Administrative Justice: APPREHENDING BIAS – WHAT WILL IT TAKE?

Acknowledgement

I am indebted to Professor Paul Daly and his blog Administrative Law Matters for highlighting the following decision.

PREFACE

The Case

The decision addressed in this Post is the decision of Strickland J. in Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448.

It is the most recent decision in the long-running saga of Arshad Muhammad, the failed refugee applicant who appeared on the fed’s “most wanted” list and whom the Ministry of Citizenship and Immigration wants to remove to Afghanistan.  Mr. Muhammad is seeking, as he is entitled to do, a decision that he cannot be removed from Canada because of the risk that if he is removed he will be tortured, or killed, or subjected to cruel and unusual treatment.

Torture or Death?  Yes, There is a Risk

The procedure Mr. Muhammad has invoked is called a “Pre-removal Risk Assessment” (PRRA) and involves an initial assessment by a “PRRA Officer”.

In this case the PRRA Officer concluded that it was more likely than not that Muhammad would be tortured or killed if returned to Afghanistan.

What Happened Then?

That assessment was then referred, as required, to a “Minister’s Delegate” for the final decision, and that Delegate disagreed with the PRRA officer and Mr. Muhammad was ordered removed to Afghanistan.

On judicial review, that decision was set aside by the Federal Court, and the PRRA application was referred back for a redetermination by a different Minister’s Delegate. 

The redetermination decision also went against Mr. Muhammed and it is the application for judicial review of that redetermination decision that the court is dealing with in this case.

The Court concludes in this case that the redetermination by the different Minister’s Delegate’s must also be set aside and the matter returned for a second redetermination by a still different Minister’s Delegate.

 THE COURT FINDS IMPARTIALITY WHERE THE FACTS WOULD SEEM TO HAVE JUSTIFIED A REASONABLE APPREHENSION OF BIAS.

What makes this decision of particular interest from an administrative justice perspective is the – with respect – doubtful reasons the Court gives for rejecting the Applicant’s argument that the Minister’s Delegate who made the negative redetermination decision was, in law, biased.

NOT A CONSTITUTIONAL ISSUE

The Applicant filed a notice of a constitutional question in the present application for judicial review. He alleged that the Minister’s Delegate was not independent or impartial and, therefore, could not make decisions on a risk of torture, a subject matter which engages section 7 of the Canadian Charter of Rights and Freedoms, … and thus requires an independent decision-making process.

The Court found that it did not have to deal with the Charter issue because the administrative law requirements found in the principles of procedural fairness presented the same issues and this was not a case in which the government was relying for complying with the requirements of independence and impartiality on a decision-making structure that was statutorily authorized.  Hence no constitutional issue was presented, and dealing with the matter from an administrative law perspective was sufficient.

COURT AGREES THE LAW REQUIRES THE MINISTER’S DELEGATE TO BE INDEPENDENT AND IMPARTIAL.

It was common ground that in PRRA cases the “Minister’s Delegates” were exercising an adjudicative function that required them to be and to appear to be independent and impartial.

And while the Court did not say so directly, it must be the case that, given the seriousness of the decision for the Applicants – and the inherent applicability of the Charter were it necessary – the standard of independence and impartiality that applies in these cases must surely be found at the high end of the spectrum of independence and impartiality.

THE TEST FOR BIAS WAS NOT AN ISSUE

It is also common ground that the test for impartiality is whether or not a fully informed, objective observer, viewing the matter realistically and practically and having thought the matter through, would have a reasonable apprehension that the decision-maker would in this case be consciously or unconsciously biased.

WHAT THE INFORMED OBSERVER WOULD HAVE KNOWN IN THIS CASE

The facts that the informed objective observer would be working with in considering whether he or she had grounds for a reasonable apprehension of bias in the decision-making of the Minister’s Delegate in this case are as follows:

THE MINISTER HAS A BIG INTEREST: IF THE APPLICANT WINS, THERE GOES THE MOST WANTED LIST

1. The PRRA Officer had decided that Mr.  Muhammad was at risk of torture, etc., only because he had been placed on the government’s now famous “Most Wanted List” where he had been described on the Canadian Border Service Agency’s website as being the “subject of an active Canada-wide warrant for removal” because  he was inadmissible to Canada and “has been determined … [to have] violated human or international rights under the Crimes against Humanity and War Crimes Act, or under international law.”

2. The implications of the decision for the Most Wanted List was that if the PRRA Officer’s decision were upheld by the Minister’s Delegate, the Most Wanted List would have been shown to have been a mistake; that, as others had predicted, the government would then be seen to have created for the 29 persons on that list a risk of torture or death, etc., thereby largely ensuring that they could not now be removed from Canada.

3. The government generally, and particularly the Minister, are well known to have invested significant political capital in the Border Services Agency’s Wanted List; presenting it as a bold initiative in finally dealing in a serious way with people who should have been removed from Canada but who had gone into hiding.

THE INTEGRATION OF THE MINISTER’S DELEGATES WITH THE MINISTRY AND THEIR VULNERABILITY TO REPRISALS

4.  The individuals who are routinely assigned as Minister’s Delegates are situated in the Department of Citizenship and Immigration Canada (CIC), in the Case Review Division of the Case Management Branch – the branch that deals with sensitive cases.

5. The Case Review Division provides support and advice on cases to senior management and the Minister.

6. The Case Management Branch has ministerial advisors who report directly to the Minister.

7. The Case Management Branch participates in litigation management.

8. The Minister’s Delegates report to Mr. Dupuis, the Director-General of Case Determination at the CIC, who in turn reports to the Associate Assistant Deputy Minister.  Mr. Dupuis, whose responsibilities include the management of sensitive high profile cases, meets regularly with the Minister’s Delegates to discuss operational matters and individual files.

9. Mr. Dupuis prepares the mid-year and year-end performance reviews for the Minister’s Delegates including for the Minister’s Delegate who decided this case.

(In an affidavit filed in this case, Mr. Dupuis stated that he had advised the Minister’s Delegates not to discuss their cases with him, that he has never discussed the contents of their decisions and that his practice is to emphasize to the Directors that their decisions are theirs alone.)

10. There is no independent structure for selecting the delegates to whom particular cases are assigned, and no effort is made to insulate delegates from other functions of the Case Management Branch.  The Minister’s delegates’ function is intermingled with the other functions of the Case Management Branch.  (This was asserted by the Applicant and not refuted by the government.)

THE ILL-ADVISED MEETING

11.  On February 3, 2012 – before the first Minister’s Delegate’s decision was released in the Muhammad case  – the Director General of Border Operations for the Canadian Border Services Agency sought a meeting with the Director of the Case Management Division at CIC, and with Mr. Dupuis, to discuss the Muhammad case and the implications of the PRRA Officer’s decision.

12. The evidence shows, as the Court finds, that at that meeting the Director General expressed concern about the impact of the positive PRRA assessment on the Canadian Border Services Agency’s enforcement mandate, about the quality of, and a lack of oversight over, Mr. Muhammad positive PRRA risk assessment, and about how a positive decision by the Minister’s Delegate would impact the wanted list which was an important initiative for the Border Service Agency. 

13.  The meeting was also attended by the Director of the Border Service Agency’s Case Management Division whose affidavit concerning her impression of that meeting was subsequently filed in these proceedings and described by the Court as follows:

[The Director] stated that the purpose of the meeting was to express concerns about the initial PRRA assessment. If the Applicant received a positive PRRA because of being posted on CBSA’s wanted list, there was a possibility that the website could no longer be used as an effective tool. She stated that she found the meeting ‘odd’ as it was the first time she observed a meeting where her Director General sought to discuss a specific case with CIC. She stated that she and her colleagues do not normally meet with an independent decision-maker in advance of the decision and that she thought the meeting was ill advised. While there was no indication that the Minister’s Delegate would decide in a particular way, following the meeting she felt comfortable that they [ie., the Canadian Border Service Agency] would have a ‘good decision’ based on the meeting.

AND SO THEY DID

14.  Two weeks after the “ill-advised” meeting, the first of the Minister’s Delegates to be assigned Muhammad’s PRRA case issued her decision rejecting the PRRA Officer’s conclusion on the risk-of-torture issue.

15. On judicial review, the Court found that in that decision the Minister’s Delegate had  “[failed] to adequately justify, on the basis of the evidence, why she concludes that the applicant will likely not be at risk”.  The decision was sent back for a redetermination by a different Minister’s Delegate.

16.  The ill-advised meeting did not figure in the first judicial review because it was only discovered by the Applicant’s counsel prior to the hearing of his judicial review of the redetermination decision.

THE MINISTER’s INQUIRY CONCERNING THE REDETERMINATION DECISION

17. There is no evidence of any similar meeting before the release of the redetermination decision of the next Minister’s Delegate (the one that is the subject of this Court’s review).   However, the new Minister’s Delegate did receive an email from the Minister’s office asking for an “update” on the redetermination decision.  The Court described the communication in the following terms:

…  She received an email which was forwarded to her from Mr. Dupuis. The email was from Heather Primeau, dated January 30, 2013, and the subject line was “Hpcl question” (Hpcl stood for “high profile cases list”). The email stated that “Kennedy has asked where we are at with the arshad Muhammad prra”.  The Minister’s Delegate did not know what Kennedy’s role was but she knew he was with the Minister’s Office. She stated that such questions occasionally occurred but that she did not have direct communications with Kennedy or the Minister’s Office and did not consider the email to be an attempt to influence her Decision.  Mr. Dupuis confirmed that Heather Primeau was his director at Case Review and that “Kennedy” was Kennedy Hong who was in the Case Management Unit of the Minister’s Office. He also confirmed that the Minster’s Delegate responded to him, providing an update on the status of the restricted PRRA.

18. The redetermination decision that was the subject of that inquiry, and which is the decision under review in this court decision, was again set aside with Strickland J.’s reasons for sending the matter back for a second redetermination including this:

While it is true that an administrative decision-maker need not refer to every piece of evidence relied upon in the decision making process, in this situation, being aware of the PRRA assessment and knowing that the prior first restricted PRRA decision of another Minister’s delegate had been found to be unreasonable for the reasons set out above, it was particularly incumbent upon the Minister’s Delegate to clearly identify the documentation upon which she was relying to justify her finding. She did not do so. Rather, she made many general references to the evidence before her and made unsupportable inferences in her reasoning. (Emphasis added.) 

 COURT’S REASONS FOR REJECTING THE BIAS ARGUMENT – AND WHY THEY ARE OF CONCERN

I will address the Court’s reasons in a future post.  Stay tuned.

PS.  One cannot help but think the Minister may have some difficulty in finding a delegate truly anxious to undertake the next redetermination in this case.

RE

 

 

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