Date: 20241205
Dockets: IMM-862-23
Citation: 2024 FC 1973
Toronto, Ontario, December 5, 2024
PRESENT: The Honourable Madam Justice Aylen
BETWEEN: |
RAFIA IQBAL AHMED |
Applicant |
and |
THE MINISTER OF EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
[1] The Applicant, a citizen of Pakistan, seeks judicial review of a decision by an Inland Enforcement Officer [Officer] of the Canada Border Services Agency [CBSA] to issue a Departure Order on the basis of a determination of inadmissibility pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The Applicant, who is presently self-represented, did not appear at the hearing, despite being served with the order setting down the hearing. At the hearing, I advised the Respondent that I did not need to hear from them and would decide the matter based on the written records as filed by the Applicant (who was represented by legal counsel at the time of filing) and the Respondent.
[3] By way of background, in 2006, the Applicant was found to be a Convention refugee by reasons of her membership in a particular social group — namely, women who have had children out of wedlock. In 2010, the Applicant obtained permanent resident status.
[4] Between 2012 and 2018, the Applicant made five trips to Pakistan, spending a total of more than 200 days in Pakistan.
[5] In August 2020, the Minister made an application to the Refugee Protection Division [RPD] for cessation of the Applicant’s refugee status. The Minister relied on the Applicant’s five trips to Pakistan, as well as the fact that in 2012, the Applicant obtained a National Identity Card for Overseas Pakistanis.
[6] In February 2022, the RPD agreed with the Minister’s submissions and granted the application for cessation of the Applicant’s refugee status. The Applicant did not participate in the proceeding before the RPD. Her evidence is that, after receipt of the cessation application from the Minister in August, she received no further notifications from the RPD regarding the cessation proceeding and was not even aware a decision was made on the cessation application until December of 2022.
[7] In May 2022, a section 44 report was issued against the Applicant finding that she was inadmissible to Canada following the cessation of her refugee status.
[8] In December 2022, the Applicant received a letter from the CBSA enclosing a Notice to Appear for a proceeding under subsection 44(2). On January 7, 2023, a Minister’s Delegate met with the Applicant. During that meeting, the Applicant conceded the allegations found in the RPD’s decision, but asserted that each time she went back to Pakistan, she “remained anxious and in hiding”
. A Departure Order was issued against the Applicant that same day.
[9] On January 9, 2023, the Applicant made an application to the RPD to reopen the decision to cease her refugee status. The Applicant asserted that she had been denied procedural fairness as the cessation application was heard in absentia. While she received the cessation application, she believed that there would be subsequent correspondence advising her of next steps, including a hearing notice. Having received no correspondence from the RPD or the CBSA regarding the cessation application, she assumed that it had yet to be decided. It was only once she received the Notice to Appear for a section 44 proceeding that she realized that a decision must have been rendered in her absence.
[10] On January 19, 2023, the RPD refused the application to reopen on the basis that it “does not comply with the RPD rule 63(7)(b).”
Rule 63(7)(b) of the Refugee Protection Division Rules, SOR/2012-256, requires that, in deciding an application to reopen an application to cease refugee protection, the RPD must consider any relevant factors including if the party did not make an application for leave to apply for judicial review and the reasons why an application was not made.
[11] There is no evidence before the Court that the Applicant sought leave to judicially review either the RPD’s refusal to reopen the decision to cease her refugee status or the February 2022 decision to cease her refugee protection.
[12] The Applicant states that the sole issue for determination on this application for judicial review is whether the enforcement of a departure order, which is predicated on a cessation hearing held in absentia, is procedurally unfair.
[13] Issues of procedural fairness in administrative contexts have been considered reviewable on a correctness standard or subject to a “reviewing exercise [...] ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied”
[see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific Railway Company]]. The duty of procedural fairness is “eminently variable,”
inherently flexible and context-specific. It must be determined with reference to all the circumstances, including the Baker factors [see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 77]. A court assessing a procedural fairness question is required to ask whether the procedure was fair, having regard to all of the circumstances [see Canadian Pacific Railway Company, supra at para 54].
[14] The Applicant’s allegations of procedural unfairness are grounded in the events before the RPD — namely, that she was not provided with notice of the hearing of the Minister’s application to cease her refugee protection and was thereby denied the right to be heard. However, the decisions of the RPD — first, to cease her refugee status and second, to refuse to reopen the application to cease her refugee status — are not the decisions under review on this application. Her arguments therefore amount to an impermissible collateral attack on those decisions, which she did not seek leave to judicially review. It is not open to the Applicant on this application to raise procedural fairness arguments related to those separate decisions.
[15] In relation to the Departure Order — which is the decision under review on this application — the Applicant has not raised any specific procedural fairness arguments nor any concerns regarding the reasonableness of the CBSA’s decision to issue the Departure Order.
[16] As the Applicant has failed to demonstrate any basis for the Court’s intervention, the application for judicial review shall be dismissed.
[17] Neither party proposed a question for certification and I agree that none arises.
JUDGMENT in IMM-862-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed.
There is no question for certification.
“Mandy Aylen”
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