COSTS AWARDED AGAINST WHITE SOUTH AFRICAN IN POLITICIZED IMMIGRATION CASE

The Federal Court of Appeal awarded costs against the White South African who successfully argued at the IRB that he suffered discrimination based on race. The Federal Court Trial Division reversed the decision, the Federal Court of Appeal confirmed. It is very unusual for the court to award costs in immigration cases, but read the last paragraph, from the language of the decision it seems that the court was unhappy with counsel's conduct of the proceedings.

Canada (Minister of Citizenship and Immigration) v. Huntley
Between

Brandon Carl Huntley, Appellant, and

The Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1382

2011 FCA 273
Docket A-482-10
Federal Court of Appeal

Toronto, Ontario
Sexton and Evans Stratas JJ.A.
Heard: October 3, 2011.

Oral judgment: October 3, 2011.

(13 paras.)

Appeal from a judgment of the Federal Court dated November 24, 2010, Docket No. IMM-4423-09, [2010] F.C.J. No. 1453.
________________________________________
The judgment of the Court was delivered by

1 EVANS J.A. (orally):-- Brandon Carl Huntley, a white citizen of South Africa, was found by the Refugee Protection Division of the Immigration and Refugee Board (Board) to be a refugee. It held that Mr Huntley had a well-founded fear of persecution on the ground of his race. The decision received considerable publicity and was criticised as racist by the Government of South Africa.

2 The Minister of Citizenship and Immigration (Minister) made an application for judicial review to the Federal Court to set aside the Board's decision. The matter came before Justice Russell (Judge), who held that the Board's decision was unreasonable in light of the evidence before it. Consequently, he granted the application and remitted the matter to the Board for re-determination in accordance with his reasons, which are published at 2010 FC 1175.

3 Mr Huntley also argued that the proceeding constituted an abuse of process because the Minister had brought the application for judicial review in response to diplomatic pressure from the South African Government, and that for the Court to grant the Minister's application would create an apprehension that it was biased and lacked independence. The Judge rejected this argument also, having found that there was no evidence that the Minister had made the application for judicial review for a reason other than that he thought that 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 this Court from a decision of the Federal Court in matters governed by IRPA, unless the judge who heard the application for judicial review certifies 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 IRPA proceedings and the allegations of perceived bias and lack of independence. He held that the questions proposed were hypothetical since he had concluded that there was no factual basis for their premise, namely that the Minister had brought an application for judicial review 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 the general right of appeal from the Federal Court pursuant to section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, when the ground of appeal is that the Applications Judge was biased, or wrongfully assumed or declined jurisdiction.

7 We agree that, despite the apparently plain language of paragraph 74(d), Parliament cannot have intended to immunize alleged errors from appellate scrutiny which, if not subject to review, would undermine the rule of law and public confidence in the due administration of justice. However, in our view, the errors that the Judge is alleged to have committed in this case do not fall within this narrow category.

8 The principal so-called "jurisdictional" error invoked by counsel for Mr Huntley is that the Judge did not apply the reasonableness standard of review to the Board's findings of fact. Instead, counsel says, he substituted his own view of the evidence for that of the Board and made de novo findings of fact. Even if the Judge erred as alleged, failing to apply the appropriate standard of review 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 by counsel 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 not persuaded that the Judge made any reversible error in rejecting the allegation as unsupported by the evidence. It follows that counsel's related 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. We do not agree. This issue has been settled by Huynh v. Minister of Citizenship and Immigration, [1996] 2 F.C. 976 (C.A.).

12 Not are we satisfied that, on the facts of this case, Mr Huntley has established that he cannot get a fair hearing when the matter is 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 of the Federal Courts Immigration Rules, SOR/93-22, and costs of the appeal will be awarded to the Minister.

EVANS J.A.