Docket:
A-372-12
Citation: 2013
FCA 226
CORAM: PELLETIER J.A.
GAUTHIER
J.A.
TRUDEL
J.A.
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Appellants
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and
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ENRIQUE ANDRES TOBAR TOLEDO
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Respondent
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REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
Enrique Andres Tobar Toledo was only 11
years old in 1995 when he accompanied his father and the other members of his
family to Canada, where his father made a claim for refugee protection on his
own behalf and on behalf of his minor children. The claims for refugee
protection were rejected. The family therefore returned to Chile, its country of origin.
[2]
In 2011, Mr. Tobar Toledo, accompanied by
his spouse, returned to Canada, where each made a claim for refugee protection.
His spouse’s claim was considered eligible and was referred to the Refugee
Protection Division (RPD). However, Mr. Tobar Toledo’s claim for
protection was considered ineligible because of the rejection of the claim for refugee
protection made on his behalf in 1995, as provided for at paragraph 101(1)(b)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("the
Act"):
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101. (1) A claim is ineligible to be referred to the Refugee
Protection Division if
…
(b) a
claim for refugee protection by the claimant has been rejected by the Board;
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101. (1) La demande est irrecevable dans les cas suivants :
…
b) rejet antérieur de la demande d’asile par la Commission;
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[3]
Mr. Tobar Toledo was granted leave to file
an application for judicial review of that decision, which application was ruled
on by Mr. Justice de Montigny of the Federal Court ("the judge"
or "the Federal Court judge"). The latter held that the border
services officer who considered Mr. Tobar Toledo’s claim erred in
concluding that he had made an earlier claim for refugee protection that had
been rejected by the RPD. The judge was of the view that the application for judicial
review raised the following serious question of general importance:
Does the rejection of a refugee claim submitted by parents
accompanied by minor children necessarily render ineligible a later claim
submitted by one of those children, having now reached the age of majority, on
their own behalf, pursuant to paragraph 101(1)(b) of the IRPA,
regardless of whether the facts on which the second claim is based are
different from those on which the original claim submitted by the parents was
based?
The judge’s
reasons are reported in Toledo v. Canada (Minister of Citizenship and
Immigration), 2012 FC 764, [2012] F.C.J. No. 925 (Reasons).
[4]
For the reasons provided below, I am of the view
that the appeal must be allowed, the Federal Court decision set aside and the
decision of the border services officer confirmed.
FACTS AND
PROCEDURAL HISTORY
[5]
The relevant facts are very simple and have been
broadly outlined in the preceding paragraphs. A few points are worth noting.
[6]
In the course of the claim for refugee
protection in 1995, the Minister of Citizenship and Immigration (the Minister)
delivered to the respondent, Mr. Tobar Toledo, a document addressed to him
that read as follows:
[translation]
Determination
of eligibility under subsection 45(1) of the Immigration Act and
referral of the claim to the Convention Refugee Determination Division of the
Immigration and Refugee Board under section 46.02
Pursuant to
section 45 of the Immigration Act, your claim to be a Convention
Refugee has been found eligible by the Immigration and Refugee Board.
Accordingly, and under
section 46.02 of the Immigration Act, your claim has been referred
to the Convention Refugee Determination Division.
Appeal Book (A.B.),
at page 42
[7]
The Appeal Book contains data obtained from the
Department of Citizenship and Immigration’s computer system indicating that Mr. Tobar
Toledo’s claim for refugee protection was rejected by the Convention Refugee
Determination Division on March 17, 1997.
[8]
Mr. Tobar Toledo says that he knows nothing
about the claim filed by his father in 1995. He is unaware of the reasons for the
claim as well as of the reasons for which it was rejected. Nor does he know
anything about the claim for refugee protection filed on his behalf at the same
time. It should be noted, however, that Mr. Tobar Toledo’s father is still
alive: A.B., at page 200.
[9]
The claims for refugee protection filed by Mr. Tobar
Toledo and his spouse in 2011 are based on their persecution by powerful
businesspeople who tried to burn down their house and impair their physical
integrity. The civil authorities were aware of the misdeeds of these powerful
individuals, but they refused to intervene. Mr. Tobar Toledo and his
spouse therefore decided that they had to flee Chile.
[10]
In his application for judicial review, Mr. Tobar
Toledo alleged that the officer had misinterpreted paragraph 101(1)(b)
of the Act and that this incorrect interpretation is inconsistent with Canada’s
obligations as a signatory of the Convention on the Rights of the Child,
[1992] Can. T.S. No. 3 (the Convention). Mr. Tobar Toledo also
alleges that this faulty interpretation violates his rights under sections 7
and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B of the Canada Act 1982, (U.K.), 1982, c.
11 (the Charter).
[11]
The Federal Court judge began his analysis by
addressing the standard of review. The judge noted that decisions regarding the
eligibility of a claim for refugee protection often raised questions of fact or
questions of mixed fact and law. Such questions are reviewable on a standard of
reasonableness, but the judge was of the opinion that the issues raised in Mr. Tobar
Toledo’s case were not of that kind.
[12]
According to the judge, the issue of whether the
officer has properly interpreted the Act is one of statutory interpretation
that raises a jurisdictional issue because the officer’s decision determines
whether the RPD has the jurisdiction to examine and decide a claim. The submissions
that the officer’s interpretation of the Act violates sections 7 and 15 of
the Charter raise constitutional issues. Citying paragraphs 58 to 61 of Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), the
judge held that both questions were reviewable on a standard of correctness.
[13]
The judge then referred to a case cited by the
defendants (the appellants before this Court), the Minister of Citizenship and
Immigration and the Minister of Public Safety and Emergency Preparedness ("the
Ministers"): Charalampis v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1002, [2009] F.C.J. No. 1246. This is the authority that
led him to consider the consequences that ensue when the facts underlying two
successive claims for refugee protection are similar.
[14]
The claimants in Charalampis were two
sisters who had accompanied their father to Canada, where he had filed claims
for refugee protection on his own behalf and on theirs. These claims were
accepted, and the father and two daughters were granted refugee status. The
father later admitted to the RPD that the account of persecution provided in
support of the claim for refugee protection was a complete fabrication. The RPD
revoked its previous decision and held that the claims for refugee protection
of the family members were deemed to have been rejected. This resulted in the
issuance of a removal order against all of them.
[15]
The two sisters then attempted to file a new
claim for refugee protection, alleging that forcing them to suffer the
consequences of their father’s dishonesty violated their right to equality
under section 15 of the Charter. The immigration officer was of the view
that the sisters’ claims for refugee protection were ineligible because of the
removal order against them, as provided for in subsection 99(3) of the Act.
[16]
The officer’s decision was challenged through an
application for judicial review. In its reasons, the Federal Court accepted the
Minister’s argument that several provisions of the Act subjected children to
the consequences of a parent’s dishonesty and that having the courts intervene
in such cases may “create something different in nature from what Parliament
intended”: Charalampis, at paragraph 39. Accordingly, the
application for judicial review was dismissed.
[17]
The Ministers cited Charalampis in
support of their submission that the officer had very limited discretion once he
had determined that a prior claim for refugee protection by Mr. Tobar
Toledo had been rejected. The judge concluded that Charalampis was
irrelevant because the Charalampis sisters had not left Canada after the rejection of their initial claim for refugee protection. Accordingly, any new claim
for refugee protection necessarily had to be based on the same facts as the
first, since they could not have been persecuted in Canada. Mr. Tobar
Toledo, however, left Canada for a period of more than 15 years after the
initial claim for refugee protection was rejected.
[18]
The judge noted that paragraph 101(1)(b)
of the Act did not distinguish between a claim for refugee protection based on facts
that had already supported a prior claim and one based on different facts. Once
a claimant for refugee protection has had a claim rejected, subsequent claims
for refugee protection are ineligible, even if they are based on a completely
different set of facts from those underlying the original claim for refugee
protection. That led the judge to inquire as to whether the same principle
applies in cases where a claim for refugee protection is later filed by a child
who has accompanied a claimant whose claim waspreviously rejected.
[19]
Bearing in mind that minor children are an
integral part of claims for refugee protection filed by their parents, the
judge inquired whether children should, therefore, be subject to the same
treatment as their parents, particularly with respect to the ineligibility of
any subsequent claims for refugee protection under paragraph 101(1)(b)
of the Act.
[20]
The judge noted that a comparison of the two
official versions of the Act led to a negative conclusion. The judge’s
reasoning on this point is reproduced below:
The very words of paragraph 101(1)(b) raises a first doubt. While
the French version declares a claim ineligible in the case of a “rejet
antérieur de la demande d’asile” (« prior rejection of a claim for refugee
protection ») by the Board, the English version seems to be slightly more
specific by providing that a claim is ineligible if “a claim for refugee
protection by the claimant” has been rejected by the RPD [emphasis
added]. Even if the minor children are included in their parents’ application,
one cannot accurately state that it is the children who are making the claim.
In fact, they often do not have the capacity to make such a claim, and that is
the reason their interests are represented by either parent. While a minor
can certainly make a claim for refugee protection on his or her own behalf,
that is not the case here.
Reasons, at paragraph 21. [Emphasis added.]
[21]
The judge also noted Mr. Tobar Toledo’s
argument that Parliament does not always subject minor children to the same
treatment as their parents. For example, section 226 of the Immigration
and Refugee Protection Regulations, SOR/2002-227, provides that a child
accompanying a parent who is inadmissible and subject to a deportation order is
exempt from the requirement the he or she obtain prior authorization before returning
to Canada, unlike the parent, who must obtain such an authorization.
[22]
The judge then considered the legislative
history of the provision at issue. He noted that section 46.01 of the
former statute, the Immigration Act, R.S.C. 1985 c. I-2, allowed a
failed claimant to file a new claim for refugee protection on the condition
that the claimant leave Canada for at least 90 days. This resulted in abuse of
the system by some failed claimants, who would file successive claims separated
by 90-day stays in the United States. It was to put an end to this type of
abusive practice that the Act was amended and paragraph 101(1)(b) introduced.
[23]
The judge was of the view that Mr. Tobar
Toledo was not abusing the system in this fashion. While acknowledging that the
circumstances of the father’s claim for refugee protection remained unknown,
the judge took the view, most likely because of the passage of time, that Mr. Tobar
Toledo’s claim for refugee protection was unrelated to that filed by his
father.
[24]
The judge held that the border services officer
had erred in deciding that Mr. Tobar Toledo’s claim for refugee protection
was ineligible “simply because his father’s claim for refugee protection, in
which he was included, was rejected in 1997”: Reasons at paragraph 27. The
judge continued by stating that the situation would be otherwise if Mr. Tobar
Toledo’s claim had been based on the same facts as that of his father. According
to the judge, in order to make the necessary assessment, Mr. Tobar Toledo’s
claim would have to be examined on its face: if the claim did not appear to be based
on the same circumstances as those in his father’s claim, it would have to be
referred to the RPD for the purposes of determining whether refugee status
could be granted to Mr. Tobar Toledo.
[25]
In the light of this ruling, the judge did not
have to address the issues relating to the Convention or the Charter.
ISSUES
[26]
Since I am of the view that the appeal must be
allowed, I will examine the issues raised by Mr. Tobar Toledo :
1- The
validity of the certified question.
2- The
standard of review.
3- The
interpretation of paragraph 101(1)(b).
4- The
connection between Mr. Tobar Toledo’s claim and his father’s.
5-
The reasonableness of the border services
officer’s decision.
ANALYSIS
The certified question
[27]
Mr. Tobar Toledo raises the preliminary issue
of whether the question certified by the judge is consistent with the standards
established by this Court. The case law of this Court holds that a certified
question must be not only a serious question of general importance, but also a
question that has been dealt with by the judge in his or her reasons and one
that would be dispositive of the appeal: see Zazai v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, at
paragraphs 11-12; Varela v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, at paragraphs 27-29.
[28]
In this case, Mr. Tobar Toledo argues that
the certified question cannot be dispositive of the appeal because it assumes that
there is a difference between the facts underlying the first and second claims.
Because the facts alleged by Mr. Tobar Toledo’s father in his claim for
refugee protection are unknown, it is impossible to know whether the facts
alleged by Tobar Toledo are the same or not. Furthermore, the Ministers have
never alleged that the facts underlying the two claims were the same. According
to Mr. Tobar Toledo, the Court should therefore refuse to hear this appeal
on the merits.
[29]
I disagree with Mr. Tobar Toledo’s
reasoning. In his reasons, the judge concluded that paragraph 101(1)(b)
applies, on the basis of its wording, to cases of successive claims for refugee
protection by an adult, regardless of whether the facts underlying the claims
are the same or not: Reasons, at paragraph 18. Further in his reasons, the
judge held that a subsequent claim for refugee protection is ineligible if it
is based on the same facts as a prior claim even if that claim is made by a
minor child or on behalf of a minor child by his or her parent: Reasons, at
paragraph 27. Therefore, in the judge’s mind, a subsequent claim for
refugee protection may be eligible if the prior claim was made by, or on behalf
of, a minor child and if the two claims are based on different facts.
[30]
In his analysis, the judge seems to have
concluded that, because Mr. Tobar Toledo’s claim was filed 15 years
after that of his father, the two claims were not based on the same facts: Reasons,
at paragraph 26. This assumption is not unreasonable. Moreover, it is not
at all detrimental to Mr. Tobar Toledo; any other conclusion would have
made his claim ineligible. Mr. Tobar Toledo’s attack on this inference by
the judge is ill-advised, as it was the only basis on which the former’s
application for judicial review could be allowed.
The standard
of review
[31]
The parties do not agree on the applicable
standard of review.
[32]
It will be recalled that the judge decided that
the standard of correctness was applicable to the issues before him because
they either raised questions about the jurisdiction of the RPD or constitutional
issues. Mr. Tobar Toledo agrees with this conclusion.
[33]
The Ministers, on the other hand, are of the
view that the standard of reasonableness should apply. They argue that the case
law of the Federal Court supports their view.
[34]
When this Court hears an appeal from the Federal
Court’s decision in a judicial review of a tribunal or of an administrative decision-maker,
its role is to determine whether the Federal Court has chosen the appropriate
standard of review and applied it correctly. The choice of standard of review
is a question of law that is reviewable by this Court on a standard of
correctness: Dr. Q v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226, at paragraph 43.
[35]
In Dunsmuir, at paragraphs 54 and
62, the Supreme Court of Canada states that before proceeding to the standard
of review analysis, courts must ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question. This requires a definition of the
category of question at issue.
[36]
In this case, the issue is whether Mr. Tobar
Toledo is a person who has had a prior claim for refugee protection rejected by
the RPD. The border services officer obviously decided that he was, while the
judge, despite acknowledging that Mr. Tobar Toledo had been named in a
claim for refugee protection, nevertheless found that he was not a person who
had had a prior claim for refugee protection rejected.
[37]
This issue seems to have two aspects: the first
is determining whether Mr. Tobar Toledo filed a claim for refugee protection
that was rejected. The second is determining whether this rejection is covered
by paragraph 101(1)(b). To respond to the first question, the
officer merely had to consult the archives or the computer system of the
Department of Citizenship and Immigration. This is a question of fact.
[38]
The answer to the second question calls for the interpretation
of paragraph 101(1)(b) of the Act. When this provision is interpreted
in the light of its wording, its context and Parliament’s purpose for enacting
it, do the words “a claim for refugee protection by the claimant has been
rejected” include the rejection of a claim for refugee protection of a minor
child whose claim is dependent his parents' claim for refugee protection, and
if so, is there a distinction to be made between claims that are based on the
same facts or different facts? These are questions of law.
[39]
The issues of whether the interpretation given
of paragraph 101(1)(b) is in accordance with the Convention and the
Charter are indisputably also questions of law.
[40]
Having defined the categories of question, has
the standard of review already been determined in a satisfactory manner by the case
law? For questions of fact, the standard of review can be found at
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985
c. F-7:
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18. (4) The Federal Court may grant
relief under subsection (3) if it is satisfied that the federal board,
commission or other tribunal
…
(d) based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
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18. (4) Les mesures prévues au
paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office
fédéral, selon le cas :
…
d) a rendu une décision ou une ordonnance fondée sur une
conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments dont il dispose;
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[41]
In Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 45,
the Supreme Court of Canada held that the standard described at paragraph 18.1(4)(d)
of the Federal Court Act corresponded to the standard of reasonableness.
[42]
As for questions of law, it should be noted that
the decision-maker, the border services officer, is an administrative decision-maker.
He does not decide these issues on behalf of a tribunal. At the most, he
decides questions of law as a delegate of the Minister of Public Safety and
Emergency Preparedness: see subsections 4(2) and 6(1) of the Act.
[43]
This Court, in a decision authored by Mr. Justice Mainville,
has considered in depth the issue of the deference owed to an administrative decision-maker,
including a ministerial delegate, in Georgia Strait Alliance v. Canada (Minister
of Fisheries and Oceans), 2012 FCA 40, [2012] F.C.J. No. 157 (Georgia Strait).
In that case, this Court stated that the case law pertaining to the deference
owed to an administrative tribunal that decides questions of law in the
course of an adversarial proceeding does not apply to an administrative decision-maker
“who is not acting as an adjudicator and who thus has no implicit power to
decide questions of law”: see Georgia Strait, at paragraphs 96 to 99.
[44]
The Court went on to conduct the standard of
review analysis. Given that Georgia Strait involved the Species at
Risk Act, S.C. 2002, c. 29, and the Fisheries Act, R.S.C. 1985 c.
F-14, this analysis does not apply to the to the interpretation of the Act by
the Minister of Public Safety and Emergency Preparedness (or his delegate).
[45]
It is therefore necessary to undertake the
standard of review analysis by examining the factors identified at
paragraph 64 of Dunsmuir. The factor that best reveals Parliament’s
intention is, in my view, the fact that the Act does not contain a privative
clause; furthermore, it allows for the possibility of judicial review “with
respect to any matter — a decision, determination or order made, a measure
taken or a question raised — under this Act”: see section 72 of the Act.
This is an unequivocal indication of Parliament’s intention not to shield the
Minister’s interpretation of the Act from judicial oversight.
[46]
Although the Act establishes a comprehensive
scheme for dealing with immigration and refugee protection applications, in
comparison with the courts, the Minister and his agents do not
have any greater expertise on questions pertaining to the interpretion of the part of the
Act that deals with the examination of claims at the border. The fact that it
is different for the Immigration and Refugee Board and the RPD is not
determinative, because they are not involved in this case.
[47]
The nature of the question, i.e., the scope of
paragraph 101(1)(b), does not call upon the decision-maker’s
specialized expertise either. This provision reflects the objectives of the Act,
particularly paragraph 3(2)(e):
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3. (2) The objectives of this Act
with respect to refugees are
…
(e) to
establish fair and efficient procedures that will maintain the integrity of
the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;
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3. (2) S’agissant des réfugiés, la
présente loi a pour objet :
…
e) de mettre en place une procédure équitable et efficace qui
soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile
et, d’autre part, des droits et des libertés fondamentales reconnus à tout
être humain;
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It is clear on its
face that paragraph 101(1)(b) is intended to protect the integrity of Canada’s refugee protection process by limiting repeated access to the RPD. The challenge
of interpreting this provision in the light of fundamental rights and freedoms
is one that the courts are better equipped to handle than administrative decision-makers,
which suggests that Parliament did not intend to impose an obligation of
deference on the courts.
[48]
All of these factors lead me to conclude that
the findings of law reached by the border services officer in the context of
paragraph 101(1)(b) are reviewable on the standard of correctness.
The
connection between Mr. Tobar Toledo’s claim and his father’s
[49]
For the purposes of this analysis, I will
address this issue before moving on to the interpretation of paragraph 101(1)(b),
contrary to the order of analysis followed by Mr. Tobar Toledo.
[50]
As noted previously, the Federal Court judge
accepted the fact that Mr. Tobar Toledo was the subject of a claim for
refugee protection in 1995, but appears to have questioned the legal status of
that claim. It appears from a reading of his reasons that the judge did not
consider Mr. Tobar Toledo’s claim for refugee protection to be on the same
footing as his father’s claim. From the judge’s perspective, Mr. Tobar
Toledo’s claim depended on his father’s; it was not examined independently. Its
outcome depended entirely on the outcome of his father’s claim for refugee
protection.
[51]
It is important not to confuse the factual basis
of Mr. Tobar Toledo’s claim for refugee protection with the claim’s legal character.
The material of record clearly establishes that the RPD had before it a claim
for refugee protection with respect to Mr. Tobar Toledo. This claim was
joined with his father’s in accordance with the regulations in force at the
time:
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10(1) An
Assistant Deputy Chairperson or coordinating member may order that two or
more claims or applications be processed jointly where the Assistant Deputy
Chairperson or coordinating member believes that no injustice is thereby
likely to be caused to any party.
(2)Subject
to subsection (3), claims or applications of the legal or de facto
spouse, dependant children, father, mother, brothers or sisters of the person
concerned shall be processed jointly.
(3) On application by a party, or on the members’ own motion at the
time of the hearing, the members may order that the claims or applications be
heard separately, where the members believe that hearing the claims or
applications jointly is likely to cause an injustice to any party.
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10(1) Un
vice-président adjoint ou un membre co-ordonnateur peut ordonner que deux ou
plusieurs revendications ou demandes soient traitées conjointement, s’il
estime qu’une telle mesure ne risque pas de causer d’injustice aux parties.
(2) Sous
réserve du paragraphe (3), les revendications ou les demandes du conjoint de
droit ou de fait, des enfants à charge, du père, de la mère, des frères ou
des sœurs de l’intéressé sont traitées conjointement.
(3) Les membres peuvent, à la demande d’une partie, ou de leur
propre initiative au moment de l’audience, ordonner qu’une revendication ou
une demande soit entendue séparément d’une autre revendication ou demande,
s’ils estiment que le fait d’entendre conjointement les revendications ou les
demandes risque de causer une injustice à l’une ou l’autre des parties.
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Convention Refugee Determination Division Rules, SOR/93-45.
[52]
It is clear from reading these regulations that
each member of a family unit claiming refugee protection makes his or her own
claim, otherwise it would not be possible to hear them jointly or separately.
When the claims are all based on the same facts, hearing them jointly is a
cost-saving measure that avoids the need to hear the same evidence multiple
times with the risk of contradictory outcomes. In the circumstances, it is
inaccurate to say that the son’s claim is dependent on the father’s: the
treatment of both depends on the RPD’s assessment of a single version of the
facts. However, this does not mean that all members of the family are not
claimants for refugee protection on the same basis.
[53]
It occasionally happens that one of a group of jointly
heard claims is accepted while others are rejected, a result that is only
possible if all the applications are independent of one another. In P.D.B. v.
Canada (Minister of Citizenship and Immigration), 2011 FC 1042, [2011] F.C.J.
No. 1335 (P.D.B.), the RPD rejected the claim for refugee protection of
a father and his seven-year-old son. The father, mother and son had come to Canada on a temporary visa. The mother was so abusive to the son that he was placed with his
aunt and uncle (in Canada), who became his guardians. When the visa expired,
the father and mother returned to their country of origin. The mother, furious
that the son had been left behind in Canada, uttered death threats against her
husband. The father returned to Canada and filed a claim for refugee protection
on his own behalf and on behalf of his son. Both claims for refugee protection
were rejected because the father had not sought state protection in his country
of origin.
[54]
The Federal Court overturned the RPD’s decision
with respect to the son’s claim for refugee protection. The Court was of the
view that the RPD had not been sufficiently alive to the son’s specific
vulnerabilities as an abused child. The Court allowed the son’s application for
judicial review and referred the matter back to the RPD, instructing it to
grant him refugee status. However, the Court dismissed the father’s application
for judicial review.
[55]
Such a result can be explained by the fact that
each claim for refugee protection is independent of other claims made by
members of a single family unit, regardless of the similarity of the facts
underlying the claims. This does not mean that the similarity of the facts has
no impact on the outcome of these claims. When the facts supporting several
claims are the same, it is not surprising that all of the claims have the same
outcome. When the facts underlying the claims are not the same, it is also to
be expected that each claim will be judged on the basis of its own facts.
[56]
I find that the Federal Court judge erred in
holding that the claim for refugee protection filed on Mr. Tobar Toledo’s
behalf in 1995 was not his own claim for refugee protection. The fact that it
was heard jointly with his father’s claim does not affect its individual
nature. The border services officer clearly concluded that Mr. Tobar
Toledo had made a claim for refugee protection on his own behalf in 1995. This
conclusion was not unreasonable. The judged erred in questioning it.
The interpretation
of paragraph 101(1)(b)
[57]
I will now move on to the interpretation of
paragraph 101(1)(b).
[58]
Let us recall that there is today but one rule of
statutory interpretation:
Although much has
been written about the interpretation of legislation (see, e.g., Ruth Sullivan,
Statutory Interpretation (1997); Ruth Sullivan, Driedger on the
Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of
Statutes”); Pierre-André Côté, The Interpretation of Laws (2nd ed.
1991)), 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.
Rizzo
& Rizzo Shoes (Re), [1998] 1 S.C.R. 27, at paragraph 21.
[59]
To this single principle of interpretation, one
must add the qualification set out by the Supreme Court of Canada in Canada
Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at
paragraph 10:
It has been
long established as a matter of statutory interpretation that “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”: see 65302 British Columbia Ltd. v.
Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory
provision must be made according to a textual, contextual and purposive
analysis to find a meaning that is harmonious with the Act as a whole. When the
words of a provision are precise and unequivocal, the ordinary meaning of the
words play a dominant role in the interpretive process. On the other hand,
where the words can support more than one reasonable meaning, the ordinary
meaning of the words plays a lesser role. The relative effects of ordinary
meaning, context and purpose on the interpretive process may vary, but in all
cases the court must seek to read the provisions of an Act as a harmonious
whole.
[60]
The starting point is always the text of the
statute that is being interpreted. I will repeat the text of the provision at
issue for ease of reference:
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101. (1) A claim is ineligible to be referred to the Refugee
Protection Division if
(a) refugee
protection has been conferred on the claimant under this Act;
(b) a
claim for refugee protection by the claimant has been rejected by the Board;
(c) a
prior claim by the claimant was determined to be ineligible to be referred to
the Refugee Protection Division, or to have been withdrawn or abandoned;
(d) the
claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;
(e) the
claimant came directly or indirectly to Canada from a country designated by
the regulations, other than a country of their nationality or their former
habitual residence; or
(f) the claimant has been determined to be
inadmissible on grounds of security, violating human or international rights,
serious criminality or organized criminality, except for persons who are inadmissible
solely on the grounds of paragraph 35(1)(c).
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101. (1) La demande est
irrecevable dans les cas suivants :
a) l’asile a été conféré au demandeur au titre de la présente
loi;
b) rejet antérieur de la demande d’asile par la Commission;
c) décision prononçant l’irrecevabilité, le désistement ou le
retrait d’une demande antérieure;
d) reconnaissance de la qualité de réfugié par un pays vers
lequel il peut être renvoyé;
e) arrivée, directement ou indirectement, d’un pays désigné
par règlement autre que celui dont il a la nationalité ou dans lequel il
avait sa résidence habituelle;
f) prononcé d’interdiction de territoire pour raison de
sécurité ou pour atteinte aux droits humains ou internationaux — exception
faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c)
— , grande criminalité ou criminalité organisée.
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[61]
The meaning of paragraph 101(1)(b) seems
fairly clear, although there appears to be a slight difference between the
English and French versions. The Federal Court judge noted that the English
version specifically referred to a prior claim by the claimant, while that
point was absent from the French version. This difference led the judge to
conclude that one could not hold that a claim had been made by a minor child
who lacked the legal capacity to do so. Without saying so explicitly, the judge
implied that because a child cannot file a claim, a child’s claim cannot be
rejected. Paragraph 101(1)(b) would therefore not apply to cases in
which a claimant’s claim was heard jointly with that of his or her parent.
[62]
The judged erred in distinguishing between a
parent’s claim for refugee protection and that of his or her child. If the same
status is given to both claims, the judge’s finding based on the two versions
of the text no longer holds.
[63]
Mr. Tobar Toledo also argues that the Act
must be interpreted in a way that respects Canada’s obligations under the
treaties to which it is a signatory, in this case, the Convention. In
particular, Mr. Tobar Toledo draws the Court’s attention to paragraph 2 of
Article 2 of the Convention:
States Parties
shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions, or beliefs of the child's parents, legal
guardians, or family members.
[64]
According to Mr. Tobar Toledo, paragraph 101(1)(b)
must be interpreted in such a manner that he is not punished on the basis of
the [translation] “political
opinions or activities of his father”: Memorandum of the Respondent, at
paragraph 93. The interpretation of paragraph 101(1)(b) that I
am proposing does not subject Mr. Tobar Toledo to punishment or
discrimination on the basis of his father’s activities or political opinions.
It is Mr. Tobar Toledo’s prior claim for refugee protection that results
in the ineligibility of his current claim, not his father’s legal status or
acts or opinions.
[65]
Mr. Tobar Toledo pursues his argument as
follows at paragraph 93 of his Memorandum of Fact and Law:
[translation]
The respondent
alleges that he neither participated in nor attended the hearing for his
father’s claim for refugee protection. He also alleges in his affidavit, filed
before this Court, that he has no knowledge of the details of or reasons for
his father’s claim for refugee protection. It is for this very reason that he
should now be entitled to file a claim for refugee protection on his own
behalf.
[66]
As to this argument, it would be useful to
recall that we are in the process of interpreting paragraph 101(1)(b)
of the Act in the light of the Convention. It is not a matter of deciding
whether the Convention itself grants rights to Mr. Tobar Toledo, as he
implies in the passage cited above.
[67]
It is true that Mr. Tobar Toledo had little
control over the presentation of his first claim for refugee protection and
that its rejection did not result from any act on his part. He therefore finds
himself disadvantaged as a consequence of decisions made by his parents. It is
possible to agree with Mr. Tobar Toledo’s statements without agreeing with
the conclusion he draws from them. The Convention cannot protect children from
all of the consequences of the choices made by their parents. The child of a
criminal may well have to live apart from his or her parent during a period of
detention. The child is not responsible for his or her parent’s criminal acts
but must suffer the consequences.
[68]
The Act offers a child claimant for refugee protection
the same protections that it offers his or her parents, but it also imposes the
same consequences when the claim for refugee protection is rejected, unless the
child’s condition is different from that of his or her parent: see P.D.B.
cited above. It is precisely this possibility of distinguishing between the
condition of the child and that of the parent that makes the Act consistent
with the Convention. According to the interpretation of paragraph 101(1)(b)
that I am proposing, the requirements of the Convention are met in the
processing of the claim for refugee protection and do not apply to the
consequences of a rejection of a child’s claim for refugee protection. These
consequences arise from the rejection of the child’s claim, and are not a
sanction imposed on the child because of the rejection of his or her parent’s
claim for refugee protection.
[69]
Mr. Tobar Toledo also argues that the
interpretation of 101(1)(b) proposed by the Ministers violates his
rights under sections 7 and 15 of the Charter. The well settled case law holds that
the interests protected by section 7 of the Charter do not come into play
until a decision is made to remove the claimant: Poshteh v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487, at
paragraph 63. In Mr. Tobar Toledo’s case, the ineligibility of his claim
will not necessarily result in his removal from Canada. He is entitled to a
pre-removal risk assessment to ensure that he is not returned to a country
where there would be a risk to his life or a risk of cruel and unusual
treatment: see section 112 and paragraph 113(c) of the Act.
[70]
Mr. Tobar Toledo submits that he is
disadvantaged by the fact that the acceptance rate is lower for pre-removal
risk assessments than for claims for refugee protection. This argument is only
meaningful if the candidates in each case face the same risks in the same
proportions. If this is not the case, the comparison is not a fair one.
However, there is nothing in the record suggesting that the candidates in the
two cases face the same risks in the same proportions.
[71]
Mr. Tobar Toledo further alleges that the
interpretation of paragraph 101(1)(b) by which the rejection of his
prior claim for refugee protection renders ineligible his present claim is
discriminatory and infringes his rights under section 15 of the Charter. Mr. Tobar
Toledo does not address these issues in his Memorandum of Fact and Law, beyond
referring to the memorandum that he filed with the Federal Court. If we examine
the arguments presented to the Federal Court, Mr. Tobar Toledo’s claims
relating to section 15 take up 10 paragraphs: see paragraphs 40-42 at
pages 164-65 of the A.B. and paragraphs 71 to 81 at pages 418-20 of the A.B.
This is not a serious argument, and it does not deserve more of the Court’s
time than Mr. Tobar Toledo himself has put into it. A party cannot rely on
a constitutional argument by invoking the Charter and merely alleging that it
has been violated.
[72]
I, therefore, conclude that the Federal Court
erred in law in interpreting paragraph 101(1)(b) in such a way that
the claim for refugee protection filed on Mr. Tobar Toledo’s behalf did
not result in the ineligibility of any subsequent claim on his part, regardless
of the facts underlying either of the claims.
The reasonableness
of the border services officer’s decision
[73]
Mr. Tobar Toledo is of the view that the
border services officer’s decision is unreasonable, but he does not develop any
reasoning in support of that conclusion. He merely refers to Dunsmuir,
in which the characteristics of a reasonable decision are described.
[74]
The question of reasonableness applies only to
decisions for which the decision-maker has some form of discretion. If the Act
imposes a legal consequence when certain facts are present, taking notice of
these facts and declaring the consequence imposed by the Act is not a
discretionary decision. The fact that it is a human actor who takes notice of
these facts and communicates the legal consequence imposed by the Act to the
affected party does not make that person a decision-maker with discretion.
[75]
Mr. Tobar Toledo believes that a
discretionary power arises from subsection 100(3) of the Act, according to
which the claim for refugee protection is deemed to be referred to the RPD if
the border services officer does not declare it ineligible within three days
after its receipt. Mr. Tobar Toledo claims that this provision grants the
border services officer the discretion to suspend the processing of a claim for
refugee protection for three days so that the claim will be deemed referred.
The officer could thus circumvent the effect of paragraph 101(1)(b).
[76]
In my view, an officer who applied this strategy
would be failing in his or her duty. This provision exists to ensure that claims
for refugee protection filed at the border are processed quickly. If, for
whatever reason, a claim cannot be processed within three days, it is deemed
referred to the RPD, where the issue of eligibility may still be raised: see
subsection 104(1) of the Act. Mr. Tobar Toledo’s proposal distorts the
Act and must be rejected.
CONCLUSION
[77]
For these reasons, I am of the view that the
appeal should be allowed, the judgement of the Federal Court should be set
aside and the ineligibility of Mr. Tobar Toledo’s claim for refugee
protection should be confirmed.
[78]
I would answer the certified question as follows:
Question:
Does the rejection of a refugee claim submitted by parents accompanied by minor
children necessarily render ineligible a later claim submitted by one of those
children, having now reached the age of majority, on their own behalf, pursuant
to paragraph 101(1)(b) of the Act, regardless of whether the facts on
which the second claim is based are different from those on which the original
claim submitted by the parents was based?
Answer: The rejection of a refugee claim
submitted by a minor child, whether or not that claim has been filed in
conjunction with claims by other family members, necessarily renders ineligible
a later claim submitted by that child, having now reached the age of majority,
pursuant to paragraph 101(1)(b) of the Act, regardless of whether
the facts on which the second claim is based are different from those on which
the original claim submitted by the child was based.
“J.D. Denis Pelletier”
“I agree.
Johanne Gauthier,
J.A.”
“I agree.
Johanne Trudel, J.A.”
Certified true
translation
François Brunet, revisor
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