Date: 20120615
Docket:
IMM-6395-11
Citation:
2012 FC 764
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 15, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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ENRIQUE ANDRES TOBAR
TOLEDO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of an
immigration officer rendered on September 16, 2011, that the applicant’s claim
for refugee protection was determined to be ineligible under paragraph 101(1)(b)
of the IRPA.
[2]
In
the context of this appeal, the applicant served a notice of constitutional
question on the Attorney General of Canada, and the attorney general of each
province, in accordance with section 57 of the Federal Courts Act, RSC
1985, c F-7. The applicant submits that the interpretation given to paragraph
101(1)(b) of the IRPA by the respondent is not consistent with sections
7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11,
(Charter) and with the Convention
on the Rights of the Child, November 20, 1989, [1992] Can TS No 3
(entry into force: September 2, 1990) (Convention), and that, accordingly, the
provision must be declared invalid if the interpretation by the respondent is
to prevail. No attorney general has intervened following those notices.
[3]
For
the following reasons, I have come to the conclusion that the respondent erred
in his interpretation of paragraph 101(1)(b) of the IRPA and that the eligibility
of the applicant’s claim for refugee protection must therefore be reassessed by
the respondent. Hence, it is not necessary for me to review the legislative
provision’s compliance with the Charter or Convention.
I. The facts
[4]
The
facts are not contested and are relatively
straightforward.
[5]
The
applicant, Enrique Andres Tobar Toledo, was born in Chile on November 26, 1984.
In 1995, when he was 11 years old, his father made a claim for refugee
protection in Canada. The applicant, his mother and his two brothers were
included in the claim as accompanying family members. On March 19, 1997, the Refugee Protection
Division of the Immigration and Refugee Protection Board (RPD) rejected
that claim.
[6]
On
July 28, 2011, the applicant arrived in Canada accompanied by his wife. They
made a claim for refugee protection on August 11 of that same year, on the
basis of their alleged fear of powerful business men in Chile who allegedly
attempted to destroy their house and their land and undermined their physical
integrity.
[7]
The
refugee claim of the applicant’s wife was found eligible. However, the
applicant’s claim was found ineligible on the grounds that he had already made
a claim in 1995 and it was rejected. The immigration officer expressly mentioned
that his claim was rejected in accordance with paragraph 101(1)(b) of
the IRPA.
[8]
On
September 26, 2011, the Canada Border Services Agency sent a notice to the
applicant advising him of the possibility of applying for a Pre-Removal Risk
Assessment (PRRA).
II. Issues
[9]
The
main issue raised by the application for judicial
review is whether the respondent erred in it interpretation of paragraph
101(1)(b) of the IRPA.
[10]
As
regards the constitutional issues raised by the applicant, they read as follows
(slightly rephrased):
Does paragraph 101(1)(b)
of the IRPA, as interpreted by the respondents, violate section 7 of the Charter
and, if so, is it a reasonable limit on the applicant’s rights within the
meaning of section 1 of the Charter?
Does paragraph 101(1)(b) of
the IRPA, as interpreted by the respondents, violate section 15 of the Charter
and, if so, is it a reasonable limit on the applicant’s rights within the
meaning of section 1 of the Charter?
III. Analysis
[11]
The
parties do not agree on the applicable standard of review. The applicant
insisted on the fact that the issue is essentially legal in nature and concluded
that the applicable standard of review should be that of correctness. However,
the respondent submitted that the decisions of an immigration officer have been
repeatedly subject to the reasonableness standard by
this Court.
[12]
It
is true that the decisions of an immigration officer regarding the eligibility of
a refugee claim usually involve questions of fact, or
questions of mixed fact and law. As such, they are undeniably subject to
the reasonableness standard (see Gaspard v Canada (Minister of Citizenship
and Immigration), 2010 FC 29 (available on CanLII)).
[13]
In
this case, the issues do not involve any discretion and are not based on the
determination of facts. The first is statutory interpretation, whereas the
other two raise constitutional questions. Consistent with Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, such issues must be dealt with by applying the correctness
standard. The first issue does not only raise a question of law, but can be
characterized as a question of jurisdiction, insofar as the officer determines whether
the RPD can
hear a claim for refugee protection. Moreover, I note that my colleague Justice
Mosley also expressed the view that the interpretation of paragraph 101(1)(d)
of the IRPA raised a question that had to be reviewed under the standard of
correctness (Wangden v Canada (Minister of Citizenship and Immigration),
2008 FC 1230 at paragraph 18, [2009] 4 FCR 46 aff’d by 2009 FCA 344, 398 NR
265; see also Charalampis v Canada (Minister of Citizenship and Immigration),
2009 FC 1002 at paragraph 34 (available on CanLII) (Charalampis)). As
for the two other issues, they involve the compatibility of a statutory
instrument with the fundamental law of the land and there is no doubt that no
error would be tolerated in that regard.
[14]
The
respondent argues that the immigration officer had no other choice but to find
the applicant’s claim for refugee protection ineligible under paragraph 101(1)(b)
the moment his father’s claim for refugee protection was rejected by the RPD in
1997. The respondent did not discuss that proposition beyond citing the
following excerpt from the decision rendered by Justice O’Keefe in Charalampis,
supra:
39. Another argument by
the respondent is compelling, namely that there are instances within the Act
where children face consequences by way of their legal guardian or parents
representations in the immigration process. The respondent outlined the
instances where children are excluded from Canada when they are not included on
an original permanent residence application and findings of negative
credibility of parents in refugee claims which affect the children as well. I
agree that these consequences point to an intent of Parliament to make children
part and parcel of parents' claims and divorcing children from this would have
as in the respondent's words "far-reaching consequences" and may
"create something different in nature from what Parliament intended".
Therefore, even if I were to assess the constitutionality of subsection 99(3)
and paragraph 101(1)(b) in this respect, I am not convinced that there
is a viable argument.
[15]
However,
Charalampis does not really deal with the issue raised by the applicant
in this case. The applicants arrived in Canada with their father and brought
successful refugee claims under false pretences by the father. After having
admitted having fabricated the story, the father and his daughters lost their
refugee status following a decision by the RPD setting aside the initial
decision. While subject to a removal order, the two daughters made a second
refugee claim and invoked, inter alia, invoked section 15 of the Charter,
claiming they were victims of discrimination in view of the fact that they were
held responsible for the false statements made by their father.
[16]
This
case appears to me to be very
different from the issue before me. Not only did the
paragraph cited above answers an alternative argument of the Minister of Citizenship
and Immigration (the Minister) and, therefore, only deals with the interpretation
to be given to paragraph 101(1)(b) briefly, but also, most importantly, the
applicants never left Canada following the setting aside of the initial
decision and it therefore appears that their second claim could not but be
based on the same facts adduced in evidence by their father.
[17]
In
this case, the applicant left Canada with his parents over fifteen years ago, following
the refusal of the RPD to grant them refugee status. The applicant was only 11 years
old at the time and claims to have no knowledge of the grounds on which the claim
for refugee protection made by their father was based.
[18]
It
is true that paragraph 101(1)(b) of the IRPA does not distinguish
between a claim for refugee protection based on the same facts that led to a
prior refusal or different facts. One must therefore presume, as the respondent
contends, that a person cannot seek refugee protection more than once, even if
the facts alleged in support of a second claim are different from those that
were relied upon the first time. When a refugee claimant’s previous claim has
been rejected, he or she may apply for a PRRA or permanent residence on
humanitarian and compassionate grounds but shall not be permitted to file a second refugee claim.
[19]
Does
the same rationale apply, however, when the claimant is not the person whose first
claim was rejected, but rather the son or daughter of the person whose claim
has previously been rejected? In that regard, the Act does not provide a clear
answer.
[20]
The
respondent submits that the immigration officer had no other choice but to deem
the applicant’s claim for refugee protection ineligible, as he made a refugee
claim in 1995, even though it was his father who filed the claim for him. It is
true that, from a formal viewpoint, minor children are considered to be an integral
part of the claim made by their parents and that the outcome for that
application carries the same consequences for them. However, should we
therefore give equal treatment to both the children and their parents in all
circumstances and for all purposes under the Act? Nothing is less certain.
[21]
The
very words of paragraph 101(1)(b) raises a first doubt. While the French
version declares a claim ineligible in the case of a “rejet antérieur de la
demande d’asile” by the Board, the English version seems to be slightly more
specific by providing that a claim is ineligible if “a claim for refugee
protection by the claimant” has been rejected by the RPD [emphasis added].
Even if the minor children are included in their parents’ application, one
cannot accurately state that it is the children who are making the claim. In
fact, they often do not have the ability to make such a claim, and that is the
reason their interests are represented by either parent. While a minor can
certainly make a claim for refugee protection on his or her own behalf, that is
not the case here.
[22]
However,
the applicant is right to argue that Parliament does not always treat minors accompanying
refugee claimants in the same way as refugee claimants. While the adult who is
denied refugee status and becomes
subject to a removal order must request the Minister’s authorization
to return to Canada, that person’s child need not obtain such authorization. That
is what is provided for in paragraph 42(b) of the IRPA and section 226
of the Immigration and Refugee Protection Regulations, SOR/2002-227, which
read as follows:
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Immigration
and Refugee Protection Act, SC 2001, c 27
Inadmissible family member
42. A foreign national, other than a protected person,
is inadmissible on grounds of an inadmissible family member if
(b) they are an accompanying
family member of an inadmissible person.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, c 27
Inadmissibilité
familiale
42. Emportent, sauf pour le résident permanent ou une
personne protégée, interdiction de territoire pour inadmissibilité familiale
les faits suivants :
b) accompagner, pour un membre de sa famille, un
interdit de territoire.
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Immigration
and Refugee Protection Regulations, SOR/2002-227
Deportation order
226. (1) For the purposes of subsection 52(1) of
the Act, and subject to subsection (2), a deportation order obliges the
foreign national to obtain a written authorization in order to return to
Canada at any time after the deportation order was enforced.
Application of par.
42(b) of the Act
(2) For
the purposes of subsection 52(1) of the Act, the making of a deportation
order against a foreign national on the basis of inadmissibility under
paragraph 42(b) of the Act is a circumstance in which the foreign
national is exempt from the requirement to obtain an authorization in order
to return to Canada.
Removal order
— certificate
(3) For the purposes of subsection 52(1)
of the Act, a removal order referred to in paragraph 81(b) of the Act
obliges the foreign national to obtain a written authorization in order to
return to Canada at any time after the removal order was enforced.
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Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Mesure d’expulsion
226. (1) Pour l’application du paragraphe 52(1) de
la Loi, mais sous réserve du paragraphe (2), la mesure d’expulsion oblige
l’étranger à obtenir une autorisation écrite pour revenir au Canada à quelque
moment que ce soit après l’exécution de la mesure.
Application de
l’alinéa 42b) de la Loi
(2) Pour
l’application du paragraphe 52(1) de la Loi, le fait que l’étranger soit
visé par une mesure d’expulsion en raison de son interdiction de territoire
au titre de l’alinéa 42b) de la Loi constitue un cas dans lequel
l’étranger est dispensé de l’obligation d’obtenir une autorisation pour
revenir au Canada.
Mesure de renvoi — certificat
(3) Pour
l’application du paragraphe 52(1) de la Loi, la mesure de renvoi visée à
l’article 81 de la Loi oblige l’étranger à obtenir une autorisation écrite
pour revenir au Canada à quelque moment que ce soit après l’exécution de la
mesure.
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[23]
Finally,
it is well-established that the interpretation of a legislative provision
requires a plain meaning analysis of the provision as well as of its
legislative context. In fact, the Supreme Court of Canada adopted the words of
Professor Elmer Driedger in Rizzo & Rizzo Ltd. (Re), [1998] 1 S.C.R. 27
at paragraph 21 (available on CanLII):
Today there is only one
principle or approach, namely, 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.
[24]
Subsection
46.01 of the former Immigration Act, RSC 1985 c I-2 (am by SC 1992, c
49) provided for the possibility of making several claims for refugee
protection. An unsuccessful refugee claimant could in fact make a new claim for
refugee protection provided that he or she stayed abroad for a minimum period
of 90 days. The relevant provisions of the Act were as follows:
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46.01(1)
A person who claims to be a Convention refugee is not eligible to have the
claim determined by the Refugee Division if the person
(c)
has, since last coming into Canada, been determined
(i)
by the Refugee Division not to be a Convention refugee or to have abandoned
the claim, or
(ii)
by a senior immigration officer not to be eligible to have the claim
determined by the Refugee Division;
Last
coming to Canada
(5)
A person who goes to another country and returns to Canada within ninety days
shall not, for the purposes of paragraph (1)(c), to be considered as
coming into Canada on that return.
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46.01
(1) La revendication de statut n’est pas recevable par la section du statut
si l’intéressé se trouve dans l’une ou l’autre des situations
suivantes :
c)
depuis sa venue au Canada, il a fait l’objet :
(i)
soit d’une décision de la section du statut lui refusant le statut de réfugié
au sens de la Convention ou établissant le désistement de sa revendication,
(ii)
soit d’une décision d’irrecevabilité de sa revendication par un agent
principal;
Séjour
à l’étranger
(5)
La rentrée au Canada de l’intéressé après un séjour à l’étranger d’au plus
quatre-vingt-dix jours n’est pas, pour l’application de l’alinéa (1)c), prise
en compte pour la détermination de la date de la dernière venue au Canada de
celui-ci.
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[25]
There
is no doubt, in light of the Parliamentary debates surrounding the adoption of
the IRPA, that the purpose of paragraph 101(1)(b) of the IRPA was
to put an end to abusive claims for refugee protection and to the abuses relating
to the possibility of making more than one claim for refugee protection (see
the debates of the Standing Committee on Citizenship
and Immigration of May 17, 2001, Exhibit “A”, Affidavit sworn by Dominique
Toillon in support of the respondent’s memorandum). From the analysis of section
101, that objective could not have been more clear:
[translation]
The present legislation contains many of these rules
regarding eligibility, but Bill C-11 clarifies and strengthens certain aspects.
. . . Many non-genuine applicants abused said provision,
and instead of returning to their country of origin, went to the United States during
the 90-day period and came back to make a new claim, without a change in their
situation.
Affidavit of Dominique
Toillon, Exhibit “C”, p 151.
[26]
It
is obvious that the applicant’s situation is not at all representative, at
least at first glance, of the type of abuse Parliament was attempting to
eradicate through paragraph 101(1)(b). The applicant was only 11 years
old when his father made a claim for refugee protection; he left Canada when
the claim was rejected, and never came back until nearly fifteen years later. Furthermore,
it appears that his claim does not bear any relationship to the one made by his
father, although there is very little information in the record in that regard
seeing as his claim for refugee protection was found to be ineligible.
[27]
In
conclusion, I find that the immigration officer erred in determining that the applicant’s
claim for refugee protection was ineligible simply because his father’s claim for
refugee protection, in which he was included, was rejected in 1997. Neither the
wording of paragraph 101(1)(b) nor the intention of Parliament in adopting
it make it possible to give such a scope to said provision. The situation would
undoubtedly be otherwise if the applicant’s claim was essentially based on the
same facts as those in his father’s claim; in that case, the letter and spirit
of paragraph 101(1)(b) would justify rejecting his claim and determining
it to be ineligible. However, before such a finding may be made, at a minimum
the applicant’s claim must be examined on its face; if the claim does not
appear to be based on the same circumstances as those in his father’s claim, it
will have to be referred to the RPD for the purposes of determining whether refugee
status can be granted to him.
[28]
Having
regard to the interpretation it seems to me must be given to paragraph 101(1)(b),
it is not necessary to decide the constitutional issues raised by the applicant.
[29]
The
parties were invited to submit questions for certification, and the applicant
was also given a few days to do so, but no question was submitted. The Court,
however, is not bound by the parties’ position in that respect and paragraph 74(d)
of the IRPA clearly states that a judge may certify a question of general importance for the Court of Appeal’s
consideration. In this case, I am of the view that the application for judicial
review brought by the applicant raises a serious question of general importance
which would be dispositive of the appeal (Canada (Minister of Citizenship
and Immigration) v Zazai, 2004 FCA 89 at paragraph 11, 318 NR
365; Canada (Minister of Citizenship and Immigration) v Liyanagamage (1994),
176 NR 4 at paragraph 4, 51 ACWS (3d) 910 (FCA)).
[30]
I
therefore certify and state the question as follows:
Does the rejection of a refugee claim submitted by
parents accompanied by minor children necessarily render ineligible a later
claim submitted by one of those children, having now reached the age of
majority, on their own behalf, pursuant to paragraph 101(1)(b) of the
IRPA, regardless of whether the facts on which the second claim is based are
different from those on which the original claim submitted by the parents was
based?
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review
is allowed.
The following question is certified:
Does the rejection of a refugee claim submitted by
parents accompanied by minor children necessarily render ineligible a later
claim submitted by one of those children, having now reached the age of
majority, on their own behalf, pursuant to paragraph 101(1)(b) of the
IRPA, regardless of whether the facts on which the second claim is based are
different from those on which the original claim submitted by the parents was
based?
“Yves
de Montigny”
Certified
true translation
Daniela
Guglietta, Translator
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