Date: 20080625
Docket: IMM-2110-07
Citation: 2008 FC 799
Ottawa, Ontario, June 25, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
DOLMA
TSERING
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION; THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 2007, Ms. Dolma Tsering tried to come to Canada from the United
States to join her boyfriend, Mr. Karma Tashi, who is a permanent resident of Canada.
Ms. Tsering had been living and working in the United States since 2000.
[2]
She was stopped at the border by an immigration officer who found that
she was ineligible to make a refugee claim in Canada. Normally, a person
entering Canada from the United States is ineligible because Canada recognizes
the United States as a “safe third country” in which to make a refugee claim.
However, stateless persons who are former habitual residents of the United
States are exempted from the safe third country rule. Similarly, persons who
are family members of permanent residents of Canada are exempted from the
policy.
[3]
The immigration officer who reviewed Ms. Tsering’s circumstances found
that, while she was stateless, she was neither a former habitual resident of United
States nor a family member of a permanent resident of Canada. Only the former
finding is at issue here. Ms. Tsering argues that the officer’s reasons for
concluding that she was not a former habitual resident of the United States
were either inadequate or unreasonable. She asks to have another officer
reconsider her circumstances.
[4]
I agree that the officer’s reasons were inadequate and must, therefore,
allow this application for judicial review.
I.
Issue
[5]
Were the officer’s reasons for finding that Ms. Tsering was ineligible
for refugee protection adequate?
II. Analysis
(1) The Legislative
Framework
[6]
As mentioned, persons who come to Canada from the United States are,
generally speaking, ineligible to make refugee claims here. However, there is
an exception for stateless persons who are former habitual residents of the United
States. (Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.
27, s. 101(1)(e); Immigration and Refugee Protection Regulations,
SOR/2002-227, s. 159.2, see Annex “A” attached). In this case, the immigration
officer had to decide whether Ms. Tsering fell within that exception.
(2) The
Adequacy of Reasons
[7]
In general, a decision-maker must provide reasons that serve the
purposes for which reasons are required by law – to inform the parties of the
basis for the decision and provide a foundation for a meaningful review of it
on appeal or judicial review: Via Rail Canada Inc. v. Canada
(National Transportation Agency), [2001] 2 F.C. 25, [2000] F.C.J. No. 1685
(F.C.A.) (QL); R. v. Braich, [2002] 1 S.C.R. 903; R. v. Sheppard,
[2002] 1 S.C.R. 869. A failure to give adequate reasons is a breach of natural
justice.
(3) The
Officers’ Decision
[8]
In fact, two officers were involved in Ms. Tsering’s case. One officer
reviewed her circumstances and recommended that Ms. Tsering be found
ineligible. A second officer, after reviewing the first officer’s notes,
concluded that Ms. Tsering was, in fact, ineligible because she was not a
former habitual residence of the United States.
[9]
In these circumstances, both officers’ findings constitute the
actual reasons for the decision. On the question whether Ms. Tsering was a
former habitual resident of the United States, the first officer noted the
following:
- Subject
did not obtain a driver’s license, attempt to obtain any legal status or
open a bank account while in the United
States.
- She
did not have a fixed address, she moved frequently.
[10]
The second officer, after
reviewing the first officer’s notes, simply stated that “subject does not meet
the definition of Habitual Resident”. Both officers concentrated on the
question whether Ms. Tsering was eligible as Mr. Tashi’s common-law spouse and
gave little attention to the issue of habitual residence.
[11]
The meaning of “former
habitual residence” was discussed in Maarouf v. Minister of Employment
and Immigration, [1993] F.C.J. No. 1329 (FCTD) (QL). There, Justice Cullen
described “former habitual residence” as being “broadly comparable” to the
relationship between a citizen and his or her country of nationality. The term
“implies a situation where a stateless person was admitted to a given country
with a view to a continuing residence of some duration, without necessitating a
minimum period of residence” (at para. 38). Justice Cullen concluded that the
Immigration and Refugee Board had erred when it found the claimant was not a
former habitual resident of Lebanon. The claimant had lived in Lebanon for five years as a child and spent a few months there as a
teenager.
[12]
Admittedly, the context in
which the term “habitual residence” was used was somewhat different in Maarouf
than the case before me. That case dealt with the definition of a Convention
refugee in what is now s. 96 of IRPA. Similarly, Justice Luc Martineau
considered the meaning of “habitual residence” in relation to sections 96 and 97
in Kadoura v. Canada (Minister of Citizenship and Immigration),
2003 FC 1057, [2003] F.C.J. No. 1328 (F.C.) (QL). Justice Martineau applied the
reasoning in Maarouf and found that the refugee claimant could not be
considered a former habitual resident of Lebanon as he had never actually lived there
(although his parents had).
[13]
While these decisions involved considerations not relevant here (such as
the claimant’s right of return and the presence or absence of persecution),
both of them included a discussion of “habitual residence” that I believe can
be applied to this case. In essence, to be considered a “former habitual
resident”, a claimant must show that he or she had “established a significant
period of de facto residence in the country in question” (Maarouf,
above, at para. 44). Given that the same term is used in s. 96 and s. 101(1)(e)
of IRPA, it should be given the same meaning.
[14]
In my view, the officers’
findings here do not constitute adequate reasons for deciding that Ms. Tsering
was not a former habitual resident of the United
States. The first officer’s
notes mention only a few of the many factors that might have been relevant to an
assessment whether Ms. Tsering had formed any significant attachment to the
United States, but which do not, in themselves, suggest that she had not been a
habitual resident there. The fact is that she lived and worked in the United States for seven years. In my view, the reasons
do not serve to explain why Ms. Tsering was found not to be a habitual resident
of the United States during that lengthy period of time.
Further, it is not clear what test the officers were actually applying, if any.
Therefore, the reasons do not permit a meaningful review of the merits of the
officers’ conclusion. As discussed, the proper test is whether the claimant has
established a significant period of actual residence in the country in
question.
[15]
Accordingly, I must allow
this application for judicial review and order a reconsideration of Ms.
Tsering’s eligibility to make a refugee claim by another officer. The parties
requested an opportunity to make submissions regarding a question of general
importance. I will entertain any submissions received within ten days of this
judgment.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
- The application for
judicial review is allowed.
- The Court will
consider any submissions regarding a certified question that are filed
within ten (10) days of the issuance of these reasons.
“James
W. O’Reilly”
Annex “A”
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Immigration
and Refugee Protection Act, S.C. 2001, c. 27
Convention
refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to return
to that country.
Person
in need of protection
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
Ineligibility
101.
(1) A claim is ineligible to be referred to
the Refugee Protection Division if
…
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than
a country of their nationality or their former habitual residence;
Immigration
and Refugee Protection Regulations, SOR/2002-227
Non-application
— former habitual residence
159.2 .Paragraph 101(1)(e) of the Act
does not apply to a claimant who is a stateless person who comes directly or
indirectly to Canada from a designated country that is
their country of former habitual residence.
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Loi sur
l'immigration et la protection des réfugiés, L.R. 2001,
ch. 27
Définition de
« réfugié »
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
Irrecevabilité
101. (1) La demande est irrecevable dans
les cas suivants :
[…]
e) arrivée, directement ou
indirectement, d’un pays désigné par règlement autre que celui dont il a la
nationalité ou dans lequel il avait sa résidence habituelle;
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Non-application :
résidence habituelle
159.2 L’alinéa 101(1)e) de la Loi ne
s’applique pas au demandeur apatride qui arrive directement ou indirectement
au Canada d’un pays désigné dans lequel il avait sa résidence habituelle.
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