Docket: IMM-1102-16
Citation:
2016 FC 1146
Ottawa, Ontario, October 14, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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JAHANGIR
MAQBOOL
SHAH PARA
JAHANGIR
MUHAMMAD ADIL
RESHI
RUMAISA
JAHANGIR
MASHAIM
JAHANGIR RESHI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS AND JUDGMENT
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision rendered by the Refugee Protection
Division of the Immigration and Refugee Board [RPD], where it concluded that
the principal applicant’s refugee protection had ceased.
II.
Facts
[2]
The principal applicant is a citizen of
Pakistan. He came to Canada on July 2, 2008 and claimed refugee status on the
grounds that he was being persecuted in his home country for advocating for an
independent Kashmir. His wife and three children remained in Pakistan.
[3]
On February 11, 2011, the RPD granted the
applicant refugee status.
[4]
On November 14, 2011, he became a permanent
resident of Canada. His wife and children were also included in his
application, but he was advised that the processing of their applications would
take a further twenty-four months.
[5]
On November 25, 2011, he was issued a Pakistani
passport valid for one year. Upon his request, the passport’s validity was
extended through to November 24, 2016.
[6]
After obtaining his passport, the applicant
traveled to Pakistan three times: from February 5, 2012 to June 8, 2012; from
December 5, 2012 to February 7, 2013; and from November 6, 2013 to November 27,
2013.
[7]
On November 27, 2013, he was interviewed by a Canada
Border Services Agency, [CBSA] agent at the Port of Entry regarding his travels
to Pakistan. He later received a letter requiring him to attend an interview
with a second CBSA agent.
[8]
On November 28, 2013, he was notified that his
family’s applications for permanent residence had been approved and were ready
for visa.
[9]
After his second interview with CBSA, the
processing of the applicant’s family’s applications was suspended.
[10]
On May 6, 2014, the Minister applied for a
cessation of the applicant’s refugee status.
[11]
On March 8, 2016, the RPD granted the Minister’s
application and ceased the applicant’s refugee protection.
III.
Decision
[12]
The RPD began by addressing the issue of whether
the application of cessation constituted an abuse of process on the part of the
Minister. It found that the applicant had been questioned beyond the scope
allowed by the legislation at the Port of Entry. It also found that he should
have been advised at the second interview that he did not have an obligation to
answer the agent’s questions and that he had a right to counsel. There was also
no legislative justification for the suspension of the applicant’s family’s
applications. However, the RPD concluded that it had no jurisdiction to provide
the applicant the remedy he sought with regard to the suspension of the
applications.
[13]
The RPD also determined that while the
interviews were problematic, they did not constitute an abuse of process. It
remedied the issues raised by the applicant regarding the interviews by
excluding them from the evidence.
[14]
Nevertheless, the RPD found that the Minister
had made a prima facie case for cessation because the CBSA agent at the
Port of Entry had properly examined the applicant’s passport, identified his
travels to Pakistan and accessed CBSA’s notes on the applicant, which indicated
that he had been a refugee. It also concluded that the Minister had successfully
established the three elements for cessation, namely voluntariness, intention
and reavailment. The evidence demonstrated that the applicant had approached
the Pakistani consulate three times to obtain a passport after he became a
permanent resident of Canada, had traveled to Pakistan for extended periods of
time, had sought medical treatment in Pakistan and met with non-family members
and had presented himself as a Pakistani citizen to foreign authorities. By
traveling with his Pakistani passport, the applicant had reavailed himself of
Pakistan’s diplomatic protection.
[15]
The RPD therefore concluded that the applicant
had shown an absence of subjective fear of persecution and allowed the
Minister’s application to cease refugee protection.
IV.
Issues
[16]
This matter raises the following issues:
1.
What is the applicable standard of review?
2.
Did the RPD err in concluding that the
applicant’s refugee protection had ceased?
V.
Relevant Provisions
[17]
The relevant provisions are paragraph 46(1)(c.1)
and subsection 108(1) of the Act, which can be found in Appendix A to these
Reasons.
VI.
Submissions of the Parties
A.
The Applicant
[18]
The applicant submits that subsection 108(1) of
the Act should not have been applied against him because he was a permanent
resident of Canada. Such an application is contrary to section 98 of the Act,
which incorporates Article 1E of the 1951 Convention Relating to the Status
of Refugees [the Convention] and excludes from refugee protection those who
already benefit from a surrogate form of protection, such as permanent
residence. Therefore, pursuant to Article 1E of the Convention, there is prima
facie no ability to cease refugee protection for a person whom the
Convention shall not apply to.
[19]
The applicant argues that in keeping with the
ordinary meaning of the legislation for refugees that are also permanent
residents, cessation must be established to have taken place before the
acquisition of permanent residence or, if after permanent residence, the facts
indicate that refugee protection was not deserved in the first place. This
would link the permanent residence with the need for protection. However, to
look at cessation as applying to the period of time after the acquisition of
permanent residence ignores the fact that the applicant had a durable solution.
It is not an abuse of the refugee system to behave in a manner consistent with
having a durable solution because it has replaced the need for refugee
protection.
B.
The Respondent
[20]
The respondent submits that cessation applies to
permanent residents. Pursuant to section 40.1 and paragraph 46(1)(c.1) of the
Act, inadmissibility and loss of permanent resident status are consequences of
a determination that a person has ceased to be a protected person following a
determination by the RPD. The Federal Court of Appeal has confirmed that the
provisions of the Act on this issue are clear and if section 108 of the Act did
not apply to permanent residents, paragraph 46(1)(c.1) of the Act would be
rendered meaningless.
[21]
The argument that the applicant lost his refugee
protection when he became a permanent resident is inconsistent with paragraph
95(1)(a) of the Act, which states that refugee protection is conferred ‘when’ a
person becomes a permanent resident in the case of overseas refugee claimants.
There is also no support in the Act that refugee protection conferred on a
person under section 95 can cease under the exclusion provision in section 98.
This provision is meant to preclude the conferral of refugee status on a person
who already benefits from surrogate protection; it does not operate in the
manner proposed by the applicant.
VII.
Analysis
A.
What is the applicable standard of review?
[22]
The applicant submits that correctness is the
applicable standard of review because the RPD failed to address a true question
of law, namely whether section 108 of the Act applied to permanent residents. I
disagree. The RPD’s interpretation of the relevant provisions in the Act and
its assessment of whether grounds for cessation had been established are
reviewable under the standard of reasonableness (Siddiqui v Canada
(Citizenship and Immigration), 2016 FCA 134, para 11 [Siddiqui]). It
is well-established that the RPD possesses a particular expertise in
interpreting its home statute and is thus entitled to deference, as are its
conclusions on questions of mixed facts and law (Abadi v Canada (Citizenship
and Immigration), 2016 FC 29 at para 14).
[23]
The Court will only intervene if the decision is
not transparent, intelligible or justified, or if it does not fall within the
range of acceptable, possible outcomes in light of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9, para 47).
B.
Did the RPD err in concluding that the applicant’s
refugee protection had ceased?
[24]
Counsel for the applicant is again bringing
before the Court the argument that he advanced in Siddiqui, namely that
the Convention does not conceive cessation to be applicable against a person
who has a durable form of protection, such as permanent residence. In light
of this, I find it important to review the relevant provisions and how they
were meant to interact with one another.
[25]
As a signatory of the 1951 Convention
Relating to the Status of Refugees [the Convention], Canada incorporated
several provisions into its domestic legislation. Amongst others, Article 1C,
the Convention’s provision on cessation, is incorporated in s 108 of the Act:
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108 (1) A claim
for refugee protection shall be rejected, and a person is not a Convention
refugee or a person in need of protection, in any of the following
circumstances:
(a) the person has voluntarily reavailed themself of the
protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
(c) the person has acquired a new nationality and enjoys the
protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the
country that the person left or remained outside of and in respect of which
the person claimed refugee protection in Canada;
(e) the reasons for which the person sought refugee protection
have ceased to exist.
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108 (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
a) il se réclame de nouveau et volontairement de la protection du
pays dont il a la nationalité;
b) il recouvre volontairement sa nationalité;
c) il acquiert une nouvelle nationalité et jouit de la protection
du pays de sa nouvelle nationalité;
d) il retourne volontairement s’établir dans le pays qu’il a
quitté ou hors duquel il est demeuré et en raison duquel il a demandé l’asile
au Canada;
e) les raisons qui lui ont fait demander l’asile n’existent plus.
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[26]
In December 2012, the Protecting
Canada’s Immigration System Act, 2012, c. 17 [PCISA], came into force.
PCISA amended section 46 of the Act so that permanent resident status could be
lost “on a final determination under subsection 108(2)
that their refugee protection has ceased for any of the reasons described in
paragraphs 108(1)(a) to (d)”. Some people argued as does the applicant
in this case, that the cessation could not be sought against refugees who had
become permanent residents of Canada. The applicant relies on section 98 of the
Act which incorporates Article 1E of the Convention.
[27]
Article 1E of the Convention excludes from the
Convention “a person who is recognized by the competent
authorities of the country in which he has taken residence as having the rights
and obligations which are attached to the possession of the nationality of that
country”. A permanent resident of Canada arguably meets this definition.
The applicant therefore submits that because his status as a permanent resident
excludes him from the Convention as per section 98 of the Act, the Convention’s
provision on cessation cannot logically be applied against him by way of section
108 of the Act.
[28]
This argument was expressly rejected by the
Federal Court of Appeal [FCA] in Siddiqui at para 21-24. The FCA found
that it was inconsistent with the clear and unambiguous legislative scheme in
place. By amending section 46, Parliament deliberately chose to apply legal
consequences to cessation proceedings against permanent residents to allow for
the loss of that status when protection is no longer deemed necessary. This is
the legislative framework against which cessation applications must be decided in
Canada, Canada (Citizenship and Immigration) v. Bermudez, 2016
FCA 131 at para 22-25).
[29]
I also note that under the Convention, cessation
and exclusion are not meant to operate at the same time in the refugee process.
Article 1E has been interpreted as a means to prevent asylum-shopping (Canada
(Citizenship and Immigration) v Zeng, 2010 FCA 118 at para 1). It thus
applies prior to the filing of a refugee claim. By contrast, Article 1C
applies after the refugee claim has been processed, or while it is
processing. Becoming a permanent resident is not one of the reasons listed in
Article 1C for cessation. Therefore, the Convention does not automatically
cease to apply upon obtaining this status, as it would in the case of the
acquisition of a new nationality.
[30]
The applicant attempts to narrow the application
of Siddiqui to overseas refugees. Under the resettlement program,
persons who are recognized as refugees abroad can be resettled in Canada, thus
arriving as permanent residents. A person claiming refugee status inland, by
contrast, will have to first have his claim approved by the RPD and then apply
to become a permanent resident of Canada as a protected person. According to
the applicant, it is this ‘in-between’ period that distinguishes inland
refugees from overseas refugees, because it gives the government a period in
which to examine whether cessation is an issue in a particular case prior to
the person becoming a permanent resident. However, since there is no such
‘in-between’ period for overseas refugees, if circumstances corresponding to
those listed in subsection 108(1) arise following their arrival in Canada,
cessation proceedings will have to apply against permanent residents by
necessity.
[31]
This argument ignores the fact that the FCA in Siddiqui
also specially rejected this approach:
[18] I see no reason why the principle
of reavailment and its associated criteria should vary according to the route
by which status as a protected person is originally obtained. […]
[32]
I therefore conclude that the RPD’s
interpretation of the provisions relating to cessation in the Act was
reasonable and in line with both Canadian jurisprudence on the same issue and
international law.
[33]
Its finding that the principal applicant’s refugee
protection had ceased because of reavailment was also reasonable in light of
the facts. Three criteria must be met for a finding of reavailment. The
person concerned must have: (a) acted voluntarily; (b) intended by his action
to reavail himself of the protection of his country of nationality; and (c)
actually obtained such protection (Yuan v. Canada (Citizenship and
Immigration), 2015 FC 923, at para 27).
[34]
The facts of this case are not contested. The
applicant voluntarily applied for a Pakistani passport after obtaining his status
as a permanent resident of Canada and applied for an extension of its validity
immediately after its issuance, in spite of the fact that other international
travel documents were available to him, such as the Refugee Travel Document,
which would have enabled him to leave Canada for all destinations, except
Pakistan, the rationale being that a refugee is at risk in the country
against which he claimed protection and should not return except in exceptional
circumstances.
[35]
The applicant necessarily intended to reavail
himself of Pakistan’s protection by obtaining a passport issued by the
Pakistani authorities, since a Canadian travel document would not have allowed
him to return to his country of origin. He presented himself to border
authorities in Pakistan and in at least four other countries as a Pakistani
citizen, thus actually obtaining Pakistan’s diplomatic protection throughout
his travels to and from Pakistan.
[36]
I note that there is no particular evidence in
the record of any extenuating circumstances. The applicant did not take any
special precautions in entering or leaving Pakistan. He stayed at his family
home, where he and his family had been persecuted, visited friends and attended
medical appointments. This behaviour is not consistent with a subjective fear
of persecution.
VIII.
Application for Mandamus
[37]
The applicant seeks a writ of mandamus,
ordering Citizenship and Immigration Canada to continue to process his family’s
applications for permanent residence, the processing of which was halted for the
duration of the cessation proceedings. The respondent correctly notes that
while the applicant applied for leave on both the issues of cessation and that
of mandamus, Justice Strickland did not consider the latter in her Order
granting leave on the cessation matter.
[38]
Following Deng Estate v Canada (MPSEP),
2009 FCA 59 at para 15-16, it cannot be inferred that Justice Strickland
intended to grant leave for this Court to review the visa office’s decision to
suspend the processing of the applicant’s family’s permanent residence
applications since her Order is silent on the matter. A decision must therefore
be made on whether leave should be granted on the matter. Given the outcome of
the present judicial review, I am denying leave because the matter is now moot.
Because the applicant is no longer a protected person, he is no longer eligible
to become a permanent resident. It follows that his family members, who were
included in his original application for permanent residence, are also no
longer eligible for that status.
IX.
Certified Question
[39]
The applicant is proposing the following
question for certification:
Must the RPD in a cessation proceeding
pursuant to s 108 of IRPA consider the relevance of permanent resident status
in deciding whether to exercise its discretion under s 108(2) to render a
decision? If so, what is the relevance?
[40]
In my view, this question does not constitute a
serious question of general importance because the provisions of the Act are
clear on the applicability of section 108 to permanent residents of Canada. Furthermore,
the FCA in Siddiqui has already answered this question.
X.
Conclusion
[41]
This application for judicial review is denied.
The RPD reasonably interpreted the provisions governing cessation applications
under the Act and reasonably concluded in light of the evidence that the
criteria for the cessation of the principal applicant’s refugee status had been
established.
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