2011 FCA 273, 2011 FCA 273

[2012] 3 F.C.R. 118 A-482-10 2011 FCA 273 Brandon Carl Huntley (Appellant) v. The Minister of Citizenship and Immigration (Respondent) Indexed as: Canada (Citizenship and Immigration) v. Huntley Federal Court of Appeal, Sexton, Evans and Stratas JJ.A.—Toronto, October 3, 2011.

Citizenship and Immigration — Immigration Practice — Appeal from Federal Court decision setting aside as unreasonable Immigrationand Refugee Board Refugee Protection Division decision granting appellant, white South African, refugee status — Federal Courtrejecting argument that proceeding abuse of process because respondent’s judicial review application brought in response to diplomaticpressure; refusing to certify questions pursuant to Immigration and Refugee Protection Act (IRPA), s. 74(

d) concerning allegations ofpolitical interference with IRPA proceedings, perceived bias, lack of independence — Appellant arguing herein that s. 74(

d) not oustinggeneral right of appeal under Federal Courts Act, s. 27 when applications Judge allegedly biased, wrongfully assuming or decliningjurisdiction — Parliament not intending to immunize from appellate scrutiny errors undermining rule of law, public confidence in dueadministration of justice — However, errors alleged herein not falling within such narrow category — If Federal Court in fact failing toapply appropriate standard of review, such error not usurpation of jurisdiction falling outside s. 74(d) — Federal Court finding noevidentiary basis for allegation of abuse of process, hence refusing to certify proposed hypothetical questions — Even if possible toappeal abuse of process finding in absence of certified question, Federal Court making no reversible error in rejecting allegation —Appeal dismissed.

STATUTES AND REGULATIONS CITED 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 Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 27 (as am. idem, s. 34). Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 (as am. by SOR/2005-339, s. 1), r. 22 (as am. by SOR/2002-232,s. 11). Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 74(d). CASES CITED referred to: Huynh v.

Canada, (FCA), [1996] 2 F.C. 976, (1996), 134 D.L.R. (4th) 612, 36 C.R.R. (2d) 93, 197 N.R. 62 (C.A.). appEAL from a Federal Court decision (2010 FC 1175, [2012] 3 F.C.R. 3, 15 Admin. L.R. (5th) 1, 375 F.T.R. 250) setting aside asunreasonable a decision by the Refugee Protection Division of the Immigration and Refugee Board [ ] granting therespondent refugee status. Appeal dismissed. APPEARANCES Rocco Galati and Russell L. Kaplan for appellant. Bernard Assan and B. Asha Gafar for respondent. SOLICITORS OF RECORD Rocco Galati Law Firm Professional Corporation, Toronto, for appellant.

Deputy Attorney General of Canada for respondent. The following are the reasons for judgment of the Court delivered orally in English by [1] Evans J.A.: Brandon Carl Huntley, a white citizen of South Africa, was found by the Refugee Protection Division of theImmigration and Refugee Board (Board) to be a refugee [X (Re), ]. It held that Mr. Huntley had a well-founded fearof persecution on the ground of his race.

The decision received considerable publicity and was criticized as racist by the Government ofSouth Africa. [2] The Minister of Citizenship and Immigration (Minister) made an application for judicial review to the Federal Court to set asidethe Board’s decision. The matter came before Justice Russell (Judge), who held that the Board’s decision was unreasonable in light ofthe evidence before it. Consequently, he granted the application and remitted the matter to the Board for re-determination in accordancewith his reasons, which are published at 2010 FC 1175, [2012] 3 F.C.R. 3.

[3] Mr. Huntley also argued that the proceeding constituted an abuse of process because the Minister had brought the application forjudicial review in response to diplomatic pressure from the South African government, and that for the Court to grant the Minister’sapplication would create an apprehension that it was biased and lacked independence. The Judge rejected this argument also, havingfound that there was no evidence that the Minister had made the application for judicial review for a reason other than that he thoughtthat the Board’s decision was wrong. [4] Paragraph 74(

d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), provides that no appeal lies to thisCourt from a decision of the Federal Court in matters governed by IRPA, unless the judge who heard the application for judicial reviewcertifies that a serious question of general importance is involved and states the question. [5] In the present case, the Judge refused to certify questions proposed by counsel concerning political interference with IRPAproceedings and the allegations of perceived bias and lack of independence.

He held that the questions proposed were hypothetical sincehe had concluded that there was no factual basis for their premise, namely that the Minister had brought an application for judicialreview as a result of diplomatic pressure. [6] Undeterred, counsel for Mr. Huntley has appealed to this Court, arguing that paragraph 74(

d) has been held not to oust thegeneral right of appeal from the Federal Court pursuant to

section 27 [as am. by S.C. 2002, c. 8, s. 34] of the Federal Courts Act, R.S.C.1985, c. F-7 [s. 1 (as am. idem, s. 14)], when the ground of appeal is that the applications Judge was biased, or wrongfully assumed ordeclined jurisdiction. [7] We agree that, despite the apparently plain language of paragraph 74(d), Parliament cannot have intended to immunize allegederrors from appellate scrutiny which, if not subject to review, would undermine the rule of law and public confidence in the dueadministration of justice.

However, in our view, the errors that the Judge is alleged to have committed in this case do not fall within thisnarrow category. [8] The principal so-called “jurisdictional” error invoked by counsel for Mr. Huntley is that the Judge did not apply thereasonableness standard of review to the Board’s findings of fact. Instead, counsel says, he substituted his own view of the evidence forthat of the Board and made de novo findings of fact.

Even if the Judge erred as alleged, failing to apply the appropriate standard ofreview is a run-of-the-mill error of law, and not a usurpation of jurisdiction falling outside paragraph 74(d). [9] Counsel also argues that Mr. Huntley’s appeal should be heard because he alleges abuse of process by the Minister.

However,the Judge found that there was no evidentiary basis for this allegation, and hence refused to certify the questions of law proposed bycounsel because they were hypothetical. [10] Even if the abuse of process alleged here could be the subject of an appeal in the absence of a certified question, we are notpersuaded that the Judge made any reversible error in rejecting the allegation as unsupported by the evidence. It follows that counsel’srelated allegations of apprehended bias and lack of independence on the part of the Judge must also fail. [11] In the alternative, counsel submits that paragraph 74(

d) violates

section 7 of the 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]]. Wedo not agree. This issue has been settled by Huynh v. Canada, (FCA), [1996] 2 F.C. 976 (C.A.). [12] Nor are we satisfied that, on the facts of this case, Mr. Huntley has established that he cannot get a fair hearing when the matteris remitted to the Board. [13] For these reasons the appeal will be dismissed. The totally unmeritorious nature of this appeal constitutes “special reasons”within the meaning of rule 22 [as am. by SOR/2002-232, s. 11] of the Federal Courts Immigration and Refugee Protection Rules,SOR/93-22 [as am. by SOR/2005-339, s. 1], and costs of the appeal will be awarded to the Minister.