Date: 20241216

Docket: IMM-9846-23

Citation: 2024 FC 2040

Montréal, Quebec, December 16, 2024

PRESENT: Mr. Justice Gascon

JUDGMENT AND REASONS

I. Overview

[1] The applicant, Hadish Teare Tesfaye, is seeking judicial review of a decision dated July 21, 2023 [Decision], whereby the Refugee Protection Division [RPD] vacated his refugee protection pursuant to section 109 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The RPD concluded that Mr. Tesfaye had misrepresented material facts relating to his identity and that such misrepresentation nullified “the decision that led to the conferral of refugee protection” (subsection 109(3) of the IRPA).

[2] Mr. Tesfaye submits that the RPD committed a reviewable error by misinterpreting the precise language of sections 95 and 109 of the IRPA, and consequently erroneously found it had jurisdiction to allow the vacation application filed by the respondent, the Minister of Citizenship and Immigration [Minister].

[3] For the following reasons, Mr. Tesfaye’s application for judicial review will be granted. I find that the RPD failed to follow the precise language of subsection 95(1) and section 109 of the IRPA and unreasonably found that it had jurisdiction to allow the vacation application. Simply put, Mr. Tesfaye cannot be subject to section 109 of the IRPA because he was never determined to be a “Convention refugee” to begin with.

II. Background

A. The factual context

[4] In 2011, Mr. Tesfaye’s wife, Rozina Teweldebrahan, applied for resettlement in Canada as a privately sponsored refugee. She included Mr. Tesfaye and their children in her application. They are citizens of Eritrea who had fled to Ethiopia, and were outside their country of origin at the time of their application. The visa officer determined that neither Mr. Tesfaye nor Ms. Teweldebrahan qualified as Convention refugees and dismissed their resettlement application. They subsequently requested a judicial review of the officer’s decision. On March 29, 2012, this Court found the decision to be unreasonable and allowed the judicial review application (Teweldbrhan v Canada (Citizenship and Immigration), 2012 FC 371 at para 31).

[5] In November 2013, Ms. Teweldebrahan qualified as a Convention refugee, as a member of the Convention Refugees Abroad [CRA] class. Mr. Tesfaye and his children then arrived in Canada on November 19, 2014, having received confirmation that they had obtained permanent residence as members of the CRA class, since they were family members of Ms. Teweldebrahan. More specifically, Mr. Tesfaye entered Canada under the category “Convention Refugee abroad, with a community sponsorship” (Decision at para 4).

[6] On January 30, 2015, Mr. Tesfaye was issued a Canadian travel document permitting him to travel. On November 20, 2015, Mr. Tesfaye was searched by the Canada Border Services Agency [CBSA] at the Montréal-Trudeau International Airport upon returning from a trip abroad, and he was arrested after the search revealed that he was in possession of identification documents under the name of “Maekele Aradom Andemariam.” These documents included an Eritrean identity card issued in 1992, Eritrean passports issued in 2012 and 2014, documents related to the passports, a United Nations identity card, and miscellaneous documents, letters, and contracts. When questioned by a CBSA officer, Mr. Tesfaye alleged that Maekele Aradom Andemariam was his brother. However, a writing analysis confirmed that the same person signed official documents related to both identities — Tesfaye and Andemariam.

[7] Charges were subsequently filed against Mr. Tesfaye, and he pled guilty to misrepresentation under section 127 of the IRPA. During those proceedings, Mr. Tesfaye stated that he only discovered his true origins later in life, that his biological parents were not those who raised him, that his birth name was Maekele Aradom Andemariam, and that his country of birth was Eritrea.

[8] On April 1, 2021, the Minister applied to the RPD to vacate Mr. Tesfaye’s refugee status, pursuant to subsection 109(1) of the IRPA.

[9] On January 9, 2023, Mr. Tesfaye moved to dismiss the Minister’s vacation application. He argued that the RPD did not have jurisdiction to consider the vacation application, as there never was a “decision to allow [his] claim for refugee protection” in the first place (subsection 109(1) of the IRPA) and determining that he was a “Convention refugee.” To this effect, Mr. Tesfaye argued that the record indicates he was never conferred refugee status.

B. The RPD’s Decision

[10] On July 21, 2023, the RPD granted the Minister’s application to vacate Mr. Tesfaye’s refugee status pursuant to section 109 of the IRPA.

[11] First, the RPD found that it had jurisdiction to hear the Minister’s application to vacate Mr. Tesfaye’s status. More specifically, the RPD determined that a dependent’s refugee status is derived from their status as a dependent of a Convention refugee. The RPD also held that section 109 of the IRPA applies to individuals deemed to be protected persons, and that Parliament did not intend to limit this provision to principal applicants. In the same vein, the RPD determined that subsection 95(2) of the IRPA was not limited to individuals determined to be Convention refugees. To this effect, the RPD further concluded that, when the subsection 95(2) definition of “protected person” is read in its entire context and in light of Parliament’s intention, “deemed/de facto” protected persons fall within the definition.

[12] Second, the RPD found that Mr. Tesfaye obtained refugee protection as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. It specifically noted Mr. Tesfaye’s “vague, evolving, and contradictory testimony” on the question of when he first learned of his Eritrean identity. Moreover, the RPD was not satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection, pursuant to subsection 109(2) of the IRPA. Finally, according to the RPD, had Parliament intended to limit section 109 of the IRPA to only those individuals determined to be protected persons, it would have legislated to that effect.

C. The Relevant Provisions

[13] The relevant provisions of the IRPA are paragraph 40(1)(a) and sections 95 and 109. They read as follows :

[14] Turning to the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], the relevant provisions are sections 22, 140 and 145:

D. Standard of review

[15] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada established a presumption that reasonableness is the applicable standard of review in judicial reviews of the merits of administrative decisions (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 7 [Mason]). This presumption can only be rebutted in two types of situations. The first situation is where the legislature has indicated that it intends to apply a different standard or has provided a statutory appeal mechanism before a court. The second situation is where the rule of law requires that the standard of correctness be applied, namely in the case of “questions regarding the jurisdictional boundaries between two or more administrative bodies” (Vavilov at paras 17, 53; Mason at para 40).

[16] In their initial submissions and at the hearing, the parties took for granted that the applicable standard of review was reasonableness. However, after I issued a direction for additional submissions on this question, Mr. Tesfaye changed his position to argue that the correctness standard applies here, as the issue before the Court pertains to the jurisdictional boundaries between the RPD and the Immigration Division [ID]. More specifically, he asserts that correctness must apply due to the Court having to decide which of the two aforementioned Immigration and Refugee Board [IRB] divisions has jurisdiction to deal with his misrepresentation. For his part, the Minister maintained his view that nothing in this case warrants departing from the presumption of reasonableness provided in Vavilov.

[17] Further to my review of the parties’ additional submissions, I agree with the Minister that the “jurisdictional boundaries” exception does not apply, meaning that the presumption of reasonableness has not been rebutted. Indeed, the matter at hand rather involves an administrative decision maker’s interpretation of its home statute, to which the standard of reasonableness applies (Vavilov at para 25; see also Mason at para 70).

[18] At first glance, one may tend to conclude that this case highlights a jurisdictional conflict between the RPD and the ID. As indicated in paragraphs 86 to 89 of the Decision, the Court is faced with the question of which of the RPD or the ID has jurisdiction to deal with the misrepresentation committed by Mr. Tesfaye. Pursuant to section 22 of the IRPR, a protected person within the meaning of subsection 95(2) of the IRPA is exempted from the application of paragraph 40(1)(a) of the IRPA. On the one hand, Mr. Tesfaye argues that the ID has jurisdiction under paragraph 40(1)(a) of the IRPA because he was never determined to be a Convention refugee and hence cannot qualify as a protected person. On the other hand, the Minister asserts that the RPD has jurisdiction since “deemed/de facto” protected persons fall within subsection 95(2) of the IRPA and are subject to vacation under section 109 of the IRPA.

[19] Administrative decisions are rarely contested based on the “jurisdictional boundaries” exception and there is very little case law on the subject. However, the application of the correctness standard in these rare cases is of high importance to the rule of law, as it “safeguards predictability, finality and certainty in the law of administrative decision making” (Vavilov at para 64). Indeed, “the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions” (Vavilov at para 64). In other words, “[m]embers of the public must know where to turn in order to resolve a dispute” (Vavilov at para 64).

[20] In the present case, I find no operational conflict as cautioned in Vavilov, since the jurisdiction of the RPD and the ID do not truly conflict and overlap with one another. While the RPD has jurisdiction over vacation applications under section 109 of the IRPA, the ID has jurisdiction over misrepresentation proceedings under paragraph 40(1)(a) of the IRPA if section 22 of the IRPR — and by extension, sections 95 and 109 of the IRPA — does not apply. It is uncontested that the RPD has jurisdiction over section 109, and that the ID has jurisdiction over section 40. In other words, section 22 of the IRPR does not permit concurrent jurisdiction by the RPD and the ID over individuals accused of misrepresentation, and section 95 of the IRPA does not permit an individual to be subject to both sections 109 and 40 concurrently. As a result, this is not a situation where there is overlap between the jurisdiction of two IRB divisions as they apply completely different provisions of the IRPA, or where Mr. Tesfaye is a party being pulled “in two different and incompatible directions” (Vavilov at para 64). In other words, there is no risk of contradicting or conflicting outcomes by two different administrative entities.

[21] I pause to observe that, even if correctness review does not apply in the case at hand, this does not mean that the “jurisdictional boundaries” exception may never be applicable in the context of two administrative bodies deriving their authority from the same statutory framework. I recognize that the Federal Court of Appeal has, in obiter, expressed doubt on its applicability in such a scenario (Canada (Public Safety and Emergency Preparedness) v Gaytan, 2021 FCA 163 at para 24). Nevertheless, I underscore that the issue has not been definitely ruled on. In my opinion, it is conceivable that a real operational conflict might emerge when two IRB divisions with similar areas of jurisdiction — such as the RPD and the Refugee Appeal Division [RAD], or the ID and the Immigration Appeal Division [IAD] — are called upon to interpret the same provisions of the IRPA. In fact, in Canada (Citizenship and Immigration) v Alazar, 2021 FC 637 at paragraph 54, Justice John Norris stated that the “jurisdictional boundaries” exception set out in the Vavilov framework “strongly suggests that questions about the [RAD’s] jurisdiction to determine certain issues itself as opposed to referring the matter to the RPD should be answered under a correctness standard.”

[22] Where the applicable standard of review is reasonableness, the role of a reviewing court is to examine the reasons given by the administrative decision maker and to determine whether the decision is based on “an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85; Mason at para 64). The reviewing court must therefore ask whether the “decision bears the hallmarks of reasonableness — justification, transparency and intelligibility” (Vavilov at para 99). Both the outcome of the decision and its reasoning process must be considered in assessing whether these hallmarks are met (Vavilov at paras 15, 95, 136).

[23] Such a review must include a rigorous and robust evaluation of administrative decisions. However, as part of its analysis of the reasonableness of a decision, the reviewing court must take a “reasons first” approach and begin its inquiry by examining the reasons provided with “respectful attention,” seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (Mason at paras 58, 60; Vavilov at para 84). The reviewing court must adopt an attitude of restraint and intervene “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process” (Vavilov at para 13), without “reweighing and reassessing the evidence” before it (Vavilov at para 125).

[24] The onus is on the party challenging the decision to prove that it is unreasonable. Flaws must be more than superficial for the reviewing court to overturn an administrative decision. The court must be satisfied that there are “sufficiently serious shortcomings” (Vavilov at para 100).

[25] In the context of statutory interpretation, whether an interpretation is reasonable “will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” (Vavilov at para 110). The more precise the terms of the law, the more limited the decision maker’s ability to interpret the provision. Conversely, when the legislator chooses to use broad, open-ended or highly qualitative terms, there is a clear intention to grant the decision maker greater flexibility in interpreting the meaning of these terms. In short, “certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one” (Vavilov at para 110).

III. Analysis

[26] The Minister submits that the RPD reasonably justified its determination that it had jurisdiction to apply section 109 of the IRPA to a person who received protection purely as a family member of a Convention refugee. According to the Minister, the RPD considered the potentially relevant case law, and concluded that the text, context, and purpose of the provision, taken together, lead to a different result than that reached by the Court in similar cases involving section 108 of the IRPA, which deals with the cessation of refugee status. To this effect, the Minister asserts that the RPD reasonably concluded that the words “a decision to allow a claim for refugee protection” within the meaning of subsection 109(1) should be read to include family members who derive their refugee status from such a decision.

[27] Moreover, the Minister asserts that it was reasonable for the RPD to conclude that Mr. Tesfaye obtained his permanent residency in Canada as a member of the CRA class, and that the operational manual before the officer in this matter states that family members, such as Mr. Tesfaye, derive their refugee status from the principal applicant.

[28] Finally, the Minister maintains that it was reasonable for the RPD to conclude that Mr. Tesfaye’s interpretation of the provision would result in an absurd scenario where dependents would enjoy a more permanent protected status than principal applicants. More precisely, dependents would be free to misrepresent their familial relationship to principal applicants in order to obtain refugee status, without fear of facing vacation proceedings under section 109 of the IRPA. The Minister thus claims that it would be absurd to limit the definition of “protected person” solely to the principal applicants, as dependents would be excluded from the purview of subsection 3(2) of the IRPA. Such a risk-based definition of a protected person would allegedly elevate family unification over the integrity of the refugee process, which directly conflicts with the intention of Parliament to protect the integrity of the refugee process.

[29] With respect, I am not persuaded by the Minister’s arguments.

[30] Further to my analysis, I instead agree with Mr. Tesfaye that the RPD failed to properly interpret the precise language of sections 95 and 109 of the IRPA. Contrary to the RPD’s findings, subsection 95(1) of the IRPA provides an exhaustive list of scenarios where refugee protection is conferred, and none applies to Mr. Tesfaye. In particular, Mr. Tesfaye has never “been determined to be a Convention refugee or a person in similar circumstances under a visa application” (paragraph 95(1)(a)). Subsection 95(1) of the IRPA does not contemplate conferring refugee protection upon individuals who, like Mr. Tesfaye, simply become members of the CRA class pursuant to section 140 of the IRPR, unless they were themselves determined to be Convention refugees under paragraph 95(1)(a). The jurisprudence provides that paragraph 95(1)(a) unequivocally covers only persons determined to be Convention refugees.

[31] I am of the view that, considering the language of the IRPA and the IRPR, it was unreasonable for the RPD to find that Parliament did not intend to exclude family members of the CRA class from the application of sections 95 and 109 of the IRPA. The RPD misconstrued section 95 of the IRPA by searching for the words “principal applicant” and “dependent” in the provision. The relevant distinction is not between a principal applicant and a dependent, but rather between individuals determined to be Convention refugees and persons who become members of the CRA class because of their family status. I agree with Mr. Tesfaye that the reason why he is not subject to section 109 of the IRPA is because he was never determined to be a Convention refugee. Mr. Tesfaye admits that, even if he was processed as a dependent, he could have been reasonably subjected to section 109 of the IRPA, provided that the officer had actually determined that he is a Convention refugee. Yet, the officer never made any such determination in his case.

[32] It is true that, pursuant to section 145 of the IRPR, a foreign national who has been determined, outside Canada, to be a Convention refugee by an officer is a member of the CRA class. Nevertheless, this provision does not state that family members of an applicant recognized as belonging to the CRA class, who themselves become members of this class by virtue of their status as family members of the applicant (section 140 of the IRPR), are equally Convention refugees.

[33] Similarly, I find that the RPD’s assessment of the purpose of section 109 of the IRPA is unreasonable. In concluding that the provision should be interpreted less restrictively than section 108, the RPD misinterpreted the provision and erroneously attempted to distinguish this case from the relevant jurisprudence from this Court that would undermine its analysis.

A. The Decision is unreasonable

(1) General principles of statutory interpretation

[34] In the wake of the Supreme Court’s adoption of Professor Elmer Driedger’s modern principle of statutory interpretation, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Dow Chemical Canada ULC v Canada, 2024 SCC 23 at para 101 [Dow Chemical]; Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para 21 [Rizzo], citing Elmer A Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at p 87 [Construction of Statutes]). On a similar note, it is well established that “the legislature does not intend to produce absurd consequences” (Rizzo at para 27).

[35] However, the Supreme Court has repeatedly held that “[w]hen the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process” (Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10; see also Dow Chemical at para 101, citing Canada v Loblaw Financial Holdings Inc, 2021 SCC 51 at para 41). As a result, it is clear that “legislative purpose alone cannot justify a departure from the express language of a provision” (Dow Chemical at para 101, citing Pierre-André Côté and Mathieu Devinat, Interprétation des lois, 5th ed (Montreal: Editions Themis, 2021) at para 1366). More is needed to ask the Court to depart from the clear letter of the law. The Supreme Court has also confirmed that “the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision,” including the aforementioned principle regarding the interpretative importance to be given to the precise wording of provisions (Vavilov at para 120).

[36] Moreover, paragraph 15(2)(b) of the Interpretation Act, RSC, 1985, c I-21 [Interpretation Act] provides that interpretative provisions “shall be read and construed […] as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears.” This act applies to all laws adopted by the Parliament of Canada, which necessarily includes the IRPA (subsection 3(1) of the Interpretation Act).

[37] Finally, the Supreme Court has also emphasized that “[g]iving the same words the same meaning through a statute is a basic principle of statutory interpretation” (R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378 at p 1387 [Zeolkowski], citing Construction of Statutes at p 93; see also Ewert v Canada, 2018 SCC 30 at para 113).

(2) The legal status of family members of a CRA class member

[38] In accordance with subsection 95(1) of the IRPA, Canada currently confers refugee protection, and thus protected person status, in essentially one of two ways: (i) by determining that an individual is a member of one of the classes prescribed in Division 1 of Part 8 of the IRPR (e.g., the CRA class under sections 144 and 145 of the IRPR), and granting them permanent or temporary residency; or (ii) by determining that an individual is a Convention refugee or a person in need of similar protection, and accepting their inland refugee claim or application for protection.

[39] Unlike Convention refugees, dependent family members living outside Canada are granted refugee protection under a process different from the two outlined above. More specifically, they can apply for permanent residence based on their membership to the CRA class (section 140 of the IRPR). Indeed, once a refugee claimant is recognized as a Convention refugee under section 96 of the IRPA under the CRA class, section 140 of the IRPR ensures that the family members of such refugee claimant become members of their CRA class, even though these family members have not themselves been determined to be Convention refugees. In other words, the refugee status of the family members is merely a legal fiction, since they themselves were not determined to be refugees (Camayo v Canada (Citizenship and Immigration), 2020 FC 213 at para 25, aff’d 2022 FCA 50 [Camayo]).

(3) The RPD erred in its interpretation of sections 95 and 109 of the IRPA

[40] The language of section 109 of the IRPA is precise and unequivocal. Subsection (1) refers to vacating a “decision to allow a claim for refugee protection.” The result of a vacation is that “the decision that led to the conferral of refugee protection is nullified” pursuant to subsection 109(3). Likewise, subsection 109(2) states that the RPD “may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection” [emphasis added].

[41] Subsection 95(2) of the IRPA also states that “a protected person is a person on whom refugee protection is conferred under subsection (1).” In this sense, both subsections 95(2) and 109(3) of the IRPA expressly concern the conferral of refugee protection. Under the legal maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”), whenever there is reason to believe that the legislature intended to include a particular element in its legislation, the courts may expect it would have referred to that element expressly (R v Wolfe, 2024 SCC 34 at para 35). Here, if Parliament intended to vacate the “refugee status” of family members who derive their status from a “decision to allow a claim for refugee protection” pursuant to section 109 of the IRPA, then Parliament would have legislated to that effect. Parliament chose not to do so.

[42] Subsection 95(1) of the IRPA provides an exhaustive list of scenarios where refugee protection is conferred. As Mr. Tesfaye asserts, none of the scenarios identified in section 95(1) of the IRPA apply to him. There is simply nothing in the statute to demonstrate that subsection 95(1) of the IRPA contemplates conferring refugee protection upon an individual who becomes a member of the CRA class because of section 140 of the IRPR — as is the case for Mr. Tesfaye —, unless he were specifically determined to be a Convention Refugee under subsection 95(1)(a) of the IRPA.

[43] Seized with a similar issue in the context of section 108 of the IRPA, this Court has stated that “[t]he language of section 95(1)(a) is clear, particularly when informed by similar language in the Regulations and the OP 5 Manual. The provision speaks only to persons determined to be Convention refugees or similarly in need of protection” (Canada (Citizenship and Immigration) v Heidari Gezik, 2015 FC 1268 at para 52 [Gezik]). In Gezik, Justice Peter Annis concluded that “[despite having] pointed out contextual considerations that support a construction that family members are persons determined to be Convention refugees under section 95(1)(a) […], these are out-weighed by the language of the section which lends itself more to the “plain meaning” approach adopted by the Board. This approach is congruent with the strict interpretation principle that resolves ambiguities in favour of [the applicant] in provisions negatively affecting his refugee status” (Gezik at para 61).

[44] The Supreme Court recently echoed the above principle in Mason, stating that “an administrative interpretation may well be unreasonable if it fails to consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way” (Mason at para 69). Here, the RPD’s interpretation deprives dependents of Convention refugees — who have not been determined to be Convention refugees themselves — of the chance to raise humanitarian and compassionate grounds. Indeed, had Mr. Tesfaye been referred to the ID, he could have appealed to the IAD (subsection 63(3) of the IRPA). On appeal, he could have re-explained the context and reasons for his misrepresented identity and raised humanitarian and compassionate grounds to maintain his permanent resident status, including his establishment in Canada and the best interests of his children (section 65 and paragraph 67(1)(c) of the IRPA).

[45] As Mr. Tesfaye notes, despite the clear and precise language of sections 95 and 109 of the IRPA, and this Court’s jurisprudence with respect to the status of accompanying family members in cessation matters, the RPD expanded the scope of section 109 to include “family members who derive their refugee status from that decision.” While the Supreme Court has noted that decision makers “play a role, along with courts, in elaborating the precise content of the administrative schemes they administer, [this] should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures” (Vavilov at para 108; see also Galderma Canada Inc v Canada (Attorney General), 2024 FCA 208 at paras 10, 19 [Galderma]).

[46] Furthermore, I disagree with the RPD’s findings relating to Parliament’s intention concerning the purpose of section 109 of the IRPA. A key flaw in the RPD’s logic is its conflation between members of the CRA class pursuant to section 140 of the IRPR and individuals determined to be protected persons pursuant to section 95 of the IRPA. The RPD was mistaken in its view that Parliament did not intend to exclude members of the CRA class from the application of sections 95 and 109 of the IRPA.

[47] I agree with Mr. Tesfaye that the RPD unreasonably misconstrued section 95 of the IRPA by searching for the words “principal applicant” and “dependent” in the provision. The relevant distinction is between an individual determined to be a Convention refugee and an individual recognized as a member of the CRA class. The reason why Mr. Tesfaye is not subject to section 109 of the IRPA is not because he is a dependent, but because he was never determined to be a Convention refugee to begin with. Pursuant to sections 140 and 145 of the IRPR, members of the CRA class include both a foreign national found to be a Convention refugee and family members of such foreign national. Mr. Tesfaye could have been reasonably subjected to section 109 of the IRPA, even if he was processed as a dependent, if the visa officer had actually determined that he is a Convention refugee. However, no such determination ever took place here.

[48] It further bears remarking that the preamble of the IRPR and the jurisprudence of this Court demonstrate that section 140 of the IRPR does not stand for the proposition that family members who become members of a prescribed class are determined to be Convention refugees. The provision simply established that they are members of a given prescribed class, including the CRA class. Indeed, in Canada (Citizenship and Immigration) v Esfand, 2015 FC 1190 [Esfand] — again in the context of a cessation application under section 108 of the IRPA —, Justice George Locke (as he then was) noted the following (Esfand at para 20):

[…] certain provisions of the IRPR suggest that, though accompanying family members are members of the same class as the person who has been determined to be a Convention refugee, they are not thereby deemed to have been determined to be likewise Convention refugees. For example, the preamble of subsection 139(1) of the IRPR provides that ‘[a] permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that […]’. This preamble is followed by a series of requirements concerning almost exclusively the foreign national rather than their accompanying family members. All of them receive a permanent resident visa, but no determination is made of the risks to the family members. Also, section 140 of the IRPR provides that family members are members of the same class as a person who is determined to be a refugee, but does not state that such family members are deemed to have been determined to be refugees”.

[Emphasis added.]

[49] In addition, in Camayo, Justice Janet Fuhrer agreed with Esfand and Gezik, stating the following: “[t]his Court has found, however, that applicants who are members of the CRA class only by virtue of being family members are not conferred refugee protection by virtue of a determination under IRPA paragraph 95(1)(a) because their risks never were assessed independently against IRPA section 96: Gezik, above, at paragraphs 39, 50–53, 56 and 61–63; Esfand, above, at paragraphs 20, 25 and 27. Rather, they obtain Convention refugee protection and hence protected person status because IRPR section 140 deems them placed within the CRA class” [emphasis added] (Camayo at para 25). Importantly, even though the Court’s decisions in Esfand and Gezik were rendered in the context of cessation proceedings, Justice Fuhrer did not limit her remarks to this specific context, and I fail to see why they should not apply to vacation proceedings as well.

[50] In any case, the Minister’s purposive arguments regarding the objective of section 109 of the IRPA are not sufficient to convince me that I should disregard the clear text of the definition of a protected person at section 95 of the IRPA. “[L]egislative purpose alone cannot justify a departure from the express language of a provision” (Dow Chemical at para 101). Additionally, in cases where the statute is clear and unambiguous, the principle of strict interpretation favours the resolution of ambiguities in favour of the applicant with respect to provisions that would negatively affect one’s status in Canada (Gezik at para 61).

[51] In light of the above, it cannot be said that the RPD had jurisdiction to apply section 109 of the IRPA to a person who, like Mr. Tesfaye, received refugee protection purely as a family member of a Convention refugee, or that the words “a decision to allow a claim for refugee protection” within the meaning of subsection 109(1) could be read to include family members who derive their refugee status from such a decision.

[52] As a final remark, it bears reiterating the conclusions of Justice Locke in Esfand, who stressed the ramifications of this interpretative debate: “if the [applicant’s] refugee status were cessated, she would face the loss of her permanent resident status under paragraph 46(1)(c.1) of the IRPA, with all of the consequences that could have on her and her family. In my view, the applicable statutory and regulatory provisions would have to be clearer in order for the [Minister’s] position to prevail” (Esfand at para 25).

[53] In both Gezik and Esfand, this Court found that the RPD reasonably determined that section 108 of the IRPA did not apply to the respective applicants — who were dependents of a person determined to be a Convention refugee by a visa officer overseas — because they were not determined to be protected persons under paragraph 95(1)(a) of the IRPA, given that they were only the family members of individuals found to be protected persons. Section 108 of the IRPA deals with the cessation of status as opposed to the vacation of status. While sections 108 and 109 of the IRPA are not identical, both provisions result in the revocation of one’s status.

[54] In attempting to distinguish the Court’s decisions in Gezik and Esfand from the present matter, the RPD determined that an interpretation of section 108 of the IRPA must be more restrictive than section 109, thereby expanding section 109 to apply to individuals not determined to be Convention refugees, like Mr. Tesfaye.

[55] While I acknowledge the differences between sections 108 and 109, I do not agree with the RPD’s conclusion.

[56] In Esfand and Gezik, the Court applied a restrictive approach to interpreting paragraph 95(1)(a) of the IRPA, because section 108 results in the loss of refugee protection. Indeed, as the Court noted, “[p]rovisions negatively affecting the status of refugees are to be strictly construed” (Gezik at para 51). Here, section 109 of the IRPA equally results in the loss of status. In fact, the definition of protected person at subsection 95(2) of the IRPA expressly precludes persons whose claims for refugee protection have been rejected under both subsections 108(3) and 109(3). Consequently, I find that sections 108 and 109 relate to a sufficiently similar subject-matter that the same interpretation given to paragraph 95(1)(a) of the IRPA should apply to both provisions (paragraph 15(2)(b) of the Interpretation Act).

[57] It is also worth noting that the Federal Court of Appeal has employed a similar results-based interpretation of another provision of the IRPA. In Pepa v Canada (Citizenship and Immigration), 2023 FCA 102, leave to appeal to SCC granted, 40840 (February 15 2024) [Pepa], the issue at hand was when the IAD should assess the validity of an appellant’s permanent resident visa, for the purposes of determining whether it had jurisdiction to hear the appeal under subsection 63(2) of the IRPA. To this end, Justice Monaghan cited with approval jurisprudence addressing the revocation of a visa, even though Pepa dealt with the expiration of a visa (Pepa at paras 15–16). Indeed, whether a visa had been revoked or had simply expired, the result is the same, i.e. the invalidity of the visa. Here, like in Pepa, the cessation and vacation of refugee protection equally lead to the same outcome.

[58] Furthermore, the words of provisions from the same statute that use the same language should usually be given the same meaning (Zeolkowski at p 1387). Here, both subsections 108(3) and 109(3) of the IRPA state that the consequence of cessation and vacation is the same in each case, namely, that “the claim of the person is deemed to be rejected.” This suggests that sections 108 and 109 are both meant to apply to individuals who have been determined to be Convention refugees. These provisions should therefore be interpreted in a coherent and similar manner.

[59] In light of the foregoing, the RPD could not reasonably conclude that section 109 of the IRPA must be interpreted less narrowly than section 108 of the IRPA when deciding its jurisdiction.

[60] As Mr. Tesfaye remarks, the focus of section 109 of the IRPA is vacating a decision to “allow a claim for refugee protection,” the consequence of which is nullifying the refugee protection conferred on the individual. The refugee claim of Ms. Teweldebrahan was allowed and refugee protection was conferred on her. Had the RPD properly interpreted section 109, then the issue at hand would have been whether Mr. Tesfaye’s misrepresentation resulted in approving Ms. Teweldebrahan’s refugee claim, and whether the refugee protection conferred upon Ms. Teweldebrahan is nullified. Yet, this was not the issue before the RPD.

[61] Contrary to the Minister’s arguments, I am not persuaded that Mr. Tesfaye’s exclusion from the definition of “protected person” at subsection 95(2) of the IRPA would result in an absurd scenario in which dependents would enjoy a more privileged status than principal applicants. Based on my previous determination that Mr. Tesfaye is not a protected person, he would now fall under the ID’s jurisdiction on matters of misrepresentations (section 22 of the IRPR). This ensures that misrepresentation committed by dependents such as Mr. Tesfaye would not go unpunished. In sum, the Minister has an alternative remedy at his disposal to sanction Mr. Tesfaye’s misrepresentation.

[62] Pursuant to paragraph 40(1)(a) of the IRPA, “[a] permanent resident or a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act.” I agree with Mr. Tesfaye that this is the appropriate provision to sanction his misrepresentation, especially given its broad wording. Unlike sections 108 and 109 of the IRPA, it is well accepted that “[s]ection 40 is to be given a broad interpretation in order to promote its underlying purpose,” which is “to deter misrepresentation and maintain the integrity of the immigration process” (Sikder v Canada (Citizenship and Immigration), 2024 FC 362 at para 25, citing Afe v Canada (Citizenship and Immigration), 2023 FC 105 at para 9 and Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 at para 28).

[63] Since Mr. Tesfaye is not a protected person, he must be considered to be an immigrant within the meaning of the IRPA, thereby triggering the application of paragraph 40(1)(a) to deal with his misrepresentation and to maintain the integrity of Canada’s immigration system. The chosen interpretation of sections 95 and 109 therefore does not lead to any absurd consequence, since there is a mechanism other than section 109 to deal with Mr. Tesfaye’s misrepresentation. The Court will therefore not be creating a legal vacuum, contrary to what the Minister claims. In other words, dependents do not end up enjoying a more permanent protected status than principal applicants.

[64] In a similar vein, I find that the Minister’s argument on the exclusion of Mr. Tesfaye from subsection 3(2) of the IRPA has no merit. It is true that dependents not assessed as Convention refugees are in effect excluded from Canada’s refugee system and from the objectives set out at subsection 3(2) of the IRPA, namely, the protection of the integrity of the refugee system at paragraph (e). However, they are instead subject to the objectives at subsection 3(1) of the IRPA, including the protection of the integrity of the immigration system at paragraph (f.1). Considering that paragraphs 3(1)(f.1) and 3(2)(e) are sister provisions, the end result is the same: the protection of the integrity of the system governing the status of family members of Convention refugees, whichever it may be.

[65] Incidentally, I agree with Mr. Tesfaye that, if maintained, it would rather be the RPD’s interpretation of section 109 of the IRPA that would lead to absurd consequences. Under the Minister’s proposed interpretation, family members of Convention refugees would have their “refugee status” vacated, even though their risk of persecution was never assessed and were thus never conferred refugee status in the first place. Going further, they would be subject to vacation proceedings under section 109, but not to cessation proceedings under section 108. Yet, the same definition of “protected person” at subsection 95(2) of the IRPA applies to both provisions. It would be illogical not to apply the same definition of protected person to two mechanisms that both enable the termination of refugee status.

B. The Appropriate Remedy

[66] In his initial submissions and at the hearing, Mr. Tesfaye requested that the Decision be remitted to the RPD for redetermination by a different decision maker. However, after the Court requested additional submissions on remedies, both parties agreed that, in the event that the Court were to conclude that the RPD lacked jurisdiction, the appropriate remedy would be to quash the Decision and issue the decision that the RPD should have rendered. Indeed, in such a case, there would be no useful purpose to remitting the matter back to the RPD, since the only reasonable interpretation of sections 95 and 109 of the IRPA would be that the RPD did not have jurisdiction over Mr. Tesfaye’s misrepresentation.

[67] For the reasons below, I agree with the parties that remitting the matter to the RPD would be pointless due to the RPD’s lack of jurisdiction. I will accordingly render the decision that the RPD should have rendered, which is a dismissal of the Minister’s vacation application.

[68] In Vavilov, the Supreme Court pointed out that a reviewing court has some discretion as to the remedies to be granted when it quashes an unreasonable decision by an administrative decision maker, with the majority warning against the “endless merry-go-round of judicial reviews and subsequent reconsiderations” (Vavilov at paras 140–42). Thus, it may sometimes be appropriate to refuse to remit a case to an administrative decision maker “where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose” (Vavilov at para 142; see also Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202 at pp 228–230, Canada (Attorney General) v Chu, 2022 FCA 105 at para 9, and Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, aff’d 2022 SCC 30 at paras 99–100 [SOCAN]). One way this can become evident is when the reviewing court finds that the interplay of text, context, and purpose overwhelmingly point to a single reasonable interpretation of the statutory provisions, or aspect of the statutory provisions, that is at issue (Mason at paras 71, 120–121, citing Vavilov at para 124). This discretion to grant or not grant remedies exists in the contexts of both procedural errors and substantive defects (SOCAN at para 99).

[69] Moreover, in Giguère v Chambre de notaires du Québec, 2004 SCC 1 [Giguère], which was later endorsed by the Federal Court of Appeal in Canada (Citizenship and Immigration) v Tennant, 2019 FCA 206 at paragraphs 80 to 85 and by the Supreme Court in Groia v Law Society of Upper Canada, 2018 SCC 27 at paragraph 161, Justice Marie Deschamps’s dissent indicates that one of the grounds on which reviewing courts may substitute the administrative decision maker’s view with that of their own is when “once an illegality has been corrected, the administrative decision-maker’s jurisdiction has no foundation in law” (Giguère at para 66).

[70] When deciding on the appropriate remedy, it is important to remember that the Court’s discretion not to remit the matter for redetermination should be exercised only in the “clearest of circumstances” and if the evidence can truly lead only to one result (Canada (Attorney General) v Impex Solutions Inc, 2020 FCA 171 at paras 90–92). Such an exercise of discretion is exceptional in nature and must by no means become the norm.

[71] In my view, the relevant legal constraints at hand overwhelmingly confirm that the RPD’s lack of jurisdiction is the single reasonable interpretation of sections 95 and 109 of the IRPA. Since it was unreasonable for the RPD to conclude that Mr. Tesfaye was a “protected person” subject to vacation proceedings under section 109 of the IRPA, the RPD would have no choice but to decline jurisdiction and dismiss the vacation application against Mr. Tesfaye. The RPD is entitled to be enthusiastic about pursuing its mandate to protect the integrity of the Canadian refugee system, but it must “stay in its lane.” It cannot rewrite its governing statute in order to extend its own jurisdiction (Vavilov at para 108; Galderma at para 19).

[72] In this case, I will thus exercise my discretion to find that the circumstances at hand warrant a refusal to remit the case to the RPD, and I will dismiss the vacation application. I have found that the RPD’s interpretation of sections 95 and 109 is unreasonable and that there is only one reasonable interpretation of these provisions, which is the RPD’s lack of jurisdiction. As a result, there would be no point in sending this matter back to the RPD. Remitting a case to a decision maker without the authority to rule on it would be futile and pointless, as “the administrative decision-maker’s jurisdiction has no foundation in law” (Giguère at para 66).

IV. Conclusion

[73] In short, the Decision is unreasonable and Mr. Tesfaye’s application for judicial review must therefore be allowed. By failing to follow the precise language of sections 95 and 109 of the IRPA, the RPD unreasonably found that it had jurisdiction to allow the Minister’s vacation application. In the same vein, the RPD misinterpreted section 95 of the IRPA, and erred in finding that section 109 of the IRPA should be interpreted less restrictively than section 108 of the IRPA by misapprehending and unduly distinguishing the jurisprudence of this Court. In reality, the ID is the appropriate IRB division to deal with Mr. Tesfaye’s misrepresentation. In light of the RPD’s lack of jurisdiction, the case will not be remitted to the RPD and the vacation application is dismissed.

[74] However, a question will be certified pursuant to paragraph 74(d) of the IRPA.

V. Certified question

[75] The parties jointly proposed the following certified question:

Where a person has become a permanent resident by virtue of being the family member of a principal applicant who was determined to be a Convention refugee for purposes of an application in the Convention refugees abroad class (though the person was not themselves assessed as a Convention refugee), is that person subject to vacation of refugee protection pursuant to section 109 of the Immigration and Refugee Protection Act?

[76] According to paragraph 74(d) of the IRPA, a question can be certified by the Court if “a serious question of general importance is involved.” To be certified, a question must be a serious one that: (i) is dispositive of the appeal; (ii) transcends the interests of the immediate parties to the litigation; and (iii) contemplate an issue of broad significance or general importance (Mason at para 37; Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 46; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 36; Mudrak v Canada (Citizenship and Immigration), 2016 FCA 178 at paras 15–16 [Mudrak]; Zhang v Canada (Citizenship and Immigration), 2013 FCA 168 at para 9 [Zhang]). The question must also have been dealt with by the Court, and it must arise from the case rather than from the Court’s reasons (Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151 at para 28 [Obazughanmwen]; Mudrak at para 16; Zhang at para 9; Varela v Canada (Citizenship and Immigration), 2009 FCA 145 at para 29). Finally, and as a corollary of the requirement that it be of general importance, it must not have been previously settled in an earlier appeal (Obazughanmwen at para 28; Rrotaj v Canada (Citizenship and Immigration) 2016 FCA 292 at para 6; Mudrak at para 36; Krishan v Canada (Citizenship and Immigration) 2018 FC 1203 at para 98; Halilaj v Canada (Public Safety and Emergency Preparedness), 2017 FC 1062 at para 37).

[77] Here, I find that the question proposed by the parties meets the criteria for certification.

[78] First, the question is dispositive of the appeal in that it concerns the very jurisdiction of the RPD to have rendered the Decision. This is obviously not a peripheral issue in this case. If the RPD is found to have jurisdiction, the appeal will be granted. If not, it will be dismissed.

[79] Second, the question is not particularly fact-specific. It concerns all members of the CRA class who have obtained their status by virtue of their familial relation to a Convention refugee’s family member and who misrepresented facts in order to acquire said status. What is more, the question is also of interest to the RPD and to the ID, whose jurisdiction is called into question.

[80] Third, there is no doubt that the present matter is an issue of general importance. It is in the public interest that foreign nationals accused of misrepresentation in obtaining their status in Canada be tried by the proper administrative tribunal. This public interest is even more compelling when considering that the Minister’s choice of one IRB division over another deprives the foreign national of the opportunity to raise humanitarian and compassionate grounds (sections 63(3), 65 and 67(1)(c) of the IRPA).

[81] The proposed question has also not been definitely settled in any appellate decision. Similar questions were certified in Esfand and Gezik in the context of section 108 of the IRPA, but the Minister chose not to appeal in both cases.

[82] I will therefore certify the proposed question, but in the following wording:

Where a person has become a permanent resident under the Convention Refugees Abroad class by virtue of being the family member of a principal applicant who was determined to be a Convention refugee (though the person was not themselves assessed as a Convention refugee), is that person a protected person within the meaning of subsection 95(2) of the IRPA who is subject to vacation of refugee protection before the RPD pursuant to section 109 of the IRPA?

JUDGMENT in IMM-9846-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is granted, without costs.

2. The decision issued on July 21, 2023 by the Refugee Protection Division is set aside.

3. The Minister’s vacation application regarding Mr. Tesfaye (section 109 of the IRPA) is dismissed due to a lack of jurisdiction by the RPD.

4. The style of cause is amended to name the Minister of Citizenship and Immigration as the proper Respondent.

5. The following question is certified:

Where a person has become a permanent resident under the Convention Refugees Abroad class by virtue of being the family member of a principal applicant who was determined to be a Convention refugee (though the person was not themselves assessed as a Convention refugee), is that person a protected person within the meaning of subsection 95(2) of the IRPA who is subject to vacation of refugee protection before the RPD pursuant to section 109 of the IRPA?

“Denis Gascon”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: