Docket: IMM-7389-14
Citation:
2015 FC 1041
Ottawa, Ontario, September 8, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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MAZIN HELMY
ISMAEL AL-OBEIDI
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
In 1998, Mr Mazin Helmy Ismael Al-Obeidi fled from
Iraq to Lebanon fearing political persecution as an opponent of Saddam Hussein.
In 2002, Canadian officials granted him refugee protection, making him eligible
for permanent residence once his application was processed. He arrived in
Canada in 2007 and acquired permanent resident status.
[2]
Over the ensuing years, Mr Al-Obeidi made six trips
back to Iraq. At first, he used a Canadian passport, but he later obtained an
Iraqi passport and used it on subsequent trips.
[3]
In 2012, after Mr Al-Obeidi had applied for
Canadian citizenship, Canadian officials asked him about his trips to Iraq. His answers led to an application by the Minister to cease Mr Al-Obeidi’s refugee
protection in Canada on the grounds that, by virtue of his trips back to Iraq,
he had reavailed himself of Iraq’s protection (relying on para 108(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] –
see Annex for provisions cited). Mr Al-Obeidi’s citizenship application is currently
frozen.
[4]
A panel of the Immigration and Refugee Board
heard the Minister’s application and determined that Mr Al-Obeidi’s refugee
status had indeed ceased. However, the Board did not deal with the Minister’s
reavailment claim; rather, it found that Mr Al-Obeidi’s status had ceased
because a change of conditions in Iraq meant that the basis for his refugee
claim no longer existed (relying on s 108(1)(e) of IRPA).
[5]
If the Board had accepted the Minister’s
position on reavailment, Mr Al-Obeidi would have lost his permanent resident
status (s 46(1)(c.1)) and become inadmissible to Canada (s 40.1(2)). The
Board’s finding that Mr Al-Obeidi had lost his refugee status as a result of a
change of country conditions did not have those consequences.
[6]
The Minister argues that the Board failed to
discharge its duty to address the grounds underlying the cessation application.
While the Board is free to consider other grounds for cessation, the Minister
concedes, it does not have the power to refuse to deal with a ground
specifically raised by the Minister, especially where, as here, there was
evidence supporting that position. The Minister characterizes the Board’s
decision as arbitrary and a deliberate effort to avoid the operation of laws
duly enacted by Parliament. The Minister asks me to quash the Board’s decision
and order another panel of the Board to reconsider the cessation application.
[7]
I disagree with the Minister’s submission. In my
view, the Board can address any grounds for cessation arising from the
Minister’s application and need not make its decision on the specific ground
raised in it. IRPA specifically grants the Board the jurisdiction to determine
cessation on the basis of any of the grounds identified in it. Therefore, I
must dismiss this application for judicial review.
[8]
The sole issue is whether the Board’s
interpretation of the applicable provisions in IRPA was reasonable.
II.
The Board’s Decision
[9]
Before the Board, the Minister argued that the
Board had a duty to consider only the specific basis on which the cessation
application was brought. Alternatively, the Minister maintained that the Board
had a duty to consider all possible grounds for cessation. Regarding the
possibility of cessation based on a change of conditions in Iraq, the Minister
actually argued that the improvements in Iraq were likely temporary, meaning
that it would be unsafe for Mr Al-Obeidi to return. The Board found this
position to be at odds with the Minister’s efforts to terminate Mr Al-Obeidi’s
refugee status.
[10]
The Board concluded that it had the
jurisdiction, on an application by the Minister, to consider any potential ground
for cessation, not just the specific ground on which the Minister chose to
rely. In particular, IRPA states that, on an application for cessation by the
Minister, the Board can consider whether refugee protection has ceased “for any of the reasons” described in s 108(1) of IRPA
(s108(2)).
[11]
The Board was satisfied that Mr Al-Obeidi’s
refugee status had ceased as a result of a durable, lasting, and substantial
change of conditions in Iraq. In fact, Mr Al-Obeidi conceded that he no longer
feared persecution in Iraq. The Board also concluded that, once one ground of
cessation had been satisfied, it was unnecessary to consider other possible
grounds. Accordingly, it did not address reavailment as a possible ground of
cessation.
[12]
While the Board stated that it should not be
concerned about the consequences of a cessation finding, it nonetheless described
the result of a finding based on grounds other than a change of conditions
(loss of permanent residence) as being inconsistent with Canada’s international
obligations and the objectives of IRPA.
III.
Was the Board’s decision reasonable?
[13]
The Minister argues that the Board’s approach
was unreasonable because the Board failed to deal with the issue raised in the
cessation application before it and, instead, based its decision on a ground
that was not raised.
[14]
I disagree. IRPA gives the Board a broad
discretion in cessation matters which, in most cases, works in the Minister’s
favour. Where the Minister has failed to make out a case for cessation on one
ground, the Board can consider whether another ground has been satisfied. The
fact that the Minister did not achieve the ultimate objective of the cessation
application (termination of Mr Al-Obeidi’s permanent resident status) does not
justify, in my view, a finding that the Board’s approach was unreasonable.
[15]
The statutory language setting out the Board’s
jurisdiction is clear. IRPA states that on any cessation application by the
Minister, the Board “may determine that refugee
protection . . . has ceased for any of the reasons described in [s 108(1)].”
Those reasons include reavailment (s 108(1)(a)) and a change in country
conditions (s 108(1)(e)), as well as other grounds, including
re-establishment and voluntary reacquisition of nationality.
[16]
Had Parliament wished to impose a duty on the
Board to consider the specific ground raised in the Minister’s application, it
clearly could have done so. For example, it could have directed the Board to
consider alternate grounds for cessation only where the Minister had failed to
make out a case on the ground identified in the application. It did not do so.
[17]
The Minister also submits that the Board acted
beyond its jurisdiction and deliberately thwarted the will of Parliament by
ruling on a basis that would avoid the removal of Mr Al-Obeidi’s permanent
resident status. I disagree. On a plain reading of IRPA, it is clear
that Parliament gave the Board the discretion to consider grounds for cessation
other than those raised in the Minister’s application, including a change of circumstances
in the country of origin. It also stipulated that individuals should lose their
permanent residency only where the Board finds that their refugee status should
be terminated on grounds other than an improvement in country conditions. The
Board’s approach appears to me to be consistent with the regime Parliament
enacted.
[18]
The Minister also points to a subsequent
decision of the same Board member which, according to the Minister, contradicts
the member’s approach here (Re X, VB4-00719, 20 February 2015). In the
latter case, the Minister applied for cessation on the grounds that the
respondent had reavailed himself of the protection of his country of origin (s
108)1)(a)) and had acquired citizenship of another country that could
protect him (s 108(1)(c)). In turn, the respondent submitted that the
basis for his refugee claim had ceased as a result of a change of country
conditions (s 108(1)(e)), and that the Board should refuse to deal with
the grounds put forward by the Minister.
[19]
The Board accepted the respondent’s argument
that s 108(1)(e) applied. However, it disagreed with the contention that
it should not consider any other grounds. In particular, the evidence before
the Board clearly showed that the respondent was a citizen of the United
States; indeed, he did not dispute the issue. The Board concluded that it would
be improper to ignore the evidence of the respondent’s US citizenship, and
ruled that his refugee status had ceased under both s 108(1)(c) and s 108(1)(e).
It was, according to the Board, unnecessary to consider s 108(1)(a).
[20]
I do not see any contradiction in the Board’s
approach. In both cases, the Board concluded that it could consider any ground
set out in s 108(1) and that it was unnecessary in the circumstances to
consider reavailment under s 108(1)(a). The sole difference is that, in Re
X, the Board felt compelled to rule on s 108(1)(c) given the clear
evidence before it and the respondent’s concession on the point. That
circumstance distinguishes that case from this one.
[21]
The Minister also contends that the Board’s
decision in this case is inconsistent with the decision of another Board member
(TB3-05609, 12 August 2014). There, the Board found that the respondent’s
concession that her refugee status had ceased under s 108(1)(e) did not
deprive the Board of jurisdiction to consider other potential grounds of
cessation. Again, I do not see a contradiction. As mentioned, IRPA permits the
Board to consider any grounds of cessation set out in s 108(1). A respondent’s
concession that one ground has been satisfied would not prevent the Board from considering
another. In the circumstances of that case, the Board felt obliged to consider
other grounds of cessation that had been put forward by the Minister. The fact
that the Board considered those other grounds does not suggest that the Board
erred in not doing so in this case.
[22]
In sum, on a cessation application by the
Minister, the Board can consider any ground set out in s 108(1) of IRPA. If the
respondent refugee persuades the Board, or concedes, that his or her status has
ceased by virtue of a change of country conditions (s 108(1)(e)), the
Board has discretion to consider other grounds. It is neither compelled to do
so, nor prevented from doing so. However, where there is uncontradicted and
undisputed evidence that the refugee’s status has ceased under another ground (e.g.,
acquisition of citizenship in a country capable of protection), the Board should
consider it.
[23]
Therefore, I find that the Board’s
interpretation of its jurisdiction under IRPA was reasonable.
IV.
Conclusion and Disposition
[24]
In my view, the Board reasonably concluded that
it could decide the issue of cessation on a ground not raised by the Minister.
Therefore, I must dismiss this application for judicial review. The Minister
opposed the certification of a question of general importance and, in light of
the manner in which I have decided this application, none will be stated.
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