Date: 20090508
Docket: IMM-4183-08
Citation: 2009 FC 466
BETWEEN:
GUANQIU
ZENG
YANHONG FENG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON D.J.
Introduction
[1]
These
Reasons follow the hearing at Toronto on the 9th of April, 2009, of
an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the “RPD”) wherein the RPD
rejected the Applicants’ claims to Convention refugee status or like protection
on the ground that they were excluded from protection under Article 1E of the
1951 Convention on the Status of Refugees (the “Refugee Convention”).
The member of the RPD wrote:
In my view, based upon the balance of
probabilities, both claimants held a permanent residence status in Chile at the
time of the hearing sufficient that they could or should have been able to
return to Chile with their Chilean son and that they would have sufficient
rights and obligations similar to that of nationals of Chile such that, under
Article 1E of the 1951 Convention on the Status of Refugees, their
claims for refugee protection in Canada are excluded. I therefore reject the
claims of [the Applicants]. As stated previously, I have also rejected the
claim of their son, Jun Yan Zeng Feng.
[2]
The
Applicants’ son referred to in the above quotation was born in Chile and is a
citizen of that country.
[3]
The
decision under review is dated the 12th of September, 2008.
Background
[4]
The
Applicants are husband and wife and citizens of the People’s Republic of China (the “PRC”).
When they left the PRC, they left behind them, in the care of her grandparents,
a daughter.
[5]
Guanqiu
Zeng left the PRC, for Chile, on the 6th of November, 2002.
He had an offer of employment in Chile. He received a Chilean
work permit and obtained foreign registration (temporary resident) status in Chile on the 23rd
of April, 2003.
[6]
Yanhong
Feng followed her husband to Chile on the 23rd of December, 2003, on a
visitor’s visa. She received a Chilean work permit on the 23rd of
April, 2004 and foreign registration (temporary resident) status in Chile on the 17th
of November, 2004.
[7]
A
second child, a son, was born to the Applicants in Chile on the 29th
of August, 2005.
[8]
On
the 19th of May, 2006, the Applicants, with their son, left Chile to return to
the PRC. They travelled on return air tickets, through Canada.
[9]
On
their return to the PRC, the Applicants claim to have been persecuted by reason
of that country’s one child policy. In the result, on or about the 21st
of June, 2006, only slightly more than one month after returning to the PRC
from Chile, the Applicants availed themselves of their return air tickets but,
rather than transiting through Canada and continuing to Chile, they entered
Canada on their arrival here and claimed Convention refugee status or like
protection.
The Decision Under
Review
[10]
Early
in its reasons, the RPD noted with respect to the Applicants’ son:
The dependant claimant son does not raise
a claim for refugee protection against any country…
It is acknowledged by counsel for the
claimants that the dependant claimant son, Jun Yan Zeng Feng, is only a citizen
of Chile and not China. The son has not raised any
claim against Chile. Accordingly, counsel
concedes that this son has no valid claim for refugee protection in Canada. …
[11]
Section
98 of the Immigration and Refugee Protection Act
(the “Act”) provides that a person referred to in section E
or F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection. Sections E and F of Article 1 of the Refugee Convention
are scheduled to the Act. Section E reads as follows:
|
E. This
Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the
rights and obligations which are attached to the possession of the
nationality of that country.
|
E. Cette Convention ne sera pas applicable à une personne
considérée par les autorités compétentes du pays dans lequel cette personne a
établi sa résidence comme ayant les droits et les obligations attachés à la
possession de la nationalité de ce pays.
|
[12]
The
RPD noted:
The Minister
submits that both the husband and wife have obtained permanent resident status
in Chile whereby they have rights and obligations which are attached to the
possession of the nationals of Chile such that Article 1E should apply and
that, therefore, their claims for refugee protection should be rejected. As
stated above, counsel for the claimants submits in response that the two do not
have such status and therefore, they are entitled to claim refugee protection
in Canada.
[13]
The
RPD noted that an “important issue” in considering exclusion under Article 1E
“… concerns the point in time one looks at
when coming to determinations about the status of the claimant in the putative
alternative country.”
[14]
The
RPD further noted:
In Madhi the Federal Court of
Appeal held that the real question that had to be determined was whether the
claimant was, when they applied for admission to Canada, a person who was still
recognized by the competent authorities of the putative Article 1E country as a
permanent resident of that country. That issue was to be decided on a balance
of probabilities.
There are other decisions which have
found that the appropriate time of the determination is at the time of the
hearing before the Board…
[emphasis
in original; citation omitted]
[15]
The
RPD concluded on the issue of the appropriate point in time as follows:
This Panel heard from both Minister’s
counsel and claimant’s counsel on this question. In this case, both counsels
took the position that the appropriate time for determination of the status of
the claimants in the putative Article 1E country was at the time of the
hearing. Accordingly, that is the time of assessment I will utilize.
[emphasis in original]
[16]
Counsel
for the Applicants, the claimants before the RPD, urged that, even if the
Applicants had acquired permanent resident status, which he did not concede
they had, by reason of their absence from Chile for more than a year before the
date of the hearing before the RPD without having taken steps to extend their
status, the Applicants had lost that status in Chile by the date of the hearing
before the RPD and therefore Article 1E did not apply to them. In this regard,
the RPD concluded:
… Moreover, if that status could have
been lost, as suggested by claimants’ counsel, because the claimants were
outside of Chile for more than a year without
applying to extend their permanent status, the failure to make such an
application is that of the claimants themselves which, as stated by the
authorities, cannot avail to their benefit.
[17]
In
the result, as noted above, the RPD concluded that the Applicants were excluded
from Convention refugee protection or like protection.
The Issues
[18]
In
an Applicants’ Further Memorandum Of Fact and Law, filed the 24th of
March, 2009, counsel for the Applicants defines the issues here before the
Court in the following terms:
-
What
is the relevant date for a determination whether a person should be excluded
under Article 1E of the Refugee Convention?
-
Did
the tribunal err in law in concluding that the Applicants continued to have
permanent residence status in Chile?
[19]
In
a Respondent’s Further Memorandum Of Argument, counsel for the Respondent urged
that the sole issue before the Court, apart from the issue of standard of
review, was whether or not the RPD erred in finding that the Applicants are
excluded pursuant to Article 1E of the Refugee Convention.
[20]
For
reasons that will become apparent from what follows, I prefer the Respondent’s
broad-based definition of the principle issue herein.
Analysis
(a) Standard of Review
[21]
Counsel
for the Respondent urges that the test for exclusion under Article 1E of the
Refugee Convention is a question of law that attracts a correctness standard of
review. In support of this position, counsel for the Respondent refers to Dunsmuir
v. New
Brunswick at paragraphs
45, 49 50, 55, 63 and 64.
[22]
That
being said, counsel for the Respondent acknowledges that the question of
whether or not the facts of any particular case support the conclusion that a
person is excluded pursuant to Article 1E of the Refugee Convention, by virtue
of section 98 of the Act, is a question within the specialized area of
expertise of the RPD and thus attracts a standard of review of reasonableness.
[23]
I
conclude that the test for exclusion under Article 1E is a question of law
reviewable on a correctness standard so that if the wrong test is applied, the
decision under review must be set aside and that the application of the correct
test to the particular facts before the RPD is reviewable on a reasonableness
standard with substantial deference owed to the RPD’s conclusion in that
regard.
(b) The
Test for Exclusion Under Article 1E of the Refugee Convention
[24]
It is interesting to note that while the Supreme Court of Canada has not
had occasion to comment on the proper application of Article 1E of the Refugee
Convention, in Rosenberg v. Yee Chien Woo,
the United States Supreme Court broached the question of whether an asylum
seeker with ties to a third country could qualify as a refugee, albeit with
reference only to domestic American law. The USSC held that “firm
resettlement” in a third country “is one of the factors which the Immigration
and Naturalization Service must take into account to determine whether a
refugee seeks asylum in this country as a consequence of his flight to avoid
persecution,” but stopped short of mandating peremptory exclusion if “firm
resettlement” was established. Indeed, the four dissenting judges would not
have attached any consequence to third country settlement.
[25]
It
is fair to say that Canada has been less indulgent to would-be refugees
with ties to a safe third-country, who may be excluded peremptorily under the
terms of Article 1E. I am satisfied that there remains, by reason of case law,
a need for nuance. In Canada (Minister of
Citizenship and Immigration) v. Manoharan, I wrote at
paragraph 28 of my Reasons:
The evidence before the Court indicates
that, when the Respondent applied for admission to Canada, to paraphrase the words of Article 1E
of the Convention, he was a person who was recognized by the competent
authorities of Germany as having the rights and obligations attached to the
possession of the nationality of Germany.
That being said, I do not read the words of the Mahdi decision
as being absolute. I prefer an interpretation of those words that reflects the
rationale provided by Justice Rouleau in the Choovak
decision. While article 1E should be read in a manner that precludes the abuse
of “jurisdiction shopping”, it should also be read, in the words of Justice
Rouleau, “... in a more purposive light so as to provide safe-haven to those
who genuinely need it...”. Such a reading is consistent with the first
objective stated in subsection 3(2) of the Immigration and Refugee
Protection Act, which provides that among the objectives of that Act
with respect to refugees [is] “... to recognize that the refugee program is in
the first instance about saving lives and offering protection to the displaced
and persecuted”. That objective was not a stated objective of the Canadian
Refugee Law at the time of either the Mahdi or Choovak decisions,
nor was it the law of Canada at the time of the “exclusion”
decision in favour of the Respondent and his mother that is here sought to be
reviewed. That being said, on the very particular facts of this matter, I am
satisfied that the “exclusion” decision in favour of the Respondent and his
mother was correct and that the Mahdi decision is distinguishable by
reason of the different factual background that was there at issue and the
newly stated statutory objective just referred to.
[citations omitted]
[26]
I
am satisfied that the foregoing is not inconsistent with the position adopted
by the Federal Court of Appeal in Mahdi v. Canada (Minister of
Citizenship and Immigration). Both decisions, in my view, imply a test
for exclusion under Article 1E of the Refugee Convention that is more complex
than simply application of the facts as of the choice between two dates,
namely, the date protection is sought in Canada and the date of the hearing to
determine whether protection should be granted.
[27]
Much
more recently, in Parshottam v. Canada (Minister of
Citizenship and Immigration), the
Federal Court of Appeal had before it an appeal from a decision of this Court
wherein the following question was certified:
Once the Refugee Protection Division
excludes an individual from protection under Article 1E of the Refugee
Convention and IRPA s.98 due to having nationality of a third country, what is
the relevant date for a PRRA officer’s determination whether the individual
should also be excluded under Article 1E and s.98 from PRRA protection – the
time of admission to Canada or the time of the PRRA application?
[28]
Justice
Evans, writing for the majority, declined to answer the certified question on
the ground that an answer to it would not be dispositive of the appeal. That
being said, Justice Evans went on to add that he did not share the view that it
is “settled law” that whether a claimant for protection in Canada is a
permanent resident of a third country for the purpose of Article 1E and
s.98 of the Act is invariably
determined as of the time of the claimant’s arrival in Canada and that
subsequent events are irrelevant.
[29]
Justice
Sharlow, in separate concurring reasons in Parshottam, supra,
wrote at para. [38]:
... I agree with Justice Evans that this
issue is unsettled but I do not agree that it should remain unsettled, even if
it is not dispositive of this appeal. I reached that conclusion because the
Federal Court jurisprudence discloses some confusion on this point and because
Justice Mosely, by certifying the question, has expressed the opinion that it
is a serious question of general importance.
Justice Sharlow then went on to answer the
certified question in terms specifically applicable to the matter that was
there before the Court.
[30]
Before
me, both counsel for the Applicants and for the Respondent urged that I should
utilise this particular matter to propose a test in more general terms. I
accept that challenge.
[31]
It
is important, I think, that any novel test be consonant with established
principles of Canadian law relating to refugee determination. Two of those
principles strike me as particularly worthy of mention in this context:
- first, it has been consistently held by this Court and the Federal
Court of Appeal that a refugee claimant’s failure to seek protection at the
earliest available opportunity may undermine his or her claim, in that
such a failure may indicate a lack of subjective fear: see the decision
of Justice Michel Shore in Semextant v. Canada (Minister of Citizenship and
Immigration),
and cases cited therein. A claimant’s failure to claim protection in a state
through which he or she has transited en route to Canada, however, will not
justify a peremptory dismissal of the claim, because factors explaining the
failure to claim protection at an earlier time may emerge in an analysis on the
merits; and
- second, the acquisition of refugee status rests on a forward-looking
inquiry, in that protection should only be granted where a claimant has a
well-founded fear of persecution in the future: Fernandopulle v. Canada (Minister of Citizenship and
Immigration).
Bearing these principles in mind, I
am satisfied that any test which would justify a peremptory exclusion from
protection based on the claimant’s status in a third country at the date
protection is claimed, as opposed to his or her status on the date the claim is
determined, is to be avoided as inconsistent with the forward-looking
orientation of refugee determination.
[32]
The
foregoing being said, if at the time of his or her application for protection,
a refugee claimant had status in a third country, which has subsequently
lapsed, the sincerity of the fear of persecution alleged may be called into
question. That is a factor which can only be fairly weighed, however, by
inquiring whether the claimant has raised good and sufficient reasons for not
availing themselves of refuge in the third country while this was still
possible. This will invariably involve at least some consideration of the
merits of the claim.
[33]
Counsel
for the Respondent, in her Further Memorandum of Argument, proposed the
following:
The Respondent submits that the Refugee
Division can look at the status of the Applicants upon arrival in Canada and thereafter, up until and
including the date of the hearing. The Refugee Division must also consider
what degree of responsibility should be borne by the Applicants if their status
has changed.
[34]
I
adopt the substance of the foregoing submission but would propose the following
more specific three-step test:
1.
Did the applicant or applicants, as of the date of his, her or their
application for protection in Canada, have status in a third country, on the
facts of this matter Chile, to which are attached rights and obligations
recognized by the competent authorities of that country to be equivalent to
those attached to the possession of the nationality of that country?
If the answer to that question is “no”,
then the applicant or applicants are not excluded under Article 1E. If the
answer to the question is “yes”, then the decision-maker should go on to the
following question:
2.
Would the applicant or applicants, if he, she or they had attempted to enter
the country in question, in this case Chile, on the date their refugee claim
was determined, on a balance of probabilities, have been admitted to the
country in question with status equivalent to that which they had on the date
they applied for protection in Canada?
If the answer to the foregoing question is
“yes” then the applicant or applicants should be excluded under Article 1E. If
the answer is “no”, the decision-maker should proceed to the following
question:
3.
If the applicant or applicants would not be admitted to the country in
question, in this case Chile, could the applicant or applicants have
prevented that result and, if so, did he, she or they have good and sufficient
reason for failing to do so?
If the applicant or applicants could have
preserved his, her or their right to be permitted entry and failed to do so
without good and sufficient reason for failing to do so, the applicant or
applicants should be excluded under Article 1E. If the applicant or applicants
could not have preserved his, her or their right of entry or could have but
provided good and sufficient reason for failing to do so, then he, she or they
should not be excluded under Article 1E.
(c) Application of the
Foregoing Formulation of the Test to the Facts of this Case
[35]
The
RPD found the Applicants, on a balance of probabilities, and on the basis of
evidence adduced by the Respondent, to have acquired status in Chile to which
was attached rights and obligations equivalent to those attached to Chilean
nationality and not to have lost that status at the time of the hearing before
it, the relevant point in time in the submission of both counsel for the
Applicants and for the Respondent. It simply failed to examine whether the
Applicants still had that status only because the fact that the Applicants had
been outside of Chile for more than a year at the time of the hearing
before the RPD had not come to the attention of Chilean authorities.
[36]
That
the length of the Applicants’ absence from Chile might not have come to the
attention of Chilean authorities is not surprising and it is therefore equally
not surprising that if the Applicants indeed had such status and presented
themselves at a port of entry to Chile and were examined regarding the length
of their absence, they might not have been admitted since their status might
have been found to have expired.
[37]
Evidence
as to the foregoing possibility was not before the RPD and I am satisfied the
burden was on the Respondent to bring forward such evidence. In the absence of
such evidence, it was simply impossible for the RPD to fulfill the objective of
the Act specified in paragraph 3(2)(a), that is to say, to fully
recognize that the Refugee program is, in the first instance, about saving
lives and offering protection to the displaced and persecuted. In failing to
fulfill that objective through examination of the Applicants’ claim to a fear
of persecution if they are required to return to the PRC because they might not
be readmitted to Chile, I am satisfied that, against whatever standard of
review is appropriate, the RPD erred in a reviewable manner in deciding this matter
as it did.
Conclusion
[38]
For
the foregoing reasons, this application for judicial review will be allowed,
the decision under review will be set aside and the Applicants’ application for
protection will be referred back to the RPD for redetermination by a differently
constituted panel.
Certification of a
Question
[39]
At
the close of the hearing of this application for judicial review, the Court
advised counsel that it would circulate these reasons for decision and provide
an opportunity for submissions on certification of a question. These reasons
will be circulated and counsel will have fourteen (14) days from the date of
circulation to consult on the issue of certification and to provide submissions
to the Court confirming that consultation has taken place and reflecting any
recommendations, with supporting reasons, regarding certification.
“Frederick
E. Gibson”
OTTAWA,
ONTARIO
May 8,
2009
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