2019 FC 1126, 2019 FC 1126

2019 FC 1126 IMM-3433-17 Canadian Association of Refugee Lawyers ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) and Immigration and Refugee Board ( Intervener ) IMM-3373-18 Canadian Association of Refugee Lawyers ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration) Federal Court, Crampton C.J.—Toronto, June 6; Ottawa, September 6, 2019.

Citizenship and Immigration — Immigration Practice — Jurisprudential guides — Judicial review of decision by Immigration and Refugee Board of Canada (Board) Chairperson to designate Board decisions as jurisprudential guides pertaining to assessment of refugee claims by Nigeria, Pakistan, China, India nationals — Jurisprudential guides enacted pursuant to Immigration and Refugee Protection Act ( Act ), s. 159(1) (h) — Applicant challenging jurisprudential guides on several grounds — Main issues whether Chairperson having authority to identify jurisprudential guides on questions of fact; whether impugned jurisprudential guides unlawfully fettering Board members’ discretion, improperly interfering with adjudicative independence; whether jurisprudential guides unfairly enhancing burden of proof for applicants; whether Chairperson required to engage in external consultation before identifying decisions in question as jurisprudential guides — Not unreasonable for Chairperson to implicitly interpret s. 159(1)(

h) as conferring upon him authority to issue jurisprudential guides in respect of factual issues — Identification of decisions in question as jurisprudential guides not ultra vires — Decision to identify jurisprudential guides based on findings of fact or mixed law and fact — Implicit

interpretation not rendering it less entitled to be reviewed for its reasonableness —

Interpretation in accordance with plain words of s. 159(1)(h) — Consistent with legislative history, purpose, statutory context — Provision’s scope not confined to issues of law or mixed law and fact —

Interpretation also consistent with broad authority, general objective provided in Act, ss. 159(1) (g), 162(2) — Jurisprudential guides containing factual issues consistent with objective of dealing with proceedings informally, quickly — Difficult to distinguish between issues of fact, issues of mixed fact and law — Decisions consisting of factual determinations part of tribunal’s “jurisprudence” — Pakistan, China, India jurisprudential guides pressuring Board members to adopt factual conclusions — Statement of expectations in policy notes expecting members to apply jurisprudential guides in cases with similar facts or provide reasoned justifications for not doing so — This going beyond drawing attention to factual information — Guidelines may influence in general way manner in which decisions reached — Line crossed when decision makers pressured to make particular factual findings — Chairperson may not issue jurisprudential guide constraining complete freedom of quasi-judicial decision makers to make own factual determinations — Nigeria jurisprudential guide not unlawfully fettering discretion of Board members — Problematic facts in Pakistan, India, China jurisprudential guides facts presented as Refugee Appeal Division’s (RAD) own findings on issues going beyond evidence specific to claimant — Board members subject to explicit expectation to adopt findings therein — This undermining public confidence, rule of law, principle of adjudicative independence — No express or implied expression of parliamentary intent in s. 159(1) (

h) in respect of factual determinations — Chairperson may draw assessment factors, legal principles, facts to Board members’ attention — Members free to make own decisions — Jurisprudential guide dealing with factual issues not problematic — Problem posed by statement of expectation — Impugned jurisprudential guides not unfairly enhancing burden on claimants for refugee protection — Information in country documentation, responses to information requests (RIRs) not creating procedural unfairness — Chairperson having authority to reference information in Board’s National Documentation Package (NDP) or RIRs — Fair notice provided to future claimants for refugee protection of additional issues needing to be addressed — Presumption of truthfulness no longer applying where jurisprudential guide providing reason to doubt truthfulness of claimant’s allegations — Strength of presumption varying with corroboration provided — Increase in burden resulting from having to buttress narrative to deal with facts referenced from the Board’s NDP or RIR not unfair — Same with respect to increase in burden resulting from assessment factors in jurisprudential guide — Chairperson not unreasonably concluding that public consultation not required prior to issuance of jurisprudential guides — S. 159(1) (

h) addressing extent of required consultation — Consultation with other persons or organizations not required — Finally, Nigeria decision not impermissibly pre- selected to be subject of jurisprudential guide — Statement of expectation in policy notes issued with Pakistan, India, China jurisprudential guides declared unlawful, inoperative in respect of certain factual determinations — Questions certified — Applications allowed in part.

Practice — Parties — Standing — Immigration and Refugee Board of Canada Chairperson designating Board decisions as jurisprudential guides pertaining to assessment of refugee claims by Nigeria, Pakistan, China, India nationals — Jurisprudential guides enacted pursuant to Immigration and Refugee Protection Act ( Act ), s. 159(1) (h) — Applicant challenging jurisprudential guides on several grounds — Earlier motion to strike applicant as party from proceedings rejected — Respondent not appealing that decision because of Act, s. 72(2) (e) — Maintaining that applicant having no standing — Arguing Act, s. 74(

d) permitting interlocutory order to be appealed if question for appeal certified in ultimate judgment pertaining to related application — Appeal of interlocutory order not possible even if judge certifying question — S. 74 not contemplating interlocutory matters whatsoever.

Practice — Mootness — Immigration and Refugee Board of Canada Chairperson designating Board decisions as jurisprudential guides pertaining to assessment of refugee claims by Nigeria, Pakistan, China, India nationals — Jurisprudential guides enacted pursuant to Immigration and Refugee Protection Act, s. 159(1) (h) — Applicant challenging jurisprudential guides on several grounds — China, India jurisprudential guides later revoked — Adversarial relationship between parties, judicial economy, public interest weighing in favour of addressing issues raised with respect to revoked jurisprudential guides.

These were applications for judicial review of a decision by the Chairperson of the Immigration and Refugee Board of Canada (Board) to designate one or more Board decisions as a jurisprudential guide pertaining to the assessment of refugee claims by nationals of Pakistan, China, and India (docket IMM-3433-17), and Nigeria (docket IMM-3373-18). The four jurisprudential guides at issue herein were enacted pursuant to paragraph 159(1) (

h) of the Immigration and Refugee Protection Act ( Act ), which authorizes the Chairperson “to identify [Board] decisions that would serve as jurisprudential guides that would not be binding on members but would enhance consistency in decision-making.” The applicant challenged the jurisprudential guides on the grounds that paragraph 159(1) (

h) does not authorize the Chairperson to issue a jurisprudential guide with respect to issues of fact; the jurisprudential guides unlawfully fetter Board members’ discretion and improperly encroach upon their adjudicative independence; they unfairly enhance the burden of proof on claimants for refugee protection; and they were issued without any external consultation. The jurisprudential guides were issued to address, inter alia , internal flight alternatives, the adequacy of state protection, and the persecution of religious minorities.

The Chairperson characterized Pakistan, China, and India as “major source countries” for the Board and noted that the use of jurisprudential guides was essential to deal with the backlogs and growing intake. The Chairperson stated that those jurisprudential guides were “based on findings of fact or mixed law and fact”.

The main issues were whether the Chairperson has the authority to identify jurisprudential guides on questions of fact; whether the impugned jurisprudential guides unlawfully fetter Board members’ discretion or improperly interfere with their adjudicative independence; whether they unfairly enhance the burden of proof for applicants; and whether the Chairperson was required to engage in external consultation before identifying the decisions in question as jurisprudential guides. Held , the applications should be allowed in part.

It was not unreasonable for the Chairperson to implicitly interpret paragraph 159(1) (

h) as conferring upon him the authority to issue jurisprudential guides in respect of factual issues, in addition to issues of law and of mixed fact and law. The identification of the four decisions in question as jurisprudential guides was not ultra vires the authority paragraph 159(1) (

h) of the Act confers on the Chairperson. The Chairperson explicitly stated that the Pakistan, China and India jurisprudential guides were based on findings of fact or mixed law and fact. The fact that the Chairperson’s

interpretation was implicit, as opposed to explicit, did not render it any less entitled to be reviewed for its reasonableness. The Chairperson’s implicit

interpretation of paragraph 159(1)(

h) was also reasonable because it accorded with the plain words of that provision. Moreover, that

interpretation was broadly consistent with the provision’s legislative history, its apparent purpose, and its statutory context. There is no limitation confining the provision’s scope to issues of law or mixed law and fact. The Chairperson’s

interpretation was also consistent with the broad authority provided in paragraph 159(1)(

g) and with the general objective set forth in subsection 162(2) of the Act , which provides the Chairperson with the authority to take any necessary action to ensure the Board members carry out their duties efficiently and without undue delay. An ability to issue jurisprudential guides in respect of factual issues is consistent with the broad objective of dealing with all proceedings as informally and quickly as the circumstances permit, so long as this is not contrary to considerations of fairness and natural justice. The Chairperson’s

interpretation of his authority under paragraph 159(1)(

h) was also reasonable because it can be very difficult to distinguish between issues of fact and issues of mixed fact and law. It would be cumbersome to excise out of jurisprudential guides all of the factual findings. The ordinary meaning of the term “jurisprudence” contemplates decisions issued by a court in respect of factual issues, as well as issues of law and of mixed fact and law. Subject to that proviso, decisions that entirely or largely consist of factual determinations are as much a part of a tribunal’s “jurisprudence” as decisions that address issues of law or issues of mixed fact and law.

To the extent that the jurisprudential guides effectively pressured Board members to either adopt factual conclusions or provide a reasoned justification for not doing so, this would constitute an improper encroachment on their adjudicative independence.

While the Nigeria jurisprudential guide did not suffer from these shortcomings, the other three impugned jurisprudential guides did but only because of the statement of expectations in each of the policy notes that accompanied the identification of the decisions in question as jurisprudential guides, wherein members were “expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so”. The principle of adjudicative independence can be adapted to take into account the institutional constraints faced by quasi-judicial bodies such as the Board.

Those limits are reached at the point where an administrative guideline goes beyond simply drawing attention to factual information or encouraging Board members to take it into account, and instead requires them to make particular factual findings. In the administrative law context, it can be entirely appropriate to embrace tools such as guidelines to influence, in a general way , the manner in which decisions are reached, so long as it is made clear that decision makers remain completely free to reach their own conclusions, based on the facts of each particular case.

This would be consistent with the principle that administrative tools that do not encroach upon a Board member’s freedom to make factual findings can be legitimately used to achieve a degree of coherence that would not otherwise be available. However, the line would be crossed when the language used in guidelines may be reasonably apprehended to have the likely effect of either pressuring independent decision makers to make particular factual findings or attenuating their impartiality in this regard. The Federal Court of Appeal’s decision in Thamotharem v.

Canada (Minister of Citizenship and Immigration) does not stand for the proposition that the Chairperson may issue a jurisprudential guide that constrains the complete freedom of quasi-judicial decision makers to make their own factual determinations, free from pressure or inducement from others. The Nigeria jurisprudential guide did not unlawfully fetter the discretion of Board members or improperly constrain their freedom to decide cases that may come before them according to their own conscience. On the contrary, the jurisprudential guide made it clear that each case must be decided on its particular facts.

To the extent that Board members are expected to do anything in particular, it is simply to apply the established test for an IFA (internal flight alternative), to take account of the jurisprudence and the country documentation that is mentioned in the jurisprudential guide, and then to reach their own decisions based on the particular facts of the case.

The factual issues discussed in the Pakistan, India, and China jurisprudential guides that were problematic were the facts that appeared to be presented as the Refugee Appeal Division’s (RAD) own findings on issues that went beyond the evidence that was specific to the claimant. Given the statement of expectations, Board members would be subject to an explicit expectation to adopt those findings, unless they were prepared to provide reasoned justifications for failing to do so. There is a

reasonable apprehension that repeated instructions would pressure some Board members to adopt the factual determinations in thejurisprudential guide. This would undermine public confidence and the rule of law. Those members’ discretion to make factual findingswould be unlawfully fettered and their adjudicative independence would be improperly constrained or encroached upon. In brief, theywould not be entirely free to make determinations with respect to the facts in question.

The tension between the expectation that theChairperson communicated and the complete freedom of Board members to make their own factual findings according to theirconscience was too great for the principle of adjudicative independence to bear, even in the administrative law context. The sacrosanctprinciple of “s/he who hears must decide” on the facts in dispute cannot be sacrificed on the altar of achieving greater consistency andefficiency in decision making. There is no express or implied expression of parliamentary intent in paragraph 159(1)(h), or elsewhere inthe Act, in respect of factual determinations.

It is implicit from the inclusion of the authority to issue jurisprudential guides in paragraph157(1)(

h) that the Chairperson can draw to Board members’ attention particular assessment factors, legal principles, and facts. However,in so doing, the Chairperson must make it clear that members are free to make their own decisions based on the particular facts in eachcase. A jurisprudential guide which deals with factual issues is not problematic in and of itself, even where it deals almost exclusivelywith factual issues. The problem is posed by the statement of expectation that the jurisprudential guide should be applied in cases withsimilar facts unless reasoned justifications are provided.

The impugned jurisprudential guides did not unfairly enhance the burden on claimants for refugee protection. While information in thecountry documentation and responses to information requests (RIRs) cited in the jurisprudential guides may make it more difficult forrefugee claimants to make their case before the Refugee Protection Division or the RAD, this does not create any procedural unfairness,because Parliament gave the Chairperson the authority to issue jurisprudential guides, and by necessary implication, the authority toreference information in the Board’s National Documentation Package (NDP) or RIRs.

By identifying a jurisprudential guide, theChairperson provides fair notice to future claimants for refugee protection of the additional issues and information that may need to beaddressed in legal submissions and evidence. To the extent that information in a jurisprudential guide may provide reason to doubt thetruthfulness of allegations made in a refugee claimant’s sworn affidavit or testimony, the presumption of truthfulness would no longerapply.

The rationale underlying this presumption is that claimants for refugee protection who have come from certain types of exigentcircumstances cannot reasonably be expected to have documentation or other evidence to corroborate their claims. However, in caseswhere claimants have had opportunities to gather corroboration for their claims, the strength of presumption of truthfulness variesdirectly with the extent to which such corroboration is provided.

Any increase in the burden that claimants for refugee protection mayface as a result of having to buttress their narrative to deal with facts referenced from the Board’s NDP or RIR is not unfair. The same istrue with respect to any increase in the burden that may result from any assessment factors or legal principles that may be identified in ajurisprudential guide. It was not unreasonable for the Chairperson to conclude that public consultation was not required prior to the issuance of thejurisprudential guides. Paragraph 159(1)(

h) explicitly addresses the extent of the consultation that is required before the Chairpersonidentifies a jurisprudential guide. Parliament did not consider that consultation with other persons or organizations was required. TheChairperson’s

interpretation of paragraph 159(1)(

h) is reflected in the Board’s Policy on the Use of Jurisprudential Guides. In addition,the legislative history of paragraph 159(1)(

h) provides some support for the Chairperson’s

interpretation of that provision. Finally, the Nigeria decision was not impermissibly pre-selected to be the subject of a jurisprudential guide before it was finally decided.There is no evidence to suggest that the Chairperson made an actual or de facto decision to identify that decision as a jurisprudentialguide at any time prior to the issuance of that decision. The statement of expectation in the policy note that was issued with the Pakistan, India and China jurisprudential guides was declared tobe unlawful and inoperative in respect of certain factual determinations made therein. Two questions were certified as to whether theChairperson has the authority pursuant to paragraph 159(1)(

h) of the Act to issue jurisprudential guides that include factualdeterminations, and whether the jurisprudential guides issued with respect to Nigeria, Pakistan, India, and China unlawfully fettered thediscretion of the Board members to make their own factual findings, or improperly encroached upon their adjudicative independence. STATUTES AND REGULATIONS CITED Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C., 1985, Appendix III], s. 2(e). 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 Rules, SOR/98-106. rr. 1.1, 51(1). Immigration Act, R.S.C., 1985, c. I-2, s. 65. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72, 74, 159(1)(g),(h), 162(2). Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(2)(a). CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176, 335 N.R. 181; HD Mining International Ltd. v.Construction and Specialized Worker Union, Local 1611, 2012 FCA 327, 442 N.R. 325; Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Canada (Canadian Human Rights Commission) v. Canada(Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,[2013] 2 S.C.R. 559; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; Thamotharem v. Canada(Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385. DISTINGUISHED:

Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 F.C.R. 377; Maple Lodge Farms Ltd. v.Government of Canada, (SCC), [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558; Araya Atencio v. Canada (Minister ofCitizenship and Immigration), 2006 FC 571; Feng v. Canada (Citizenship and Immigration), 2019 FC 18. CONSIDERED: Maldonado v. Minister of Employment and Immigration, (FCA), [1980] 2 F.C. 302, (1979), 31 N.R. 34 (C.A.); X(Re), (I.R.B.); X (Re), (I.R.B.); X (Re), (I.R.B.); Pushpanathan v.

Canada(Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, (1988), 160 D.L.R. (4th) 193); CanadianAssociation of Refugee Lawyers v. Canada (Citizenship and Immigration) (November 14, 2017), IMM-3433-17 (F.C.); Mujagic v.Kamps, 2015 ONCA 360, 12 O.R. (3d) 715; Ergen v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 643; Johnny v.Adams Lake Indian Band, 2017 FCA 146; Barrantes v. Canada (Minister of Citizenship and Immigration), 2005 FC 518, 272 F.T.R.164; Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064. REFERRED TO: X (Re), (I.R.B.); Y.Z. v.

Canada (Citizenship and Immigration), 2015 FC 892, [2016] 1 F.C.R. 575; StemijonInvestments Ltd v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710; Danyi v. Canada (Public Safety and EmergencyPreparedness), 2017 FC 112; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Mission Institution v.Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1F.C.R. 121; Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, 144 D.L.R.(4th) 1; Kanthasamy v.

Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Ha v. Canada (Minister ofCitizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195; Huang v. Canada (Citizenship and Immigration), 2017 FC 762;Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56, (1986), 30 D.L.R. (4th) 481; IWA v. Consolidated-BathurstPackaging Ltd., (SCC), [1990] 1 S.C.R. 282, 73 O.R. (2d) 676; Koroz v. Canada (Minister of Citizenship andImmigration) (1999), 261 N.R. 71, 9 Imm. L.R. (3d) 12 (F.C.A.); Higbogun v. Canada (Citizenship and Immigration), 2010 FC 445, 367F.T.R. 114; Zeng v.

Canada (Citizenship and Immigration), 2014 FC 1060; Su v. Canada (Citizenship and Immigration), 2015 FC 666;Cao v. Canada (Citizenship and Immigration), 2015 FC 315; Yan v. Canada (Citizenship and Immigration), 2017 FC 146; Li v. Canada(Citizenship and Immigration), 2018 FC 877; Huang v. Canada (Citizenship and Immigration), 2019 FC 148; Han v. Canada(Citizenship and Immigration), 2019 FC 858; Li v. Canada (Citizenship and Immigration), 2019 FC 454; Chunza Garcia v. Canada(Citizenship and Immigration), 2014 FC 832; Tellez Picon v.

Canada (Citizenship and Immigration), 2010 FC 129; Ramos Aguilar v.Canada (Citizenship and Immigration), 2019 FC 431; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145,[2010] 1 F.C.R. 129; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674. AUTHORS CITED Canada. Immigration and Refugee Board. Guidelines Issued by the Chairperson Pursuant to Paragraph 159(1)(

h) of the Immigration andRefugee Protection Act, Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Ottawa:Immigration and Refugee Board, 2003. Canada. Immigration and Refugee Board. Guidelines Issued by the Chairperson Pursuant to paragraph 159(1)(

h) of the Immigration andRefugee Protection Act, Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression,Ottawa: Immigration and Refugee Board, 2017. Canada. Immigration and Refugee Board. Guidelines Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act,Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa: Immigration and Refugee Board, 1996. Canada. Immigration and Refugee Board. Policy on the Use of Jurisprudential Guides, Policy No. 2003-01, effective March 2003. Canada. Parliament. House of Commons.

Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-86, 34th Parl., 3rdSess. Issue No. 11 (September 16, 1992). APPLICATIONS for judicial review of a decision by the Chairperson of the Immigration and Refugee Board of Canada to designate oneor more decisions as a jurisprudential guide pertaining to the assessment of refugee claims by nationals of Pakistan, China, India, andNigeria. Applications allowed in part. APPEARANCES Lorne Waldman and Steven Blakey for applicant. James Todd and Margherita Braccio for respondent. Anshumala Juyal and Darren McLeod for intervener.

SOLICITORS OF RECORD Waldman & Associates, Toronto, for applicant. Deputy Attorney General of Canada for respondent. Immigration and Refugee Board of Canada, Toronto, for intervener.

The following are the reasons for judgment and judgment rendered in English by Crampton C.J.: I. Introduction [ 1 ] As far as factual determinations are concerned, the principle that “s/he who hears must decide” is sacrosanct. It is a fundamental pillar of the rule of law. It cannot be sacrificed on the altar of achieving greater consistency and efficiency in administrative decision making. [ 2 ] Decision makers on quasi-judicial bodies such as the Immigration and Refugee Board of Canada (the Board) must be able to exercise their adjudicative functions independently from improper influence.

Such influence can include establishing an expectation that Board members will adopt factual conclusions set forth in a jurisprudential guide (JG) issued by the Chairperson of the Board unless they explain why such conclusions have not been followed.

Important factors to consider in assessing whether a JG is likely to improperly influence members of the Board include the nature of the language establishing the expectation, whether it is made clear that each case must be adjudicated on the basis of its specific facts, the extent of monitoring of compliance, and whether a reasonable apprehension arises that adverse consequences would likely result if the JG were not followed. [ 3 ] Among other things, the imposition of an expectation to adopt factual determinations in a JG would fetter Board members’ discretion by reducing their freedom to reach different factual conclusions in the absence of providing a justification for why they have done so.

It would also undermine their independence and their perceived impartiality. This is because it would give rise to a reasonable apprehension that the Board’s members are not entirely free to reach their own factual conclusions, according to their own conscience, without influence from the Chairperson.

In addition, it would increase the burden on the party who would otherwise simply have to demonstrate why a different factual conclusion should be reached, without having to also establish why a departure from the JG is justified. [ 4 ] However, a Board JG that simply required or encouraged decision makers to take account of particular objectively reported facts, legal principles, or factors to consider in deciding issues of law or mixed fact and law would not pose these problems.

That is to say, they would not unlawfully fetter Board members’ discretion, improperly encroach upon their adjudicative independence, or reduce their perceived impartiality, so long as it is made clear that Board members remain free to reach their own conclusions. [ 5 ] Similarly, a Board JG that merely requires or encourages decision makers to follow a general assessment framework or approach would not improperly fetter Board members’ discretion or improperly encroach upon their adjudicative independence, so long as it is made clear that Board members remain free to reach their own conclusions. [ 6 ] The four JGs at issue in this proceeding, pertaining to the assessment of refugee claims by nationals of Nigeria, Pakistan, China and India, were validly enacted pursuant to paragraph 159(1) (

h) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ( IRPA ). That provision authorizes the Chairperson to identify decisions of the Board as JGs, after consulting with the Board’s Deputy Chairpersons, to assist members in carrying out their duties. Contrary to the position of the Canadian Association of Refugee Lawyers (CARL), paragraph 159(1) (

h) authorizes the Chairperson to issue JGs not just on issues of law and mixed fact and law, but also on issues of fact. Moreover, external consultation prior to the issuance of the JGs was not required. [ 7 ] The Nigeria JG does not unlawfully fetter Board decision-makers’ discretion or improperly encroach upon their adjudicative independence because it repeatedly refers to the need for each case to be adjudicated on the basis of its particular facts. For the same reason, it does not unfairly increase the burden faced by refugee applicants in establishing their claims.

Contrary to CARL’s submissions, the Nigeria JG was not improperly “pre-selected”. [ 8 ] With respect to the remaining impugned JGs, the factual matters they address can be grouped into three categories: First, facts that are specific to the particular claimant and that were adduced in his or her evidence; second, facts that are characterized as having been reported in the country documentation or Responses to Information Requests (RIRs); and third, facts that are presented as the Refugee Appeal Division (RAD)’s own findings, on issues that go beyond the evidence that was specific to the claimant or claimants in question.

The only unlawful fettering of discretion or improper interference with Board members’ adjudicative independence is with respect to the third category. [ 9 ] This unlawful fettering or improper interference results from a statement made in each of the policy notes that accompanied the identification of the decisions in question as JGs. That statement states that members of the Board’s Refugee Protection Division (RPD) and Refugee Appeal Division “are expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so”.

A similar statement was made in the Board’s Policy on the Use of Jurisprudential Guides [Policy No. 2003-01] and in e-mails the Chairperson and the Deputy Chairperson (RPD) sent to the Board’s members at the time three of the JGs were released. [ 10 ] Alternative language that did not include a similar statement and that explicitly left RPD and RAD members completely free to reach their own conclusions on issues of fact would not unlawfully fetter their discretion or improperly interfere with their independence.

This is so even if Board members were encouraged to explain why they have reached different factual conclusions in cases with similar facts. [ 11 ] Although some aspects of the principles of natural justice may be displaced where legislation expressly or by necessary implication ousts their application, paragraph 159(1) (

h) does not contain such language in respect of factual determinations that Board members may make. Indeed, subsection 162(2) of the IRPA makes it clear that each division of the Board should operate in accordance with the principles of fairness and natural justice. [ 12 ] However, in authorizing the Chairperson to issue JGs, Parliament implicitly gave the Chairperson the authority to draw Board members’ attention to certain matters, and even to encourage them to consider such matters. These include factors to be taken into account in making decisions, relevant legal principles, and facts that are reported in objective sources, such as country documentation or RIRs.

[13] One unavoidable consequence of this is that the evidentiary burden faced by claimants in establishing their case may be easier ormore difficult to meet than it would have been if such factors, principles, or facts did not need to be addressed. This impact on the burdenfaced by claimants is not unfair. It also does not improperly interfere with the presumption established by Maldonado v.

Minister ofEmployment and Immigration, (FCA), [1980] 2 F.C. 302, (1979), 31 N.R. 34 (C.A.) (Maldonado) and its progeny thata refugee claimant’s sworn testimony is truthful. [14] The rationale underlying this presumption of truthfulness is that claimants for refugee protection who have come from certaintypes of exigent circumstances cannot reasonably be expected to have documentation or other evidence to corroborate their claims. Suchcircumstances can include refugee camps, war-torn country conditions, and situations in which the claimant only had a brief window ofopportunity in which to escape their persecutor(

s) and cannot subsequently access documents or other evidence from Canada. [15] However, in cases where a claimant for refugee protection appears to have had opportunities to gather corroboration for his/herclaim, either before or after arriving in Canada, the strength of the presumption of truthfulness varies directly with the extent to whichsuch corroboration is provided.

Where the claimant simply gives a bald, unsupported assertion that strains credulity when consideredtogether with objective information in the Board’s National Documentation Package (NDP) or RIR documentation, the strength of thepresumption of truthfulness is relatively weak and may be displaced by that objective information.

Indeed, it may also be displaced by afailure to reasonably explain an omission to provide corroboration for such assertions. [16] Maintaining the presumption of truthfulness in circumstances where a bald or thinly supported assertion strains credulity in theface of objective factual information referenced in a JG would weaken the integrity of Canada’s immigration system and underminepublic confidence in that system. The Court, and indeed the bar and interested organizations such as CARL, have an important role toplay in maintaining and cultivating that public confidence. II.

Background [17] These two applications each concern a decision by the Chairperson to designate one or more Board decisions as a JG. IMM-3433-17 concerns the decision to designate RAD decisions pertaining to Pakistan, China, and India, respectively, as JGs. IMM-3373-18concerns a similar designation in respect of a RAD decision pertaining to Nigeria. [18] CARL challenges the legality of the four JGs on the following grounds: 1. Paragraph 159(1)(

h) does not authorize the Chairperson to issue a JG with respect to issues of fact; 2. The JGs unlawfully fetter Board members’ discretion and improperly encroach upon their adjudicative independence; 3. The JGs unfairly enhance the burden of proof on claimants for refugee protection; and 4.

The JGs were issued without any external consultation. [19] In addition, CARL challenges the legality of the Nigeria JG on the basis that the Chairperson improperly pre-selected thedecision that became the JG. [20] The JG with respect to Nigeria Jurisprudential Guide TB7-19851 was issued to address the issue of the availability of an internalflight alternative (IFA) within that country for refugee applicants who have come from there. For that reason, the JG only consisted ofparagraphs 13–30 of the decision in question [X (Re), (I.R.B.)].

The JG concluded that an IFA was available to therefugee applicant in that case, in two particular cities. It added that “there are several additional cities in Nigeria where, depending on theindividual facts, an IFA would likely be available to those fleeing non-state actors, such as the Appellant.” That JG was issued after theRAD’s Professional Development and Adjudicative Strategy Committee (the Committee) identified a high volume of claims and appealsfrom Nigeria in which the determinative issue was either credibility or the availability of an IFA.

The Committee considered that itwould be helpful to focus the analysis solely on the latter issue, to reduce both the length of hearings and the time spent writing orrendering oral reasons for decision. [21] The JG with respect to Pakistan [Jurisprudendial Guide TB7-01837] was identified with respect to the issues of whether (

i) thetreatment experienced by persons of Ahmadi ethnicity amounted to persecution, (ii) adequate state protection is available to suchpersons, and (iii) such persons have a viable IFA within that country [X (Re), (I.R.B.)]. That JG was issued after theCommittee noticed that a number of RPD decisions had failed to properly analyse state protection and IFAs for Ahmadi claimants fromPakistan.

The conclusions in the JG were favourable to the refugee claimant in that case in respect of both of those issues, as well as inrelation to the issue of persecution. [22] The JG with respect to India [Jurisprudential Guide MB6-01059/60] was issued with respect to the issue of whether Sikh refugeeclaimants from Punjab have a viable IFA [X (Re), (I.R.B.)]. Once again, the Committee’s objective inrecommending the issuance of the JG was to reduce the time required for RPD hearings and to reduce the time required to draft RPD andRAD decisions.

The JG concluded that the refugee claimants in question had a viable IFA in Delhi or Mumbai. [23] The China JG [Jurisprudential Guide TB6-11632] was issued to promote consistency and to provide guidance to RPD and RADmembers in respect of a matter that had given rise to a divergence in the jurisprudence of both the Board and this Court. In particular, itwas issued to address the issue of whether persons alleging that they are wanted by Chinese authorities are likely to be able to exit thatcountry from an airport using a genuine passport.

As with the Nigeria JG, the China JG consisted of only certain paragraphs of theunderlying decision, namely paragraphs 12–22 and 25–34 [X (Re), (I.R.B.)]. After reviewing a range of evidencepertaining to China’s Golden Shield Project, and observing that the refugee claimant had provided “scant” evidence with regard to howhe was able to exit China, the JG concluded that he could not have left that country using his genuine passport and with the assistance ofa smuggler, as he had claimed. [24] At the time the Pakistan, China, and India JGs were issued, the Chairperson characterized those countries as “major source

countries” for the Board and noted that the use of JGs was “essential if the IRB is to deal with the significant backlogs and growing intake we are facing today.” As noted above, the “high volume of claims” from Nigeria was also an important consideration underlying the identification of the JG in relation to that country. [ 25 ] The JG pertaining to India was revoked as of November 30, 2018, as a result of developments in the Board’s country of origin information, in particular as it concerns the issue of the connectivity between police databases across India. [ 26 ] The JG pertaining to China was revoked as of June 28, 2019, after the hearing of this Application, because it contained a finding of fact that was not supported by the Board’s National Documentation Package (NDP), in particular as it concerned facial recognition technology used on passengers departing from the airport in Beijing. [ 27 ] The policy notes issued in respect of the two revoked JGs contained language stating that RPD and RAD members “are expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so”.

The same language appears in the policy notes that were issued with the JGs pertaining to the remaining two JGs, which remain in force. III. Relevant Legislation [ 28 ] The Chairperson’s authority to issue JGs is set forth in paragraph 159(1) (

h) of the IRPA . That provision states as follows: Duties of Chairperson Chairperson 159

(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson … (

h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and IV. Preliminary Issues [ 29 ] Prior to the hearing of these applications, three preliminary issues were raised. First, the respondent maintained that CARL has no standing to bring the applications. Second, the respondent maintained that CARL’s challenge with respect to the two revoked JGs, pertaining to India and China, was now moot. Third, CARL sought disclosure of a draft of the Nigeria JG.

During the hearing, CARL abandoned that request. [ 30 ] For the record, I will note that CARL also abandoned its position that the JGs contravene

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], and paragraph 2 (

e) of the Canadian Bill of Rights , S.C. 1960, c. 44 [R.S.C., 1985, Appendix III]. Accordingly, these abandoned issues will not be addressed in this decision. A. CARL’s Standing [ 31 ] In October 2017, the respondent brought a motion to strike CARL as a party from the proceedings in IMM-3433-17, and to consequently strike the proceedings in their entirety.

In support of its request, it took the position that CARL is not a proper party to bring an application in respect of the JGs because it is not directly affected by them and does not meet the test for public interest standing. [ 32 ] The following month, Prothonotary Aalto rejected the respondent’s motion. [ 33 ] The respondent did not appeal that decision at that time because paragraph 72(2) (

e) of the IRPA states that no appeal lies from a decision of the Court with respect to either an application contemplated by that legislation or an interlocutory judgment. Although subsection 51(1) of the Federal Courts Rules , SOR/98-106 (the Rules ) permits appeals of orders issued by prothonotaries, subsection 1.1(2) provides that in the event of any inconsistency between those Rules and

an Act of Parliament or a regulation made under such an Act , that Act or regulation prevails to the extent of inconsistency. [ 34 ] Notwithstanding the foregoing, the respondent continues to maintain that CARL has no standing to bring the two applications that are before the Court in this proceeding. In support of its position that an appeal of Prothonotary Aalto’s decision remains available, it makes two arguments. [ 35 ] First, it maintains that it is an open question as to whether paragraph 74 (

d) of the IRPA would permit an interlocutory order to be appealed if a question for appeal was certified in the ultimate judgment pertaining to the related Application. Paragraph 74(

d) permits an appeal of a judgment of the Court “if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.” [ 36 ] In Canada (Minister of Citizenship and Immigration) v. Edwards , 2005 FCA 176 , 335 N.R. 181 ( Edwards ), at paragraph 10 , the Federal Court of Appeal explicitly stated that an appeal of an interlocutory order is not possible even if a judge certifies a question.

The respondent acknowledges that ruling, but interprets it as having been directed to the situation where a judge purports to certify a question in rendering the interlocutory order, as opposed to in rendering a final judgment on the related application. The respondent maintains that Edwards left open the possibility of an appeal of an interlocutory decision when a judge certifies a question in the latter type of decision.

[37] I disagree. After stating that an appeal would not be possible even if a judge had certified a question, the Court proceeded toaddress the very narrow range of situations in which an appeal may be made in respect of an interlocutory decision: Edwards, above, atparagraph 11. It is readily apparent from that discussion that the Court was not intending to limit its preceding comments in the mannerthat the respondent now contends. [38] In my view, the logic of

section 74 of the IRPA indicates that the appeal contemplated in paragraph 74(

d) is an appeal of thejudgment issued in respect of the application referenced in paragraphs 74(

a) and (c), and contemplated by paragraph 74(b).

Section 74does not appear to contemplate interlocutory matters whatsoever. It simply addresses the fixing of a date and place for the hearing of anapplication, the necessity for that date to be no sooner than 30 days and no later than 90 days after leave was granted (absent anagreement on an earlier date), the disposition of the application without delay and in a

summary way, and finally, the circumstances inwhich an appeal of the judgment can be made. I am reinforced in this view by the French version of paragraph 74(d), which refers to “lejugement consécutif au contrôle judiciaire”. This makes it abundantly clear that the appeal contemplated by paragraph 74(

d) is an appealof the judgment on the application, and not an appeal of any interlocutory decision that may have been separately issued prior to thehearing of the application. [39] I will simply add in passing that the Supreme Court of Canada has observed that once a question is certified in a judgment, “[t]heobject of the appeal is still the judgment itself, not merely the certified question”: Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, (1988), 160 D.L.R. (4th) 193, at paragraph 25 (emphasis added).

The Courtdid not say that the appeal can also extend to any interlocutory rulings made prior to the issuance of a final judgment on an application. [40] The second argument advanced by the respondent in support of its position that it can appeal Prothonotary Aalto’s decision togrant CARL standing is that a decision with respect to standing constitutes “a separate, divisible, judicial act” from a decision on themerits of an application made under the IRPA. However, after the hearing, the respondent advised the Court that it had discovered HDMining International Ltd. v.

Construction and Specialized Workers Union, Local 1611, 2012 FCA 327, 442 N.R. 325, at paragraphs 16–17. There, the Federal Court of Appeal explicitly rejected the argument that a decision to grant standing is not a “matter arising” underthe IRPA and is not therefore not subject to the bar on appeals set forth paragraph 72(2)(

e) of that legislation. In rejecting that argument,the Court stated [at paragraph 16]: The appellants submit that the question of standing is not a “matter arising” under IRPA. I disagree. To exclude preliminaryprocedural questions from the category of matters arising under IRPA would strip

section 72 of IRPA of its purpose. Standing is anecessary precondition to any immigration matter brought before the Federal Court. The interests at stake in a particular dispute and therelation of the parties to those interests cannot be divorced from the matter itself.

As such, I characterize the issue raised on appeal as a“matter arising” under IRPA. [41] It follows that the respondent’s position that a decision on the issue of standing can be characterized as a “separate, divisible,judicial act”, distinct from the merits of an application brought under the IRPA, must be rejected. [42] I pause to observe that even if the issue of standing could have been characterized as such a “separate, divisible, judicial act”, thetime for appealing Prothonotary Aalto’s ruling has long passed and that ruling has become res judicata. [43] Although Prothonotary Aalto’s decision related solely to the application in IMM-3433-17, I consider it to be appropriate to grantstanding to CARL in IMM-3373-18 for essentially the same reasons provided by Prothonotary Aalto, and having regard to the fact thatthese two applications have been consolidated and raise many common issues.

B. Mootness [44] The general test for mootness was stated in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R.342, at page 353, (1989), 57 D.L.R. (4th) 231 (Borowski) as follows: The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible andconcrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it isnecessary to decide if the court should exercise its discretion to hear the case.

The cases do not always make it clear whether the term“moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the courtdeclines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test.

A court maynonetheless elect to address a moot issue if the circumstances warrant. [45] Regarding the first stage of the analysis, the paragraph preceding the passage quoted above makes it clear that the tangible andconcrete dispute in question is the dispute between the parties to the proceeding. [46] With respect to the second stage of the analysis, the Court identified three principal factors to be considered.

Those are: (i)whether an adversarial relationship continues to exist between the parties; (ii) the need to promote judicial economy; and (iii) whetherproceeding to determine the merits of the matter might be viewed as intruding into the role of the legislative branch: Borowski, above, atpages 358–363. [47] In its written submissions, the respondent took the position that the JG pertaining to India should no longer be part of theapplication in IMM-3433-17 because that aspect of the application has become moot.

However, the respondent did not further elaborate. [48] Subsequent to the hearing of these applications, the Chairperson revoked the JG pertaining to China. In response to my requestfor submissions with respect to the mootness of that aspect of IMM-3433-17, CARL submitted that the issues it raised with respect to theChina JG remain live because that JG has been applied to numerous cases in respect of which there are decisions pending before thisCourt or the RAD.

CARL asserted that if the Court does not rule now on the issue of the Chairperson’s authority to issue JGs on purelyfactual issues, each individual applicant in the outstanding cases involving the China JG will be required to challenge that purportedauthority.

[ 49 ] In any event, CARL maintains that the fact that issues pertaining to the China JG have already been vigorously argued before the Court in this proceeding is a compelling reason for the Court to exercise its discretion to address those issues. In addition, it asserts that because the Court is still going to have to issue a decision in respect of the Nigeria and Pakistan JGs, judicial resources will not be spared by declining to address whether the China JG was lawfully issued. CARL added that the Court would not exceed its proper institutional role by ruling on the legality of the China JG.

Finally, CARL stated that the issue of whether the Chairperson can issue a purely factual JG is likely to arise in the future, and therefore it is important for the Court to address this issue once and for all. [ 50 ] For its part, the respondent once again simply asserted its position that the issues pertaining to the China JG have become moot. However, it conceded that the ongoing adversarial context between the parties as well as judicial economy may weigh in favour of the exercise of my discretion to deal with the issues pertaining to the China JG.

The respondent added that “the existence of [several cases currently before the Court in which the China JG is potentially a relevant factor] may be germane in the context of the Court’s consideration of” its discretion to entertain an otherwise moot matter. [ 51 ] Turning to the intervener, its submissions were made solely in respect of the application in IMM-3433-17. This is because it did not seek leave in relation to IMM-3373-18 (although it was granted certain participation rights at various pre-hearing stages by the case management Judge).

In brief, the intervener submitted that the aspect of this proceeding that concerns the China JG has become moot since there is no longer any live controversy in respect of that JG that affects the rights of the parties . In addition, it stated that any legal issues raised by the China JG will be resolved in assessing the legality of the JGs pertaining to Nigeria and Pakistan. With respect to the second stage factors, it acknowledged an adversarial relationship continues to exist between the parties.

However, it maintained that the two other stage two factors identified in Borowski , above, weigh in favour of not addressing the issues raised by the China JG . [ 52 ] In my view, the aspect of this proceeding that concerns the China JG is not moot. This is because CARL continues to have a live interest in the “several cases currently before the Federal Court in which the China JG is potentially a relevant factor” (see paragraph 50, above).

In granting standing to CARL, Prothonotary Aalto observed that “CARL has a genuine interest as its members must deal with and respond to the impugned [JGs] in representing clients in the immigration process”: Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration) , Court Docket IMM-3433-17, November 14, 2017, at page 13. A similar observation was made by Justice Boswell in Y.Z. v.

Canada (Citizenship and Immigration ), 2015 FC 892 , [2016] 1 F.C.R. 575 , at paragraph 41 . [ 53 ] Nothing turns on my conclusion in this regard, as I find that the factors to be considered in exercising my discretion to address the China JG weigh in favour of doing so, even if that aspect of this proceeding has become moot. In particular, I agree with both CARL and the respondent that the ongoing adversarial relationship between the parties and considerations of judicial economy weigh in favour of my addressing the issues that have been raised with respect to the China JG.

Indeed, the public interest in resolving the ongoing uncertainty regarding those issues also weighs in favour of addressing them: Borowski , above, at page 361. I will simply add for the record that the final (stage two) factor to be considered in determining whether to exercise my discretion to address the China JG is not relevant.

As the respondent acknowledged, “it cannot be said that the Court would be overstepping its proper role” by proceeding to address the issues that have been raised in respect of the China JG. [ 54 ] I pause to add for the record that in reaching my decision to address those issues, I have not considered it necessary to consider the further affidavit of Elyse Korman, sworn on July 8, 2019, which was included with CARL’s submissions on mootness and which was disputed by the intervener.

I also do not consider it necessary to consider, in dealing with the merits of these applications, the allegedly “new arguments” made in those submissions and disputed by the intervener. V. Issues [ 55 ] The issues in dispute in these applications are as follows: 1. Does the Chairperson have the authority to identify JGs on questions of fact? 2. Do the impugned JGs unlawfully fetter Board members’ discretion or improperly interfere with their adjudicative independence? 3. Do the impugned JGs unfairly enhance the burden of proof for applicants for refugee protection? 4.

Was the Chairperson required to engage in external consultation before identifying the decisions in question as JGs? 5. Did the Chairperson improperly pre-select the Nigeria JG? VI. Standard of Review [ 56 ] The issue of whether the Chairperson has the authority to identify JGs on questions of fact is a question concerning the

interpretation of the Chairperson’s “home statute”, namely, paragraph 159(1) (

h) of the IRPA . Such questions are presumed to be reviewable on a standard of reasonableness, unless that presumption is rebutted: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2018 SCC 31 , [2018] 2 S.C.R. 230 ( CHRC ), at paragraphs 27–28 . In my view, none of the circumstances in which that presumption may be rebutted apply in the present circumstances: CRHC , above, at paragraph 28. For greater certainty, this is not one of the “exceptional” circumstances in which “a contextual inquiry shows a clear legislative intent that the correctness standard be applied”.

CARL did not suggest otherwise. Indeed, it maintained that the other provisions of the IRPA are of no assistance whatsoever in interpreting paragraph 159(1)(

a) of that legislation. Although CARL nevertheless maintains that the issue at hand is one of the Chairperson’s authority or jurisdiction under paragraph 159(1) (h), this is not one of those “elusive” true questions of jurisdictional vires : CHRC , above, at paragraphs 34–35. [ 57 ] With respect to the “fettering of discretion/improper interference with adjudicative independence” issue that CARL has raised, it is unnecessary to determine whether the standard of review is correctness or reasonableness.

This is because the result will be the same under either of those standards, since the fettering of a decision maker’s discretion is per se unreasonable: Stemijon Investments Ltd v. Canada (Attorney General) , 2011 FCA 299 , 341 D.L.R. (4th) 710, at paragraphs 23–24 ; Danyi v. Canada (Public Safety and Emergency Preparedness) , 2017 FC 112 , at paragraph 19 . In my view, the same is true with respect to the improper interference with a quasi-judicial

decision maker’s independence to make findings of fact. [ 58 ] The issue that CARL has raised with respect to the unfair enhancement of the burden of proof on refugee applicants was framed as an issue involving both procedural fairness and statutory

interpretation. As discussed above, the Chairperson’s

interpretation of the IRPA is reviewable on a standard of reasonableness. Issues of procedural fairness are ordinarily reviewable on a standard of correctness: Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at paragraph 43 . In assessing such issues, the Court’s focus is upon whether an impugned process was or is procedurally fair: see Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502, at paragraph 90 ; Canadian Pacific Railway Company v.

Canada (Attorney General) , 2018 FCA 69 , [2019] 1 F.C.R. 121 , at paragraph 54 . [ 59 ] The issue that CARL has raised with respect to public consultation was framed as an issue of procedural fairness, and therefore is also subject to review on a standard of correctness. However, in this particular case, this issue can be resolved by looking to the plain language of paragraph 159(1) (h).

Accordingly, I consider that this issue is reviewable on a standard of reasonableness. [ 60 ] The final issue raised by CARL, concerning whether the Chairperson improperly pre-selected the Nigeria JG, was cast as an issue of the Chairperson’s

interpretation of the IRPA . As noted above, such issues are reviewable on a standard of reasonableness, as it concerns the

interpretation of the Chairperson’s “home statute”. Nothing turns on this, as I find that the evidence does not establish that the Chairperson de facto identified the Nigeria JG as a JG at any time before he formally did so, almost two months after the RAD issued the decision in question. VII. Analysis A.

Does the Chairperson have the authority to issue JGs on questions of fact? [ 61 ] CARL maintains that each of the four JGs at issue in this proceeding is null and void on the ground that they deal in whole or in part with questions of fact and the Chairperson is not authorized to issue a JG on a question of fact. For this reason, CARL submits that the identification of the four decisions in question as JGs was ultra vires the authority paragraph 159(1) (

h) of the IRPA confers on the Chairperson. I disagree. [ 62 ] In support of its position, CARL notes that the Chairperson’s 2016 policy on the use of JGs states that “[a] decision may be identified as a [JG] on either a question of law or a question of mixed law and fact.” CARL relies upon that statement as a strong indication of the manner in which the Chairperson interpreted his authority under paragraph 159(1) (h). CARL further notes that paragraph 159(1) (

h) has not been amended since that statement was made, yet the Chairperson now takes the position that JGs can be issued in respect of questions of fact. [ 63 ] I accept the position that the statement quoted immediately above provides some indication of the manner in which the Chairperson interpreted his authority under paragraph 159(1) (h). However, it is not the only such indication. [ 64 ] Importantly, in his decision to identify the Pakistan, China and India JGs, the Chairperson explicitly stated that those JGs “are based on findings of fact or mixed law and fact” (emphasis added).

Moreover, the policy note that was issued together with the China JG stated: “The key determination in this [JG] is one of fact that may be applicable to a large number of claims, in that it is a determination in relation to an aspect of the Chinese government’s public security infrastructure and how it operates” (emphasis added). [ 65 ] To the extent that the China JG is largely confined to facts, the Chairperson’s

interpretation of paragraph 159(1)(

h) can be implied and is entitled to be reviewed for its reasonableness: Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 ( Agraira ), at paragraph 63 . Put differently, it can be implied from the fact that the China JG primarily addresses factual issues, and from the statement immediately quoted above from the policy note, that the Chairperson interpreted paragraph 159(1) (

h) as conferring upon him the authority to issue JGs on issues of fact. The fact that the Chairperson’s

interpretation was implicit, as opposed to explicit, does not render it any less entitled to be reviewed for its reasonableness: Agraira , above, at paragraph 63 . [ 66 ] There are additional indications of the Chairperson’s implicit

interpretation of paragraph 159(1)(h). Specifically, various references are made to issues of fact in several of the documents that are included in the record in this proceeding. For example, in an e- mail that was sent to Board members at the time the Pakistan, China and India JGs were identified, the Chairperson stated: “Decision- makers are expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so.” A similar statement was included in the policy notes issued with the four JGs that are at issue in this proceeding.

Likewise, the Board’s Policy on the Use of Jurisprudential Guides states: A member must explain in his or her reasoning why he or she is not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, he or she would otherwise be expected to follow the jurisprudential guide. [Emphasis in original]. [ 67 ] In the same vein, the policy notes that announced the revocation of the India JG and two JGs pertaining to Costa Rica stated that those JGs had been initially identified because they offered a “sound analysis of the legal and factual issues raised.” The policy notes explained that those JGs had been withdrawn because of certain evidentiary/factual developments in the country documentation.

The Revocation Notice that was issued in respect of the China JG provided a similar explanation. It stated that the JG was being revoked because it contained “a finding of fact which is not supported by the China National Documentation Package (NDP) in effect at the time of the decision” that was identified as the JG. [ 68 ] In my view, the Chairperson’s implicit

interpretation of paragraph 159(1)(

h) is also reasonable because it accords with the plain words of that provision. Moreover, that

interpretation is broadly consistent with the provision’s legislative history, its apparent purpose, and its statutory context. [ 69 ] With respect to the plain wording of the provision, there is no limitation confining its scope to issues of law or mixed law and fact. Rather, an unlimited authority to identify decisions as JGs was provided “to assist members in carrying out their duties” and “after

consulting with the Deputy Chairpersons.” Subject to the comments that I will make in the next

section of these reasons below, it is notimmediately apparent why JGs addressed to factual issues would not be as helpful as JGs addressed to issues of law or mixed fact andlaw in assisting Board members to carry out their duties. [70] Regarding the legislative history and purpose of paragraph 159(1)(h), the explanatory notes in the Clause by Clause Analysis ofBill C-11, which repealed and replaced the Immigration Act, R.S.C., 1985, c.

I-2, stated: “The provision gives authority to theChairperson to identify decisions that would serve as jurisprudential guides that would not be binding on members but would enhanceconsistency in decision-making.” Once again, I consider it to be consistent with this legislative history and stated purpose to interpretparagraph 159(1)(

h) as providing the authority to issue JGs on issues of fact, in addition to on issues of law and of mixed fact and law.This

interpretation is also consistent with the purpose identified by the Chairperson in his decision to identify the Pakistan, China andIndia JGs. That purpose was to facilitate “shorter more focused hearings in the RPD and focused reasons requiring less time to draft inboth the RPD and the RAD.” [71] In addition to the foregoing, I consider the statutory context to be more supportive of the Chairperson’s implied

interpretationthan it is of CARL’s

interpretation of paragraph 159(1)(h). While CARL maintains that the other provisions of the IRPA are of noassistance in interpreting that provision, I consider the Chairperson’s

interpretation to be consistent with the broad authority provided inparagraph 159(1)(

g) and with the general objective set forth in subsection 162(2). The former provision provides the Chairperson withthe authority to take “any action that may be necessary to ensure the members of the Board carry out their duties efficiently and withoutundue delay.” The latter requires each division of the Board to “deal with all proceedings before it as informally and quickly as thecircumstances and the considerations of fairness and natural justice permit.” I will return to considerations of fairness and natural justicein the next

section of these reasons below. For the present purposes, I consider that an ability to issue JGs in respect of factual issueswould be consistent with the broad objective of dealing with all proceedings as informally and quickly as the circumstances permit, solong as this is not contrary to considerations of fairness and natural justice. [72] I also consider the Chairperson’s

interpretation of his authority under paragraph 159(1)(

h) to be reasonable because it can be verydifficult to distinguish between issues of fact and issues of mixed fact and law: Canada (Director of Investigation and Research) v.Southam Inc., (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, at paragraphs 35–37; Ellis-Don Ltd. v. Ontario (LabourRelations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 (Ellis-Don), at paragraph 39. Moreover, findings on issues of mixed fact and lawcannot be made without first making particular factual findings, to which legal tests are then applied.

It would be cumbersome, to say thevery least, to excise out of JGs all of the factual findings so that only the sentences or paragraphs in which conclusions on issues of mixedfact and law, or on issues of law alone, remained. [73] CARL further submits that the term “jurisprudential guide” cannot be interpreted as contemplating a guide on issues of fact,because the term “jurisprudence” refers to legal principles, which are set out in the case law or court decisions. In this regard, CARLnotes that certain dictionary

definitions of the term “jurisprudence” refer, respectively, to “the study of law and the principles on whichlaw is based” and to “the general or fundamental elements of a particular legal system as opposed to its practical and concrete details”(CARL’s emphasis removed). CARL therefore maintains that that term “jurisprudence” does not encompass factual findings. I do notfind that submission to be persuasive. [74] The cases upon which CARL relies to support its

interpretation of the word “jurisprudence” are distinguishable from thesituation at hand. [75] Before addressing them, I consider it relevant to note that in Thamotharem v. Canada (Minister of Citizenship and Immigration),2007 FCA 198, [2008] 1 F.C.R. 385 (Thamotharem), at paragraph 90, the Federal Court of Appeal held that the authority conferred byparagraph 159(1)(h) “is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural,evidential or substantive matters” (emphasis added). [76] Turning to the two cases relied upon by CARL, in Mujagic v.

Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at paragraph 9, theCourt simply determined that the words “facts arising or discovered after [an order] was made” in paragraph 59.06(2)(

a) of Ontario’sRules of Civil Procedure, R.R.O. 1990, Reg. 194, did not contemplate jurisprudential changes. In this context, the Court determined that“[n]ew facts, like all facts, are found in evidence, not in the statute books or case law.” [77] Likewise, in Ergen v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 643, at paragraphs 29–30, the SupremeCourt of British Columbia rejected the argument that jurisprudence could be relied upon to establish a factual proposition. The Courtexplained that individual cases do not establish binding factual precedents. This is a far cry from the respondent’s more modest positionthat paragraph 159(1)(

h) permits non-binding JGs to be issued for the purposes that were identified by the Chairperson. Those purposeswere to facilitate “shorter more focused hearings in the RPD and focused reasons requiring less time to draft in both the RPD and theRAD”, as explained in the Chairperson’s decision to identify the Pakistan, China and India JGs. [78] CARL submits that the ordinary meaning of the term “jurisprudence” does not contemplate cases that solely consist of factualdeterminations.

In this regard, it maintains that the paragraphs of the decision in respect of which the China JG was identified are entirelyconfined to factual issues. In particular, those paragraphs contain a discussion of the documentary evidence that explains the details ofChina’s Golden Shield Project and factual findings by the RAD regarding its effectiveness.

However, I note for the record that they alsocontain a discussion of several precedents, which the RAD distinguished based on factual differences between those cases and the casediscussed in the JG. [79] In my view, the ordinary meaning of the term “jurisprudence” contemplates decisions issued by a court in respect of factualissues, as well as issues of law and of mixed fact and law. That said, it is trite law that factual disputes must be determined on their meritsin each case: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at paragraph 32; Ha v.

Canada(Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195, at paragraph 71; Huang v. Canada (Citizenship andImmigration), 2017 FC 762, at paragraph 72. [80] Subject to that proviso, I consider that decisions that entirely or largely consist of factual determinations are as much a part of a

tribunal’s “jurisprudence” as decisions that address issues of law or issues of mixed fact and law. In this regard, I consider it germane tonote that the Court’s Notice to the Parties and the Profession – Publication of Court Decisions was issued after the Court accepted thebar’s position that virtually all of its final judgments are of potential precedential value and that it is up to the bar and other externalstakeholders, rather than the Court, to determine whether a judgment is of precedential value.

The position set forth in that Noticerepresented a change in position from that which was set forth in the Court’s 2015 Notice to the Parties and the Profession – Publicationof Decisions of Precedential Value. In the latter document, the Court stated, among other things, that the absence of a neutral citationnumber and the fact that a judgment is not published was “indicative of the presiding judicial officer’s view that the decision has noprecedential value” (emphasis added).

Nevertheless, the document added: “However, this does not preclude a party from taking adifferent position regarding its precedential value.” [81] CARL further objects to the China JG on the ground that it cannot be properly challenged without knowing the entire record thatwas before the Board when it rendered the decision in respect of which the JG was issued.

In my view, this objection is moreappropriately addressed in connection with the issue that CARL has raised regarding the Chairperson’s failure to consult with the publicbefore issuing the China JG. [82] CARL also maintains that it is improper to raise a factual finding to the level of a jurisprudential guide because countryconditions are constantly changing. However, the evidence in this proceeding establishes that the Board monitors the documentaryevidence that is relevant to a JG. According to the affidavit sworn by Mr.

Gregory Kipling, Director General of Policy, Planning andCorporate Affairs at the Board: “New evidence that may impact the validity of a JG is considered by the Research Directorate and mayresult in the new document(

s) being included in the NDP, rejected, or the JG being revoked by the Chairperson”. Indeed, this is why theJGs with respect to India and Costa Rica were withdrawn. [83] I pause to observe that there is nothing preventing CARL or any other interested party from drawing factual developments, orfactual shortcomings in a JG, to the attention of the Board at any time. [84] Lastly, CARL maintains that a passage in Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4F.C.R. 377 (Kozak), at paragraph 9, supports the proposition that a JG cannot be issued in respect of issues of fact.

There, the Courtobserved: … In addition, a jurisprudential guide is normally intended to be persuasive on questions of law, and mixed law and fact. In contrast, itwas intended that lead cases would also establish persuasive findings of fact on country conditions. See further, Policy on the Use ofJurisprudential Guides, Policy No. 2003-01 (Ottawa: Immigration and Refugee Board, March 21, 2003). [85] However, that passage is from the introductory

section of the Court’s decision and simply appears to be paraphrasing an aspectof the Board’s 2003 policy statement. Taken in its proper context, I do not consider the passage quoted immediately above to have beenintended to articulate the principle advanced by CARL. That is to say, it did not establish the principle that paragraph 159(1)(

h) of theIRPA does not confer authority upon the Chairperson to issue any JGs whatsoever with respect to factual issues. My conclusion in thisregard is reinforced by the Court’s use of the word “normally”, in the passage quoted above. [86] In

summary, I consider that it was not unreasonable for the Chairperson to implicitly interpret paragraph 159(1)(

h) as conferringupon him the authority to issue JGs in respect of factual issues, in addition to issues of law and of mixed fact and law. B. Do the impugned JGs unlawfully fetter the discretion of the Board’s members, or improperly interfere with their independence? [87] CARL submits that the four JGs at issue in these applications improperly encroach upon Board members’ adjudicativeindependence because they impinge on the members’ jurisdiction to make their own findings of fact.

Stated differently, by effectivelyrequiring Board members to either adopt the factual conclusions set forth in the JGs or to provide reasoned justifications for not doing so,the JGs unlawfully fetter their discretion or improperly interfere with their adjudicative independence. [88] To the extent that any of the JGs in question do or did in fact effectively pressure Board members to either adopt factualconclusions or provide a reasoned justification for not doing so, I agree that this would constitute an improper encroachment on theiradjudicative independence.

However, as discussed below, the Nigeria JG does not suffer from these shortcomings and the other threeimpugned JGs do so only because of the statement of expectations described at paragraph 9 above.

(1) Adjudicative independence – legal principles [89] The principle of adjudicative independence is one of the principles of natural justice: Ellis-Don, above, at paragraph 47. Amongother things, it requires that individual adjudicators have complete liberty to hear and decide cases before them, without interference withthe way in which a case is conducted or the manner in which a final decision is made: Beauregard v. Canada, (SCC),[1986] 2 S.C.R. 56, at page 69, (1986), 30 D.L.R. (4th) 481. [90] This does not imply that judges and quasi-judicial decision makers cannot discuss their cases with colleagues.

However, theycannot be compelled to participate in such discussions or to adopt the views expressed by their colleagues. They must maintain thecomplete freedom to decide their case according to their own conscience. In the course of doing so, they must make their own factualdeterminations, free from pressure or inducement from others, and must remain impartial, free from a reasonable apprehension of bias orattenuated impartiality: IWA v.

Consolidated-Bathurst Packaging Ltd., (SCC), [1990] 1 S.C.R. 282, at pages 332-33573 O.R. (2d) 676 (Consolidated-Bathurst); Ellis-Don, above, at paragraphs 27–29. [91] Like other principles of natural justice, the principle of adjudicative independence does not have a

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