Date:
20131127
Docket:
IMM-8110-12
Citation:
2013 FC 1195
Ottawa, Ontario,
November 27, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
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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MICHAEL OLUFEMI OLADAPO
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application by the Minister of Citizenship and Immigration (the Minister
or the applicant) pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated July 30, 2012, wherein the respondent was determined to be a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant asks the Court to set aside the Board’s decision and
refer the matter back to the Board for redetermination by a different panel.
Background
[3]
The
respondent is a citizen of Nigeria. He claimed protection on the basis of
fearing persecution by his uncle and other community members in Nigeria due to an inheritance dispute. He also alleged persecution based on political
opinion.
[4]
The
respondent’s father was the king of the respondent’s community and the
respondent was first in line for the title as the first-born son. Many family
members died and the respondent’s pastor advised him to leave the country to
avoid becoming the next victim. The respondent left his father’s house in 1995.
At one point, the respondent’s shop was burned due to political motivations. The
respondent’s father told the respondent that the root of the conflict was that
the respondent’s uncle wanted land that had been left to the respondent’s
father.
[5]
The
respondent fled to Benin in 1997 and to Spain in 1999.
[6]
The
respondent’s father died in 1999 but the respondent did not learn of
this for two years due to his father’s wish that he not return to Nigeria for the funeral. In 2006, the respondent returned to Nigeria and was asked to
assume the chieftaincy, but refused. He also assisted the Action Congress Party
and was threatened. He reported the threats to the police but they said they
could not protect him so he returned to Spain.
[7]
The
respondent arrived in Canada on April 21, 2011 and was detained upon arrival.
He claimed protection at that time.
[8]
The
Board heard his claim on May 17, 2012.
Board’s Decision
[9]
The
Board issued an oral decision in the hearing on May 17, 2012, with written
reasons released on July 27, 2012. The Board summarized the respondent’s
allegations and accepted his identity. The Board noted that it was unclear from
his Spanish residency card what his status was in that country, but concluded
it was clear that his Spanish documents were fraudulently obtained because they
indicated Beninese citizenship. The Board indicated exclusion was therefore a
moot point.
[10]
The
Board indicated it did not accept all his testimony but would make a decision
based on the core of the matter. The Board rejected his claim under section 96
of the Act due to a lack of objective evidence of nexus.
[11]
The
Board accepted the respondent’s claim under section 97 of the Act on the basis of
risk due to past activities, profession, family lineage and political parties.
The Board concluded there was no internal flight alternative or state
protection available.
Issues
[12]
The
applicant submits that the following points are in issue:
1. What is the
standard of review?
2. Did the Board
breach the principles of procedural fairness by failing to notify the Minister
that there was a possibility that Article 1E of the Refugee Convention applied
to the claim?
[13] The respondent originally
argued that the application was out of time, but abandoned that position at the
hearing.
Applicant’s Written Submissions
[14]
The
applicant argues that whether the Board erred by failing to give notice to the
Minister is a question of procedural fairness reviewable on a correctness
standard.
[15]
The
applicant says that the Board did not notify the Minister upon becoming aware
that section 1E of the Convention Relating to the Status of Refugees,
28 July 1951, 189 UNTS 137 (the Convention) possibly applied to the
claim. This was a breach of what was then Rule 23 of the Refugee Protection
Division Rules, SOR/2002-228, which makes such notification mandatory. This
Court has previously held that a failure to notify as required by this Rule
constitutes a violation of procedural fairness warranting redetermination.
[16]
The
applicant argues that the Board’s duty is triggered when there is a mere
possibility that Articles 1E or 1F could apply. The Minister is the beneficiary
of this Rule.
[17]
The
applicant argues that in this case, while the Board cited “Article 1(a)”, it
clearly meant 1E since it was referring to the respondent’s status in Spain. The Board was clearly aware there was a possibility this Article applied since it
took the time to review the evidence and make a finding. The transcript
indicates the Board thought that exclusion might be an issue. Therefore, there
was a duty to notify the Minister.
[18]
Even
if the reference to 1(a) was not a typo, the Board was aware that Article 1E
might apply based on the evidence, as the respondent’s boarding card indicated
he had boarded with a Spanish passport. The respondent has three children born
in Spain, lived there for 11 years and possessed a number of Spanish documents.
[19]
The
applicant argues that had the Minister had the chance to participate in the
proceedings, the Minister could have provided evidence on the
respondent’s status in Spain and other questions relevant to whether or not the
respondent had status substantially similar to that of Spain’s nationals.
Respondent’s Written Submissions
[20]
The
respondent agrees that the standard of review is correctness. The respondent
argues that the Board did not believe there was a possibility that either
Article 1E or 1F applied to the respondent, as he had lived in Spain under a fake identity. There was therefore no obligation to notify the Minister.
[21]
In
the alternative, the respondent argues that the applicant has not proven there
was no notification. The applicant has only relied upon staff within its own
evidence as opposed to providing evidence from the Board itself. The
presumption of due process has therefore not been rebutted.
Applicant’s Reply Submissions
[22]
The
applicant argues that the respondent did not live under a false identity in Spain, as the Spanish documents are in his name; rather, they only fraudulently list his citizenship
as Benin.
[23]
The
applicant argues that an email sent from the Board to the Canada Border
Services Agency did not notify the applicant there was a possibility that
Article 1E would be raised and is not the proper method for doing so. The
transcript reveals that the Board was not of the view that the applicant had
been notified. It did not provide the necessary relevant information.
Analysis and Decision
[24]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[25]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 43, [2009] 1 SCR
339). No deference is owed to decision makers on these issues (see Dunsmuir
above, at paragraph 50). The question of whether the Board has complied with
Rule 23 or its successor is a matter of procedural fairness and therefore attracts
this standard of review (see Canada (Minister of Citizenship and
Immigration) v Louis, 2009 FC 674 at paragraph 14, [2009] FCJ No 826).
[26]
Issue 2
Did the Board breach the
principles of procedural fairness by failing to notify the Minister that there
was a possibility that Article 1E of the Refugee Convention applied to the
claim?
The Board
clearly considered the possibility of exclusion in its reasons at paragraph 4:
While
it’s unclear from the copy of your Spanish residency card exactly what your
status in Spain is, having determined that you are a Nigerian, it is clear that
your Spanish documents are fraudulently obtained because Spain is under the
belief that you are a citizen of Benin based on the passport you showed them.
Therefore, the issue of exclusion under article 1(a) of the Convention is, I
think, a moot point.
[27]
This
passage makes clear that the Board considered and then rejected exclusion. The
Board made a factual finding relating to the respondent’s status in Spain. This reaches the threshold of “possibility” as used in Rule 23 and therefore
requires notice to the Minister.
[28]
I
agree with the applicant that the transcript shows that the Board had not given
notice:
You
have given me some additional [sic] today that changes some of the things that
I had questions about so we will see where the hearing goes, but I will let you
know that I may decide to suspend the hearing and invite the minister to
participate.
[29]
Failure
to give such notice requires redetermination (see Louis above, at
paragraph 14).
[30]
As
a result, the application for judicial review must be allowed and the matter
referred to a different panel of the Board for redetermination.
[31]
The
respondent has proposed the following serious questions of general importance for
my consideration for certification:
1. Whether former Section 23 of Refugee
Protection Division (RPD) Rules (Section 26 under the current RPD Rules)
involves a two stage process, namely:
(a) A first stage process of exclusive
deliberation in the board’s mind as to whether it “believes” that there is a
possibility that the issue of exclusion might arise in a claim; and
(b) A second stage process of Ministerial
notification once the board forms the belief that there is a possibility that
the issue of exclusion might arise in a claim.
2. If the proposition in Question one is
affirmed, is the board required to notify the Minister about it’s first stage
deliberation it [sic] forms the belief that there is no possibility that
the issue of exclusion will arise in the claim?
3. Does the deliberation referred to in
Question 1(a) above permit the board to canvass whether the claimant is
potentially an excluded person? Are there limits to the nature of the board’s
deliberations?
4. What is the applicable standard to be
applied by a reviewing court with respect to the board’s deliberative process
in the context of Question 1(a)?
[32]
The
Federal Court of Appeal in Lin Zhang v Canada (Minister of Citizenship and
Immigration), 2013 FCA 168, 446 NR 382 stated at paragraph 9:
It
is trite law that to be certified, a question must (i) be dispositive of the
appeal and (ii) transcend the interests of the immediate parties to the
litigation, as well as contemplate issues of broad significance or general
importance. As a corollary, the question must also have been raised and dealt
with by the court below and it must arise form the case, not from the Judge’s
reasons.
[33]
I
have considered the parties’ submissions on certification and I am not prepared
to certify any of the proposed questions as I do not believe any of the
questions transcend the interests of the immediate parties to the litigation
and contemplates issues of broad significance or general application.
[34]
The
issue which underlies the proposed questions is whether the Board carries out a
two-stage process relating to giving notice to the Minister under what was then
current section 23 of the Refugee Protection Rules. Section 23 reads:
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23.(1)
If the Division believes, before a hearing begins, that there is a possibility
that sections E or F of Article 1 of the Refugee Convention applies to the
claim, the Division must notify the Minister in writing and provide any
relevant information to the Minister.
(2)
If the Division believes, at any time during a hearing, that there is a
possibility that section E or F of Article 1 of the Refugee Convention
applies to the claim, and the Division is of the opinion that the Minister’s
participation may help in the full and proper hearing of the claim, the
Division must notify the Minister in writing and provide the Minister with
any relevant information.
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23. (1) Si elle croit, avant l'audience,
qu'il y a une possibilité que les sections E ou F de l'article premier de la
Convention sur les réfugiés s'appliquent à la demande d'asile, la Section en
avise par écrit le ministre et lui transmet les renseignements pertinents.
(2) Si elle croit, au cours de l'audience,
qu'il y a une possibilité que les sections E ou F de l'article premier de la
Convention sur les réfugiés s'appliquent à la demande d'asile et qu'elle
estime que la participation du ministre peut contribuer à assurer une
instruction approfondie de la demande, la Section en avise par écrit le
ministre et lui transmet les renseignements pertinents.
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[35]
A
reading of subsection 23(1) shows that if the Board believes there is a
“possibility” that sections E or F of Article 1 of the Refugee Convention
applies, the Board must give notice to the Minister. From the transcript, it
appears that this was the situation in this case (certified tribunal record
page 350). There is simply no serious question of broad significance or general
application raised here.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is allowed and the matter is referred to a different panel of
the Board for redetermination.
2. No question is
certified.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
169.
In the case of a decision of a Division, other than an interlocutory
decision:
(a)
the decision takes effect in accordance with the rules;
(b)
reasons for the decision must be given;
(c)
the decision may be rendered orally or in writing, except a decision of the
Refugee Appeal Division, which must be rendered in writing;
(d) if
the Refugee Protection Division rejects a claim, written reasons must be
provided to the claimant and the Minister;
(e) if
the person who is the subject of proceedings before the Board or the Minister
requests reasons for a decision within 10 days of notification of the
decision, or in circumstances set out in the rules of the Board, the Division
must provide written reasons; and
(f)
the period in which to apply for judicial review with respect to a decision
of the Board is calculated from the giving of notice of the decision or from
the sending of written reasons, whichever is later.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
169.
Les dispositions qui suivent s’appliquent aux décisions, autres
qu’interlocutoires, des sections :
a)
elles prennent effet conformément aux règles;
b)
elles sont motivées;
c)
elles sont rendues oralement ou par écrit, celles de la Section d’appel des
réfugiés devant toutefois être rendues par écrit;
d)
le rejet de la demande d’asile par la Section de la protection des réfugiés
est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e)
les motifs écrits sont transmis à la personne en cause et au ministre sur
demande faite dans les dix jours suivant la notification ou dans les cas
prévus par les règles de la Commission;
f)
les délais de contrôle judiciaire courent à compter du dernier en date des
faits suivants : notification de la décision et transmission des motifs
écrits.
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Refugee
Protection Division Rules, SOR/2002-228
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23.(1)
If the Division believes, before a hearing begins, that there is a
possibility that sections E or F of Article 1 of the Refugee Convention
applies to the claim, the Division must notify the Minister in writing and
provide any relevant information to the Minister.
(2)
If the Division believes, at any time during a hearing, that there is a
possibility that section E or F of Article 1 of the Refugee Convention
applies to the claim, and the Division is of the opinion that the Minister’s
participation may help in the full and proper hearing of the claim, the
Division must notify the Minister in writing and provide the Minister with
any relevant information.
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23. (1) Si elle croit, avant l'audience,
qu'il y a une possibilité que les sections E ou F de l'article premier de la
Convention sur les réfugiés s'appliquent à la demande d'asile, la Section en
avise par écrit le ministre et lui transmet les renseignements pertinents.
(2) Si elle croit, au cours de l'audience,
qu'il y a une possibilité que les sections E ou F de l'article premier de la
Convention sur les réfugiés s'appliquent à la demande d'asile et qu'elle
estime que la participation du ministre peut contribuer à assurer une
instruction approfondie de la demande, la Section en avise par écrit le ministre
et lui transmet les renseignements pertinents.
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