Date: 20091204
Docket: IMM-1851-09
Citation: 2009 FC 1247
Ottawa, Ontario, December 4, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
RONNIE
TJIUEZA
Applicant
and
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act” or “IRPA”),
of a notice given by an enforcement officer of the Pacific Region Enforcement
Centre of the Canada Border Services Agency (CBSA) under s. 104(1)(b) of the Act,
dated March 30, 2009. The officer found the applicant’s claim for refugee
protection ineligible to be referred to the Refugee Protection Division (RPD)
of the Immigration and Refugee Board (IRB) pursuant to s. 101(1)(f) of the Act,
because the Immigration Division (ID) of the IRB had determined the applicant
to be inadmissible on grounds of security. The ID’s decision is subject to a
judicial review application in the related file IMM-1582-09. The applicant
seeks an order quashing the notice, and ordering that the evidence presented to
the officer “cannot result in a finding of inadmissibility”.
a.
Background
[2]
The
applicant, Ronnie Tjiueza, is a 33 year old citizen of Namibia where he was
a member of the “Caprivi Liberation Movement” (CLM). He arrived in Canada on October
2, 2006 and made a claim for refugee protection at the airport. He alleged that
the Namibian police and military were arresting CLM members. His refugee claim
was initially considered eligible and was referred to the RPD.
[3]
On
October 3, 2008, the applicant was reported as being inadmissible to Canada on security
grounds under s. 34(1)(f) of the Act. This section 44(1) report was
based on his membership in the CLM [Already defined in para. 2], an
organization that was alleged to have engaged in subversion by force of the
Namibian government. This allegation related to an armed attack that took place
on August 2, 1999 against government buildings in the city of Katima Mulido in
the Caprivi region of Namibia.
[4]
On
October 16, 2008, the Canada Border Services Agency (CBSA) notified the RPD
that a report had been referred to the ID to determine whether Mr. Tjiueza was
inadmissible on security grounds. The hearing of Mr. Tjiueza’s refugee
protection claim had not yet been scheduled. Under s. 103(1)(a) of the Act,
this notification suspended the RPD proceedings.
[5]
On
October 21, 2008 the RPD notified Mr. Tjiueza, his counsel, and CBSA that Mr.
Tjiueza’s RPD hearing had been suspended under subsection 103(1) of the IRPA.
The RPD informed Mr. Tjiueza and his counsel that Citizenship and Immigration
Canada would subsequently notify the RPD to either continue the proceedings or
terminate them.
[6]
The
applicant admitted being a member of the CLM, and in a decision dated March 10,
2009 the ID determined that there were reasonable grounds to believe the CLM
had carried out the attack. Therefore, the ID held the applicant inadmissible
to Canada, and issued
him a deportation order. The ID accepted, however, that there was no evidence
the applicant participated in, supported, or had prior knowledge of any violent
act committed by the CLM. This ID decision is the subject of the application for
judicial review in the related file IMM-1582-09.
[7]
On
March 30, 2009, an enforcement officer gave notice that he had determined the
applicant’s refugee claim to be ineligible under s. 101(1)(f) of the Act,
because the ID had determined that the applicant was inadmissible on security
grounds. On the notice, an indiscernible signature appears on the line marked
“Signature of Minister”. An affidavit submitted by Enforcement Officer Trevor
Gross on behalf of the respondent swears that he was the officer who determined
the applicant’s claim, and that the signature on the notice is his. Under s.
104(2) of the Act, this notice had the effect of terminating the
applicant’s refugee claim. This notice is the subject of the present judicial
review.
II. The impugned decision
[8]
The
decision under attack is contained in a one-page letter. The substantive part
of the letter is short enough to be reproduced in its entirety:
The Refugee Protection Division is hereby
notified that pursuant to section 103 of the Immigration and Refugee Protection
Act, it has been determined that your claim for refugee protection is
ineligible to be considered by the Refugee Protection Section, for the
following reasons:
In accordance with paragraph 101(1)(f),
the Immigration Division has ruled that you have been determined to be
inadmissible on grounds of security, as described in section 34 of the
Immigration and Refugee Protection Act.
Consequently, pursuant to section 104,
this notice terminates consideration of your claim for refugee protection.
III. Issues
[9]
Mr.
Tjiueza challenged the authority of the decision-maker in this case, and
submitted that in the absence of any evidence of the decision-maker’s identity,
the respondent must prove that the decision-maker had authority to issue the notice.
Since the Minister has provided uncontradicted evidence that CBSA Inland
Enforcement Officer Trevor Gross signed the Notice and had delegated authority
to make the determination under s. 104 of the IRPA, this issue has been
resolved. Indeed, counsel for the applicant conceded this point at the hearing.
[10]
The
only remaining issue, therefore, is whether the enforcement officer had
discretion over whether or not to issue the notice, and if so, whether he
failed to exercise it.
IV. Analysis
[11]
It
is clear from the jurisprudence that the issue raised by the applicant is
reviewable on a correctness standard. Determining whether or not the officer
had the discretion to issue the notice requires statutory interpretation and is
therefore a question of law. If he had discretion, whether he failed to
exercise it was either an issue of law or of procedural fairness, both of which
are reviewable against the standard of correctness. Finally, if it is found
that he had discretion and that he did exercise it, whether he exercised that
discretion properly is reviewable on a standard of reasonableness.
[12]
The
applicant submits that s. 104 of the Act uses the word “may”: “An
officer may, with respect to a claim that is before the [RPD] …give notice
that an officer has determined that …(b) the claim is ineligible under
paragraph 101(1)(f)”. The applicant therefore argues that s. 104 is permissive:
even if the applicant’s claim is ineligible to be referred to the RPD under s.
101(1)(f), the officer has discretion over whether or not to issue a notice
terminating the applicant’s refugee claim. For ease of reference, the relevant
legislative provisions are reproduced in the Annex to these reasons.
[13]
While
I agree that the word “may” normally entails discretion (see Interpretation Act,
R.S. 1985, c. I-21, s. 11), this cannot be determinative in the case at bar if
only because the French version of section 104(1) (“L’agent donne un avis…”) is
more imperative and appears to direct the officer to give a notice in the
circumstances set out in paragraphs (a) to (d). Be that as it may, a close look
at the statutory scheme as a whole indicates Parliament’s intention to remove
discretion where proceedings have been suspended. Section 104 of IRPA cannot
be interpreted in isolation. As the Supreme Court said in Rizzo & Rizzo
Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21:
Today there is only one principle or
approach, namely, the words of an Act are to read in their entire context and
in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
[14]
Section
101 of IRPA sets out the grounds on which claims are ineligible to be
referred to the RPD for determination. Under paragraph 101(1)(f), a claim is
ineligible if, among other things, “the claimant has been determined to be
inadmissible on grounds of security…”.
[15]
Under
ss. 100(1) and (3) of IRPA, an officer must determine whether a refugee
protection claim is eligible to be referred to the RPD within 3 working days
after receipt of the claim. If no determination is made within 3 days, the
claim is deemed to be referred to the RPD. Paragraph 100(2)(a), however,
provides that the officer shall suspend consideration of the eligibility of the
person’s claim if a report has been referred, pursuant to s. 44, for an
admissibility hearing to determine whether the person is inadmissible on
grounds of security. On October 3, 2006, when Mr. Tjiueza’s claim was referred
to the RPD, the s. 44 report had not been referred to the ID, and the ID had
not yet determined his admissibility.
[16]
After
a refugee protection claim has been referred to the RPD, section 103(1)(a) of IRPA
allows an officer to give notice to the RPD that a matter has been referred to
the ID to determine whether the claimant is inadmissible on certain grounds,
including security. This notice has the effect of suspending the RPD
proceedings. The grounds on which an RPD hearing may be suspended are limited,
and do not include all the grounds on which a claim might be ineligible. The
suspension of a claim prevents the RPD from making a decision before the
claim’s eligibility has been determined.
[17]
In
October 2008, Mr. Tjiueza’s RPD proceedings were suspended under s. 103(1)(a)
of IRPA as a result of a notification by the CBSA that a report had been
referred to the ID to determine whether Mr. Tjiueza was inadmissible on
security grounds. At the time, the hearing of Mr. Tjiueza’s refugee protection
claim had not yet been scheduled. Once the RPD proceedings are suspended, they
may only be continued again if an officer notifies the RPD that the suspended
claim is eligible.
[18]
Section
104 of IRPA also allows an officer to terminate RPD proceedings that are
pending if an officer determines that the claim is ineligible, or that an
ineligible claim was referred to the RPD based on misrepresentation or the
withholding of material facts. The power to terminate pending RPD proceedings
does not depend on the RPD proceedings having first been suspended.
[19]
If
the RPD proceedings are not suspended, and the RPD renders a decision, the
circumstances in which the decision may be nullified are very limited. After
the RPD has made a decision on a claim, the decision may only be nullified if
an officer determines that it was not the first claim received with respect to
the claimant. The decision may not be nullified on the basis that the claim was
ineligible to be referred to the RPD (s. 104(2)(b)).
[20]
Mr.
Tjiueza argues that section 104 of IRPA gave Officer Gross discretion as
to whether or not to notify the RPD that his claim was ineligible, thereby
terminating Mr. Tjiueza’s RPD proceedings. Mr. Tjiueza’s argument, if accepted,
would result in the absurd result that his RPD proceedings would be suspended
indefinitely.
[21]
Indeed,
on its face, the language of s. 103 suspends RPD proceedings indefinitely
unless they are resumed under s. 103(2). Section 103(1) says that proceedings
“are suspended” on notice by the officer that the matter has been referred to
the ID. They are not suspended “pending” or “until” the ID’s decision. Section
103(2) states that “On notice by an officer that the suspended claim was
determined to be eligible”, the RPD proceedings will continue. The statute
provides no other method to have a proceeding continue. Thus, it appears that
if an officer does not expressly determine a claim to be either eligible or
ineligible, the RPD proceedings will remain suspended. I agree with the
respondent that Parliament could not have intended to give the officer the
discretion to suspend RPD proceedings indefinitely.
[22]
It
seems more logical to interpret ss. 103 and 104 together as a statutory scheme
that envisions an officer suspending RPD proceedings only until he can gather
enough information, via the ID’s decision, to make a determination of
eligibility. The scheme then envisions the officer ending the suspension either
by giving notice to the RPD that the suspended claim has been determined to be
eligible under s. 103(2), or by giving notice that the claim is ineligible as a
result of the ID decision under s. 104.
[23]
For
these reasons, while section 104 of IRPA does generally give an officer
discretion as to whether or not to re-determine the eligibility of a claim,
that discretion does not exist in the case of a claim that has been suspended
under s. 103 of IRPA. In the case of a claim that has been suspended,
any discretion that may exist regarding re-determining the eligibility of a
claim would have been exercised in making the decision under section 103 to
suspend the RPD proceedings. Once a claim is suspended, IRPA only
provides for two possible results: either the proceedings are continued because
an officer notifies the RPD that the claim is eligible, or the proceedings are
terminated because an officer notifies the RPD that the claim is not eligible.
[24]
Some
guidance as to Parliament’s intentions may also be gleaned from Citizenship and
Immigration Canada’s manual PP1: Processing Claims for Refugee Protection in
Canada, which states as follows (at p. 49):
An officer “may” proceed with a
redetermination of eligibility if there is information to indicate that the
claimant should not have been found eligible to make a claim or is no longer
eligible to make a claim. [Section] 104 allows an officer to redetermine the
eligibility of a claim and to notify the Refugee Protection Division that the
claim is no longer eligible, thus ending their jurisdiction over the case. Although
redetermination is discretionary, if there is evidence to prove that a person
is ineligible, redetermination should be the preferred course of action. However,
there may be situations where it is appropriate to have the RPD make a decision
on the claim.
[25]
This
manual therefore confirms that the officer generally has discretion under s.
104. However, it states that the officer would only exercise this discretion
because situations may arise where the RPD ought to make a decision on the
claim (for example in cases involving exclusion clauses). Since a claim that
has been suspended under s. 103 will remain suspended indefinitely, the RPD
will never make a decision on this sort of claim. Thus it seems that the
discretion in s. 104 was never meant to apply in this situation.
[26]
This
interpretation is consistent with the provisions of IRPA and the
objectives of this act that require refugee protection claims to be dealt with
efficiently and expeditiously. In particular, s. 162(2) of IRPA requires
the RPD “to deal with all proceedings before it as informally and quickly as
the circumstances and the considerations of fairness and natural justice
permit”.
[27]
Furthermore,
this interpretation is supported by the fact that an indefinite suspension
would not give any practical benefit to the applicant. The applicant still
would not have his refugee claim determined by the RPD. As a result, he would
not be entitled to permanent resident status and the associated rights and
privileges. He would remain subject to the removal order issued by the ID. He
would also remain subject to the restriction on persons found inadmissible for
security reasons that a Pre-Removal Risk Assessment (PRRA) application cannot
result in refugee protection. In short, if the officer exercised a discretion
under s. 104 not to terminate the RPD proceeding, it would offer no practical
benefit to the applicant. It seems absurd that Parliament would grant an
officer a discretion whose exercise would serve no practical purpose. It would
run counter to s. 12 of the Interpretation Act, supra, which
states that “[e]very enactment is deemed remedial, and shall be given such
fair, large and liberal construction and interpretation as best ensures the
attainment of its objects”.
[28]
Having
come to the conclusion that the officer had no discretion, and was required to
determine the eligibility of Mr. Tjiueza’s claim according to the ID finding
and to notify the RPD of his determination, there is no need to address the
other questions raised by the applicant. Needless to say, even though Mr.
Tjiueza’s claim cannot be heard by the RPD, he may still have his risk assessed
by making a PRRA application.
[29]
Counsel
for both the applicant and the respondent have proposed a certified question
pertaining to the proper interpretation of s. 104. Their proposed questions are
virtually identical, although I believe the wording of the applicant’s proposal
is more neutral than the respondent’s. The applicant’s proposed question reads as
follows:
After
an RPD hearing has been suspended under s. 103 of the Immigration and
Refugee Protection Act pending the outcome of an ID hearing and
re-determination of a claim's eligibility, if the ID determines that the
claimant is inadmissible for security reasons, does the officer have discretion
under the Immigration and Refugee Protection Act to not re-determine the
claim's eligibility and to not notify the RPD of the officer's decision on
eligibility, and thereby suspend the RPD hearing indefinitely?
[30]
There
is no doubt in my mind that this question deserves to be certified. It clearly
transcends the interests of the parties, it contemplates an issue of general
application and it is also determinative of the appeal: Canada (Minister of Citizenship
and Immigration) v. Liyanagamage (F.C.A.), 176 N.R. 4 A.).
JUDGMENT
THIS COURT
ORDERS
that this application for judicial review is dismissed. The following
question is certified:
After
an RPD hearing has been suspended under s. 103 of the Immigration and
Refugee Protection Act pending the outcome of an ID hearing and
re-determination of a claim's eligibility, if the ID determines that the
claimant is inadmissible for security reasons, does the officer have discretion
under the Immigration and Refugee Protection Act to not re-determine the
claim's eligibility and to not notify the RPD of the officer's decision on
eligibility, and thereby suspend the RPD hearing indefinitely?
“Yves de Montigny”
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