Docket: IMM-770-15
Citation:
2015 FC 964
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, August 12, 2015
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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MANUEL DE JESUS
ALTAMIRANO
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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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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division [RAD] dismissing the appeal from a
decision of the Refugee Protection Division [RPD] by which the RPD rejected the
applicant’s refugee protection claim. The RAD rejected the applicant’s notice
of appeal for lack of jurisdiction pursuant to paragraph 110(2)(d) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
II.
Background
[2]
The applicant is a Honduran citizen who arrived
in Canada on June 12, 2014, after first transiting through the United
States. On that same date, he made a claim for refugee status. Pursuant to that
claim, the RPD processed the applicant’s file jointly with that of his spouse,
who was already waiting for a hearing before the RPD. After the RPD’s decision
dated September 19, 2014, the applicant and his spouse filed an appeal to
the RAD.
[3]
On January 22, 2015, the RAD dismissed the
applicant’s appeal under paragraph 110(2)(d) of the IRPA, which
provides that, absent certain exceptions which do not apply here, a refugee
protection claimant cannot appeal to the RAD if he or she is a “foreign national who. . . came directly or
indirectly to Canada from a country that is, on the day on which their claim is
made, designated by regulations made under subsection 102(1) and that is a
party to an agreement referred to in paragraph 102(2)(d)”.
The United States is such a designated country, and as was mentioned, the
applicant arrived in Canada by first transiting through the United States.
[4]
Since the applicant’s spouse did not pass
through the United States before entering Canada, her refugee protection claim
was not rejected as the applicant’s was.
III.
Analysis
[5]
The applicant submits that the RAD breached its
duty of procedural fairness by processing the files of the applicant and his
spouse separately, after the RPD decided to join them.
[6]
The applicant also submits that the different
treatment afforded to his spouse, simply because he transited through the
United States before arriving in Canada, is contrary to section 15 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [the
Charter].
[7]
In support of the argument regarding the breach
of the duty of procedural fairness, the applicant does not cite any authorities
showing
1) that the RAD was not entitled to consider the files of the applicant
and his spouse separately after the RPD decided to join them; or
2)
that if the RAD had considered the files of the
applicant and his spouse together, it would not have been open to the RAD to
dismiss the applicant’s appeal on the basis of paragraph 110(2)(d)
of the IRPA while at the same time allowing his spouse’s appeal.
[8]
On these points, I side with the respondent. The
RAD was entitled to handle the applicant’s file separately from his spouse’s
file. Moreover, the RAD would also have been entitled to dismiss the
applicant’s appeal if his appeal had been heard with that of his spouse, on the
basis of paragraph 110(2)(d) of the IRPA.
[9]
Regarding the issue of the validity of
paragraph 110(2)(d) of the IRPA, the respondent notes that the
applicant failed to issue a notice of constitutional question in accordance
with section 57 of the Federal Courts Act, RSC, 1985, c F-7. The
applicant did not respond to this argument and did not submit any reasons for
not complying with this section. Nor did he ask to be exempted from the
requirements of section 57. I therefore conclude that neither
paragraph 110(2)(d) of the IRPA nor the RAD’s decision can be
declared invalid in this application.
[10]
Furthermore, the respondent notes that the
decision of the Federal Court on which the applicant relies to support his
argument that paragraph 110(2)(d) of the IRPA is invalid (Y.Z. v
Canada (Citizenship & Immigration), 2015 FC 892 [Y.Z.]), concerns
a different paragraph of the IRPA, namely, paragraph 110(2)(d.1) and
not paragraph 110(2)(d). This difference is relevant, since
paragraph 110(2)(d.1) concerns the rights of appeal of nationals
from countries designated under subsection 109.1(1), and Y.Z. analyzes
the issue of discrimination under section 15 of the Charter based on
national origin.
[11]
The fact that the applicant’s appeal was
dismissed because, after leaving Honduras, he transited through the United
States before arriving in Canada is not indicative of discrimination based on
national origin. I therefore conclude that Y.Z. does not apply to the
facts in this case.
[12]
I conclude that this application for judicial
review should be dismissed.
[13]
Both parties stated that they had no serious
question of general importance to be certified.
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