Docket: IMM-1133-15
Citation:
2015 FC 1190
Montréal, Quebec, October 21, 2015
PRESENT: The
Honourable Mr. Justice Locke
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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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BAHAREH ESFAND
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application by the Minister of
Citizenship and Immigration for judicial review of a February 19, 2015 decision
of the Refugee Protection Division (RPD) on a threshold jurisdiction issue. An
RPD panel concluded that it did not have the jurisdiction to consider the
Minister’s application to cessate the refugee status of the respondent pursuant
to section 108 of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA], because the panel found that the respondent is not a
Convention refugee as contemplated in paragraph 95(1)(a) of the IRPA.
[2]
For the reasons set out below, this application
will be dismissed and the RPD’s decision will stand.
II.
Facts
[3]
The respondent is a citizen of Iran who became a
permanent resident of Canada upon her arrival in the country on June 13, 2006.
She was a dependent of her husband, who was determined to be a Convention
refugee by a visa officer overseas. Under a policy of family unity, the
respondent, her husband, and their son became members of the Convention
Refugees Abroad (CR-1) class.
[4]
It is clear from the overseas visa officer’s
notes that the officer analyzed and considered whether the respondent’s husband
was a Convention refugee. The officer concluded that the respondent’s husband
had a well-founded fear of persecution based on political opinion. There was no
similar finding for the respondent. It seems that, upon finding that the
respondent’s husband was a Convention refugee, it was considered unnecessary to
assess other family members’ risks in Iran. Under the policy of family unity,
which I understand is applied routinely, the other family members were accepted
without assessment.
[5]
The respondent has since returned to Iran on two
occasions (the second time after having renewed her Iranian passport). This
prompted the Minister to seek the cessation of the respondent’s Convention
refugee status on the basis of paragraph 108(1)(a) of the IRPA for
voluntarily re-availing herself of the protection of Iran. However, section 108
of the IRPA applies only to Convention refugees and persons in need of
protection: subsection 95(1) of the IRPA. The current dispute arose as a
result of the respondent’s assertion that she does not in fact have this
status.
III.
The Impugned Decision
[6]
The threshold jurisdictional issue determined by
the RPD was whether the respondent is a Convention refugee as contemplated in
section 95 of the IRPA. The panel found that there was only one
applicant for refugee protection overseas; the respondent’s husband. The
respondent’s husband had alleged that he had a well-founded fear of persecution
in Iran. The respondent formed part of her husband’s application not as a
refugee claimant, but as a dependent of her husband. The only questions posed
to the respondent as part of the visa officer’s determination were related to
the risk faced by her husband.
[7]
The RPD panel found that the Minister’s
representative was wrong in stating that if a principal claimant is granted
refugee protection by a visa officer, all the other claimants are also granted
refugee status by virtue of the finding on the principal applicant. All
claimants that appear before the Refugee Protection Division must be assessed
as Convention refugees in their own right. Reasoning by analogy, the panel
accordingly found that the respondent did not become a Convention refugee
simply by virtue of her husband’s refugee claim being accepted by the overseas
visa officer.
[8]
The panel considered section 140 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR], which states
that:
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Class of family members
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Catégorie des membres de la famille
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140. Family members of an applicant
who is determined to be a member of a class under this Division are members
of the applicant's class.
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140.
Les membres de la famille du demandeur considéré comme appartenant à une
catégorie établie par la présente section font partie de cette catégorie.
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[9]
The panel found that this provision applied to
the respondent’s husband, but not to the respondent. The respondent became a
member of the CR-1 class by virtue of being dependent on her husband, not by
virtue of being determined to be a Convention refugee.
[10]
The panel also considered chapter 10.2 of the
Citizenship and Immigration Canada (CIC) processing manual OP 5: Overseas
Selection and Processing of Convention Refugees Abroad Class and Members of the
Humanitarian-protected Persons Abroad Class (OP 5). Chapter 10.2 of this
text outlines four factors to be considered when assessing eligibility. The
panel noted that the text indicates that only the principal applicant needs to
meet the eligibility requirements, while accompanying family members “derive their refugee status” from the principal
applicant. The panel found that, though the phrase “derive
their refugee status” suggests that the respondent in this case is a
Convention refugee like her husband, a plain reading of the text indicates that
no assessment of the dependents is made; chapter 10.2 does not suggest that the
dependents are determined to be Convention refugees in the sense of paragraph
95(1)(a) of the IRPA.
[11]
Having found that the respondent was not a
Convention refugee as contemplated in paragraph 95(1)(a) of the IRPA,
the panel concluded that it did not have jurisdiction to consider the
Minister’s application to cessate the refugee status of the respondent.
IV.
Issue
[12]
The sole issue in this application is whether
the RPD erred in finding that the respondent had not been determined to be a
Convention refugee as contemplated in section 95 of the IRPA, so that
the RPD did not have the jurisdiction under section 108 to cessate the respondent’s
refugee protection.
V.
Standard of Review
[13]
The parties agree that the RPD’s decision should
be reviewed on a standard of reasonableness as the panel’s interpretation of
section 95 of the IRPA is a question of law involving the interpretation
of the tribunal’s home statute, and is not “both of
central importance to the legal system as a whole and outside the adjudicator’s
specialized area of expertise”: Dunsmuir v New Brunswick, 2008
SCC 9 at paras 54 and 60 [Dunsmuir].
[14]
The applicant notes that reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process, but it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law: Dunsmuir at para
47. The applicant also notes that the range of possible, acceptable outcomes
may be narrow, given that the tribunal is engaged in statutory interpretation (B010
v Canada (Citizenship and Immigration), 2013 FCA 87 at para 72; Abraham
v Canada (Attorney General), 2012 FCA 266 at 45 and 48).
VI.
Analysis
[15]
This case essentially comes down to a matter of
statutory interpretation, and specifically whether the phrase “has been determined to be a Convention refugee” in
paragraph 95(1)(a) of the IRPA applies to the respondent. Only then does
the RPD have jurisdiction to cessate her refugee status under subsection 108(1)
of the IRPA.
[16]
The Supreme Court of Canada stated the following
on the subject of statutory interpretation in Rizzo and Rizzo Shoes Ltd (Re),
[1998] 1 S.C.R. 27 at para 21 [Rizzo]:
Although much has been written about the
interpretation of legislation […], Elmer Driedger in Construction of
Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer
to rely. He recognizes that statutory interpretation cannot be founded on the
wording of the legislation alone. At p. 87 he states:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
[17]
Though the respondent was not assessed
concerning her risk in Iran, the applicant argues that the respondent’s status
as a Convention refugee was deemed to have been so determined by virtue
of her acceptance in the Convention Refugee Abroad class. The applicant places
emphasis on the statement in chapter 10.2 of OP 5 (mentioned above) that family
members accompanying a principal applicant who has been determined to be a
Convention refugee “derive their refugee status”
from the principal applicant.
[18]
However, OP 5 does not have the force of law.
More importantly, the statement upon which the applicant relies merely suggests
that the respondent has refugee status. It does not say that she “has been determined to be a Convention refugee” as
required by paragraph 95(1)(a) of the IRPA.
[19]
The applicant also cites the affidavit of
Jean-Marc Gionet, Director of the Resettlement Division of the Refugee Affairs
Branch of CIC, as evidence that the respondent was deemed to be determined to
be a Convention refugee. However, Mr. Gionet’s statement is merely his opinion.
The only authorities he cites to support it are section 140 of the IRPR
(mentioned above), OP 5 and the GCMS notes concerning the respondent’s
husband’s refugee claim. These authorities are not persuasive. Despite Mr.
Gionet’s familiarity with Canada’s overseas Refugee and Humanitarian Resettlement
Program by virtue of his position, I am not inclined to give much weight to his
opinion. His view of the deemed determination of refugee status is essentially
an opinion on a question of law coming from a representative of one of the
parties in the present application.
[20]
On the other side of the ledger, certain
provisions of the IRPR suggest that, though accompanying family members
are members of the same class as the person who has been determined to be a
Convention refugee, they are not thereby deemed to have been determined to be
likewise Convention refugees. For example, the preamble of subsection 139(1) of
the IRPR provides that “[a] permanent resident
visa shall be issued to a foreign national in need of refugee protection, and
their accompanying family members, if following an examination it is
established that […]”. This preamble is followed by a series of
requirements concerning almost exclusively the foreign national rather than
their accompanying family members. All of them receive a permanent resident
visa, but no determination is made of the risks to the family members. Also,
section 140 of the IRPR (quoted above) provides that family members are
members of the same class as a person who is determined to be a refugee, but
does not state that such family members are deemed to have been determined to
be refugees.
[21]
The applicant points to the fact that the only
reason that the respondent’s risk was not assessed separately from her
husband’s is for the sake of efficiency, since it was unnecessary to do a
separate assessment for the respondent once it was determined that her husband
was a Convention refugee. The applicant seems to argue that it would be unfair
to deny it the ability to cessate the respondent’s refugee status simply
because it acted efficiently in the past. This argument strikes me as close to
suggesting that the Minister is more concerned with removing refugee status
than granting it. In my view, this is not the principal goal of the IRPA.
[22]
The applicant’s strongest argument, in my view,
concerns the definition of “protected persons”
and the consequences of the RPD’s decision. Subsection 95(2) of the IRPA
defines a protected person as “a person on whom refugee
protection is conferred under subsection (1), and whose claim or application
has not subsequently been deemed to be rejected under subsection 108(3), 109(3)
or 114(4).” The applicant notes that if the respondent is not a refugee
for the purposes of subsection 95(1) of the IRPA, then she cannot be a “protected person” as defined in subsection 95(2). If
the respondent is not a “protected person” then
a number of consequences could follow that do not apply to protected persons,
including the following:
- She could be
found inadmissible on health grounds under section 38 of the IRPA;
- She could be
arrested and detained without a warrant under subsection 55(2) of the IRPA;
- She would not be
entitled to protection against refoulement under section 115 of the IRPA.
[23]
The applicant also argues that the respondent,
if she is not a protected person, is not entitled to the health benefits of a
protected person and does not have access to a Refugee Travel Document.
[24]
As regards the Refugee Travel Document and the
protection against refoulement, these seem to be irrelevant to the respondent,
who has managed to renew her Iranian passport and travel in and out of Iran
more than once.
[25]
Though some of the other benefits of being a
protected person may be relevant, it seems nonsensical to consider a change to
the respondent’s status in Canada simply because she visited a country in which
her husband was found to be in danger, but in which she never
claimed to be in danger. In my view, this comes close to an absurd consequence
of the kind prohibited in Rizzo at para 27. Moreover, this is not an
academic debate. For example, if the respondent’s refugee status were cessated,
she would face the loss of her permanent resident status under paragraph
46(1)(c.1) of the IRPA, with all of the consequences that could have on
her and her family. In my view, the applicable statutory and regulatory
provisions would have to be clearer in order for the applicant’s position to
prevail.
[26]
The applicant argues that the present proceeding
is not about deciding whether the respondent should lose her refugee status,
but rather whether the RPD has the jurisdiction even to consider the issue - to
look at the facts and decide the matter on its merits. The applicant argues
that the result of the RPD’s decision is that there are no circumstances under
which the respondent’s refugee status could be removed under section 108 of the
IRPA.
[27]
In my view, this argument does not outweigh the
following important points:
- It makes no
sense for the respondent to face negative consequences for visiting Iran,
where she never claimed to be at risk;
- The applicable statutory
and regulatory provisions (read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the IRPA,
the object of the IRPA, and the intention of Parliament) do not
support the applicant’s position; and
- The applicant’s
position would work against the clearly stated policy of family unity.
[28]
I conclude that the RPD’s decision was
reasonable, even applying a narrow range of possible, acceptable outcomes.
VII.
Conclusion
[29]
The present application will be dismissed and
the decision of the RPD maintained.
[30]
The applicant requests that I certify a serious
question of general importance. The respondent submits that no question should
be certified. After having heard the parties, I have agreed to certify the
question below.
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