Docket: IMM-3253-16
Citation:
2017 FC 368
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 18, 2017
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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AFSHIN NOROUZI
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Afshin Norouzi [Mr. Norouzi] is applying
for judicial review of a decision rendered by the Refugee Protection Division
(RPD) of the Immigration and Refugee Board of Canada on June 22, 2016,
ceasing Mr. Norouzi's refugee protection.
[2]
Mr. Norouzi contests the reasonableness of
the decision and raises constitutional issues with regard to sections 7,
12, and 15 of the Charter. For the following reasons, I would dismiss the
application for judicial review.
II.
Background
[3]
The applicant, Afshin Norouzi, is a citizen of
Iran.
[4]
On July 17, 2001, Mr. Norouzi applied
for refugee protection at the border at SaintBernard-de-Lacolle, coming from
the United States. Shortly thereafter, the RPD recognized his refugee status,
as the family of his ex-wife, with whom he had had sexual relations outside of
marriage, had allegedly been threatening him. Mr. Norouzi obtained his
permanent resident status on September 18, 2003.
[5]
After receiving his permanent resident status,
Mr. Norouzi returned to Iran seven times between 2003 and 2007, for a
total duration of approximately eighteen months:
- November 2003
to April 2004;
- June to
October 2004;
- December 2004
to February 2005;
- February 2006
to April 2006;
- April 2006
to May 2006;
- January 2007;
- February 2007.
[6]
Furthermore, these trips to Iran were made
possible by the use of an Iranian passport. In fact, Mr. Norouzi had
applied for a passport renewal and obtained it in February 2005. In 2009,
he obtained a new Iranian passport.
[7]
On July 4, 2013, the Minister of Public
Safety and Emergency Preparedness [the Minister] filed an application for
cessation of refugee protection under subsection 108(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [the Act]. On August 17,
2015, Mr. Norouzi filed a notice of constitutional question; however, the
RPD, in its decision on January 18, 2016, determined that it had no
jurisdiction to address these matters.
[8]
On June 22, 2016, the RPD allowed the
Minister's application for cessation of refugee protection. Mr. Norouzi
contests this decision.
III.
Impugned decision
[9]
The question before the RPD was to determine
whether Mr. Norouzi, through his actions, had "voluntarily
re-availed himself of the protection of Iran." To answer this
question, the RPD first considered paragraph 1 of the United Nations High
Commissioner for Refugees (UNHCR)'s 1951 Refugee Convention, which, along
with the Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
[Handbook], describes the conditions that must be met for cessation of refugee
protection. There are three: (1) voluntariness; (2) intention; and (3)
re-availment: the refugee must actually obtain such protection. The RPD then
considered paragraphs 121–125 of the Handbook, which state that "[i]f a refugee applies for and obtains a national
passport or its renewal, it will, in the absence of proof to the contrary, be
presumed that he intends to avail himself of the protection of the country of
his nationality." Lastly, it considered the context and facts of
Mr. Norouzi's case.
[10]
The RPD made several relevant findings of fact:
i. Mr. Norouzi made several trips to
Iran, for a total duration of approximately eighteen months;
ii. His mother's medical condition was
unstable;
iii. He made his entries into Iran with the
help of a contact person; his trips ceased after he lost contact with this
individual.
[11]
The RPD concluded that Mr. Norouzi's
"comings and goings," both before and
after his Iranian passport was extended, evidenced his desire to return to
Iran. The first criteria was therefore satisfied. The RPD was also of the
opinion that extending his passport created a presumption of his intention to
re-avail himself of the protection of Iran. Although the RPD believed
Mr. Norouzi with regard to his mother's health problems, it clarified that
this was insufficient to rebut this presumption. Indeed, there were several
family members in Iran who could have taken care of his mother, and the RPD
could not understand why "his presence was
required for all of these visits and for such long stays." Rather,
it was of the opinion that Mr. Norouzi's planned, numerous and lengthy
trips were for reasons other than those presented to the tribunal. Lastly, the
RPD concluded that Mr. Norouzi's passport extension, which allowed him to
travel successfully in Iran, shows that the action was successful. The three
Handbook conditions having been met, the RPD concluded that Mr. Norouzi
had effectively voluntarily re-availed himself of the protection of Iran, his
country of nationality.
IV.
Relevant legislation
[12]
Section 108 of the Act lists the
circumstances under which a claim for refugee protection may be rejected or
lost:
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Rejection
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Rejet
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108 (1) A
claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
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108 (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
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(a) the
person has voluntarily reavailed themself of
the protection of their country of
nationality;
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a) il se
réclame de nouveau et volontairement de la protection du pays dont il a la
nationalité;
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(b) the
person has voluntarily reacquired their nationality;
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b) il
recouvre volontairement sa nationalité;
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(c) the
person has acquired a new nationality and enjoys
the protection of the country of that new
nationality;
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c) il
acquiert une nouvelle nationalité et jouit de la protection du pays de sa
nouvelle nationalité;
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(d) the
person has voluntarily become re-established in the country that the person
left or remained outside of and in respect of which the person claimed
refugee protection in Canada; or
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d) il
retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel
il est demeuré et en raison duquel il a demandé l’asile au Canada;
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(e) the
reasons for which the person sought refugee protection have ceased to exist
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e) les
raisons qui lui ont fait demander l’asile n’existent plus.
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Cessation of refugee protection
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Perte de l’asile
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(2) On
application by the Minister, the Refugee Protection Division may determine
that refugee protection referred to in subsection 95(1) has ceased for any of
the reasons described in subsection (1).
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(2) L’asile visé
au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la
Section de protection des réfugiés, de tels des faits mentionnés au
paragraphe (1).
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[13]
Consequently, if Mr. Norouzi finds himself
in any of the circumstances listed in subsection 108(1), he could lose his
refugee status under subsection 108(2).
[14]
Once refugee status is lost under
subsection 108(2), section 40.1 and subsection 46(1) of the Act
bring about, respectively, inadmissibility and loss of permanent residence:
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Cessation of refugee
protection — foreign national
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Perte de l’asile — étranger
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40.1 (1) A
foreign national is inadmissible on a final determination under subsection
108(2) that their refugee protection has ceased.
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40.1 (1) La
décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant
la perte de l’asile d’un étranger emporte son interdiction de territoire.
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Permanent resident
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Résident permanent
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46 (1) A
person loses permanent resident status
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46 (1) Emportent
perte du statut de résident permanent les faits suivants :
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[…]
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…
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(c.1) on a
final determination under subsection 108(2) that their refugee protection has
ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
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c.1) la
décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant,
sur constat des faits mentionnés à l’un des alinéas 108(1)a) à d), la perte
de l’asile.
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[15]
When a foreign national is inadmissible,
section 44 of the Act allows an officer to prepare a report for the
Minister (subsection 44(1)). Then, the Minister or the Minister's
representative must decide whether the report is well-founded and whether the
matter should be referred to the Immigration Division for investigation.
According to section 45, the Immigration Division may make the following
decisions:
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Decision
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Décision
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(a)
recognize the right to enter Canada of a Canadian citizen within the meaning
of the Citizenship Act, a person registered as an Indian under the Indian
Act or a permanent resident;
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a)
reconnaître le droit d’entrer au Canada au citoyen canadien au sens de la Loi
sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi
sur les Indiens et au résident permanent;
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(b) grant
permanent resident status or temporary resident status to a foreign national
if it is satisfied that the foreign national meets the requirements of this
Act;
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b) octroyer
à l’étranger le statut de résident permanent ou temporaire sur preuve qu’il
se conforme à la présente loi;
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(c)
authorize a permanent resident or a foreign national, with or without conditions,
to enter Canada for further examination; or
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c) autoriser
le résident permanent ou l’étranger à entrer, avec ou sans conditions, au
Canada pour contrôle complémentaire;
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(d) make the
applicable removal order against a foreign national who has not been
authorized to enter Canada, if it is not satisfied that the foreign national
is not inadmissible, or against a foreign national who has been authorized to
enter Canada or a permanent resident, if it is satisfied that the foreign
national or the permanent resident is inadmissible.
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d) prendre
la mesure de renvoi applicable contre l’étranger non autorisé à entrer au
Canada et dont il n’est pas prouvé qu’il n’est pas interdit de territoire, ou
contre l’étranger autorisé à y entrer ou le résident permanent sur preuve
qu’il est interdit de territoire.
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[16]
Yet, according to subsection 228(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations], if the
Minister finds that the report is well-founded, but the reason for
inadmissibility is under subsection 40.1(1) of the Act (cessation of
refugee protection), the matter shall not be referred to the Immigration
Division and the removal order shall be a departure order.
V.
Issues
[17]
The appellant puts forth two issues in dispute,
the second of which deals with constitutional questions:
- Was the RPD's decision reasonable?
- Does the cumulative effect of sections 40.1, 46(1)(c.1),
and 108(1) of the Act contravene sections 7, 12, and 15 of the Canadian
Charter of Rights and Freedoms?
VI.
Standard of review
[18]
With regard to the first question, the
applicable standard of review is the standard of reasonableness. The reviewing
court determines whether the decision and its justification possess the
attributes of reasonableness. Reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
VII.
Analysis
A.
Reasonableness of the decision
[19]
Mr. Norouzi maintains that, at the hearing,
the RPD failed to consider the following evidence that shows a lack of
intention to avail himself of the protection of Iran:
a)
Mr. Norouzi returned to Iran for purposes
related to his divorce that he could no longer manage from within Canada;
b)
Mr. Norouzi returned to Iran because his
brother was arrested by the police and his mother asked him to come and look
for his brother;
c)
His trips back to Iran were made under extreme
caution, with the help of a facilitator to pass through customs;
d)
The family home had been relocated to a new
neighbourhood, far away from his ex-wife's family.
[20]
He cites Yuan v. Canada, 2015 FC 923 [Yuan],
[2015] FCJ no 919, in which Justice Boswell undertook a contextual
analysis to determine whether the refugee had re-availed himself of the
protection of his country of origin. Justice Boswell first addressed the
presumption related to acquisition of a passport. He noted that this
presumption was documented in the Handbook, received court approval, and
concluded that "[i]t was reasonable for the RPD to
rely on this presumption," (Yuan, above, at
paragraph 31, citing Nsende v. Canada (Minister of Citizenship and
Immigration), 2008 FC 531 at paragraph 14, [2009] 1 FCR 49; Canada
(Public Safety and Emergency Preparedness) v. Bashir, 2015 FC 51 at
paragraph 59, [2015] FCJ no 36; Li v. Canada (Citizenship and
Immigration), 2015 FC 459 at paragraph 42, [2015] FCJ no 448).
Although he accepted the RPD's conclusion that the applicant had indeed
re-availed himself of the protection of China, he clarified that this finding
contradicted the RPD's other findings of fact and, consequently, was unreasonable.
Unfortunately, this is not the case for Mr. Norouzi.
[21]
On this point, the RPD concluded that
Mr. Norouzi's actions had "created in the
respondent a presumption of intention to re-avail himself of the protection of
Iran," and that he had failed to rebut this presumption. I am of
the opinion that the RPD carried out a contextual analysis to arrive at this
conclusion: it took into account the fact that Mr. Norouzi had renewed his
Iranian passport, as well as his mother's precarious health condition (which
was incidentally not refuted by the RPD), and the fact that he had family
members in Iran who could have taken care of his mother. The RPD is justified
in giving more weight to these points than to those mentioned by
Mr. Norouzi at paragraph 19 above (points that were taken into
account by the RPD in paragraph 28 of its decision). Furthermore, this
presumption is particularly strong where a refugee uses his national passport
to travel to his country of nationality (Abadi v. Canada (Citizenship and
Immigration), 2016 FC 29 at paragraph 16, [2016] FCJ no 33 [Abadi]).
[22]
Consequently, I am of the opinion that the RPD's
decision was reasonable and satisfies the criteria set out in Dunsmuir,
above.
B.
Section 7 of the Charter
[23]
Section 7 of the Charter guarantees the "right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles
of fundamental justice." An analysis of the constitutionality of a
statute under section 7 occurs in two steps: firstly, the claimant must
prove that there has been or could be a deprivation of the right to life,
liberty and security of the person. Secondly, the claimant must prove that the
deprivation was not or would not be in accordance with the principles of fundamental
justice (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9
at paragraph 12, [2007] 1 S.C.R. 350). Yet, before proceeding with an
analysis under section 7, it must be determined whether section 7
applies in the circumstances.
[24]
Mr. Norouzi maintains that the application
of section 7 is triggered by the seriousness of the consequences that
Mr. Norouzi would have faced if he had been forced to return to
Iran—namely threats to his life and the supposedly imminent threat of
persecution. Mr. Norouzi cites Charkaoui v. Canada, 2008 SCC 38,
[2008] 2 S.C.R. 326, wherein the Supreme Court of Canada states the following at
paragraphs 53 and 54:
[53] But whether or not the constitutional
guarantees of s. 7 of the Charter apply does not turn on a formal distinction
between the different areas of law. Rather, it depends on the severity of the
consequences of the state’s actions for the individual’s fundamental interests
of liberty and security and, in some cases, the right to life. By its very
nature, the security certificate procedure can place these rights in serious
jeopardy, as the Court recognized in Charkaoui. To protect them, it becomes
necessary to recognize a duty to disclose evidence based on s. 7.
[54] Investigations by CSIS play a central
role in the decision on the issuance of a security certificate and the
consequent removal order. The consequences of security certificates are often
more severe than those of many criminal charges. For instance, the possible
repercussions of the process range from detention for an indeterminate period
to removal from Canada, and sometimes to a risk of persecution, infringement of
the right to integrity of the person, or even death.
[25]
Mr. Norouzi also maintains that
section 7 of the Charter protects his physical integrity, his
psychological integrity, and protects family ties, but he does not explain how
this is the case.
[26]
By contrast, the Minister maintains that
section 7 does not apply in this case because (i) the facts do not allow
for an analysis of the constitutionality of the sections; and (ii) the issue is
premature as Mr. Norouzi has not yet reached the stage at which he would
be removed from Canada. I agree with the Minister on this point.
[27]
It is well established that non-citizens have no
absolute right to re-enter or to remain in Canada, and that removal in itself
does not trigger the application of section 7 of the Charter (Medovarski
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2
SCR 539). Mr. Norouzi returned to Canada and obtained his refugee status
in 2002, and he became a permanent resident in 2003. It was only after the
RPD's ruling on June 22, 2016, (which I have found to be reasonable) that
Mr. Norouzi lost his refugee status and became inadmissible. Although
section 44 of the Act creates the possibility that an officer could
prepare a report to be sent to the Minister, this has not yet been the case for
Mr. Norouzi. Furthermore, the Minister must uphold the soundness of the
report before subsection 228(1) and the removal order can even come into
play. Thus, there are several steps that would need to be taken before
Mr. Norouzi could actually be removed from Canada and returned to
Iran—steps that have not yet taken place.
[28]
The respondent cites B010 v. Canada, 2015
SCC 58 (CanLII), [2015] 3 S.C.R. 704, [B010] and Febles v. Canada
(Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, [Febles],
in which the Supreme Court of Canada ruled that section 7 is not triggered
by a ruling of inadmissibility. In B010, the chief justice writes the
following:
[74] The appellants argue in the
alternative that s. 37(1)(b) of the IRPA unconstitutionally violates s. 7 of
the Charter on the basis that s. 37(1)(b) is overbroad in catching migrants
mutually aiding one another and humanitarian workers. […]
[75] The argument is of no
assistance in any event, as s. 7 of the Charter is not engaged at the stage of
determining admissibility to Canada under s. 37(1). This Court recently
held in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68
(CanLII), [2014] 3 S.C.R. 431, that a determination of exclusion from refugee
protection under the IRPA did not engage s. 7, because “even if excluded from refugee
protection, the appellant is able to apply for a stay of removal to a place if
he would face death, torture or cruel and unusual treatment or punishment if
removed to that place” (para. 67).
[My emphasis.]
[29]
Mr. Norouzi has not provided any evidence
indicating that he is subject to a removal order; section 7 of the Charter
therefore does not apply in this case.
[30]
As noted by the respondent, that which
Mr. Norouzi appears to be contesting is the 12month waiting period
between the date of the RPD's decision and the application for pre-removal risk
assessment [PRRA]. Mr. Norouzi also maintains that the cumulative effect
of the Act's provisions is to allow removal without an assessment of the risks
in the country of origin, which, in his opinion, goes against the protections
in the Constitution. In his written arguments, Mr. Norouzi emphasizes the
fact that he will not have access to a PRRA for twelve months. He cites
Canada (Minister of Citizenship and Immigration) v. Farhadi, 2000 CanLII
15491 (FCA), [2000] FCJ no 646, in which Judge Strayer ruled that "a risk assessment and determination conducted in
accordance with the principles of fundamental justice is a condition precedent
to a valid determination to remove an individual from this country."
With regard to this argument, I make the following observations:
[31]
Firstly, as previously mentioned,
Mr. Norouzi is not yet the subject of a removal order. A removal order is
only one possibility allowed under the legislative regime of the Act.
Secondly, even though Mr. Norouzi must wait until June 22, 2017,
before he can make a PRRA application, there are several options available to
him if a removal order is made against him: he can apply for deferral of
removal, challenge an enforcement officer’s refusal to defer by way of an
application for leave and judicial review in the Federal Court, and may bring a
motion for a stay of removal pending the outcome of their application for judicial
review (Atawnah v. Canada (Public Safety and Emergency Preparedness),
2016 FCA 144 at paragraph17, [2016] FCJ no 481; Peter v. Canada (Public
Safety and Emergency Preparedness), 2014 FC 1073 at paragraph 167,
[2014] FCJ no 1132).
[32]
Mr. Norouzi is not eligible to apply for a
PRRA for twelve months under paragraph 112(2)(b.1) of the Act; the
same applies to all refugees whose refugee protection claims have been denied
by the RPD. The Federal Court of Appeal ruled in Atawnah that
paragraph 112(2)(b.1) of the Act does not contravene the guarantees
under section 7 of the Charter.
C.
Section 12 of the Charter
[33]
Mr. Norouzi also maintains that the
cumulative effect of sections 40.1, 46(1)(c.1), and 108(1) of the
Act constitutes a violation of the rights guaranteed in section 12 of the
Charter. Section 12 reads as follows:
12. Everyone has the right not to be
subjected to any cruel and unusual treatment or punishment.
[34]
He cites Canadian Doctors for Refugee Care v.
Canada (Attorney general), 2014 FC 651, [2014] FCJ no 679 [Canadian
Doctors], but offers no explanation as to the reasons justifying his
position. In Canadian Doctors, Justice Mactavish ruled that certain
changes to the Interim Federal Health Program violated section 12 of the
Charter, as they had the impact of subjecting a group of vulnerable, poor and
disadvantaged individuals to adverse treatment. Before going into her analysis
under section 12, the Justice stated that cruel and unusual treatment or
punishment is that which is “so excessive as to outrage
[our] standards of decency” (Canadian Doctors, above, at
paragraph 613). I do not see how this ruling is relevant to
Mr. Norouzi's argument, since, as established during the analysis under
section 7, he has not yet reached the point of being removed to Iran.
[35]
The respondent cites Barrera v. Canada,
[1993] F.C.J. no 146 [Barrera], according to which an applicant
cannot invoke section 12 of the Charter before the final stage of
deportation:
The issue as to the effect of section 12 on
the refoulement of Convention refugees being still open, the next question is
whether it ought to be dealt with on this appeal. My view is that it should
not, since I agree with the Board that the appellant's argument is brought
prematurely, against the wrong decision maker at the wrong stage.
…
[...] it is only a return to Chile which
could conceivably put the appellant in any section 12 danger, and it is only
the Minister who has the statutory power to subject him to that danger. The
Minister cannot even make a decision as to the country of removal until the
issue of deportation is settled by the Board.
[36]
Of course, even if the statutory regime in Barrera
is not the same as that in the Act, the principles still apply. In this case,
subsection 228(1) of the Regulations cannot take effect until after an
officer prepares a report under section 44, which, again, is only a
possibility. Mr. Norouzi's arguments to this effect are premature (Santana
v. Canada (Public Safety and Emergency Preparedness), 2013 FC 477 at
paragraph 14, [2013] FCJ no 525.
D.
Section 15 of the Charter
[37]
Lastly, Mr. Norouzi maintains that the
cumulative effect of sections 40.1, 46(1)(c.1), and 108(1) of the
Act constitutes a violation of the rights guaranteed in section 15 of the
Charter, namely equality before the law, equal protection and equal benefit of
the law. More specifically, he maintains that these sections create a regime
that discriminates between permanent residents of Canada: while some permanent residents
of Canada can travel "without worry" to their country of origin, he
maintains that section 108 of the Act has the discriminatory effect of
placing permanent residents who are refugees at risk of losing their
permanent residence by travelling to their country of origin.
[38]
The two parties agree on how to determine
whether section 15 of the Charter has been violated. A two-stage analysis
must be undertaken (Kahkewistahaw First Nation v. Taypotat), 2015 SCC 30
at paragraphs 16–21, [2015] ACS no 30 [First Nation]; Withler
v. Canada, 2011 SCC 12 at paragraphs 61–66, [2011] 1 S.C.R. 396). The
first stage involves analyzing whether the law creates a distinction based on
an enumerated or analogous ground. The grounds listed are race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.
Mr. Norouzi contests the constitutional validity of the Act on the basis
of his refugee status; therefore, it must first be analyzed whether refugee
status was recognized, or should have been recognized, as a ground analogous to
those listed in section 15. He quotes the following as a definition of an
analogous ground: “a personal characteristic that is
immutable or changeable only at unacceptable cost to personal identity”(First
Nation, above, at paragraph 33).
[39]
By its very nature, refugee status is not an
immutable characteristic. The statutory regime of the Act provides that, under
certain circumstances (like those described in section 108), a permanent
resident who is also a refugee may lose their refugee status. The difference in
how permanent residents are treated as compared to permanent residents who are
also refugees is therefore not a ground that is analagous to those listed in
section 15.
[40]
Since Mr. Norouzi was not able to establish
the first prong of the analysis, namely that the Act has a disproportionate
impact on him based on the fact that he belongs to the group of permanent
residents who are also refugees, I cannot conclude that the Act violates
section 15 of the Charter.
VIII.
Questions for certification
[41]
At the hearing, Mr. Norouzi proposed six
questions to be certified for the Federal Court of Appeal. I asked the parties
to make submissions with respect to these six questions. The first question,
whose certification was not contested by the respondent, is as follows:
When called upon to decide if it will allow
or deny an application to cease refugee protection presented by the minister,
pursuant to paragraph 108(1)a) of the Act and based on past actions, can
the Board allow the minister's application without reviewing it, at the
cessation hearing, if the individual would be exposed to a risk of persecution
upon their return to their country of nationality?
[42]
The respondent maintains that the case law on
this issue is not contentious, and cites, among others, Balouch v. Canada
(Public Safety and Emergency Preparedness), 2015 FC 765, [2015] FCJ no 751.
In this decision, Justice Heneghan concluded as follows:
While I acknowledge that the existence of
risk is a primary concern when protection is sought, I am not persuaded that
the issue of risk is relevant in a cessation hearing.
[43]
Yet, Justice Heneghan certified the same
question as that proposed by Mr. Norouzi. The respondent also cites Abadi,
above, wherein Justice Fothergill interpreted Balouch as saying that
the risk of persecution is not a relevant factor in a cessation hearing.
However, this was not done in a contextual vacuum, as he clarified that "[p]ending clarification by the Federal Court of Appeal,
the RPD cannot be faulted for not assessing Mr. Shamsi’s risk of persecution in
Iran."
[44]
I am of the opinion that only this question
among the six proposed by Mr. Norouzi is a question of general importance
and transcends the interests of the parties in the present case. Due to the
fact that it was ultimately not appealed in the Balouch decision, and
since the respondent does not oppose its certification, I will certify the
first question posed by Mr. Norouzi for the Federal Court of Appeal.
IX.
Conclusion
[45]
The RPD's decision was reasonable. For the above-mentioned
reasons, the cumulative effect of sections 40.1, 46(1)(c.1), and 108(1) of the
Act does not violate sections 7, 12, and 15 of the Charter. The application for
judicial review is dismissed and the following question is certified:
When called upon to decide if it will allow
or deny an application to cease refugee protection presented by the minister,
pursuant to paragraph 108(1)a) of the Act and based on past actions, can
the Board allow the minister's application without reviewing it, at the cessation
hearing, if the individual would be exposed to a risk of persecution upon their
return to their country of nationality?
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