Docket: IMM-968-15
Citation:
2015 FC 1415
Ottawa, Ontario, January 19, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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BINDER SINGH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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AMENDED JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] seeking an order setting aside the decision of
the Refugee Protection Division [RPD or Board]. The decision consisted of three
determinations: that the Applicant is not a Convention refugee or a person in
need of protection; that there was no credible basis [NCB] for the refugee
claim pursuant to section 107(2) of the Act; and that he is excluded from
refugee protection pursuant to section 98 of the Act.
[2]
The gravamen of this case is whether the Court
has jurisdiction to hear this judicial review application [JRA] of the RPD’s
decision. The Applicant argues that where the RPD makes an exclusion order under
section 98 of the Act, the RPD has no further jurisdiction to rule on
the Applicant’s refugee status or make an NCB ruling [together the inclusion
decision] and erred in doing so: (Xie v Canada (Minister of Citizenship and Immigration),
2004 FCA 250 [Xie]).
[3]
The Applicant has a right of appeal of the RPD’s
exclusion decision to the Refugee Appeal Division [RAD] pursuant to section
110. As the RPD has no jurisdiction to render the inclusion decision, which
would otherwise be reviewable on a JRA because of the NCB ruling that bars an
appeal to the RAD (section 110(2)(c)), there is no lawful decision upon which a
JRA can be made.
[4]
However, the Applicant seeks the following
remedial order based on section 18.1(3)(b) of the Federal Courts Act,
which it submits respects the statutory scheme of the IRPA while also promoting
efficiency in administrative decision-making. The order sought would not
require the RPD inclusion decision to be set aside, but to be retained as an
alternative finding of the RPD, apparently to have some utility if the
exclusion ruling is set aside, and the matter reverting to the RPD. The remedy
the Applicant seeks is that:
i)
the decision be remitted back to the same Board
member;
ii)
that no hearing be held and that the Board
member dismiss the claim on the exclusion ground for the reasons already
provided;
iii)
that any inclusion findings already made be
strictly in the alternative and not prejudice the Applicant’s right of appeal
to the RAD; and
iv)
that the dates for the Applicant to pursue an
appeal to the RAD run from the date of the issuance of the new RPD decision.
[5]
The Respondent argues that despite the Xie
decision, the RPD is assigned jurisdiction to determine all issues, except for
ineligibility and extradition claims (sections 101 and 105). When the Minister
intervenes seeking an exclusion order pursuant to section 98 of the Act, the
Respondent is not making a “jurisdictional challenge” to the RPD. There is no
order that the Board must follow in making its decisions. It may determine in
the first instance claims for protection made within Canada, which includes
decisions where the RPD finds the applicants’ claims to have no credible basis.
On the basis of the RPD’s inclusion ruling including its NCB conclusion, pursuant
to section 110(2)(c) of the Act, both the RPD’s inclusion and exclusion orders are
barred from an appeal to the RAD, because of the NCB ruling. I also reject this
argument as I conclude that section 110(2)(c) can have no application to bar
appeals to the RAD of the RPD’s exclusion decision.
II.
Background and Impugned Decision
[6]
The Applicant, a citizen of India, entered
Canada on May 19, 2014 where he claimed refugee protection at the port of entry,
all the while not revealing that he had resided elsewhere than in India.
[7]
The Applicant stated that he feared his former
co-worker and his brother. After a series of events, he traveled from India
using an agent and arrived in Canada on May 19, 2014, whereupon he claimed
refugee protection.
[8]
At the port of entry, he identified himself as “Binder
Singh” with a date of birth [DOB] of May 16, 1979. He was not in possession of
a passport, but did present several other documents purportedly issued by the
Indian authorities, which corroborated this identity. These included an Income
Tax Department card, a driving licence, an Election Commission of India
Identity card and a Government of India Unique Identification Authority card.
[9]
The Applicant also provided several other
documents to the Board confirming his identity after submitting his basis of
claim [BOC] form. These included a Ration Card, a marriage certificate, giving
the above name and DOB and birth certificates for his two minor children,
listing their father’s name as “Binder Singh”. This was in addition to other
sworn statements in medical records indicating that he had been known in India
as “Binder Singh” and in Canada as well, after his arrival. These latter
documents also indicated a DOB of May 16, 1979.
[10]
The Minister of Citizenship and Immigration
intervened, first by providing documentary evidence and later in person at the
hearing, including questioning the Applicant and making oral submissions on the
applicability of Article 1 F(b) of the Convention refugee definition, as well
as on the issues of the Applicant’s identity and the credibility of his
allegations.
[11]
The Minister’s evidence was received on July 8,
2014 and included results from a biometric check of the Applicant with US
immigration records showing that he:
- resided illegally in the U.S. between 1995 and 2007;
- was arrested in New Jersey on September 25, 1998, charged
with “Lewdness” and sentenced to probation;
- was ordered removed from the U.S. by an Immigration
Judge in absentia on November 24, 1998;
- escaped custody, but was apprehended on August 20,
2007; and
- was deported to India in November 2007.
[12]
The Applicant, after being informed of the U.S.
biometric check results, amended his BOC form on August 27, 2014 indicating
that his name was “Ravinder Singh” and that his DOB was May 17, 1981, as
opposed to May 16, 1979, thereby lowering his DOB by two years.
[13]
The RPD noted that the only official document
provided by the Applicant referring to him as ”Ravinder Singh” was the FBI
fingerprint report issued on August 18, 2014. The document stated that he was
arrested in the U.S. on two occasions, once in 1998 and another in 2007. It
also noted that an alias of “Binder Singh” and yet another birth date of May
17, 1979, also matched the fingerprints provided.
[14]
The Board concluded that the Applicant’s original
assertion correctly identified the Applicant as “Binder Singh”, born on May 16,
1979, and not “Ravinder Singh”, born on the same date in 1981.
[15]
With respect to the Applicant’s 1998 conviction,
he was arrested in New Jersey on September 25, 1998 for “Criminal Sexual
Contact with a Minor” and was detained at a juvenile facility. Based on his
1981 DOB, he was processed as a juvenile and was sentenced to probation for the
charge of “Lewdness”.
[16]
The documents indicate that the Applicant had
earlier been ordered removed from the U.S. and that he escaped custody on
November 24, 1998 and was not apprehended until August 20, 2007, whereupon
he was deported.
[17]
The RPD concluded that there were serious
reasons to consider that the Applicant committed perjury in leading the
American judge who sentenced him to believe that he was only 17 years of age
based on his false 1981 DOB.
[18]
The RPD noted that counsel for the Applicant,
while not explicitly conceding that he should be excluded under Article 1 F(b),
had little comment to make on the Minister’s submissions, other than to
consider the aggravating and mitigating factors.
[19]
The RPD found that the Applicant admitted to the
sexual offence against a child, aggravated by his false portrayal of himself as
a minor when charged with this offence, constituted serious reasons for
considering that he had committed a serious non-political crime outside the
country of refuge. It thereby concluded that the Applicant was excluded from
refugee protection pursuant to section 98 of the Act.
[20]
In addition to the exclusion ruling, the RPD found
that the Applicant had not provided sufficient credible or trustworthy evidence
to support his allegations that he faces a serious possibility of harm
amounting to persecution in India, or that on the balance of probabilities he
would be personally subject to a risk to his life, cruel and unusual treatment
or punishment, or danger of torture in India.
[21]
Finally, the Board concluded that there was no
credible basis for the Applicant’s protection claim pursuant to section 107(2)
of the Act.
III.
Statutory Provisions
[22]
The following provisions, which are relevant to
these proceedings, are attached as an appendix to this decision: Sections
72(2)(a), 98, 107(2), 110(2)(c), 112(3)(b) & (c), 113(d) of the IRPA and
18.1(3)(b) of the Federal Courts Act.
IV.
Issues
[23]
The central issue is whether the Court has the jurisdiction
to judicially review the RPD’s decision, or whether it is barred from doing so
by section 72(2)(a) of the Act because the Applicant has a right of appeal of the
RPD decision to the RAD.
[24]
The above issue raises the following sub-issues as
presented by the Applicant:
- Did the Board err by ruling on the inclusion issues
in a decision where it found the Applicant was excluded, contrary to Xie?
- As a corollary to the above issue, did the Board
err
a. in not first ruling on the exclusion issue and, if excluding the
Applicant, nevertheless proceeding to rule on the inclusion issues; or
alternatively
b. if it did not err in making both the exclusion and inclusion
rulings, did it err in not stating that its inclusion ruling was made in the
alternative for the practical purpose in accordance with the decision of
Gonzalez v Canada (Minister of Employment and Immigration), [1994] 3 FCR
646 [Gonzalez] in order to avoid the necessity of a further hearing,
should a court find that the exclusion had been wrongly invoked?
[25]
The RPD made no statement or finding on these
issues.
V.
Standard of Review
[26]
The issue of the appropriate redress procedures
under the IRPA from an RPD decision between an appeal to the RAD versus an
application for judicial review, and other issues relating to the Court’s jurisdiction,
are subject to a correctness standard of review, particularly where no
deference can be attributed to a decision of the RPD that did not consider these
issues.
VI.
Analysis
A.
Question 1: Did the Board err by ruling on the
inclusion issues in a decision where it found the Applicant was excluded,
contrary to Xie?
[27]
In this part of the analysis, the Court accepts
that Gonzalez represents good law as to permitting the RPD to pronounce
decisions on both the exclusion and inclusion issues. However, it is not
possible in the analysis dealing with the first substantive issue not to
implicitly conclude that the RPD erred in not stating its inclusion rulings
were in the alternative, to be considered only if the exclusion decision is
overturned in the future. The issue of the requirement to state that the
inclusion ruling is in the alternative, substantive in its effect, impacts the
analysis of the other two issues as well.
[28]
The Applicant submits that the RPD did not have
the jurisdiction to make the Inclusion Ruling. He argues that the Xie decision,
and the many cases applying it, stand for the proposition that the RPD is first
required to render its exclusion order before deciding the inclusion issues. If
an exclusion order is made, this has the effect of rejecting the inclusion
refugee protection application pursuant to section 112(3), including the NCB
ruling, leaving only the exclusion ruling as the RPD’s decision. Absent any NCB
ruling, the Applicant is entitled to appeal the RPD decision to the RAD. As a
result, pursuant to section 72(2)(a) of the Act, the Federal Court may not
review the RPD decision because there exists a right of appeal to the RAD that
has not been exhausted.
[29]
The premise for the Applicant’s argument on both
sub-issues stated above is that the exclusion decision has the effect of rejecting
any inclusion decision of the RPD, because the exclusion decision excludes
the claimant from any entitlement to a decision declaring him a protected refugee.
Paragraphs 27 and 28 of the Applicant’s submissions describe the logic underlying
his position, which relates to the competing jurisdictions that could rule on
the protection issues if the RPD is allowed to make the inclusion ruling, as
follows:
27. The IRB
and the Minister are each responsible for separate and specific classes of
individuals who are asserting risk. The separate grants of jurisdiction in this
matter are water-tight and mutually exclusive. To choose but one example, the
IRB cannot hear a claim for protection from someone who is subject to a removal
order (IRPA, s. 99(3)) whereas the Minister on a PRRA can only hear an
application for protection from someone who is subject to a removal order
(IRPA, s.112(1)).
28. Through s. 98 and 112(2)(b.1) of
the IRPA, Parliament has made clear that one such cleavage that divides the
jurisdiction of the IRB and the Minister is exclusion under Article 1F(b) of
the Refugee Convention. Section 98 of the IRPA strips the IRB of the
jurisdiction to grant protection to a person who is excludable under this
Article; this is true no matter how compelling or deserving their claim may be.
At the same time, s. 112(2)(b.1) of the IRPA grants the Minister the
jurisdiction to consider those same claims for protection at first instance on
the PRRA. Indeed, Parliament has even exempted persons excluded by the IRB
under Article 1F(b) from the one-year PRRA bar, reinforcing the understanding
that such claims should always have been heard at first instance by the
Minister and not by the IRB:
[30]
As noted, the Applicant relies upon the Federal
Court of Appeal decision in Xie, and the cases that have subsequently
applied it. The relevant passages from Justice Pelletier’s decision in Xie
at paragraphs 36 to 38 are as follows, with my emphasis:
[36] In
my view, both questions treat the application of the exclusion as being
tantamount to a final removal decision. As the review of the statutory scheme
has shown, the purpose of the exclusion is not to remove claimants from
Canada. It is to exclude them from refugee protection. Claimants who are
excluded under section 98 continue to have the right to seek protection
under section 112.
[37] If successful, the appellant's
arguments on the issue of balancing, both as to the type of offence which gives
rise to the application of the exclusion, and the risk of torture upon return, would
remove excluded claimants from the PRRA stream by giving the Refugee Protection
Division the discretion to decide the questions which the Act has
specifically reserved to the Minister. The grounds upon which a person may
claim to be a person in need of protection before the Refugee Protection
Division are the same grounds upon which an excluded claimant may apply to the
Minister for protection. The only difference is that the Minister may have
regard to whether the granting of protection to such a person would pose a risk
to the public or would endanger the security of Canada, considerations which
are not open to the Refugee Protection Division. From the point of view of
statutory interpretation, there is no reason to believe that decisions which
are reserved to the Minister should be somehow given to the Refugee Protection
Division because there is a risk of torture.
[38] This leads to
the question as to whether the decision of the Supreme Court in Suresh requires
a different reading of the statute. I might point out that the issue of Suresh only
arises at this point because the Board, having found that the exclusion
applied, went on to consider whether the applicant was at risk of torture upon
her return to China. In my view, the Board exceeded its mandate when it
decided to deal with the appellant's risk of torture upon return with the
result that the Minister is not bound by that finding. Once the Board found
that the exclusion applied, it had done everything that it was required to do,
and there was nothing more it could do, for the appellant. The appellant
was now excluded from refugee protection, a matter within the Board's
competence, and was limited to applying for protection, a matter within the
Minister's jurisdiction. The Board's conclusions as to the appellant's risk of
torture were gratuitous and were an infringement upon the Minister's
responsibilities.
[Emphasis added]
[31]
The Xie decision has been applied on
innumerable occasions. Justice Leyden-Stevenson in Han v Canada (Minister of
Citizenship and Immigration), 2006 FC 432 [Han] applied the Xie decision
at paragraph 40 of the decision as requiring the RPD to “decide the issue regarding a claimant’s exclusion, from
refugee protection, before dealing with the merits of the claim. Once the Board
finds that a claimant is excluded from refugee protection, there is nothing
more that it can or should do.” Similarly in the decisions of Muchai
v Canada (Minister of Citizenship and Immigration), 2007 FC 944 at paragraph
12 [Muchai] and Canada (Minister of Citizenship and Immigration) v
Cadovski, 2006 FC 364 at paragraphs 1-2 [Cadovski], Justices Hughes
and O’Reilly found that once the Board finds that the applicant is excluded it
should not proceed to deal with the inclusion issues. On the basis of Xie
and these decisions, the Court is entitled to allow the application at this
point, but to do so would not do justice to the Respondent’s submissions.
[32]
The Respondent seeks to distinguish Xie
and the line of cases applying it on the basis that in those cases it was the Minister
who was defending his jurisdiction to determine the protection issue under
section 113(d). In this matter, the Minister is not concerned about any encroachment
on his jurisdiction to decide the protection. Rather, as the Court understands
it, the Minister seeks to rely upon the inclusion order, and in particular the
NCB ruling, to provide jurisdiction for the Federal Court to judicially review
the RPD’s exclusion Order. If the Court assumes jurisdiction and does not set
aside the RPD decision, the matter can proceed to the protection assessment
before the Minister’s delegate, without the necessity of the exclusion ruling
being appealed to the RAD. The Minister’s purpose therefore, appears to be to
achieve a degree of judicial economy in avoiding unnecessary procedures.
[33]
The Court obviously is sympathetic to any
argument intended to achieve judicial economy. However, I do not find that his
submission avoids the conundrum raised by the Minister of placing his PRRA
Officer [the Officer] in the delicate and potentially embarrassing situation of
being forced to render the same or a different decision on the applicability of
section 97, as was rendered by the RPD on the same provision.
[34]
If the Officer makes the same decision, there
will be concerns that the RPD’s decision is simply being applied. Of greater
potential embarrassment would be a contradictory decision by the Officer,
resulting in two decisions on generally the same facts and same legal standard
with different outcomes. In either case, these are the type of situations that
the Xie decision is intended to avoid by acknowledging the exclusive
jurisdiction of the Minister’s delegate to decide the protection issue by force
of preventing the RPD from making any inclusion ruling when it finds the
claimant is excluded.
[35]
The requirement to decide the exclusion issue in
priority over the refugee protection issue is also implicitly supported by
other provisions of the Act. The Applicant points out above in the passage
cited from his memorandum that Parliament exempted persons excluded by the Immigration
and Refugee Board [IRB] under Article 1F(b) from the one-year PRRA bar,
reinforcing the understanding that such claims should always have been heard at
first instance by the Minister and not by the IRB.
[36]
It is also significant that an applicant who may
eventually be removed as the result of an exclusion decision is subject to a
deportation order which obliges the applicant to obtain a written authorization
in order to return to Canada once removed (Regulation 226(1)). An unsuccessful
refugee claimant is normally subject to an exclusion order, which only requires
an authorization to return during the one year after the order was enforced
(Regulation 225(1)). There is a rationale therefore, not to engage in issues of
refugee protection before the RPD pursuant to sections 96 and 97, when the Act
establishes that the Minister should decide the subsequent protection issue measured
against differently constituted factors and more serious consequences for the
Applicant.
[37]
As I further understand the Respondent’s
argument, the Xie decision did not preclude any alternative
determination on inclusion once an applicant has been determined to be
excluded. The Minister also states that the Court in Xie did not comment
on the timing or order of the inclusion and exclusion decisions relative to
each other. Additionally, the Minister submits that the Federal Court of Appeal
has endorsed the practice of the RPD considering issues of inclusion, as well
as exclusion in the claim, referring to Gonzalez in support of this
argument.
[38]
In Gonzalez, the Court concluded that the
Board could proceed after arriving at an exclusion decision to decide the inclusion
issues for the practical purpose of avoiding the necessity of having the
matter referred back for yet another full hearing, should the court find that
the exclusion had been wrongly invoked. Justice Mahoney stated as follows:
I find nothing in
the Act that would permit the Refugee Division to weigh the severity of
potential persecution against the gravity of the conduct which has led it to
conclude that what was done was an Article 1F(a) crime. The exclusion of
Article 1F(a) is, by statute, integral to the definition. Whatever merit there
might otherwise be to the claim, if the exclusion applies, the claimant simply
cannot be a Convention refugee.
In my opinion, there is no error in law in
either approach but there is a practical reason for the Refugee Division
to deal with all elements of a claim in its decision. If it were to hold
without reviewable error that, but for the exclusion, a claim was not
well-founded, it would not be necessary, as it was in Moreno, for the
matter to be referred back for yet another full hearing should a court find
that the exclusion had been wrongly invoked. On the other hand, if it were
to hold, as it did in Ramirez and Sivakumar, that
the claim was well-founded but for application of the exclusion and, unlike
those cases, it were found on appeal to have erred in applying it, this Court
could make the necessary declaration without requiring the Refugee Division to
deal with it again. Taxpayers might appreciate the economies of that approach.
[Emphasis added]
[39]
The Gonzalez decision must be interpreted
in its legislative context. At the time in question there was no legislation
providing for a consideration of a claimant’s protection needs after being
found excluded from refugee protection. That is clear from the emphasized
sentence in the second paragraph of the decision cited above. In fact, the
Court expressed the opinion that there ought to be a consideration of the
Applicant’s protection needs to be balanced against the reasons for exclusion,
stating as follows:
Article 1F
excludes 'persons', rather than 'refugees' from the benefits of the Convention,
suggesting that the issue of a well-founded fear of persecution is irrelevant
and need not be examined at all if there are 'serious reasons for considering'
that an individual comes within its terms. In practice, the claim to be a
refugee can rarely be ignored, for a balance must also be struck between the
nature of the offence presumed to have been committed and the degree of
persecution feared. A person with a well-founded fear of very severe
persecution, such as would endanger life or freedom, should only be excluded
for the most serious reasons. If the persecution feared is less, then the
nature of the crime or crimes in question must be assessed to see whether
criminal character in fact outweighs the applicant's character as a bona fide
refugee.
[Emphasis added]
[40]
It was probably comments such as this by Justice
Mahoney that led to the additional consideration of the excluded claimant’s
protection needs as is found in section 113 of the Act.
[41]
Accordingly Gonzalez, assuming it is
correct, can only have application to the propriety of the RPD considering and
making rulings on both the exclusion and inclusion issues on the basis of
achieving judicial economy. But otherwise, I agree with the Applicant that the
case can only be reconciled with Xie (which came after it), if it is
interpreted so as not to interfere with the principle that the exclusion
decision precludes any effective application or recourse to the inclusion
decisions until after the exclusion decision is set aside.
[42]
This is because at the time the exclusion
decision is rendered by the RPD, the protection claim is rejected (section
112(3)). More importantly, it cannot have any effect or impact on the
protection issue, because otherwise, it would encroach on the Minister’s
exclusive authority to determine the protection issue under section 113(d),
which specifically is not permitted by Xie.
[43]
What this means is that the NCB ruling,
accepting for the purposes of argument that the RPD can make an inclusion
ruling in the same case as it makes an exclusion ruling for expediency reasons
outlined in Gonzalez, can similarly only have a future effect,
conditional upon the exclusion decision somehow being set aside. But the
correct redress route (i.e. an appeal to the RAD or a JRA to the Federal Court),
must be determined on the basis of the conclusions of the RPD, not on the
possibility that the exclusion ruling may be overturned on a judicial review
application in the future.
[44]
At the conclusion of the RPD hearing, the NCB
ruling -- which is the only component of the inclusion ruling that is relevant
to this matter -- cannot have any effect because as part of the refugee
protection claim it has been rejected by the exclusion order (section
112(3)(c): “a claim to refugee protection that was rejected
on the basis of section F of Article 1 of the Refugee Convention”).
[Emphasis added]
[45]
To stress the point, the NCB declaration is not
a free-standing ruling. It is only relevant to the inclusion claim. It can only
be made as an addendum to a rejected inclusion claim for refugee protection
under sections 107(1) and (2), as set out below. I emphasize the word “claim”
in these provisions as it limits an NCB ruling to a refugee protection claim:
107. (1) The Refugee
Protection Division shall accept a claim for refugee protection if it determines
that the claimant is a Convention refugee or person in need of protection, and shall
otherwise reject the claim.
(2) If the
Refugee Protection Division is of the opinion, in rejecting a claim,
that there was no credible or trustworthy evidence on which it could have made
a favourable decision, it shall state in its reasons for the decision that
there is no credible basis for the claim.
[Emphasis
added]
[46]
An NCB ruling therefore, has no relevance to the
exclusion ruling, and at best is only pending in the contingent outcome of the
exclusion order being set aside sometime in the future. It cannot be relied
upon as a basis for denying the Applicant his right of appeal of the exclusion
ruling to the RAD.
[47]
In light of my reasoning above, I am satisfied
that the inclusion rulings of the RPD and in particular its NCB conclusion, cannot
be used as a ground to prevent the appeal of the RPD’s decision to the RAD. I
find that the Board erred in ruling on the inclusion issue without indicating
that it was in the alternative of a future rejection of the exclusion order.
B.
Question 2: Did the Board err
1)
in not first ruling on the exclusion issue and,
if excluding the Applicant, nevertheless proceeding to rule on the inclusion
issues; or alternatively
2) if it did not err in making both the exclusion and inclusion
rulings, did it err in not stating that its inclusive ruling was made in the
alternative for the practical purpose in accordance with the decision of Gonzalez
in order to avoid the necessity of a further hearing, should a court find
that the exclusion had been wrongly invoked?
[48]
I have already indicated that insofar as Gonzalez
has application, it must be stated clearly by the RPD in its reasons, where it
has made an exclusion ruling in addition to an inclusion ruling, that the
inclusion ruling has no effect unless the exclusion ruling is set aside, because
its decision excludes the Applicant from refugee protection. Otherwise, it
would be in conflict with the principles underlying the Xie decision.
[49]
I think the more pertinent question is whether
in the face of Xie, the RPD can make any inclusion ruling at all, even
with the disclaimer of “not to be effective before the
exclusion decision is set aside”. I agree with the Applicant’s
submissions that an appeal to the RAD is to be favoured because it provides a
broader and more exhaustive reconsideration than is offered by the JRA.
Particularly, there is an opportunity to introduce new evidence before the RAD.
The appeal to the RAD is also conducted as a limited de novo review.
This generally affords more scope to review the RPD’s decision than is
available by way of a JRA applying a deferential reasonableness standard. The
judicial review track therefore, prevents the Applicant from accessing redress
mechanisms the will better protect his rights.
[50]
Support for the RPD making an inclusion ruling
in the face of a decision excluding the claimant from refugee protection on the
basis of it being “practical” and providing “judicial economy” is found in a
number of cases: Ezekola v Canada (Minister of Citizenship and Immigration),
2010 FC 662, paras 110-109; Rathinasigngam v Canada
(Minister of Citizenship and Immigration), 2006 FC 988, para 48; Alemu
v Canada (Minister of Citizenship and
Immigration), 2004 FC 997, para
42; Zoya v Canada (Minister
of Citizenship and Immigration), [2000] FCJ No. 1884, paras 12-14; San Vicente Freitas v Canada
(Minister of Citizenship and Immigration), [1999] 2 FC 432; Brzezinski
v Canada (Minister of Citizenship and
Immigration), [1998] 4 FCR 525, para 33; and Cordon
v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No. 470.
[51]
I disagree with these decisions. I conclude that
the decisions cited above of Han, Muchai and Cadovski properly
reflect the ratio of the Federal Court of Appeal in Xie. It is
recalled that those cases require the RPD to first decide the exclusion issue,
before dealing with the protection claim, and that if the claimant is excluded
from refugee protection, there is nothing more that the RPD can or should do.
[52]
The Han line of cases are consistent with
the premise underlying Xie that the scheme of the IRPA is to ensure that
two decision-makers cannot make incompatible or the same ruling, in the
alternative or otherwise, on the same issue on the same facts. Once the
claimant is excluded or inadmissible, the Act stipulates that the Minister
alone should decide whether the claimant is in need of protection.
[53]
While I am in complete agreement with the need
for more “judicial economy”, it just does not seem to be a relevant
consideration in matters relating to exclusions and inadmissibility of foreign
nationals. Parliament has chosen not to adhere to the big-tent, single decision-maker
model to decide all relevant issues, in the alternative where practical to
do so, relating to a person’s right to remain in Canada, such as is found
in labour or other civil jurisdictions. Instead, this field abounds with a multiplicity
of similarly endowed decision-makers, rendering essentially many of the same
decisions, but in mutually exclusive jurisdictions, as in this case, leading to
excessive judicial reviews with all the attendant delays, and costs that this
scheme entails. That is Parliament’s choice. It is not for the courts to
introduce “judicial economy” in the procedures to be followed where the Act
eschews it.
VII.
Conclusion
[54]
On the basis of the foregoing I conclude that
the Board erred by ruling on the inclusion issues after it found the Applicant
was excluded. The Board similarly exceeded its jurisdiction by conducting an
inclusion determination in the alternative on any basis, including that for the
purpose of judicial economy.
[55]
In reliance upon the decision of Mdm. Justice
Tremblay- Lamer in Pembina Institute for Appropriate Development v. Canada
(Attorney General), 2008 FC 302, I set aside the Board’s decision with
respect to its inclusion conclusions regarding the Applicant’s claim for
refugee protection pursuant to sections 96 and 97, as well as its non-credibility
ruling pursuant to section 107(2).
[56]
Otherwise, I order as follows:
i.
I remit the decision back to the same Board member;
ii.
I order that no hearing be held and that the Board
member dismiss the claim on the exclusion ground for the reasons already
provided; and
iii.
I order that the dates for the Applicant to
pursue an appeal to the RAD run from the date of the issuance of the new RPD
decision.
VIII.
Certified Question
[57]
The parties have agreed that a question should
be certified in this matter. I am satisfied that the proposed question by the
Respondent meets the requirements of section 74(d) of the Act that the question
is serious and involves issues of general importance.
[58]
The only difference in the questions proposed by
the parties was the Applicant’s objection to the words “in
the alternative”. The Applicant argued that this wording should be
removed because the RPD did not make its inclusionary ruling in the
alternative. I find that the issue was raised implicitly, and moreover, speaks
to an issue on which decisions of this Court express contradictory views. The Court
certifies the following question for appeal:
Considering the
authority of the RPD under section 107(2) and section 107.1 of the IRPA to
determine that a claim has no credible basis or is manifestly unfounded, is the
RPD precluded from making such determinations after, or in the alternative, to
its findings that the claimant is excluded under section F of Article 1 of the
Refugee Convention?
[59]
The judicial review application is allowed and a
question is certified for appeal.
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