Date: 20100208
Docket: IMM-3572-09
Citation: 2010 FC 125
Ottawa, Ontario, February 8,
2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CHO
DURI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Mr. Cho Duri, filed the present application for judicial review
after his application to reinstate his withdrawn refugee claim was summarily
dismissed on June 30, 2009, by a member of the Refugee Protection Division of
the Immigration and Refugee Board (the Division), on the grounds that the
Division has no jurisdiction to reinstate a claim that was never referred to it
by an officer of the Canadian Border Services Agency (the impugned decision).
I FACTUAL BACKGROUND
[2]
The
applicant is a Bangladeshi man who became a citizen of South Korea in 2005.
Since 2006, he has had a number of interactions with Canadian immigration
officials culminating in the impugned decision. The applicant moved to South Korea from Bangladesh in 1991. For
many years, he worked without status in South Korea as a migrant
worker. In 1998, he met his wife, a citizen of South Korea, and they
got married in 2002. In 2005, after the applicant became a Korean citizen, he
claims to have been the target of severe discrimination based on his ethnicity.
[3]
The
applicant and his wife landed in Vancouver on December 28, 2006.
When questioned by immigration officials about the purpose of their trip, the
applicant and his wife stated that they were coming to Canada to sightsee
and visit relatives. As a result of a luggage examination and a call, which led
immigration officials to conclude that they intended to stay in Canada, the
applicant and his wife were separated and further examined by immigration
officials. During his examination, the applicant claimed refugee protection on
the ground that as a Bangladeshi man, he was subject to discrimination in South Korea. After being
informed that the applicant had claimed refugee protection, the applicant’s
wife became extremely distraught. She claimed to have come to Canada to follow
her husband, and while she acknowledged that her husband faced problems in South Korea, she said
that she did not have any problems. At no point did she make a claim for refugee
protection. Both the applicant and his wife were then detained.
[4]
On
December 29, 2006, less than 24 hours after they arrived, the applicant
requested to return to South Korea with his wife. He
stated that he was not at risk in South Korea and he signed the forms
to withdraw his refugee claim and waive his right to a pre-removal risk
assessment (PRRA). The applicant and his wife left Canada voluntarily
on December 29, 2006. The applicant did not attempt to return to Canada until 2009.
[5]
Upon
return to Korea, the
applicant became a vocal advocate for migrant workers’ rights. As a result of
his activism, the applicant claims that the difficulties he was facing as a Bangladeshi in Korea only got worse. On March 12, 2009, the applicant
was hit by a car, an incident he claims was not an accident. Fearing further
attacks, the applicant left South Korea and arrived in Toronto on March 31,
2009, alone. He entered as a visitor and at the Toronto Pearson International Airport he
was granted temporary resident status until September 30, 2009. On April 24,
2009, the applicant made a second refugee claim in Montreal. On May 20,
2009, the applicant was informed that he was ineligible to make a refugee claim
because he had previously withdrawn an application for refugee protection. On
that same date the applicant was issued an exclusion order.
[6]
The
applicant has not sought leave to judicially review the decision to find him
ineligible to make a refugee claim. His counsel has made it clear to the Court
that the purpose of the present application is not to review this former
decision. In any event, the applicant is now time barred from bringing an
application for leave to judicially review this decision. He did, however, seek
leave for judicial review of the exclusion order. This Court denied the
applicant’s application for leave on September 10, 2009. In the
meantime, on May 27, 2009, the applicant filed an application to reinstate his
withdrawn refugee claim with the Division. On June 30, 2009, the Division replied
to the applicant’s application stating that “the IRB has no jurisdiction on the
file as it was never referred from the Canadian Border Services Agency.” It is
this new decision that the Court is asked to review in the present application.
II JURISDICTIONAL ISSUE
[7]
While
both the applicant and the respondent have raised various issues in their
written materials, it turns out that the only issue left for the Court to
determine is whether the Division had jurisdiction to reinstate the applicant’s
claim for refugee protection.
[8]
Whether
the Division had jurisdiction to reinstate a claim that has not been referred
to it by an officer of the Canadian Border Services Agency is a question of law
that is reviewable on a standard of correctness (Dunsmuir v. New
Brunswick,
2008 SCC 9 at paragraph 50 and Gonulcan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 32 at paragraph 14). The position of the respondent is that since the claim for refugee
protection made on December 28, 2006 was never referred to the Division by an
officer, the Division simply does not have the jurisdiction to reinstate it.
The applicant opposes this proposition.
[9]
To
answer the question raised in this proceeding, the Court must assess the
relationship between section 100 and paragraph 101(c) of the Immigration and
Refugee Protection Act, S.C. 2001, c-27 (the Act) with Rule 53 of the Refugee
Protection Division Rules SOR/2002-228 (the Rules). For ease of
reference, they read as follows:
|
100. (1) An officer shall, within three
working days after receipt of a claim referred to in subsection 99(3),
determine whether the claim is eligible to be referred to the Refugee
Protection Division and, if it is eligible, shall refer the claim in
accordance with the rules of the Board.
(2) The officer shall suspend consideration of the
eligibility of the person’s claim if
(a) a report has been referred for a
determination,
at an admissibility hearing, of whether the person is
inadmissible on grounds of security, violating human or international rights,
serious criminality or organized criminality; or
(b) the officer considers it necessary to wait for
a decision of a court with respect to a claimant who is charged with an
offence under an Act of Parliament that is punishable by a maximum term of
imprisonment of at least 10 years.
(3) The Refugee Protection Division may not consider a
claim until it is referred by the officer. If the claim is not referred
within the three-day period referred to in subsection (1), it is deemed to be
referred, unless there is a suspension or it is determined to be ineligible.
(4) The burden of proving that a claim is eligible to be
referred to the Refugee Protection Division rests on the claimant, who must
answer truthfully all questions put to them. If the claim is referred, the
claimant must produce all documents and information as required by the rules
of the Board.
(5) If a traveller is detained or isolated under the Quarantine Act,
the period referred to in subsections (1) and (3) does not begin to run until
the day on which the detention or isolation ends.
101. (1) A claim is ineligible to be
referred
to the Refugee Protection Division if
…
(c) a prior claim by the claimant was determined
to be ineligible to be referred to the
Refugee Protection Division, or to have been
withdrawn or abandoned;
…
53. (1) A person may apply to the Division
to reinstate a claim that was made by that person and withdrawn.
(2) The person must follow rule 44, include their contact
information in the application and provide a copy of the application to the
Minister.
(3) The Division must allow the application
if it is established that there was a failure to observe a principle of
natural justice or if it is otherwise in the interests of justice to allow
the application.
|
100. (1) Dans les
trois jours ouvrables suivant
la réception de la
demande, l’agent statue sur sa recevabilité et défère, conformément aux
règles de la Commission, celle jugée recevable à la Section de la protection
des réfugiés.
(2) L’agent sursoit
à l’étude de la recevabilité dans les cas suivants :
a) le cas a
déjà été déféré à la Section de l’immigration pour constat d’interdiction de
territoire pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux, grande criminalité ou criminalité organisée;
b) il
l’estime nécessaire, afin qu’il soit statué sur une accusation pour
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans.
(3) La saisine de la
section survient sur déféré
de la demande; sauf
sursis ou constat d’irrecevabilité, elle est réputée survenue à l’expiration
des trois jours.
(4) La preuve de la
recevabilité incombe au
demandeur, qui doit
répondre véridiquement
aux questions qui
lui sont posées et fournir à la
section, si le cas
lui est déféré, les renseignements et documents prévus par les règles de la
Commission.
(5) Le délai prévu
aux paragraphes (1) et (3) ne court pas durant une période d’isolement ou de
détention ordonnée en application de la Loi sur la mise en quarantaine.
101. (1) La demande
est irrecevable dans les cas suivants :
…
c) décision
prononçant l’irrecevabilité, le désistement ou le retrait d’une demande
antérieure;
…
53. (1) Toute
personne peut demander à la Section de rétablir la demande d’asile qu’elle a
faite et ensuite retirée.
(2) La personne fait
sa demande selon la règle 44; elle y indique ses coordonnées et transmet une
copie de la demande au ministre.
(3) La Section accueille la demande soit sur preuve du
manquement à un principe de justice naturelle, soit s’il est par ailleurs
dans l’intérêt de la justice de le faire.
|
[10]
The
applicant argues that there is nothing within the wording of Rule 53 that
restricts applications for reinstatement to claims that have been referred to
the Division. According to the applicant, if the criteria in Rule 53(3) are
met, the Division must allow the application for reinstatement. The applicant
argues that since an application was submitted in accordance with Rule 44, as
provided by Rule 53(2), the Division erred by refusing to exercise
jurisdiction over his claim. Alternatively, if the Court decides that a claim
must be referred to the Division before it has jurisdiction to reinstate it,
the applicant argues that since his claim was not deemed ineligible under
section 101 of the Act, pursuant to subsection 100(3), the refugee claim he
made in 2006 should be deemed to have been referred to the Division by the
simple passage of time.
[11]
According
to a plain reading of section 100 of the Act, the Division cannot simply consider
a claim before it is actually referred to it by an officer (see subsection
100(3)), and an officer shall refer a claim to the Division within three days
of the claim being made, unless the officer determines that the claim is
ineligible for referral (see subsection 100(1)). Rule 53 is a regulatory provision
that deals with the reinstatement of a withdrawn claim or application. Rule 53
simply complements section 100. An applicant may apply to the Division to
reinstate a claim that he or she has previously withdrawn if the person submits
an application in the prescribed form (see Rules 53(1) and 53(2)). An
application for reinstatement must be allowed, according to Rule 53(3), if it
is established that there was a failure to observe a principle of natural
justice or if it is otherwise in the interests of justice. According to section
101 of the Act, a claim may be ineligible if, inter alia, a prior claim
was made by the same person and withdrawn or abandoned (subsection 101(c)). If
an officer does not refer a claim, and the claim is not suspended or determined
to be ineligible, within three days, then subsection 100(3) of the Act provides
that the claim is deemed to have been referred to the Division for
consideration.
[12]
With
the foregoing in mind, the applicant’s arguments cannot stand.
[13]
The
suggestion made by applicant’s counsel that the applicant’s claim was referred
to the Division because it was not deemed ineligible under section 101 is
illogical. A claim that has been withdrawn cannot be referred to the Division
because it is no longer in existence. With regard to Rule 53 and the ability
for a person to apply to reinstate a claim they previously withdrew, it does
not make sense that the Division would have the authority to reinstate a claim
that was never referred to it. This is supported by the fact that subsection
100(3) of the Act explicitly provides that “the Refugee Protection Division may
not consider a claim until it is referred by [an] officer.” If the Division
cannot consider a claim until it is referred by an officer, there is no
authority that provides that the Division may reinstate a claim that an officer never referred.
[14]
In
the case at bar, the applicant withdrew his first claim for refugee protection
within 24 hours of making it. This means that his claim was never referred to
the Division and, therefore, the Division does not have jurisdiction to
consider his application for reinstatement. Thus, the Division did not err in
its decision to decline jurisdiction over the applicant’s application for reinstatement
of his refugee claim.
III CONCLUSION
[15]
For
the reasons above, this application for judicial review shall be dismissed.
[16]
The
applicant has proposed the following question for certification:
Does the
Division have jurisdiction to entertain an application to reinstate a claim for
refugee protection that was withdrawn by a claimant before an officer referred
it to the Division?
[17]
The
respondent already indicated that the impugned provisions of the Act and the
Rules are clear and command a negative answer to the above question. Thus, if
the present application is to be dismissed, there is no need to certify the
proposed question by the applicant.
[18]
I
do not think that there is a serious question of general importance in this
case.
[19]
While
the question raised by the applicant may be determinative of an appeal of this
judgment, counsel for the applicant concedes that the facts of this case are
exceptional. A claimant will rarely return to his or her country prior to the
issuance of an exclusion order; most claimants will not withdraw, at a port of
entry, a claim he or she has made for refugee protection. On the contrary, most
often applicants will want to make a claim for refugee protection after an
exclusion order has been issued against them, when it is too late to do so.
Moreover, even if the question raised by the applicant is new and somewhat interesting,
it remains that the impugned provisions of the Act and the Rules are clear and
speak from themselves. Thus, in the present circumstances, it does not appear
necessary to have the issue considered by the Federal Court of Appeal.
[20]
Accordingly,
in the exercise of my discretion, no question of general importance will be
certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review be dismissed. No question of general importance is certified.
“Luc
Martineau”
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