Last Updated on January 13, 2021 by Steven Meurrens
It is not uncommon for the Canada Border Services Agency (“CBSA”) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions.
On occassion, the IAD will not accept the joint submissions.
There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue.
The jurisprudence on this is as follows.
In Velauthar v Canada (Minister of Employment and Immigration),  FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.” The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved.
At the same time, the Federal Court of Canada in Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, ruled that the IAD is entitled to reject a joint submission so long as it provides reasons for so doing and if hte process was procedurally fair. However, the IAD must give serious consideration to the joint submission. Several Federal Court decisions have compared joint submissions at the IAD with joint submissions in criminal sentencing.
In Grewal v. Canada (Citizenship and Immigration), 2020 FC 1186 Justice McHaffie provided a helpful summary of the jurisprudence applying Fong. He wrote:
Both parties referred to case law arising from the context of a joint submission to the IAD regarding a stay of a removal order. That case law establishes that a joint submission on a stay is not binding on the IAD, but should be given serious consideration: Nguyen v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16488 (FC) at para 14; Malfeo v Canada (Citizenship and Immigration), 2010 FC 193 at paras 12–19; Hussain v Canada (Citizenship and Immigration), 2010 FC 334 at paras 20–21; Fong at para 31.
In Nguyen, Justice Lemieux of this Court referred to and adopted the reasoning in criminal cases relating to joint submissions on sentencing. He noted that while immigration removals were a different context than criminal sentencing, there were analogies between the factors relevant to a stay and the matters taken into account in sentencing: Nguyen at paras 10–14. He concluded that the then Appeal Division of the IRB had erred in failing to explain why joint submissions on a five-year stay were not endorsed: Nguyen at paras 9, 15.
Justice Lemieux applied the same principles a decade later in Malfeo, again recognizing the differences and similarities between stays of removal by the IAD and criminal sentencing: Malfeo at paras 12–16. The Court found that the IAD erred in rejecting a joint submission without asking for further submissions from the parties, and in failing to give serious consideration to the joint submission by rejecting it in a perfunctory manner without analysis: Malfeo at paras 17–20.
The IAD’s rejection of a joint submission was accepted in Fong. There, when advised that the parties had a joint recommendation for disposition, the IAD expressly stated that the parties could make their submission but that the IAD was “going to have to think on it very seriously,” while also interjecting with comments that showed their concerns with the submission: Fong at paras 27–29. Citing Nguyen and Malfeo, Justice Zinn found that the IAD was entitled to reject the joint submission “so long as it provided reasons for doing so,” which it had done: Fong at paras 31–32; see also similar results in Tuel v Canada (Citizenship and Immigration), 2011 FC 223 at paras 19–23 and Doe v Canada (Public Safety and Emergency Preparedness), 2016 FC 518 at paras 44–49.
The principle in Fong has also been applied beyond the context of stays of removal. In Saroya, Justice Mosley applied it to an appeal based on humanitarian and compassionate (H&C) grounds, finding that the IAD could reject the joint submission “if it provides reasons for doing so”: Saroya v Canada (Citizenship and Immigration), 2015 FC 428 at paras 5–6, 20–21. In Tung, Justice McDonald found the principle applicable in the context of a cessation application to the Refugee Protection Division (RPD), confirming that the RPD may consider other grounds for cessation even though the Minister and applicant had identified only one ground for cessation: Tung v Canada (Citizenship and Immigration), 2018 FC 1224 at paras 26–32.
Justice Campbell expanded on the nature of joint submissions and their rejection in Al-Abdi v Canada (Citizenship and Immigration), 2016 FC 262. Adopting the discussion from Malfeo, he emphasized at paragraph 10 the difference between rejecting a joint submission and simply rejecting one party’s argument:
There is a difference between an argument advanced by one of the parties to a litigation, and a joint submission presented by Counsel for both parties. An argument may be rejected by providing a supportable reason. A joint submission is not an argument; it is an agreement between the parties which goes directly to removing issues in the litigation from determination. This is why the law has established the principle that a joint submission must not be disregarded. A finding as to whether regard was paid to a joint submission is case dependent. That is, on judicial review an evaluation must be made of the nature of the impact of the joint submission on the person or persons directly affected, which in turn defines the quality of regard expected of the decision-maker to whom the joint submission is directed. The issue in each individual case is whether the joint submission was fairly regarded.
I agree with Justice Campbell’s comments regarding the nature of a joint submission in this context. It is to be recalled that, as the Minister underscored in submissions, the IAD hears matters in an adversarial context: Chieu at para 82. Such a context inherently involves litigation decisions being made by the adversarial parties that may have an impact on the outcome of the case. It may also involve parties conceding or reaching agreement on particular issues so as to avoid needing to litigate every issue. Such concessions and agreements improve the efficiency of the litigation process. There is some indication in the record of this proceeding that such discussion occurred, with counsel for the parties discussing the extent and nature of the evidence on Mr. Grewal’s understanding of marriage, and the order of questioning of Mr. Singh.
Grewal v. Canada (Citizenship and Immigration) was ultimately an example where the Federal Court found that the IAD not accepting a joint submission was procedrually unfair. The Court stated:
The IAD’s indication that Mr. Grewal need only proceed with examination of Mr. Singh if the Minister did not consent precludes such reliance, as it gave a direct signal to counsel that the evidence was not required. Nor does the fact that the IAD reserved its decision change the situation. While the IAD’s indication that it would let the parties know “what that [decision] will be” might be taken as a statement that the IAD was contemplating an adverse finding on genuineness, this statement was made after the hearing was effectively over, after the decision was reserved, and without a reasonable opportunity in the circumstances for Mr. Grewal’s counsel to then argue that if the IAD was going to make an adverse decision, Mr. Singh’s further evidence should first be heard.