Docket: IMM-150-16
Citation:
2016 FC 884
Ottawa, Ontario, July 28, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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DONNA CYNTHILIA
GEORGE
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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.
Overview
[1]
Ms. George is a citizen of Saint Vincent and the
Grenadines who claimed refugee protection in Canada due to her fear of harm on
the basis of her sexual orientation and because she alleges she is a victim of
domestic violence perpetrated by her husband.
[2]
Ms. George’s claim was rejected by the Refugee
Protection Division [RPD] of the Immigration and Refugee Board [IRB], a finding
that was upheld by the Refugee Appeal Division [RAD] of the IRB. Ms. George
brought an application seeking leave from this Court to judicially review the
RAD decision. That application was dismissed in January, 2015 for lack of
perfection.
[3]
In October, 2015, Ms. George submitted an
application to the RAD to reopen the RAD decision. She alleged inadequate
representation before both the RPD and the RAD resulting in a breach of natural
justice.
[4]
In December, 2015, the RAD dismissed Ms.
George’s application to reopen the appeal. The RAD concluded, relying on
section 171.1 of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA] and Sub-Rule 49(1) of the Refugee Appeal Division Rules,
SOR/2012-257 [RAD Rules] that it did not have jurisdiction to reopen an appeal on
any ground where this Court has made a final determination.
[5]
Ms. George asks that I quash the decision of the
RAD dismissing her application to reopen her appeal. She argues because this
Court dismissed her application for leave on the basis of a lack of perfection,
there has been no final determination of the matter. She submits that the
purpose of section 171.1 of the IRPA and sub-Rule 49(1) of the RAD Rules is to prevent
re-litigation of the same issue. She argues this Court did not consider the
reasonableness or correctness of the original RAD decision or the merits of her
application. As such the dismissal for lack of perfection does not constitute a
final determination.
[6]
To determine this application I need to address
the following issues:
A. What is the standard of review?
B. Did the RAD err in concluding that dismissal by this Court for lack
of perfection constitutes a final determination pursuant to section 171.1 of
the IRPA and Sub-Rule 49(1) of the RAD Rules?
[7]
I am not persuaded by Ms. George’s arguments and
dismiss the application for the reasons that follow.
II.
Analysis
A.
What is the standard of review?
[8]
The parties agree that the correctness standard
of review applies to true questions of jurisdiction (Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 at para 59; Smith v Alliance Pipeline Ltd,
[2011] 1 S.C.R. 160 at para 26). Ms. George submits that the issue raised is one
of jurisdiction and a correctness standard of review applies. I disagree.
[9]
The category of true questions of jurisdiction
is narrow (Alberta (Information and Privacy Commissioner) v Alberta
Teachers’ Association, 2011 SCC 61 at para 39). The RAD is granted sole and
exclusive jurisdiction to determine “all questions of
law and fact, including questions of jurisdiction” in matters brought
before it (IRPA ss 162(1)). The issue raised in this application is not a true
question of jurisdiction but rather a question of the interpretation of section
171.1 of the IRPA, the RAD’s home statue. The RAD is entitled to deference and
I will apply a reasonableness standard of review.
B.
Did the RAD err in concluding that dismissal by
this Court for lack of perfection constitutes a final determination pursuant to
section 171.1 of the IRPA and Sub-Rule 49(1) of the RAD Rules?
[10]
It was both reasonable and correct for the RAD
to conclude that a decision of this Court dismissing an application for leave
and judicial review due to a lack of perfection constitutes a final
determination within the meaning of section 171.1 of the IRPA and RAD Rule
49(1).
[11]
Section 171.1 of the IRPA states:
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171.1 The Refugee Appeal Division does not have jurisdiction to reopen
on any ground — including a failure to observe a principle of natural justice
— an appeal in respect of which the Federal Court has made a final
determination.
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171.1 La Section d’appel des réfugiés n’a pas
compétence pour rouvrir, pour quelque motif que ce soit, y compris le
manquement à un principe de justice naturelle, les appels à l’égard desquels
la Cour fédérale a rendu une décision en dernier ressort.
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[12]
The issue raised is one of statutory
interpretation (NO v Canada (Minister of Citizenship and Immigration),
2015 FC 1186 [NO]). Statutes 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” (Rizzo & Rizzo Shoes Ltd Re, [1998] 1 S.C.R. 27 at
para 21).
[13]
In NO Justice Heneghan considers the
meaning of “final” as that term is used in
section 170.2 of the IRPA, a section that addresses the reopening of a matter
by the RPD. The wording is identical to section 171.1. In interpreting the
meaning of “final” Justice Heneghan refers to
paragraph 50 of Blackmore v British Columbia (Attorney General) (2009), 2009
BCSC 1299 at para 50 which states:
The grammatical and ordinary meaning of the
word "final" is "ultimate ... not to be undone, altered or
revoked ... [and] conclusive": Simpson and Weiner, The Oxford English
Dictionary, 2nd ed., Volume V (Oxford: Clarendon Press, 1989) at pp. 191 to
192.
[14]
In this case the decision of the Court to
dismiss the application for lack of perfection was a “final”
decision. It was not to be undone or revoked. However, Ms. George argues that “decision”
must be interpreted differently than “determination”,
the term used in section 171.1. While the decision of the Court might have been
a “final decision” it was not a “final determination” because the merits of the matter
had not been considered. Again I am unable to agree.
[15]
In this case the “Final
Decision” of the Court was to dismiss the application for lack of
perfection. This decision ultimately determined the matter; it was not simply a
procedural step but a final determination (Frenkel v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 96 at paras 12-13, 148 FTR 8
(TD)). While a decision to dismiss for lack of perfection can be set aside in
very narrow circumstances, the jurisprudence of this Court consistently holds: (1)
the decision is final; (2) the decision is not subject to appeal within the
meaning of paragraph 72(2)(e) of the IRPA; and (3) the Court has no
jurisdiction to consider the same matter again (Nkangura Twagirayezu v
Canada (Minister of Citizenship and Immigration), 2006 FC 1384 at paras 10,
11; Jalil v Canada (Minister of Citizenship and Immigration), 2002 FCT
321 at para 8; Bergman v Canada (Minister of Citizenship and Immigration),
2006 FC 1082 at para 6; Shokri v Canada (Minister of Citizenship and
Immigration), 2002 FCT 785 at para 12).
[16]
While the merits of the matter have not been
considered where an application is dismissed for lack of perfection, the
dispute as between the parties has been resolved. The matter is settled. It is
final. An ordinary, contextual reading of section 171.1 does not import a
requirement for a consideration of the merits but rather a requirement that the
matter be finally determined by this Court.
III.
Certified Question
[17]
Ms. George has proposed the following question
for certification:
Does the RAD pursuant to section 171.1 of
IRPA and Rule 49 of the RAD Rules have jurisdiction to reopen an appeal where
the Federal Court dismisses an application for leave to commence judicial
review for lack of perfection?
[18]
Ms. George’s counsel argues that the question
posed transcends the issues raised in this particular case and differs from the
question certified in NO.
[19]
The respondent relies on Lai v Canada
(Minister of Citizenship and Immigration), 2015 FCA 21 at para 4 in submitting
that the Court should only certify questions of general importance which are
dipositive of the appeal. The respondent notes that the applicant argued that
the facts of this case are unique and as such not a question of general
importance.
[20]
I have found, as set out above, the jurisprudence
unambiguously establishes that a proceeding dismissed for lack of perfection is
a final decision or determination of the matter. As such I am not satisfied
that the question proposed raises an issue of general importance. I will not
certify the question.
IV.
Conclusion
[21]
It was both reasonable and correct for the RAD
to conclude that this Court had “made a final
determination” in respect of the appeal when it dismissed the application
for lack of perfection. Having reasonably concluded this to be the case, the
RAD correctly concluded it did not have jurisdiction to reopen the appeal.
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