Date: 20100317
Docket: A-251-09
Citation: 2010 FCA 75
CORAM: NOËL
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
(Respondent in the Federal Court)
and
DONG ZHE LI
DONG HU LI
Respondents
(Applicants in the Federal Court)
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION.
[1]
The
appellants, Dong Zhe Li and Dong Hu Li (the Li brothers or simply the brothers)
entered Canada on Temporary Resident Visas. They failed to leave the country when
their visas expired. They were eventually apprehended and exclusion orders were
made against them, which had the effect of precluding them from making
applications to the Refugee Protection Division for Convention refugee status. In
the course of their pre-removal risk assessments, their last chance to claim
refugee protection, the pre-removal risk assessment (PRRA) officer determined
the brothers were excluded from refugee protection because they were persons
referred to in Section E or F of Article 1 of the United Nations Convention on
the Status of Refugees (the Convention).
[2]
The issue
in this appeal is whether the PRRA officer had the jurisdiction to make that
determination. The Li brothers say that only the Refugee Protection Division
can determine whether a person is excluded from refugee protection. In any
event, they say, the PRRA officer had no factual basis upon which to make the
determination that they were excluded.
FACTS
[3]
The Li
brothers, citizens of the People’s Republic of China, were admitted to Canada on December 31, 2004,
pursuant to Temporary Resident Visas. When their visas expired on June 30,
2005, they did not leave the country as required. In February 2007, the
immigration authorities located them and issued exclusion orders against them
on the basis of their failure to leave Canada at the expiry of their visas, contrary
to subsection 29(2) and paragraph 41(a) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, (the Act). The brothers’
challenge to the validity of the exclusion orders was dismissed by the Federal
Court in reasons reported as Li v. Canada (Minister of Citizenship and
Immigration), 2007 FC 941, [2007] F.C.J. No. 1215, a decision from which no
appeal was taken.
[4]
In
the interim, public officials in China issued warrants for the
arrest of the Li brothers, alleging that they and others had committed theft of
more than 170 million yuan, which amounts to approximately 24 million Canadian
dollars, by negotiable instruments fraud. It was only after their apprehension
by immigration authorities that the brothers sought to claim refugee protection
but they were found to be ineligible to make those claims because of the
existence of the exclusion orders in force against them: see subsection 99(3)
of the Act and s. 223 of the Immigration and Refugee Protection Regulations,
SOR/2002-27 (the Regulations):
99.(3) A claim for refugee
protection made by a person inside Canada must be made to an officer, may not
be made by a person who is subject to a removal order, and is governed by
this Part.
223. There are three types of removal
orders, namely, departure orders, exclusion orders and deportation orders.
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99. (3)
Celle de la personne se trouvant au Canada se fait à l’agent et est régie par
la présente partie; toutefois la personne visée par une mesure de renvoi
n’est pas admise à la faire.
223. Les mesures de renvoi sont
de trois types : interdiction de séjour, exclusion, expulsion.
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[5]
The
brothers launched numerous unsuccessful legal proceedings in an attempt to
stave off their removal from Canada. These proceedings are
described in Canada (Minister of Citizenship and
Immigration) v. Li,
2009 FCA 85, [2009] F.C.J. No. 329, at paragraph 28. Their last hope of
remaining in Canada was their applications for
protection under section 112 of the Act, a proceeding known as a pre-removal
risk assessment. Their applications met with mixed success. While they were
found to be excluded from refugee protection by virtue of section 98 of the
Act, they were also found to be at risk of torture if returned to China. The result is that while they are
denied the status of persons in need of protection, the enforcement of the
removal orders against them will be stayed for an indeterminate period, unless
it is determined that they are subject to removal pursuant to paragraph 113(d)
of the Act.
THE PRRA OFFICER’S DECISION
[6]
Section
113 of the Act indicates how an application for protection is to be considered:
112. (1) A person in
Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they
are subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
113.Consideration of an
application for protection shall be as follows:
…
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
(d) in the
case of an applicant described in subsection 112(3), consideration shall be
on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on
grounds of serious criminality, whether they are a danger to the public in Canada,
or
(ii) in the case of any other
applicant, whether the application should be refused because of the nature
and severity of acts committed by the applicant or because of the danger that
the applicant constitutes to the security of Canada.
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112. (1)
La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
113. Il est disposé de la demande
comme il suit :
…
c) s’agissant du demandeur non
visé au paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur
visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97
et, d’autre part :
(i) soit du fait que le demandeur interdit de
territoire pour grande criminalité constitue un danger pour le public au
Canada,
(ii) soit, dans le cas de tout autre demandeur, du
fait que la demande devrait être rejetée en raison de la nature et de la
gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du
Canada.
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[7]
After
having reviewed the Li brothers’ personal circumstances, including the charges
pending against them, the PRRA officer began her analysis by inquiring whether
the Li brothers were persons described in subsection 112(3) of the Act because
the answer to that question dictates whether the officer proceeds under
paragraph 113(c) or (d). The material portions of subsection
112(3) are:
112.(3) Refugee protection may not
result from an application for protection if the person
…
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention;
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112.(3) L’asile ne peut être
conféré au demandeur dans les cas suivants :
…
c) il a été débouté de sa
demande d’asile au titre de la section F de l’article premier de la
Convention sur les réfugiés;
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[8]
The PRRA
officer concluded that the Li brothers were persons described in paragraph
112(3)(c) as she considered that they were persons with respect to whom
there were serious reasons for considering that they had committed a serious
non-political crime outside the country of refuge prior to their admission to
that country as refugees contrary to subsection F(b) of Article 1 of the
Convention and section 98 of the Act.
1F. The provisions of this Convention
shall not apply to any person with respect to whom there are serious reasons
for considering that:
…
(b) he has committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee;…
98. A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
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1F. Les dispositions de cette Convention
ne seront pas applicables aux personnes dont on aura des raisons sérieuses de
penser :
…
b)
Qu’elles ont commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugiés …
98. La personne visée aux
sections E ou F de l’article premier de la Convention sur les réfugiés ne
peut avoir la qualité de réfugié ni de personne à protéger.
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[9]
Having
made this determination, the PRRA officer dealt with the Li brothers’
applications pursuant to paragraph 113(d), which meant that she directed
her mind to the question of whether the Li brothers were at risk of torture or
inhumane treatment if they were returned to China, as provided in section 97 of the Act:
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 themselves 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.
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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.
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[10]
The PRRA
officer concluded that there was a real risk that the Li brothers would be
tortured, given the nature of the charges pending against them. She then sent the
file on to the Minister’s delegate for consideration of the factors militating
against allowing the Li brothers to stay in Canada, that is, the nature and severity of the
crimes alleged against them. This weighing exercise has yet to be completed. But,
given the PRRA officer’s determination that the brothers are persons described
in subsection 112(3), the best they can hope for is a stay of the removal orders
which are in force against them, a result dictated by paragraph 114(1)(b)
of the Act:
114. (1) A decision to allow the
application for protection has
(a) in the case of an applicant not described in
subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in
subsection 112(3), the effect of staying the removal order with respect to a
country or place in respect of which the applicant was determined to be in
need of protection.
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114.(1) La décision accordant la
demande de protection a pour effet de conférer l’asile au demandeur;
toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3),
de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le
visant.
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THE FEDERAL COURT DECISION
[11]
The Li
brothers challenged the PRRA officer’s decision by way of an application for
judicial review. They argued that since they were precluded from making an
application for refugee protection because of the exclusion orders in force
against them, they could not be persons whose claim to refugee protection had
been refused. In their view, only the Refugee Protection Division has
jurisdiction to make such a determination; the PRRA officer does not.
[12]
Accordingly,
if, at the time of making a demand under section 112, a person has not been
denied refugee protection, then paragraph 113(c) of the Act must be read
to exclude the reference to section 98. In their Memorandum of Fact and Law,
filed in response to the Minister’s appeal, the Li brothers contend that the
reference to section 98 in paragraph 113(c) is a drafting error: see
paragraph 67.
[13]
The
brothers’ applications for judicial review were heard by Madam Justice Heneghan.
She set aside the PRRA officer’s decision and sent the matter back for
re-determination.
[14]
The judge
concluded that the PRRA officer was required, as a preliminary step, to make a
determination as to whether there was a restriction on the availability of
protection by reason of the application of subsection 112(3). She analyzed each
of the circumstances described in that subsection and concluded that they all
referred to an action or determination which had already occurred by the time
the application for protection was made. In particular, she found that
paragraph 112(3)(c) described the situation where a claim for refugee
protection had been rejected after a hearing before the Refugee Protection
Division. In her view, paragraph 112(3)(c) did not deal with persons
who were ineligible to make a claim for refugee protection as a result of
subsection 99(3) of the Act.
[15]
The judge
noted that applications under section 112 are to be considered following the
“road map” provided by section 113. In the judge’s view, the PRRA officer must
first determine whether a claim must be considered pursuant to paragraph 113(c)
or 113(d). If the person is not, at the time of making the application
under section 112, a person described in subsection 112(3), then the
application must be considered as provided in paragraph 113(c). If the
person is a person described in subsection 112(3), then consideration of the
application is governed by paragraph 113(d).
[16]
The judge
rejected the Li brothers’ argument that the PRRA officer did not have
jurisdiction to consider section 98. She found that, on a plain reading of the
language of paragraph 113(c), the PRRA officer was entitled to consider
section 98. But she found that the PRRA officer erred in this case because the PRRA
officer limited her consideration of the Li brothers’ applications to section
97 of the Act, that is, she proceeded under paragraph 113(d) when the
Act required her to proceed under paragraph 113(c). As a result, the
judge set aside the PRRA officer’s decision and sent the matter back for
re-determination.
[17]
The
application judge certified two questions:
(1)
Do
pre-removal risk assessment officers have the jurisdiction to exclude persons
from refugee protection under section 98 of the IRPA (the Act) and find them
described in section 112(3)(c) of the IRPA?
(2) Does section 112(3)(c)
of the IRPA only apply to rejections by the Refugee Protection Division on the
basis of Section F of Article 1 of the Refugee Convention or does it also apply
to rejections by pre-removal risk assessment officers on the basis of Section F
of Article 1 of the Refugee Convention?
ISSUES
[18]
In my
view, the issues raised in the certified questions can best be answered by considering
a series of more fundamental questions:
i.
What is
the appropriate standard of review?
ii.
Was it
reasonable for the PRRA officer to conclude that the Li brothers are persons with
respect to whom there were serious reasons for considering that they had committed
a serious non-political crime outside the country of refuge prior to their
admission to that country as a refugee contrary to subsection F(b) of
Article 1 of the Convention and section 98 of the Act?
iii.
Is an
application under section 112 of the Act an application for refugee protection?
iv.
Does a
PRRA officer have jurisdiction to determine that a person is excluded from
refugee protection under section 98 of the Act?
v.
If the
PRRA officer determines that a person is excluded from protection under section
98 of the Act, is the PRRA officer entitled to consider the person’s
application pursuant to paragraph 113(d) of the Act?
ANALYSIS
1. What
is the appropriate standard of review?
[19]
The role
of an appellate court on appeal from the decision of a reviewing court is to determine
if the reviewing court has properly identified the standard of review which it
must apply, and then to confirm that the reviewing court has properly applied
that standard of review: Dr. Q. v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R. 226, at paragraph 43. In this case, the
judge found that the determination as to whether the Li brothers were caught by
subsection 112(3) was a question of fact and was therefore reviewable only on a
standard of reasonableness. Questions of statutory interpretation and
jurisdiction were to be reviewed on the standard of correctness.
[20]
In my
view, it is more correct to say that the question of whether the Li brothers
were persons with respect to whom there were serious reasons for considering
that they had “committed a serious non-political crime outside the country of
refuge” contrary to section F of article 1 of the Convention is a question of
mixed fact and law, since it requires the application of a legal test to a
given set of facts, and it is therefore reviewable on a standard of
reasonableness. Once that issue was decided, the question as to whether they
were persons described in subsection 112(3) was a question of law since it
required the Court to decide if the determination made under section 99
satisfied the test set out in paragraph 112(3)(c). Similarly, the
consequences of the determination made under section 112 on the processing of
the brothers’ application under section 113 is a question of law. These
questions are reviewable on a standard of correctness.
2.
Was it reasonable for the PRRA officer to conclude that the Li brothers are persons
with respect to whom there were serious reasons for considering that they had
committed a serious non-political crime outside the country of refuge prior to
their admission to that country as a refugee contrary to subsection F(b)
of Article 1 of the Convention and section 98 of the
Act?
[21]
The Li
brothers, as respondents in the appeal, did not frame the issues under appeal. They
are, however, entitled to defend the decision on any basis which was raised before
the judge. Thus, if the Minister’s arguments are successful, the Li brothers
argue that the appeal should nevertheless be dismissed because the PRRA
officer’s determination that there were serious reasons to believe that they
had committed serious non-political crimes in China was unreasonable. Since this question,
if answered in favour of the Li brothers, is dispositive of the appeal, I
propose to treat it first.
[22]
This
requires me to deal with a preliminary question which was not raised by the
parties but is nonetheless a question which must be answered in order to
dispose of the appeal. As to the Court’s power to decide a question not fully
canvassed before it, see Pushpanathan v. Canada (Minister of Citizenship and
Immigration),
[1998] 1 S.C.R. 982, at paragraph 25.
[23]
The
question is whether section 98 and Section F of Article 1 of the Convention
apply to the Li brothers at all since they did not enter Canada as refugees, but on a
Temporary Resident Visa. Section F of Article 1, it will be recalled, deals
with persons with respect to whom there were serious reasons for considering
that they have committed a serious non-political crime outside the country of
refuge prior to their admission to that country as refugees. If these
words are to be taken at face value, the exclusions found at sections E and F
of the Convention would only apply to persons who either entered Canada after
having their claim to refugee status recognized by a visa officer overseas, or
who made their claim for refugee status at a port of entry and were admitted to
Canada pending the determination of their claim for refugee protection.
[24]
The case
law contains many examples of persons who entered Canada without claiming
refugee status and who subsequently made an application to the Refugee
Protection Division: for recent examples, see Saeed v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1016, [2006] F.C.J. No. 1281; Saleem
v. Canada (Minister of Citizenship and Immigration), 2008 FC 389, [2008]
F.C.J. No. 482; Soares v. Canada (Minister of Citizenship and Immigration), 2007
FC 190, [2007] F.C.J. No. 254; Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 198, [2007] 1 F.C.R. 385. It seems
unlikely that Parliament intended that such persons would be immune from
exclusion on the basis that they did not enter Canada as refugees. Such a result would simply
provide a significant incentive for those persons most likely to face exclusion
to enter Canada under cover of some other
legal authority (i.e. visitor, student visa, temporary resident visa) as
opposed to asking for refugee protection prior to, or upon entry to, Canada.
[25]
In
addition, restricting the application of the exclusion to persons claiming
refugee status upon entry would lead to the kind of forum shopping described in
Liu .v. Canada (Minister of Citizenship and Immigration), [2009] F.C.J.
No. 1110, where an applicant who attempted unsuccessfully to enter Canada with
false documents, made a claim for refugee status which he later withdrew in
favour of an application under section 112, in which he claimed that the
exclusions found in the Convention could not be invoked against his application
for refugee protection.
[26]
The
requirement that the acts giving rise to the exclusion must have occurred prior
to the claimant’s entry to Canada do not give rise to any
particular difficulty. The issue is whether persons who would otherwise fall
within the exclusion can only be excluded if they enter Canada as refugees. The intent of
the Convention is to prevent certain persons who are deemed to be undeserving
of international protection from invoking the Convention to claim Convention
Refugee status. The achievement of that objective does not depend upon the
timing of the claim for Convention Refugee status but rather on the fact of
claiming that status. As a result, it seems to me that application of the
exclusion requires two conditions to be met. There must be serious reasons for
believing that the person has committed one or more of the acts described in
Sections E and F of Article 1, and that person must make a claim for Convention
Refugee status. In my view, it is not necessary that the claim for Convention
refugee status be made prior to or upon entry to Canada. The objective of the Convention is
furthered by the application of the exclusion at the time of making an
application for Convention Refugee status, whenever that application is made.
[27]
By
incorporating the exclusions found at Sections E and F of Article 1 of the
Convention into the refugee protection scheme found in the Act, it seems clear
that Parliament intended those exclusions to extend to all claims for refugee
protection, not simply to claims for Convention Refugee status. Thus, the
requirements for the application of the exclusions are that there must be
serious reasons to consider that the person has committed the acts described in
Sections E and F of Article 1 of the Convention, and that, either before or
after entry to Canada, the person makes an
application for refugee protection. Thus, the making of an application for
refugee protection, at any time, triggers the inquiry into whether or not the
person has committed acts which would disentitle him or her from international
protection. I would therefore conclude that the fact that the Li brothers did
not enter Canada as refugees does not preclude
the application of Sections E and F or Article 1 of the Convention to their
claim for refugee protection.
[28]
The
Refugee Protection Division and the Federal Court have recently dealt with
cases in which the exclusion was applied to persons who did not claim refugee
status prior to or upon entry to Canada.
No issue appears to have been raised as to the applicability of the exclusion
to those persons: see Cui v. Canada (Minister of Citizenship and Immigration),
2007 FC 945, [2007] F.C.J. No. 1230; Deng v. Canada (Minister of Citizenship
and Immigration), 2007 FC 943, [2007] F.C.J. No. 1228; Zeng v. Canada
(Minister of Citizenship and Immigration), 2008 FC 956, [2008] F.C.J. No.
1186. At the very least, these cases are illustrative of the prevailing view of
the applicability of the exclusion to persons who did not enter Canada as refugees.
[29]
The Li
brothers challenge the PRRA officer’s conclusion that there are serious grounds
for believing that they had committed serious non-political crimes in China
prior to their arrival in Canada. They say that the evidence
shows that the property and assets which the Li brothers acquired in Canada were acquired between 2000
and 2002 while the warrants which were issued against them were for crimes
allegedly committed in 2003 and 2004. As a result, the possession of
unexplained wealth cannot be tied to the warrants alleging serious criminal
behaviour.
[30]
It is true
that the information provided by the Chinese officials only alleges crimes
committed in the period between 2003 and 2004. The Armstrong report, which was
relied upon by the PRRA officer, alleges four series of frauds beginning in
2002. It also shows various transactions, some of which precede 2003-2004, and others
which fall within or after that period, though it must be said that very few details
are provided.
[31]
The
Armstrong report also shows a pattern of liquidation of assets and divestment
of property in the name of the Li brothers following their arrival in Canada. None of the proceeds of the
property can be traced back to the Li brothers. The Armstrong report notes that
“None of the targets listed above have any bank accounts, vehicles, utilities
or properties in their name.” (Appeal Book, p. 871). Several incidents
demonstrate the use of nominees to conceal the Li brothers’ identities or
ownership of assets.
[32]
The
affidavits filed by the Li brothers are, as the PRRA officer noted, the
equivalent of pleading innocent. They provide no explanation for their wealth,
other than the assertion of having operated successful businesses, an assertion
which is not borne out by the information provided to the author of the
Armstrong report.
[33]
The
question of whether there are serious grounds to believe that the Li brothers
have committed serious non-political crimes in China is a question of mixed fact and law and
is reviewable on a standard of reasonableness. The combination of the Li
brothers’ wealth, their unsupported assertions as to the source of their wealth
(even if made under oath), the liquidation of their Canadian assets upon their
arrival in Canada and the disappearance of the proceeds of those dispositions,
taken together with the warrants issued for their arrest and the particulars of
the crimes alleged, is sufficient to support a reasonable conclusion that there
are grounds to believe that the Li brothers committed serious non-political
crimes in China.
[34]
It is
important to remember that the Li brothers are the ones who know the most about
their business dealings. When circumstances reasonably call for an explanation
of their wealth, they are in the best position to provide it. The PRRA officer
is entitled to take into account the quality of the explanation provided by
persons in the position of the brothers when assessing whether there are
serious grounds for believing that they have obtained their assets by the
commission of offences.
[35]
Neither
the Li brothers’ wealth, nor the issuance of the warrants would, by itself,
satisfy the test set out in section F of Article 1 of the Convention. However,
the combination of the two, when considered in the light of an indifferent
explanation for their wealth and a pattern of liquidating property and
concealing the proceeds of such dispositions, is capable of reasonably
supporting the PRRA officer’s conclusion.
3.
Is
an application under section 112 of the Act an application for refugee protection?
[36]
The Li
brothers argued before us that the PRRA officer did not reject a claim for
refugee protection since she considered the brothers’ application in light of
section 97 only. Since claims for refugee protection are dealt with under
section 96, the failure to make a determination under that section means that
the PRRA officer did not refuse an application for refugee protection. Furthermore,
they took the position that only the Refugee Protection Division had the
jurisdiction to decide a claim for refugee protection. Because they were
precluded from making an application for refugee protection by virtue of the
exclusion orders in force against them, there could have been no rejection of
an application for refugee protection at the time they made their section 112
application.
[37]
Section 95
of the Act sets out the circumstances in which refugee protection may be
granted:
95.(1) Refugee protection is conferred on a
person when
(a) the person has been determined to be a Convention
refugee or a person in similar circumstances under a visa application and
becomes a permanent resident under the visa or a temporary resident under a
temporary resident permit for protection reasons;
(b) the Board determines the person to be a Convention
refugee or a person in need of protection; or
(c) except in the case of a person described in subsection
112(3), the Minister allows an application for protection.
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95. (1)
L’asile est la protection conférée à toute personne dès lors que, selon le
cas :
a)
sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une
personne en situation semblable, elle devient soit un résident permanent au
titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré
en vue de sa protection;
b)
la Commission lui reconnaît la qualité de réfugié ou celle de personne à
protéger;
c)
le ministre accorde la demande de protection, sauf si la personne est visée
au paragraphe 112(3).
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[38]
The three
circumstances described in section 95 are an application made from abroad to a
visa officer, an inland application made to the Refugee Protection Division, or
an application made to the Minister pursuant to section 112. The point to note
here is that refugee protection (as set out in the opening words of
section 95) may result from an application to the Minister for protection (as
provided in the opening words of section 112).
[39]
This is
confirmed by section 114 of the Act (reproduced below, again, for ease of
reference) which describes the possible outcomes of a successful application
under section 112:
114. (1)
A decision to allow the application for protection has
(a) in the case of an applicant not described in
subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in subsection
112(3), the effect of staying the removal order with respect to a country or
place in respect of which the applicant was determined to be in need of
protection.
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114. (1)
La décision accordant la demande de protection a pour effet de conférer
l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé
au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la
mesure de renvoi le visant.
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[40]
As a
result, applications for protection made under section 112 may result in
applicants being accorded refugee protection (as contemplated by section 95 and
paragraph 114(1)(a)) or may result in a stay of the removal orders made
against them. In the latter case, applicants are afforded a form of protection,
a stay of removal, even though, by virtue of section 98, they are not granted
refugee protection nor are they considered to be persons in need of protection.
[41]
As a
result, I believe that it is clear that an application for protection under
section 112 is an application for refugee protection.
[42]
Is this
still true where the applicant, as is the case here, is precluded from applying
for refugee protection pursuant to section 99 by reason of the exclusion order
in force against him? The answer is that section 99 precludes the making of an
application for refugee protection to an officer, and then to the Refugee
Protection Division. It does not preclude making an application for protection
under section 112. Any person in Canada
who is subject to a deportation order (other than a person described in
subsections 115(1) and 112(2)) may apply for protection under that section. Such
an application may result in refugee protection and, but for section 98, could
have resulted in refugee protection for the Li brothers. Consequently,
notwithstanding their ineligibility to make applications to the Refugee
Protection Division, the Li brothers were competent to make their applications
to the Minister under section 112 and to receive refugee protection as a result
of those applications. Their applications to the Minister were, in fact and
law, applications for refugee protection.
[43]
This
conclusion is entirely consistent with the decision of this Court in Xie v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 250, [2005] 1 F.C.R. 304 (Xie). The issue in that case was
whether the exclusion found at section F of Article 1 of the Convention could
be invoked in the case of purely economic crimes. The appellant’s argument was
that such a finding put her at risk of deportation to torture. In order to
dispose of this argument, the Court reviewed the dispositions relating to
claims for refugee protection. At paragraph 28 of its reasons, this Court said:
a. The third
avenue by which a person can be extended refugee protection is by means of an
application for protection pursuant to section 112. Persons facing deportation
may apply to the Minister for protection on the basis that they face a risk of
harm if returned to their country of origin. If the application for protection
is granted, such persons acquire refugee protection pursuant to paragraph
95(1)(c).
[44]
The Court
went on to examine the consequences of a successful application under section
112 and concluded as follows:
32
For all except those described in subsection 112(3), a
successful application for protection results in the grant of refugee
protection and the status of protected person. For persons described in
subsection 112(3), the result is a stay of the deportation order in force
against them.
[45]
In Xie,
this Court was not called upon to decide the effect of exclusion under section
99. The argument that an application under section 112, in the circumstances in
which the Li brothers find themselves, does not amount to an application for
refugee protection is an argument about the effect of section 99, not an
argument about the effect of section 98. Consequently, nothing in Xie is
of assistance to the Li brothers.
4. Does a PRRA officer have
jurisdiction to determine that a person is excluded
from refugee protection
under section 98 of the Act?
[46]
The
conclusion that an application under section 112 is an application for refugee
protection disposes of the second issue, namely, whether a PRRA officer has
jurisdiction to decide whether a person is excluded under section 98.
[47]
Section 95
quoted above, as well as section 112 itself, make it clear that an application
under section 112 is made to the Minister. In the course of considering an
application under section 112, where the applicant has not been excluded under
section 98, the Minister is directed by paragraph 113(c) to consider the
application according to sections 96, 97, and 98. The Minister must therefore
have jurisdiction to consider section 98 and to exclude an applicant under that
section if the facts warrant the exclusion. Otherwise, the legislation imposes
an obligation on the Minister without giving him or her the authority to
discharge that duty. Such a result cannot have been intended.
5. If the PRRA officer determines that
a person is excluded from protection
under section 98 of the Act, is the PRRA officer entitled to consider
the person’s application pursuant to paragraph 113(d) of the Act?
[48]
The issue
here is whether the PRRA officer, having commenced consideration of an
applicant’s pre-removal risk assessment under paragraph 113(c) of the
Act, is entitled, upon making a finding of exclusion under section 98, to then consider
the application under paragraph 113(d). The application judge seems to have
concluded that the PRRA officer could not do so when she found that, although
the PRRA officer had the jurisdiction to consider section 98, she erred when
she purported to treat the Li brothers’ application under paragraph 113(d)
when she was bound to consider it under 113(c) : see paragraph 56. This
flows from the application judge’s conclusion that the factors set out in
subsection 112(3) were all matters which would be determined prior to the making
of an application under section 112. Consequently, the judge concluded that
while the PRRA officer had the jurisdiction to consider section 98, it was
jurisdictional error for her to recast her consideration of the Li brothers’
section 112 application under paragraph 113(d) when she had commenced it
under paragraph 113(c).
[49]
The
argument that the PRRA officer erred in applying section 98 to section 96,
which deals with refugee protection, but in not applying it to section 97,
which deals with persons in need of protection, is of a similar nature. Since
section 98 denies a person excluded under section F of Article 1 of the Convention
the status of a Convention refugee, as well as the status of a person in need
of protection, the Li brothers argue that a PRRA officer cannot deny them Convention
Refugee status as a result of their exclusion under section 98 but yet consider
whether they are persons in need of protection under section 97. They say that
such a result is excluded by the terms of section 98 itself.
[50]
In my
view, both of these arguments are based on the false premise that once the PRRA
officer starts down the road of paragraph 113(c), he or she is precluded
from reassessing the application once he or she finds that section 98 applies
to the applicant. I agree with the application judge that section 113 provides
a road map for the treatment of section 112 applications. I also agree that the
PRRA officer must first determine if the applicant has, to that point, been
refused refugee protection as a result of having been excluded under section E
or F of Article 1 of the Convention. If the applicant has not been so excluded,
I agree that the PRRA officer must consider the applicant’s application under
paragraph 113(c).
[51]
That said,
I consider that the PRRA officer’s analysis under paragraph 113(c) must
begin by addressing section 98. Where an applicant has not made a claim to the
Refugee Protection Division, the question of exclusion will not have been
canvassed. If there are no grounds for exclusion under section 98, the PRRA
officer’s analysis then proceeds through sections 96 and 97. If, however, the
PRRA officer finds that there are grounds for exclusion, the applicant becomes
a person described in paragraph 112(3)(c), and the PRRA officer must
therefore return to section 113 and proceed under paragraph 113(d). At
that point, the best possible outcome for the applicant is a limited form of
protection, namely an indefinite stay of the deportation order in force against
him or her.
[52]
In
proceeding under paragraph 113(d), the PRRA officer is not considering
the applicant as a candidate for the status of a person in need of protection,
as suggested by the Li brothers. Section 98 is conclusive against this argument.
The PRRA officer is engaged in a process of determining whether execution of
the deportation order in force against the applicant ought to be stayed.
[53]
The Li brothers rely on the following comments, made at
paragraph 40 of this Court’s reasons in Xie:
Specifically,
I would say that a claimant can be excluded from refugee protection by the
Refugee Protection Division for a purely economic offence. I stress refugee
protection because the certified question appears to suggest that the exclusion
applies to claims for protection, which is not the case. It applies only to
claims for refugee protection.
[54]
This is a comment about the effect of a finding of exclusion
under section 98. It is not a comment about the nature of an application under
section 112, nor is it inconsistent with the conclusion to which I have come. Notwithstanding
the PRRA officer’s conclusion that section 98 applied to the Li brothers, she
went on to find that they were at risk of torture if returned to China and
forwarded the file to the Minister’s delegate for a weighing of the factors
relevant to their removal to China in the face of that risk. Thus, while the Li
brothers are excluded from refugee protection, they may yet benefit from
protection in the form of a stay of the deportation orders in force against
them.
[55]
I note that in Liu v. Canada
(Minister of Citizenship and Immigration), [2009] F.C.J.
No. 1110, Mr. Justice Russell came to the same conclusion as I have, expressing
himself succinctly, as follows:
131
In other words, I do not
think that the direction in 113(c) that "consideration shall be on the
basis of sections 96 to 98" means that a PRRA officer who makes a 1F(b)
exclusion decision cannot then go on to consider section 97 risk under
subsection 113(d). It is also my view that the PRRA Officer's approach to these
statutory provisions and his way of dealing with section 96 to 98 of the Act
was in accordance with the guidance provided by the Federal Court of Appeal in Xie.
The Officer kept the two streams separate and ensured that exclusion was only
applied to refugee protection.
[56]
In the result, I conclude that the application judge erred
in law when she found that the PRRA officer could not consider the Li brothers’
applications under paragraph 113(d). When the PRRA officer’s analysis under
paragraph 113(c) led her to the conclusion that the Li brothers were
excluded from refugee protection by virtue of section 98, and were therefore
persons described in paragraph 112(3)(c), she was then entitled to pursue
her analysis of the Li brothers’ application under paragraph 113(d).
CONCLUSION
[57]
I would answer the certified questions as follows:
(1) Do
pre-removal risk assessment officers have the jurisdiction to exclude persons
from refugee protection under section 98 of the IRPA and find them described in
section 112(3)(c) of the IRPA?
Answer: Yes
(2) Does
section 112(3)(c) of the IRPA only apply to rejections by the Refugee
Protection Division on the basis of Section F of Article 1 of the Refugee
Convention or does it also apply to rejections by pre-removal risk assessment
officers on the basis of section F of Article 1 of the Refugee Convention?
Answer: Paragraph
112(3)(c) applies to findings of exclusion on the basis of section F of
Article 1 of the Convention by pre-removal risk assessment officers, as well as
to findings of exclusion by the Refugee Protection Division.
[58]
For these reasons, I would allow the appeal and set aside
the decision of the application judge. Rather than return the matter for
reconsideration, I would invoke the jurisdiction conferred on this Court by
section 52 of the Federal Courts Act, R.S.C. 1985, c. F-7, and, rendering
the judgment which the Federal Court should have rendered, I would dismiss the
application for judicial review.
"J.D.
Denis Pelletier"
“I
agree.
Marc Noël J.A.”
“I
agree.
Carolyn Layden-Stevenson J.A.”