Docket: A-79-16
Citation:
2016 FCA 292
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CORAM:
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STRATAS J.A.
WEBB J.A.
WOODS J.A.
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BETWEEN:
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GJON RROTAJ,
ELVANA RROTAJ, SAMUELE RROTAJ AND JOANA RROTAJ
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Appellants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
November 21, 2016).
STRATAS J.A.
[1]
The Federal Court dismissed the appellants’
application for judicial review but certified a serious question of general
importance: 2016 FC 152. The appellants appeal to this Court under subsection
74(d) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27.
[2]
In its question, the Federal Court asked whether
Article 1E of the Convention Related to the Status of Refugees, 28 July
1951, Can. T.S. 1969, No. 6, “as incorporated in the
Immigration and Refugee Protection Act,” applies “if a claimant’s third country residency status (including
the right to return) is subject to revocation at the discretion of that
country’s authorities.”
[3]
At the outset of the hearing of this appeal, we
asked the parties to make submissions on whether the question is proper. We
have received those submissions and have considered them. In our view, the
question is not proper and so this Court does not have jurisdiction to
entertain this appeal.
[4]
For a question to be proper, it must be of
general importance that transcends the interests of the parties to the
litigation and must bear upon the outcome of the appeal: Varela v. Canada
(Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R.
129, at paras. 28-29.
[5]
In our view, neither requirement is met here.
[6]
The question is not of general importance. The
respondent submits that Canada (Minister of Citizenship and Immigration) v.
Zeng, 2010 FCA 118 already answers the question to the extent it can be
answered. We agree.
[7]
In Zeng, this Court held that a decision-maker
must inquire into the nature of the rights attached to nationality of the third
country (at para. 28). Whether or not there is a right to return is part and
parcel of the Zeng test. The Federal Court was aware of this (at paras.
34-35) and properly rejected the appellants’ suggested formulation of the
question. The Federal Court tried to reformulate the question (at para. 36).
But in substance its reformulation is no different from the question it
rejected.
[8]
Further, in this case, the question has no
bearing upon the outcome of the appeal. On critical findings of fact and mixed
law and fact made by the Federal Court—findings not challenged in the
appellants’ notice of appeal—the question does not arise and, thus, does not
bear upon the outcome of the appeal.
[9]
The Federal Court held (at paras. 24-27) that
the appellants did not provide any evidence to meet their burden to demonstrate
that they had lost or could lose status in the third country, here Italy. Their
absence from Italy for more than 12 months “does not
mean they had lost status in Italy” (at para. 24). The Federal Court also
held (at para. 27) on the basis of the evidence before it that the appellants “held the right to work without restrictions, to study, to
fully access social services, and to return to [Italy]” and, thus, “the evidence does not disclose a serious possibility, let
alone a probability, that [the appellants] have no right to return [to Italy].”
The Federal Court noted (at para. 27) that the principal appellant conceded during
the hearing that all the formal rights of an Italian citizen except the right
to vote and the right to a passport were present. In Zeng, this Court
held (at para. 1) that Article 1E “precludes the
conferral of refugee protection if an individual has surrogate protection in a
country where the individual enjoys substantially the same rights and
obligations as a national of that country.” The Federal Court also found
(at para. 31) that the appellants had not brought evidence they had lost their
right of return and could not renew their status.
[10]
Without a serious question of general importance
before us under subsection 74(d) of the Immigration and Refugee
Protection Act, we have no jurisdiction to entertain this appeal. Therefore,
despite the able submissions of Mr. Levinson, we must dismiss this appeal.
“David Stratas”
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