Biosa v. Canada (Public Safety and Emergency Prepardness), 2014 FC 431

Date: 20140506

Docket: IMM-4184-13

Citation: 2014 FC 431

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Ottawa, Ontario, May 6, 2014

REASONS FOR ORDER AND ORDER

I.          Introduction

[1]               This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of a decision dated June 12, 2013, by the Minister’s delegate, Philippe Boucher Legault, a Canada Border Services Agency [CBSA] officer, in which he determined that the applicant’s refugee claim was ineligible to be referred to the Refugee Protection Division [RPD] pursuant to the Canada‑U.S. Safe Third Country Agreement [the Agreement] and issued an exclusion order against the applicant.

II.        Facts

[2]               The applicant is a citizen of the Democratic Republic of Congo [DRC].

[3]               On June 12, 2013, she entered Canada from the United States, accompanied by her seven children, and they all claimed refugee protection in Canada on their arrival.

[4]               The applicant’s refugee claim was determined to be ineligible to be referred to the RPD under the IRPA, the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] and the Agreement, and a report setting out the relevant facts was prepared pursuant to subsection 44(1) of the IRPA.

[5]               The Minister’s delegate examined the report and was of the opinion that it was well‑founded. An exclusion order was then issued against the applicant.

[6]               The refugee claims of the applicant’s children were allowed because they fell under one of the exceptions to the Agreement set out in the IRPR.

[7]               The applicant and her children had already made refugee claims on August 31, 2012, but all the claims had been determined to be ineligible to be referred to the Refugee Division. She brought an application for judicial review of that refusal, and the respondent consented to the applicant and her children appearing at the border again. The current application for judicial review relates to the decision made as a result of this second attempt where, this time, the applicant’s claim was rejected but not the children’s. She then decided to entrust her children to her brother‑in‑law, a Canadian resident and the children’s uncle.

III.       Impugned decision

[8]               The short decision is accompanied by observations recorded in the computer system. They state that the refugee claim was determined to be ineligible to be referred to the RPD pursuant to paragraph 101(1)(e) of the IRPA because the applicant “came directly or indirectly from a country designated by the regulations, other than a country of [her] nationality or [her] former habitual residence”. The applicant arrived from the United States, a state designated as a safe country by the IRPR, and since her claim did not fall under any of the exceptions to the Agreement in the IRPR, she had to return to the United States. The children had a family connection in Canada because their paternal uncle lives here, and their refugee claims were determined to be eligible to be referred to the RPD since, unlike their mother, they fell under one of the exceptions to the Agreement. The applicant was told that she could take her children with her to the United States and file a claim there or leave the children with their uncle in Canada and make her own claim in the United States.

[9]               An exclusion order was issued against the applicant pursuant to subsection 44(2) of the IRPA stating that the applicant was inadmissible under section 41 of the IRPA because she failed to comply with the Act, specifically paragraph 20(1)(a) of the IRPA and section 6 of the IRPR; these two provisions require foreign nationals to establish that they hold the visa or other document required to seek to establish permanent residence in Canada.

IV.       Applicant’s arguments

[10]           The applicant argues that the impugned decision in this case cannot stand, inter alia, because the officer improperly applied the criteria associated with the exceptions to the Agreement and because the decision was made without regard to some important evidence. The applicant should have been admitted to Canada under the family member exception since she has a niece in Canada. Indeed, the applicant’s brother‑in‑law (her spouse’s brother) lives in Canada with his daughter, a Canadian citizen, who is automatically the applicant’s niece for the application of the administrative provisions of the Agreement. During her examination at the port of entry, the applicant answered that she did not have a niece in Canada due to the fatigue and stress she was experiencing and the traumas she was recovering from. Her claim should also have been allowed under the exception for public interest and the best interests of the seven children. The return of the applicant and her children to the DRC would expose them to a huge risk to their safety and physical and psychological integrity, inter alia, because the applicant’s spouse is a member of the opposition in a corrupt and repressive government. The best interests of the children also dictate that they not be separated from their mother or returned to the DRC.

[11]           Moreover, the CBSA officer’s decision infringes the protections guaranteed under the Canadian Charter of Rights and Freedoms (Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11) [Canadian Charter] and contravenes Canada’s international obligations under various treaties that Canada is a party to because the DRC is a country under a moratorium as a result of the atrocities committed there; returning the applicant and her children to that country would violate, inter alia, sections 7 and 12 of the Canadian Charter.

V.        Respondent’s arguments

[12]           The respondent points out that the burden in this case was on the applicant. Because she entered Canada from the United States, it was entirely reasonable for the officer to find that the claim was ineligible to be referred to the Refugee Protection Division and to issue a removal order against her.

[13]           The applicant claims that she has a Canadian niece, but she stated the opposite during her examination. Indeed, she did not tell the officer about this niece. This statement, by the applicant’s own admission, constitutes fresh evidence, and the Court cannot take it into consideration in these proceedings. Moreover, there is no evidence corroborating the applicant’s allegations.

[14]           In addition, regarding the public interest, the best interests of the children and the applicant’s arguments concerning the Canadian Charter, it must be noted that the applicant was not returned to the DRC but to the United States. Nor were the children returned to the DRC; they stayed in Canada in accordance with their mother’s wishes. If she feared being separated from her children, she could have returned to the United States with them and made a claim for the entire family in that country. Moreover, the Minister’s delegate did not have the discretion to disregard the relevant provisions.

VI.       Applicant’s reply

[15]           The applicant was misled by the immigration officer at customs on the issue of whether she had a nephew or niece. According to the immigration officer’s observations, the applicant was told that she had to be related by blood to the person, in this case her niece, in order to avoid the application of the Agreement. The concept of a blood relationship is not mentioned in the definition of “family member” in section 159.1 of the IRPR, and its list includes niece.

VII.     Issue

[16]           Did the immigration officer err in determining that the applicant’s refugee claim was ineligible to be referred to the RPD on the basis that she was subject to the Agreement?

VIII.    Standard of review

[17]           An immigration officer’s decision that a refugee claim is ineligible to be referred to the RPD because the applicant arrived in Canada via a third safe country is a question of mixed fact and law that must be reviewed on a reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 S.C.R. 190 [Dunsmuir]; see, for example, Mutende v Canada (Minister of Citizenship and Immigration), 2011 FC 1423, [2011] FCJ No 1732). The Court must limit its intervention to situations where the immigration officer’s decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para 47).

IX.       Analysis

[18]           For the following reasons, this Court finds that the immigration officer did not err in applying the Agreement to the applicant’s refugee claim. However, before analyzing the claim in this case, it would be appropriate to present, as the respondent’s memorandum does, an overview of the relevant statutory framework. Some provisions are quoted in whole or in part in the reasons for ease of reference, but all the pertinent statutory provisions are reproduced in the Appendix to these reasons.

[19]           Pursuant to paragraph 101(1)(e) of the IRPA, a refugee claim is ineligible to be referred to the RPD if 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”. Pursuant to paragraph 102(1)(c) of the IRPA, “the circumstances and criteria for the application of paragraph 101(1)(e)” are defined by regulation.

[20]           It is pursuant to that paragraph that sections 159.1 to 159.7 of the IRPR were taken to frame the claims under paragraph 101(1)(e) of the IRPA. Section 159.3 of the IRPR explicitly designates the United States as a safe country for the purposes of the Agreement.

[21]           As stated by the Canada Border Services Agency, this Agreement was entered into by the Canadian and American governments to better manage the flow of refugee claimants at the shared land border of these two countries. Under the Agreement, persons seeking refugee protection must make a claim in the first safe country they arrive in (Canada or United States) unless they qualify for an exception. In this case, the applicant arrived in the United States before transiting to Canada, and that is why the government is requiring that she return to the United States.

[22]           Section 159.5 of the IRPR sets out the exceptions that permit a refugee claimant to avoid the application of the Agreement including the exception at paragraph 159.5(a) of the IRPR pertaining to the presence in Canada of a family member of the claimant who is a Canadian citizen. This is the exception the applicant herein is relying on because her brother‑in‑law’s daughter, a Canadian citizen, is in Canada. The definition of “family member”—taken almost verbatim from the Agreement—is at section 159.1 of the IRPR:

[23]           Accordingly, the applicant submits that she should have been able to file her refugee claim in Canada because the presence in Canada of her Canadian niece relieves her of the obligation to return to the United States. For his part, the respondent states that the applicant did not mention the existence of this niece at the interview on June 12, 2013. This statement is true because, according to the immigration officer’s observations, when asked whether she had any [translation] “Nieces” in Canada, the applicant answered [translation] “No”. The applicant, in turn, submits that she was misled by the question that was put to her. The immigration officer allegedly told her that she must be related by blood to any “family member” she was relying on for the purposes of an exception to the Agreement. In his observations, the immigration officer noted the following: [translation] “Family members listed above must be related by blood”.

[24]           Had it not been for this statement by the immigration officer, the decision that the refugee claim was ineligible to be referred to the RPD would have been undeniably reasonable because the applicant answered in the negative as to whether she had a Canadian niece living in Canada. Indeed, since the validity must be assessed based on the evidence that was before the decision‑maker at the time the decision was made, this Court on judicial review cannot rely on fresh evidence, i.e. the existence of an alleged niece, to invalidate the impugned decision. The immigration officer emphasized in his reasoning that the applicant must be related by blood to the said niece, and this reality requires a more in‑depth review by the Court.

[25]           Therefore, the question becomes whether the immigration officer erred by requiring that the applicant be related by blood. Having regard to the meaning that must be given to the words uncle, aunt, nephew and niece in section 159.1 of the IRPR, I conclude that the answer is no.

[26]           Based on their narrowest sense, the words nephew and niece refer to the children of a person’s brothers and sisters, in the same way that the words uncle and aunt refer to the brothers and sisters of a person’s parents. Out of habit or convenience, we expand the scope of these words to include the persons who occupy the same positions in the family through marriage. An aunt’s spouse becomes an uncle, an uncle’s spouse becomes an aunt, and the children of a person’s brothers- and sisters‑in‑law become, by extension, that person’s nieces and nephews.

[27]           Although these shortcuts are useful on a day‑to‑day basis to simplify a family structure, they must not be transposed into the legal context, primarily because of the vagueness that surrounds them. For example, when does an “aunt by marriage” become her niece’s “aunt”? Is it when she marries the uncle of the said niece, when she becomes the uncle’s common‑law partner or when they begin dating? It is one thing to answer this question on a personal level when a new spouse arrives in a family, in order to define everyone’s roles—the answer can certainly vary from one family to the next—but it is another thing to answer it in a legal context where stability and predictability must prevail to ensure that everyone’s claim is treated equally.

[28]           Federal statutes that refer to nephew or niece are rare. One of them is the Income Tax Act, RSC, 1985, c 1 (5th Supp.), whose paragraph 252(2)(g) provides that in this Act words referring to “a niece or nephew of a taxpayer include the niece or nephew, as the case may be, of the taxpayer’s spouse or common‑law partner”. In addition, the Act defines “common‑law partner” in such a way that it is easy to determine, in each of the cases, the persons who may be considered a nephew or niece. In this case, although the IRPA and the IRPR define common‑law partner, they do not contain a definition of niece or nephew. Moreover, section 2 of the IRPR provides that a “relative” of a claimant is a “person who is related to another person by blood or adoption” while paragraph 83(5)(a) expands the meaning of “related” to persons related to another person by marriage or common‑law partnership.

[29]           The Court can only find that, if Parliament had intended to include family members related by marriage, that is, family members to whom a claimant is not related by blood, why were nephews, nieces, uncles and aunts by marriage included but not brothers‑in‑law, sisters‑in‑law, fathers‑in‑law or mothers‑in‑law? The list in the definition of “family member” in section 159.1 appears to include persons who are directly connected to the claimant. Therefore, I cannot give a broad meaning to nephew or niece because, in the absence of a more specific provision, anyone could argue that they have a spouse (not necessarily a common‑law partner) who has a Canadian niece or nephew in Canada, which would automatically make that person the claimant’s niece or nephew, and as a result, the claimant could benefit from an exception to the Agreement.

[30]           Moreover, the IRPR define a common‑law partner as “in relation to another person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year”. This definition applies to section 159.1 of the IRPR and, therefore, a claimant could not benefit from an exception to the Agreement based on the fact that the claimant has had a Canadian partner in Canada for the last three months. Then should a claimant be entitled to benefit from the same exception on the basis that he or she has a Canadian niece or nephew in Canada in the person of the niece or nephew of the claimant’s partner of the last three months? The answer is clearly no. Without further clarification by Parliament, that is the type of absurdity that a broad interpretation of “nephew” and “niece” could lead to.

[31]           Taking into consideration the foregoing, the overall purpose of the Agreement and the principle that we must avoid endorsing country‑shopping for refugee claims, the interpretation of “nephew” and “niece” should be limited, for the application of the IRPR and the IRPA, to the children of a claimant’s brothers and sisters. Consequently, I find that it was reasonable for the immigration officer to require that the applicant be related by blood to the potential person to justify exempting her from the application of the Agreement (with the exception, it goes without saying, of her spouse or common‑law partner and her legal guardian).

[32]           Therefore, in the circumstances in which it was made and given the information available at that time, the immigration officer’s decision that the refugee claim was ineligible to be referred to the RPD was reasonable. Indeed, the applicant did not satisfy any of the exceptions in sections 159.1 to 159.7 of the IRPR to be exempted from the application of the Agreement.

[33]           Since the refugee claim was ineligible to be referred to the RPD and the applicant was in Canada without status and without a visa, this Court must conclude that the removal order against the applicant under section 44 of the IRPA was reasonable.

[34]           Last, with respect to the applicant’s arguments based on the best interests of the children, the Canadian Charter and Canada’s international obligations under various treaties that Canada is a party to, the Court points out to the applicant, as the respondent so aptly noted, that she was not returned to the DRC, but to the United States, where she will be able to make a refugee claim safely. In addition, the applicant’s children are in Canada because she consented to that. She had the option of returning to the United States with her children, but she preferred that they stay here. The applicant cannot therefore argue that Canada is infringing the family unit principle or that she and her children are at risk of violence or discrimination in the DRC because this is not the case.

[35]           The parties were invited to submit a question for certification, but none was proposed.

ORDER

            THE COURT ORDERS that the application for judicial review is dismissed. No question is certified.

                                                                                              “Simon Noël”

                                                                                    _______________________

                                                                                                       Judge

Certified true translation

Mary Jo Egan, LLB

APPENDIX 1 – RELEVANT STATUTORY PROVISIONS

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: