Docket: A-35-16
Citation:
2016 FCA 300
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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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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Appellant
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And
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BINDER SINGH
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
November 24, 2016)
STRATAS J.A.
[1]
The Minister appeals from the judgment of the
Federal Court (per Annis J.): 2015 FC 1415. The Federal Court granted
Mr. Singh’s application for judicial review from a decision of the Refugee
Protection Division.
[2]
The Refugee Protection Division (or RPD)
determined that Mr. Singh is not a Convention refugee or a person in need of
protection because he falls within the criminality exclusion in section 1F of the
Convention Related to the Status of Refugees, 28 July 1951, Can. T.S.
1969, No. 6. That exclusion has been made part of Canadian law by section 98 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The RPD
went on to find under subsection 107(2) of the Act that there is no credible
basis for Mr. Singh’s refugee claim.
[3]
The central issue before the Federal Court was
one of statutory interpretation. Once the RPD determines that a person is not a
Convention refugee or a person in need of protection because of a section 98
exclusion, is the RPD precluded under the Act from making a “no credible basis” finding under subsection 107(2) of
the Act?
[4]
The Federal Court answered this in the
affirmative. It set aside the decision of the RPD and remitted the matter back
to it to dismiss Mr. Singh’s application solely on the ground that he is not a
Convention refugee or a person in need of protection under section 1F of the
Refugee Convention and section 98 of the Act.
[5]
The Minister appeals to this Court, submitting that the Federal Court erred on this statutory
interpretation issue.
[6]
On appeal from a judicial
review, we are first to determine whether the Federal Court selected the proper
standard of review and, if so, determine whether the Federal Court properly
reviewed the administrative decision using that standard of review. If the
Federal Court did not select the proper standard of review, we are to review
the administrative decision using the proper standard of review. See Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paras. 45-47.
[7]
The Federal Court held that
the standard of review is correctness. We disagree.
[8]
The first step in determining the standard of
review is to characterize the nature of the administrative decision under
review: Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171
at paras. 18 and 26-28; Canada (Attorney General) v. Boogaard, 2015 FCA
150, 474 N.R. 121 at para. 36.
[9]
Here, the RPD’s decision is
one of statutory interpretation. The RPD was considering its powers under the
refugee protection provisions of the Act, statutory provisions “closely connected to its function, with
which it will have particular familiarity”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para.
54. In Dunsmuir and in a number of later cases, the Supreme Court has
repeatedly held that reviewing courts in such cases must presume that the
standard of review is reasonableness: see, e.g., Edmonton (City) v.
Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654.
[10]
The Federal Court held (at
para. 26) that the RPD did not consider the statutory interpretation issues and
so its decision should be reviewed on the basis of correctness. We disagree.
The Supreme Court has not recognized this as a reason to depart from
reasonableness review. Indeed, in Edmonton East, above, the assessment
board in that case did not explicitly consider its statutory powers or engage
in statutory interpretation because of a concession made by the parties before
it. In Kanthasamy v. Canada (Citizenship and
Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, the visa officer did not explicitly consider her
statutory powers or engage in statutory interpretation. Nevertheless, the
Supreme Court held that reasonableness must be presumed as the standard of
review. We are bound by these cases. Further, by doing what it did, perhaps the
RPD can be taken to have implicitly accepted it had jurisdiction.
[11]
In his memorandum of fact
and law, the respondent defends the Federal Court’s decision to review the
RPD’s decision on the basis of correctness because issues of international law
are involved. In our view, the only possible international law element in this
case is the RPD’s decision to exclude Mr. Singh under section 1F of the Refugee
Convention. But the judicial review in the Federal Court and this appeal in
this Court do not concern that issue. Rather, the issue is how certain provisions
of the Act, a domestic Canadian statute, should be interpreted. As is seen by
the Federal Court’s analysis of those sections and by the Minister’s
submissions in this Court, the content of international law does not bear on
this issue.
[12]
In the end, the standard of
review does not matter in this case. Even on the standard of reasonableness, we
consider the RPD’s decision to be unreasonable substantially for the reasons of
the Federal Court. We substantially agree with the Federal Court’s analysis of
the relevant provisions of the Act and how they interrelate.
[13]
We also agree with the
Federal Court’s conclusion that this Court’s decision in Xie v Canada
(Minister of Citizenship and Immigration), 2004 FCA 250, 243 D.L.R. (4th)
385 supports its interpretation of the relevant provisions of the Act.
[14]
The Minister submits that
the policy objectives of simplicity and conservation of resources bear upon the
statutory interpretation process and impel us to accept its view of how the
provisions of the Act interrelate. While in the abstract those policy
objectives are laudable, we must interpret the Act in accordance with its
specific text, surrounding context in the Act and the genuine purposes of the
Act: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193. Following that methodology,
which the Federal Court also followed, we substantially agree with the Federal
Court’s analysis. In any event, for the reasons set out in paragraphs 73-76 of
Mr. Singh’s memorandum, we are not persuaded that the Minister’s interpretation
of the relevant provisions necessarily advances simplicity and conservation of
resources; indeed, a complicated web of overlapping decision-makers and
authorities for different aspects of an RPD decision would remain.
[15]
The Minister submits that, on the basis of this
Court’s recent decision of Canada (Minister of Citizenship) v. R.K. and C.K.,
2016 FCA 272 and Alberta Teachers, above; the statutory interpretation
issue here was not before the Federal Court in the sense that the statutory
interpretation issue was not raised by the RPD. Thus, the Minister submits that
the Federal Court should not have stated the question for the consideration of
this Court.
[16]
This was not a barrier to this Court or the
Supreme Court in Kanthasamy, above considering the issue. Further, the “new issue” objection, a discretionary one, was not
raised in the Federal Court, does not appear in the notice of appeal, and was
not raised in the Minister’s memorandum. Finally, in our view, the issue before
us relates to the subject-matter jurisdiction of the RPD, an issue that is live
even if the parties before the RPD failed to raise it. An administrator cannot
be clothed with subject-matter jurisdiction it does not have: see Canadian
National Railway v. BNSF Railway Company, 2016 FCA 284 at para. 23 and the
authorities cited therein in the context of the subject-matter jurisdiction of
a court, but equally applicable to administrative bodies; see also Tranchemontagne
v. Ontario (Director, Disability Support Program), 2005 SCC 14, [2006] 1
S.C.R. 513 at para. 16.
[17]
The Federal Court stated the
following question for the consideration of this Court:
Considering the authority of the RPD under
section 107(2) and section 107.1 of the IRPA to determine that a claim has no
credible basis or is manifestly unfounded, is the RPD precluded from making
such determinations after, or in the alternative, to its findings that the
claimant is excluded under section F of Article 1 of the Refugee Convention?
[18]
The question stated by the Federal Court is
broader than is necessary for the facts of this case. There is no question
that the RPD is entitled to make “no credible basis”
findings under subsection 107(2) of the Act in some circumstances. Therefore,
we would reformulate the question as follows:
Considering
the authority of the Refugee Protection Division under subsection 107(2) and
section 107.1 of the Immigration and Refugee Protection Act to determine
that a claim has no credible basis or is manifestly unfounded, is the Refugee
Protection Division precluded from making such a determination after it has
found that the claimant is excluded under section F of Article 1 of the Refugee
Convention?
We will
answer the reformulated question in the affirmative.
[19]
Therefore, despite the able
submissions of Mr. Anderson, we will dismiss the appeal.
“David Stratas”
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