Docket: A-291-16
Citation:
2017 FCA 84
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CORAM:
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DAWSON J.A.
WEBB J.A.
RENNIE 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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BINGHONG QIU
GIULAN ZHU
ZHIHENG QIU
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
April 25, 2017).
DAWSON J.A.
[1]
The Refugee Protection Division of the Immigration
and Refugee Board of Canada rejected the respondents’ claims for status as
Convention refugees. The Refugee Protection Division was led to this conclusion
as a result of its findings that:
i.
the testimony of the principal claimant was
incredible;
ii.
there was no credible basis for the claim; and,
iii.
even if the claims were found to be credible,
the claimants had failed to establish a nexus between the peril claimed by them
and a Convention ground.
[2]
For reasons cited as 2016 FC 740, the Federal
Court set aside the finding that the claimants’ claims had no credible basis.
The Federal Court returned the matter to the Refugee Protection Division with a
direction to issue an amended decision wherein the finding of no credible basis
was removed. The Federal Court certified the following question:
Does the Federal
Court have jurisdiction under paragraph 18.1(3)(b) of the Federal Courts Act
to issue a direction requiring the Refugee Protection Division to remove from
its decision a finding that there is no credible basis for a claim, thereby
granting a right of appeal to the Refugee Appeal Division, which would
otherwise be precluded by paragraph 110(2)(c) of the Immigration and Refugee
Protection Act?
[3]
In our view, the determinative issue on this
appeal is whether the Federal Court properly exercised its discretion to
certify the question.
[4]
It is well-settled law that a question should be
certified only if it is a serious question of general importance which will be
dispositive of an appeal (Canada (Minister of Citizenship and Immigration)
v. Zazai, 2004 FCA 89, 318 N.R. 365, at paragraph 11; Varela v. Canada
(Minister of Citizenship and Immigration) 2009 FCA 145, [2010] 1 F.C.R.
129, at paragraph 28).
[5]
The respondents did not challenge in the Federal
Court the finding of the Refugee Protection Division that they had failed to
establish a nexus between the peril claimed and a Convention ground. The
reasons of the Federal Court do not impugn the finding with respect to nexus.
Indeed, the Federal Court deliberately made no finding on the issue (reasons,
at paragraph 9).
[6]
In this circumstance the Federal Court erred in
law in certifying a question that was not dispositive of the appeal.
Irrespective of the findings of credibility and no credible basis, the claims
to status as Convention refugees were bound to fail as a result of the
unchallenged determination that the respondents failed to establish a nexus to
a Convention ground.
[7]
Subsection 74(d) of the Immigration
and Refugee Protection Act, S.C. 2001 c. 27, provides that an appeal lies
to this Court from the Federal Court only where a serious question of general
importance has been stated. In consequence, where there is no serious question
of general importance, the condition precedent to a right of appeal has not
been met and the appeal should be dismissed on that ground (Varela, at
paragraph 43).
[8]
It follows that the appeal will be dismissed.
“Eleanor R. Dawson”
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