Docket: IMM-5366-16
Citation:
2017 FC 962
Ottawa, Ontario, October 27, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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NASIR MEHMOOD
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
One claiming protection in Canada as a
Convention refugee may also claim protection for a “dependent
child” who is less than 19 years of age. Subsection 25.1(9) of the Immigration
and Refugee Protection Regulations, SOR 2002-227 [the Regulations] provides
that the lock-in date for the age of a child of a refugee claimant “is the date on which the claim for refugee protection was
made.”
[2]
On December 10, 2014, Mr. Mehmood attended the
Citizenship and Immigration Canada office at Etobicoke to make a refugee claim.
In his claim he listed (among others) his son Khuram Nasir as a dependent
child. On December 10, 2014, he was given a notice to appear for interview on
January 5, 2015. He attended and was subsequently granted permanent residence
status as a Protected Person. However, an officer found that Khuram Nasir did
not meet the definition of dependent child because he turned 19 years of age on
December 30, 2014. The officer took the view that Mr. Mehmood’s claim for
refugee status was “made” on January 5, 2015,
and not on December 10, 2014. This is the finding that is the subject of the
judicial review.
[3]
I agree with the Minister that the decision
under review attracts a review on the reasonableness standard, and this is so
even though the officer was required to interpret the Regulations. However, I
find that there is only one reasonable interpretation of the Regulations, and
it is not that given by this officer.
[4]
Subsection 99(3.1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 requires persons seeking protection
to provide the officer with documents and information required, including the
Basis of Claim form, within the time limits provided for in the Regulations:
A person who makes a claim for refugee
protection inside Canada other than at a port of entry must provide the
officer, within the time limits provided for in the regulations, with
the documents and information — including in respect of the basis for the claim
— required by the rules of the Board, in accordance with those rules. [emphasis
added]
[5]
The Minister submits that “pursuant to s. 99(3.1) of the IRPA where a person makes an
inland claim for protection to a visa officer, that person must give the visa
officer a completed Basis of Claim form” and submits that until the
Basis of Claim form has been submitted and the claimant found to be eligible,
no application has been made. That interpretation is not consistent with the
Regulations.
[6]
Subsection 99 (3.1) makes it clear that the
claimant has to provide certain documents to the officer, including the Basis
of Claim form, but it also makes it clear that the claimant must do so within
the time prescribed by the Regulations. Subsection 159.8(1) provides that
those documents are to be provided no later than the date on which the officer
determines the eligibility of the claim. It does not provide that there is no
application made prior to the date of eligibility:
For the purpose of subsection 99(3.1) of the
Act, a person who makes a claim for refugee protection inside Canada other than
at a port of entry must provide an officer with the documents and information
referred to in that subsection not later than the day on which the officer
determines the eligibility of their claim under subsection 100(1) of the Act.
In fact, the letter
provided to Mr. Mehmood on the date he first visited the Etobicoke office and
submitted his application acknowledged that he had made an application: “You have been requested to return for an interview with
respect to your application [emphasis added].”
[7]
Moreover, the Guide the Minister has prepared
for claimants affirms that “If you made your claim
at an inland office, you must give your original completed [Basis of Claim]
Form and one copy to CIC or the CBSA officer on the day of your eligibility
interview [emphasis added].”
[8]
In my view, it would be absurd to say, as this
officer did, that there is no claim for protection made by a claimant, until an
officer determines, based on application forms submitted by the claimant, that
he or she is eligible to make the claim and thus schedules a hearing before the
Refugee Protection Division. Taking that view would mean that the Minister’s “Generic Application Form for Canada” submitted by Mr.
Mehmood is not an application at all; but what is it? – an application to
apply!
[9]
The officer’s interpretation is unreasonable as
it is absurd.
[10]
This application is allowed.
[11]
The applicant proposed for certification
the question: “When is a refugee claim “made” for the
purposes of s. 25.1(9) of IRPA?”
[12]
In my view, the question is framed too broadly,
as the present application deals only with an inland refugee claim. I am
satisfied that there is a proper question of general importance that would be dispositive
of an appeal and transcends the interests of the immediate parties to the
litigation due to its broad significance: See Canada (Minister of
Citizenship and Immigration) v Liyanagamage, [1994] FCJ No 1637, 176 NR 4
(CA) (QL) at paragraph 4; Zhang v Canada (Citizenship and Immigration),
2013 FCA 168, [2013] FCJ No 764 (QL) at paragraph 9). The certified question
is: “When is an inland refugee claim “made” for the
purposes of subsection 25.1(9) of the Immigration and Refugee Protection Act,
SC 2001, c 27?”
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