugee claim without awaiting the results of the Respondent's Front-End Security Screening (FESS). [3] Regulation 159.9 of the Immigration and Refugee Protection Act (IRPA) sets a time limit of fifteen days after receipt of the RPD's written reasons for a person or the Minister to file an appeal to the Refugee Appeal Division (RAD), and a time limit of thirty days for a person or the Minister to perfect such an appeal. [4] The RPD's decision in the Respondent's refugee claim is dated March 6, 2013, and the Appellant received that decision on March 8, 2013. Pursuant to the regulations, the Minister had until March 25 to file an appeal and until April 8 to perfect that appeal. [5] The Minister did not file or perfect the appeal within the time limits set out in the regulations. On June 24, 2013, the Minister filed the appeal record, along with an application, pursuant to Rules 12 and 37 of the Refugee Appeal Division Rules, for an extension of time to file the Notice of Appeal and the appeal record. [6] Pursuant to Rule 38(4) of those Rules, the Respondent had seven days to provide a written response to the application. However, by a decision of June 25, 2013, a differently-constituted panel of the RAD allowed the application before the Respondent had responded. The RAD's decision allowing the Minister's application was sent to the Minister and to the Respondent, but not to the Respondent's counsel. [7] On July 8, 2013, the Respondent filed his response record, which included submissions on the Minister's application for an extension of time. On July 22, 2013, the RAD received a reply from the Minister. [8] On August 21, 2013, the RAD wrote to the Minister and the Respondent, pursuant to Rule 53. The Division stated that it would consider, on its own initiative, whether to set aside the June 25, 2013 decision to grant the Minister's application for an extension of time on the grounds that there was a failure to observe a principle of natural justice, a failure to comply with the RAD Rules, or on other grounds raised by the parties. The RAD also stated that, if that decision was set aside, it would also consider whether to accept the Minister's application for an extension of time. Finally, the RAD also laid out a series of possible procedural steps or remedies that it would consider in light of the fact that the FESS was not completed. [9] The RAD invited submissions from the parties on these matters and set out a schedule by which those submissions should be provided. The Minister provided such submissions, and the Respondent responded to them. The Minister did not provide submissions in reply. The RAD's Decision to Allow the Minister's Application for an Extension of Time [10] The Minister does not oppose the RAD's decision to reconsider the Minister's application for an extension of time. The Respondent argues that there was a clear breach of the principle of natural justice and fairness when the RAD reached its decision of June 25, 2013 without following its own Rules and without considering the Respondent's submissions. [11] The RAD agrees. The decision to allow the Minister's application without awaiting the Respondent's response to that application was procedurally unfair to the Respondent, and resulted in the Division making a decision without having considered the Respondent's position on the application. [12] Pursuant to Rule 53, the RAD sets aside its decision of June 25, 2013 on the Minister's application for an extension of time, as there was a failure to observe principles of natural justice and fairness as well as a failure to comply with the RAD Rules in reaching the decision. The Minister's Application for an Extension of Time [13] The IRB's Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening (FESS Instructions)3 provide that where a refugee hearing is scheduled but the FESS results have not been received, the hearing will be removed from the schedule; if the screening results have not been received six months after the claim was referred, the hearing will be rescheduled and the claim heard, unless the Canada Border Services Agency (CBSA) makes an application to change the date and time and such application is granted. When confirmation of security screening remains pending twelve months from the date of referral, the RPD will convene a conference with the claimant, counsel, and Minister's counsel and may fix a date for a hearing. [14] The Appellant submits that the delay in filing the appeal record was a result of the Minister's legitimate expectation that a refugee claim will not proceed without completion of security screening. In the Appellant's view, it is not reasonable to expect the Minister to double-check the RPD's decisions to ensure that the RPD followed its own guidelines. The Appellant argues that an extension is in the interest of fairness and natural justice, and is not prejudicial to the Respondent. In the Appellant's submission, the circumstances of this case are exceptional, as they may involve the security of Canada, which is a priority under IRPA. [15] The Respondent submits that there is no evidence or reasonable ground to suggest that he has ever behaved in a manner that would result in an inadmissibility finding. The Respondent points out that the Minister did not file an appeal to the RAD until nearly four months after receipt of the RPD's decision. This is an undue delay, in the view of the Respondent, who argues that he has a legitimate expectation that, once he has received refugee protection and the time for appeal has passed, his status will not be "violated." The Respondent submits that the Minister does not have an arguable case, as there is no evidence that he voluntarily associated with al-Shabaab or poses any security risk to Canada. Any suggestion that he may be inadmissible is, he argues, pure speculation. [16] Section 159.91(2) of the Immigration and Refugee Protection Regulations provides that, if an appeal cannot be filed or perfected within the time limits set out in the Regulations, "the Refugee Appeal Division may, for reasons of fairness and natural justice, extend each of those time limits by the number of days that is necessary in the circumstances." [17] This provision contains three elements: it must not be possible for the appeal to be filed and perfected within the time limits; an extension must be for the number of days necessary in the circumstances; and any extension must be for reasons of fairness and natural justice. The RAD has considered the Minister's application in light of these requirements. [18] Was it possible for the appeal to be filed and perfected within the time limits set out in the Regulations? The Appellant argues that this was not possible, as the Minister has a legitimate expectation that the RPD will follow its own procedures and therefore does not check in each case whether the security screening process was followed. The Respondent argues, however, that the delay in filing the appeal was unreasonable and cannot be justified. [19] The FESS Instructions refer to a Government of Canada commitment that all persons claiming refugee protection in Canada will receive front-end security screening.4 They provide that, where confirmation of security screening has not been received at six months from the date of referral, the RPD will normally proceed to schedule and hear the claim unless the CBSA files an application to change the date and time and that application is allowed.5 [20] The FESS Instructions also provide that, when confirmation of security screening remains pending twelve months from the date of referral, the RPD will convene a conference with the claimant, counsel, and Minister's counsel and may fix a date for a hearing. [21] The Respondent's refugee claim was filed on December 25, 2012 and was referred to the RPD on December 27, 2012.6 Despite the fact that security screening was not completed, the claim was heard on February 21, 2013, and determined by a decision dated March 6, 2013. [22] RPD members and other personnel are required to follow the instructions.7 Where a hearing is scheduled and confirmation of security screening has not been received, the RPD must remove the hearing from the schedule. While the FESS Instructions direct that the RPD will not hear a claim for a period of up to six months from referral unless the RPD receives confirmation from the CBSA that front-end security screening for the claimant has been completed, the RPD proceeded to hear and determine the claim about two months after referral. [23] The Respondent was granted refugee protection on March 6, 2013, and the Minister received written reasons for the decision on March 8, 2013. However, the Minister did not discover the RPD's error until April 11, 2013.8 [24] To comply with the time limits in the Regulations, the Minister would have had to file by or on March 25 and perfect by or on April 8-and yet the Minister did not become aware of the error until April 11. The RAD accepts the Appellant's argument that the Minister should not be required to scrupulously check each RPD decision for compliance with the FESS Instructions. In these circumstances, the RAD finds that it was not possible for the Minister to file and perfect this appeal within the time limits set out in the Regulations. [25] Is the requested extension for the number of days necessary in the circumstances? It appears that the Minister waited to file this appeal for two and a half months-about 74 days-after discovering the error. [26] The Minister submits that the delay in filing the appeal record was caused by the fact that the Minister had a legitimate expectation that a refugee claim will not proceed without completion of security screening, and that it is not reasonable to expect the Minister to double-check the RPD's decisions to ensure that the RPD followed its own guidelines.9 This is a reasonable explanation for the delay up until the point when the Minister learned that the Respondent's claim had been approved without the completion of security clearance. However, the Minister has provided no justification for the delay between April 11, when the Minister learned of the error, and June 24, when the appeal was filed. [27] Section 159.91(2) of the Regulations permits the RAD to extend the time limits to file and perfect an appeal-but it may only extend such limits by the number of days that is necessary in the circumstances. The Minister has provided no justification for a delay of more than two months, which makes it difficult for the RAD to determine whether an extension of time is necessary in the circumstances. [28] The RAD has, however, considered the objectives of IRPA with respect to refugees, including to "protect the health and safety of Canadians and to maintain the security of Canadian society."10 The objectives of IRPA have been held by the Supreme Court as expressing an intent to prioritize security.11 The FESS Instructions note the federal government's commitment to security screening to ensure that individuals who might pose a risk to Canada are not granted refugee protection. In the RAD's view, the RPD's contravention of the Instructions is a very serious security-related matter, and, as such, the subject matter of the Minister's appeal is directly related to the IRPA's objective of maintaining the security of Canadian society. If the RAD does not grant the extension, the appeal is untimely and will not be considered by the RAD. In these very special circumstances, the RAD finds it is necessary to extend the time limits as requested by the Appellant. [29] Is the extension for reasons of justice and fairness? The RAD has considered jurisprudence which sets out four factors to be assessed in considering applications for extension of time at courts or administrative tribunals. When applied to this matter, the factors require the RAD to consider: a. whether there was and is a continuing intent on the part of the Minister to pursue the appeal; b. whether the subject matter of the appeal discloses an arguable case; c. whether there is a reasonable explanation for the delay; and d. whether there is prejudice to the other party in allowing the extension. [30] Other factors may be considered, and not every factor need be met; however, the underlying consideration is to ensure that justice is done between the parties.12 To express this in the context of Section 159.91(2), the RAD applies these factors to ensure that the requirements of "fairness and natural justice" are met. [31] The Minister's appeal, application, and submissions indicate that there is a continuing intent to pursue the appeal. [32] The Respondent argues that the Minister's appeal does not disclose an arguable case. In the Respondent's submission, it is pure speculation to suggest that he might pose any risk to Canada, as there is no evidence to that effect. In fact, his evidence-found by the RPD to be credible-establishes that he was kidnapped by al-Shabaab and forced to train with them. He fears and disagrees with the group. [33] In the RAD's view, however, the Minister's appeal is not based on the assertion that the Respondent is inadmissible or is a security risk to Canada. Rather, the Appellant argues that, without the benefit of the security screening results, the Minister simply cannot know whether the Respondent is a security risk. The appeal is based on the contention that the Minister was denied the opportunity to obtain and consider security screening results and to participate, if so desired, in the Respondent's refugee hearing. [34] The appeal does make out an arguable case. The RPD ignored its own FESS Instructions and heard and determined a refugee claim without having obtained security screening results. This is arguably a denial of procedural fairness to the Minister. [35] The RAD has already found that there is a reasonable explanation for some, but not most, of the delay in bringing the appeal. [36] Will the Respondent suffer prejudice if the extension is allowed? The Minister submits that there is no prejudice, as the security screening remains incomplete, and the Respondent is thus still in the same situation as he would have been had his refugee hearing not taken place. In any event, the Minister points out that the Respondent is unable to obtain permanent resident status until his security screening is complete. [37] The Respondent argues that he will be prejudiced if the RAD grants the Minister's application for an extension of time. He had a legitimate expectation that, once the time periods set out in the Regulations for appeals had elapsed, he could assume that his refugee status was safe and permanent. Granting this application and allowing the Minister's request will require the Respondent to assume the financial and emotional burden of a second hearing before the RPD and the accompanying uncertainty about his status in Canada. [38] In the RAD's view, any assessment of prejudice must focus on the application for an extension of time, not on the appeal itself. It is obvious that, if the appeal is allowed, it will create difficulties for the Respondent. However, this would be the case regardless of whether the appeal was filed within the regulatory time limits or whether it is considered after an extension of those time limits. The RAD must consider whether the Respondent would suffer prejudice from the granting of an application for extension of time-that is, the impact of the extension itself. In some circumstances, an extension of time might be prejudicial because memories have faded, documents have been lost, or witnesses have become unavailable.13 [39] The Respondent does not argue that the delay will prejudice his ability to respond to or defend against the Minister's appeal, and, in this respect, the RAD finds that the delay is not prejudicial to the Respondent. [40] The Appellant's application shows a continuing intent to pursue the appeal, which makes out an arguable case, and allowing the application does not prejudice the Respondent's ability to contest the appeal. The RAD has already discussed the lack of explanation for the Appellant's delay; while this factor does not support the granting of the application in the interest of fairness and natural justice, the RAD finds that it is outweighed by the other three factors discussed above, which together illustrate that the granting of an extension is indeed in the interest of fairness and natural justice. [41] It was not possible for the Appellant to file and perfect this appeal within the time limits set out in the Regulations. Having carefully considered the requirements set out in Section 159.91(2) of the Immigration and Refugee Protection Regulations, the RAD allows the Appellant's application for an extension of time for reasons of fairness and natural justice. The Appellant's Notice of Appeal and appeal record, filed June 24, 2013, are accepted as timely. The Appeal [42] At the heart of the Minister's appeal is the argument that, by proceeding without a front-end security clearance, the RPD committed an error of law. The Minister had a legitimate expectation that the RPD would not proceed before the clearance was completed, and, as such, the RPD committed a breach of procedural fairness. [43] The Minister asks the RAD to place him in the position he was in prior to the determination of the Respondent's refugee claim, so that if, upon completion of the security screening, there is evidence of a security concern, the Minister may consider whether the Respondent is inadmissible to Canada or is excludable under Article 1F of the refugee Convention. The Minister also asks the RAD to direct the RPD to wait before proceeding with a new hearing until either one year has elapsed from the date of the reception of the claim, or until the front-end security clearance has been completed, as mandated by the RPD's own FESS Instructions.14 [44] The Respondent submits that there is no evidence or any reasonable grounds to suggest that he has ever engaged in conduct that would support an inadmissibility or exclusion finding. If security screening gives rise to such a concern, the Minister has the ability to file an application to vacate his refugee decision under Section 109(1) of IRPA or to prepare a Section 44 report and pursue inadmissibility findings. It is premature to strip the Respondent of his status when there is no evidence or justifiable reason to believe that he is inadmissible to Canada. He argues that he provided testimony, which the RPD found to be credible, against which the Minister's concerns are only speculation. To grant the Minister's appeal based on such speculation, submits the Respondent, would itself be a breach of natural justice and the duty of fairness, because the effect would be to take away his refugee status and force him to undergo a new RPD hearing-even if the completed security screening raises no concerns. The Respondent asks the RAD to confirm the decision of the RPD and dismiss the Minister's appeal. [45] In reply, the Minister notes that the Respondent did not challenge the Minister's claim that the RPD breached the principles of natural justice by holding a hearing without completion of front-end security screening. The Minister submits that a vacation application under Section 109(1) is not a sufficient remedy for the breach: such an application shifts the burden of proof from the Respondent to the Minister, and it requires the Minister to prove material misrepresentation. In the Minister's view, where a breach of natural justice has been established, the remedy is for the case to be remitted back to the tribunal for redetermination. [46] In its August 21, 2013 communication to the parties, a differently-constituted panel of the RAD invited submissions on three possible courses of action: proceeding to a final determination of the Respondent's refugee claim at the RAD under either Section 111(1)(a) or Section 111(1)(b) of IRPA; the RAD remaining seized of the appeal until twelve months have elapsed from the referral of the claim to the RPD, at which time a conference will be convened with the parties to decide further steps; or the RAD remaining seized of the appeal until such time as the security screening is completed, at which time the RAD could proceed to a final determination of the claim under either Section 111(1)(a) or 111(1)(b) of IRPA. [47] The Minister submits that the RAD should neither proceed to determine the claim nor should it remain seized of the matter. The FESS Instructions require the RPD, not the RAD, to deal with the matter. If the RAD remains seized, the Minister loses his right to suspend the claim under Section 103 of IRPA if evidence of inadmissibility comes to light. Where the Minister has reasonable grounds to believe that a claimant is a member of a terrorist organization, the Minister has the option of referring the matter to the Immigration Division for an admissibility determination, during which the refugee claim is suspended. A finding of inadmissibility on security grounds renders a claim ineligible under Section 104(1)(b) of IRPA, but the claim would not be ineligible if it were before RAD. [48] The Minister also points out that, even if he were to obtain evidence that the Respondent is a risk to Canada, such evidence might not be sufficient to make a case for exclusion under Article 1F of the refugee Convention, even if there is sufficient ground for a finding of inadmissibility under Section 34 of IRPA. The Minister maintains his position that the matter should be referred back to the RPD for redetermination. [49] The Respondent also provided submissions in response to the RAD's communication. He maintains his position that the RAD should confirm the decision of the RPD that he is a Convention refugee. Nine months have now elapsed from the referral of his claim to the RPD; as there are still no security screening results, his claim could now be heard without those results, according to the Instructions. Even if the RPD had waited until today, in compliance with the FESS Instructions, the outcome would be no different. Should security concerns arise in the future, the case could be sent to an admissibility hearing following a Section 44 report by an officer, and the Minister could then present evidence, witnesses, and question the Respondent, and thus would suffer no prejudice. Analysis [50] Before considering the remedies sought by the parties and communicated by the Division, it is necessary for the RAD to consider whether the RPD's decision was in error. If there is no error, there is no need to consider a remedy. [51] The Minister argues that the RPD breached the principles of natural justice by holding a hearing without completion of security screening, thereby committing an error of law. [52] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. It is settled law that, on issues of natural justice, no deference is owed to the decision of the lower tribunal. Either such issues are beyond the scope of the standard of review, or the standard of review is one of correctness.15 In the RAD's view, this approach, which is taken by appellate and judicial review courts, should also be followed by the RAD. This appeal is therefore to be reviewed on a standard of correctness. [53] When applying such a standard, the RAD will not show deference to the reasoning of the RPD, but it will rather undertake its own analysis of the question. That analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, it will substitute its own view and provide the correct answer.16 [54] Did the RPD breach procedural fairness in hearing the Respondent's refugee claim before security screening was completed? It is clear that the RPD did not comply with its own FESS Instructions, under which the claim should not have been heard when it was, due to the incomplete front-end security screening. The Minister relies on the doctrine of legitimate expectations: the existence of administrative rules of procedure may give rise to a legitimate expectation that such procedures will be followed. [55] As the Minister points out, the Supreme Court has summarized the doctrine of legitimate expectations, holding that the doctrine is a facet of procedural fairness, which is the prize jewel of modern Canadian administrative law. In Agraira, the Court summarized specific conditions which must be satisfied in order for the doctrine to apply. A legitimate expectation may arise from an official practice or assurance that certain procedures will be followed as part of the decision-making process. The existence of administrative rules of procedure, or a procedure on which the agency has voluntarily embarked, may give rise to a legitimate expectation that such procedures will be followed. The practice or conduct said to give rise to the expectation must be clear, unambiguous, and unqualified.17 [56] The circumstances giving rise to this appeal meet the conditions set out above. The Chairperson's instructions "provide formal direction that obliges specific IRB personnel to take or to avoid certain actions."18 These Instructions direct that "members and other IRB personnel shall follow these instructions in the processing of refugee protection claims before the Refugee Protection Division (RPD)."19 This wording constitutes an official assurance that certain procedures will be followed as part of the decision-making process. To put it simply, the RPD published the instructions on front-end security clearance and committed to follow them. The instructions are clear, unambiguous, and unqualified: where security screening results have not been received and a refugee hearing is scheduled, it is to be removed from the schedule. Where the security screening has not been received at six months from the date of referral, the matter is to be scheduled for hearing, unless CBSA makes an application to change the date and time and such application is granted. [57] The RPD's actions in creating, publishing, and committing to follow its FESS Instructions give rise to a legitimate expectation that those instructions will be followed. There is no dispute between the parties that, in this instance, the instructions were not followed. The Respondent's refugee claim was heard less than two months after referral, while security screening was incomplete, in clear contravention of the Instructions. The RPD's actions deprived the Minister of the opportunity to complete its investigation into the Respondent, and to potentially participate in the Respondent's refugee claim on the basis of any evidence arising from that investigation. [58] The RAD finds that the Minister had a legitimate expectation that the RPD would follow its security screening instructions. The RPD's failure to do so amounts to a breach of procedural fairness and a denial of natural justice, which is an error of law. As such, the RPD's decision cannot stand. [59] The RAD acknowledges the Respondent's submissions on the matter of inadmissibility. The Minister has not disclosed evidence that the Respondent has engaged in conduct that might render him inadmissible or excludable. The RAD has found that the RPD's actions led to a breach of procedural fairness. The RAD has not found that the Respondent is inadmissible or even that any evidence exists suggesting inadmissibility or excludability. As a result of the RPD's failure to follow the FESS Instructions, there is simply no security screening evidence before the RAD. Remedy [60] The Minister maintains that the only remedy for a denial of natural justice is to "start afresh" with a new hearing before the RPD. The Minister relies on the judgment of the Supreme Court in Chandler: where a denial of natural justice taints the whole proceeding, the tribunal must start afresh.20 [61] The Respondent maintains that the RAD should confirm the RPD's decision to accept his refugee claim. The Respondent also argues that the Minister will not be prejudiced if the RAD instead remains seized of the matter pending the outcome of the security screening process, as the Minister could send the case to an admissibility hearing following a report under Section 44 of IRPA. [62] In the RAD's view, the only appropriate remedy for the breach of natural justice in this matter is to refer the matter to the RPD for redetermination. Other proposed solutions-such as the Minister's ability to make a vacation application under Section 109(1), or refer the matter for an admissibility hearing under Section 44(2)-do not fully remedy the breach. In both those instances, the Minister would bear the onus of proving his case, while the Respondent bears the onus to establish his claim before the RPD. A vacation application would require the Minister to prove material misrepresentation,21 while inadmissibility considers a different issue, the risk posed to Canada by a foreign national. If the RAD were to remain seized of the matter, the Minister would lose his ability to suspend the claim while pursuing an inadmissibility determination, a right which only exists when the claim is before the RPD. [63] For these reasons, the RAD sets aside the decision granting refugee status to the Respondent and refers his claim back to the RPD for redetermination. DISPOSITION [64] The Minister's appeal rests on the concept of procedural fairness and natural justice. The RAD recognizes, however, that allowing this appeal also has the potential to create a very significant injustice to the Respondent. He made his refugee claim, was found to be credible by the RPD, and was granted refugee protection. Through no fault of his own, that decision is now set aside, and he faces a new refugee determination hearing. Even if the results of the security screening are entirely favourable to him, he faces the risk of a different outcome to his claim after a fresh hearing before a different RPD panel. [65] The Minister argues, citing Chandler, that the RPD must start afresh. The RAD disagrees. If the security screening process discloses no new information, or only results in information favourable to the Respondent, the original RPD proceeding is not, in retrospect, tainted. [66] The Respondent's refugee claim is referred back to the RPD with the following directions. The matter is to be heard by the same RPD panel as initially heard the claim, if at all possible. The RPD is to consider and properly apply the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening. In hearing and deciding the claim, the RPD is to consider only evidence arising out of the security screening and issues raised by that evidence, and is to accept the findings of the first RPD panel unless those findings are disturbed by the evidence and issues arising out of the security screening. CONCLUSION [67] Pursuant to Section 111(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by the same panel, subject to the directions set out above. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld October 30, 2013 Date REFUGEE APPEAL DIVISION / MINISTER'S APPEAL / RELIGION / FRONT-END SECURITY SCREENING / PROCEDURAL FAIRNESS / FAILURE TO COMPLY / RAD RULES / LEGITIMATE EXPECTATION / EXTENSION OF TIME / STANDARD OF REVIEW / MALE / REFER THE MATTER / SOMALIA 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para. 79. 2 Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36, para. 94. 3 Immigration and Refugee Board, Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening (effective February 15, 2006; amended December 15, 2012). 4 FESS Instructions, para. B. 5 FESS Instructions, para. C.1. 6 RPD Record, p. 10, Notice to Appear for a Hearing. 7 FESS Instructions, para. C. 8 Notice of Appeal, June 24, 2013, para. 4. 9 Application for an Extension of Time to File an Appeal to the Refugee Appeal Division, June 24, 2013, para. 5. 10 IRPA, Section 3(2)(g). 11 Medovarski v. Canada (MCI) 2005 SCC 51 at para. 10. 12 Canada (Attorney General) v. Pentney, 2008 FC 96, para. 31. 13 Beltran v. Canada (M.C.I.) (F.C., no. IMM-3201-10) Harrington, May 4, 2011; 2011 FC 516, paras. 40-54. 14 In fact, the Instructions direct that a hearing be scheduled where security screening results have not been received six months after the date of referral of the refugee claim, at which time CBSA may make an application for postponement. Where the results remain pending at twelve months, the RPD is to convene a conference and may fix a date for a hearing. 15 Sohal v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1175, para. 12. 16 Dunsmuir, para. 50. 17 Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36, para. 95. 18 Immigration and Refugee Board of Canada, Chairperson's Instructions, http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/instructions/Pages/index.aspx . 19 FESS Instructions, para. C. 20 Chandler v. Alberta Association of Architects, [1989] 2 SCR 848. 21 Minister of Public Safety and Emergency Preparedness v. Gunasingam, 2008 FC 181. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-04221