Date: 20080225
Docket: IMM-4534-06
Citation: 2008 FC 245
Ottawa, Ontario, February 25,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CAMILO
ORLANDO VELANDIA
BARON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns a decision by a Canadian Border Services Agency (CBSA)
officer that Mr. Baron did not qualify for exemption under the Safe Third
Country Agreement (STCA) between Canada and the United
States.
He had claimed exemption on the basis of having a family member in Canada.
II. FACTUAL
BACKGROUND
[2]
The
Applicant alleged that threats had been made against him in Colombia so he fled.
He travelled through Miami, to Buffalo and then entered Canada.
[3]
Mr.
Baron was interviewed by a CBSA officer to determine if he qualified for
exemption under the STCA as a class of persons who would otherwise be returned
to the United
States.
He relied on the fact that his sister had made a refugee claim.
[4]
The
CBSA officer determined that the sister’s claim had been rejected by the
Immigration and Refugee Board (IRB), that there was no stay of her removal and
therefore the sister did not qualify as an “anchor relative” to ground the
request for exemption. The Applicant received notice of that decision on August
3, 2006 as well as a s. 44(1) report and exclusion order.
[5]
The
sister sought judicial review of the IRB’s decision, which judicial review was
dismissed on May 16, 2006. The Court certified a question and her appeal acted
as an automatic stay. The Applicant’s request for reconsideration by the IRB
was denied.
[6]
The
sister’s appeal was still pending when this matter came before the Court.
Subsequently, the sister’s appeal was dismissed and this Court issued its
decision in Canadian Council for Refugees v. Canada, 2007 FC 1262, finding,
in part, that the Regulations related to the STCA are invalid. That decision is
stayed before the Court of Appeal. The parties were provided an opportunity to
make further submissions in light of these circumstances.
III. ANALYSIS
[7]
Assuming
that the applicable regulations were valid, the issue in this judicial review
was whether the sister’s (anchor relative) claim must be finally
rejected before the claimant himself is ineligible to rely on the existence of
her claim in support of his plea for exemption from the STCA.
[8]
The
relevant legislation and regulations are:
|
101. (1) A claim is ineligible to be referred to
the Refugee Protection Division if
…
(e) the
claimant came directly or indirectly to Canada from a country designated by
the regulations, other than a country of their nationality or their former
habitual residence; or
|
101. (1) La
demande est irrecevable dans les cas suivants :
…
e) arrivée, directement ou
indirectement, d’un pays désigné par règlement autre que celui dont il a la
nationalité ou dans lequel il avait sa résidence habituelle;
|
|
159.1 The following definitions apply in this section and sections 159.2 to
159.7.
…
"family
member" , in respect of a claimant, means their spouse or common-law partner,
their legal guardian, and any of the following persons, namely, their child,
father, mother, brother, sister, grandfather, grandmother, grandchild, uncle,
aunt, nephew or niece. (membre de la famille)
|
159.1 Les définitions qui suivent s’appliquent au présent
article et aux articles 159.2 à 159.7.
…
«membre de
la famille» À l’égard du demandeur, son époux ou conjoint de fait,
son tuteur légal, ou l’une ou l’autre des personnes suivantes : son
enfant, son père, sa mère, son frère, sa soeur, son grand-père, sa
grand-mère, son petit-fils, sa petite-fille, son oncle, sa tante, son neveu
et sa nièce. (family member)
|
|
159.5 Paragraph 101(1)(e) of the Act does not apply if a claimant who
seeks to enter Canada at a location other than one identified in paragraphs 159.4(1)(a)
to (c) establishes, in accordance with subsection 100(4) of the Act,
that
…
(c) a family member of the claimant who
has attained the age of 18 years is in Canada and has made a claim for refugee protection that has
been referred to the Board for determination, unless
(i) the claim has been withdrawn by the family member,
(ii) the claim has been abandoned by the family member,
(iii) the claim has been rejected, or
(iv) any pending proceedings or proceedings respecting
the claim have been terminated under subsection 104(2) of the Act or any
decision respecting the claim has been nullified under that subsection;
(Emphasis added)
|
159.5 L’alinéa 101(1)e) de la Loi ne s’applique
pas si le demandeur qui cherche à entrer au Canada à un endroit autre que
l’un de ceux visés aux alinéas 159.4(1)a) à c)
démontre, conformément au paragraphe 100(4) de la Loi, qu’il se trouve dans
l’une ou l’autre des situations suivantes :
…
c) un
membre de sa famille âgé d’au moins dix-huit ans est au Canada et a fait une
demande d’asile qui a été déférée à la Commission sauf si, selon le
cas :
(i) celui-ci a
retiré sa demande,
(ii) celui-ci s’est
désisté de sa demande,
(iii) sa demande a
été rejetée,
(iv) il a été mis
fin à l’affaire en cours ou la décision a été annulée aux termes du
paragraphe 104(2) de la Loi;
(Non
souligné dans L’original)
|
[9]
As
this is a matter of statutory interpretation, it ought to be reviewed on a
standard of correctness. There are no aspects of the pragmatic and functional
test that support a different level of standard of review.
[10]
In
addition to s. 12 of the Interpretation Act directing that a fair, large
and liberal construction should be given to ensure that enactments obtain their
objects, the Supreme Court has confirmed that words must be read in context, in
their grammatical and ordinary sense harmoniously with the scheme and objects
of the legislation and the intent of Parliament (see Rizzo & Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27). In that regard, legislative history assists
in determining the true intent and object of the words.
[11]
This
Court in Ballie v. Canada (Minister of Employment and Immigration), (1993)
101 D.L.R. (4th) 761, held that a change in the former Immigration
Act to remove the words “finally determined” indicated a legislative intent
that a claim is considered rejected even where a judicial review was pending.
[12]
The
current wording of the Immigration and Refugee Protection Act (IRPA)
where the term “rejected” is used without qualifiers indicates a similar intent
to that found in Ballie.
[13]
This
interpretation is reinforced in the current IRPA where the intent to ensure
finality of a decision to include completion of all further legal process is
evidenced by the qualifier “finally”. As an example, s. 21(2) of the IRPA,
concerning the granting of permanent residence to refugees, uses the qualifier
“finally” to indicate a complete resolution of the matter with no further
avenues of appeal being available.
|
21. (2) Except in the case of a person described in
subsection 112(3) or a person who is a member of a prescribed class of
persons, a person whose application for protection has been finally determined
by the Board to be a Convention refugee or to be a person in need of
protection, or a person whose application for protection has been allowed by
the Minister, becomes, subject to any federal-provincial agreement referred
to in subsection 9(1), a permanent resident if the officer is satisfied that
they have made their application in accordance with the regulations and that
they are not inadmissible on any ground referred to in section 34 or 35,
subsection 36(1) or section 37 or 38.
|
21. (2) Sous réserve d’un accord fédéro-provincial visé au
paragraphe 9(1), devient résident permanent la personne à laquelle la qualité
de réfugié ou celle de personne à protéger a été reconnue en dernier ressort
par la Commission ou celle dont la demande de protection a été acceptée par
le ministre — sauf dans le cas d’une personne visée au paragraphe 112(3) ou
qui fait partie d’une catégorie réglementaire — dont l’agent constate qu’elle
a présenté sa demande en conformité avec les règlements et qu’elle n’est pas
interdite de territoire pour l’un des motifs visés aux articles 34 ou 35, au
paragraphe 36(1) ou aux articles 37 ou 38.
|
[14]
Section
232(c) of the Immigration and Refugee Protection Regulations
(Regulations), similar to s. 159.5(1)(c)(iii), uses the word
“rejected” without indicating finality.
|
232. A removal order is stayed when a person is notified by the Department
under subsection 160(3) that they may make an application under subsection
112(1) of the Act, and the stay is effective until the earliest of the
following events occurs:
…
(c) the application for protection is
rejected;
|
232. Il est sursis à la mesure de renvoi dès le moment où le
ministère avise l’intéressé aux termes du paragraphe 160(3) qu’il peut faire
une demande de protection au titre du paragraphe 112(1) de la Loi. Le sursis
s’applique jusqu’au premier en date des événements suivants :
…
c) la
demande de protection est rejetée;
|
[15]
Under
s. 232(c) of the Regulations, the stay of removal is lifted as soon as
the negative PRRA decision is made. If a leave or judicial review is pending, a
person must apply to the Court for a stay, otherwise removal is effected.
[16]
In
my view, s. 159.5(1)(c)(iii) should be interpreted and operated in the
same way. The provision does not contemplate finality of all appeal processes.
[17]
The
term “rejected” should be given consistent meaning and it is not one that
includes “finally rejected”. Once the sister’s claim was rejected, she ceased
to be the anchor relative.
[18]
As
matters have developed, even if that were not the case, the sister’s case has
reached finality and her claim has continued to be rejected.
IV. CONCLUSION
[19]
Therefore,
this judicial review will be denied.
[20]
As
to a certified question, there are grounds for certification of a question both
on the assumption that the STCA is valid and on the assumption that it is not.
Two questions will be certified:
1.
Does
the term “rejected” in the phrase “unless the claim has been rejected” in s. 159.5(c)(iii)
of the Immigration and Refugee Protection Regulations include the final
determination of all reviews and appeals which may flow from the initial
rejection decision?
2.
What
are the consequences to those persons whose claim was denied under s.159.5(c)(iii)
if the decision in Canadian Council for Refugees v. Canada, 2007 FC 1262,
is upheld in respect of the ultra vires of s. 159 of the Regulations?
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
(a)
This
application for judicial review is denied.
(b)
The
following questions are certified:
1.
Does
the term “rejected” in the phrase “unless the claim has been rejected in s. 159.5(c)(iii)
of the Immigration and Refugee Protection Regulations include the final
determination of all reviews and appeals which may flow from the initial
rejection decision?
2.
What
are the consequences to those persons whose claim was denied under s. 159.5(c)(iii)
if the decision in Canadian Council for Refugees v. Canada, 2007 FC
1262, is upheld in respect of the ultra vires of s. 159 of the
Regulations?
“Michael
L. Phelan”
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