Date: 20080423
Docket: IMM-3635-07
Citation: 2008 FC 531
Montréal, Quebec, April 23, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
Jean Claude NSENDE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of the decision
of the Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated August 8, 2007, rejecting under section 108(a) of the Act, the
applicant’s claim for refugee protection.
[2]
A
citizen of the Democratic Republic of Congo (DRC), the applicant was determined
to be a Convention refugee by the Board on July 6, 2001.
[3]
On
June 22, 2006, the respondent applied to the Board for a determination of
whether the applicant’s refugee status had ceased in accordance with section
108 of the Act, and section 57 of the Convention Refugee Determination
Division Rules.
[4]
In
its decision of August 8, 2007, the Board determined that the applicant’s
refugee status had ceased. It indicated that the applicant’s explanation that
he had applied for a Congolese passport with the intention of helping a
business associate could not overcome the spirit and the letter of paragraph
108(1)(a) which implies that refugee status is lost when one voluntarily
reavails himself of the protection of his country of nationality. The Board
also indicated that the fact that the applicant kept his passport even though
he alleges that Congolese authorities requested its return demonstrated that he
wished to continue to benefit from the protection of the DRC.
ISSUE
[5]
The
sole issue raised by this application is whether the Board erred in determining
that the applicant had reavailed himself of the protection of his country of
nationality.
STANDARD OF REVIEW
[6]
Neither
the applicant nor the respondent made representations in their memorandum as to
the appropriate standard of review. The applicant contends that the Board
ignored his explanations as to why he obtained a Congolese passport. However,
a fair reading of the Board’s decision indicates that the Board did in fact
consider the applicant’s explanations. Thus, the Court finds that what the
applicant is actually challenging is the Board’s appreciation of that
explanation.
[7]
In
the case of Dunsmuir v. New Brunswick, 2008 SCC 9, the
Supreme Court altered the standard of review analysis, moving from three to two
standards of review: reasonableness and correctness. In that decision, the
Court states at paragraph 51 that “[…] questions of fact, discretion and policy
as well as questions where the legal issues cannot be easily separated from the
factual issues generally attract a standard of reasonableness while many legal
issues attract a standard of correctness. Some legal issues, however, attract
the more deferential standard of reasonableness”.
[8]
Further,
Dunsmuir states at paragraph 55 :
[55] A consideration of the following
factors will lead to the conclusion that the decision maker should be given
deference and a reasonableness test applied:
- A privative clause: this is a
statutory direction from Parliament or a legislature indicating the need for
deference.
- A discrete and special administrative
regime in which the decision maker has special expertise […].
- The nature of the question of law. A
question of law that is of “central importance to the legal system ... and
outside the ... specialized area of expertise” of the administrative decision
maker will always attract a correctness standard […]. On the other hand, a
question of law that does not rise to this level may be compatible with a
reasonableness standard where the two above factors so indicate.
[9]
Considering
the above mentioned factors, the factual nature of the present question, and
the special expertise of the Board, the Court finds the standard of review to
be that of reasonableness. According to this standard, the Court’s analysis of
the Board’s decision will be concerned with “the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] […] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47).
ANALYSIS
[10]
The
issue of what constitutes “voluntary reavailment” under paragraph 108(1)(a) of
the Act is the sole point of contention between the parties. There is
little precedent relative to this provision and its interpretation by this
Court.
[11]
Paragraph
108(1)(a) of the Act reads as follows:
|
108. (1) A claim for refugee protection
shall be rejected, and a person is not a Convention refugee or a person in
need of protection, in any of the following circumstances:
(a) the person has voluntarily reavailed himself
of the protection of their country of nationality;
[…]
|
108. (1) Est rejetée la demande d’asile
et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel
des cas suivants :
a) il se réclame de nouveau et volontairement
de la protection du pays dont il a la nationalité;
[…]
|
[12]
In
order to determine what is meant by “reavailment” paragraph 108(1)(a) of
the Act, it may be useful to examine the interpretation that has been
given to its source article in the 1951 Convention relating to the Status of
Refugees (the Convention). Article 1C(1) of the Convention reads: “This
Convention shall cease to apply to any person falling under the terms of
section A if: (1) He has voluntarily reavailed himself of the protection of the
country of his nationality […].” Paragraphs 118 to 125 of the Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees of the
United Nations High Commission for Refugees (the UNHCR Handbook)
provide some interpretative guidance as to the meaning of reavailment.
[13]
As a
starting point, paragraph 119 indicates that there are three requirements for
reavailment under the Convention: (a) voluntariness: the refugee must act
voluntarily; (b) intention: the refugee must intend by his action to reavail
himself of the protection of the country of his nationality; and (c) reavailment:
the refugee must actually obtain such protection.
[14]
Further,
the UNHRC Handbook highlights the distinction between “actual reavailment of
protection and occasional and incidental contacts with the national authorities”
(paragraph 21). Instructively, it states that “[i]f a refugee applies for and
obtains a national passport or its renewal, it will, in the absence of proof to
the contrary, be presumed that he intends to avail himself of the protection of
the country of his nationality.”
[15]
Accordingly,
the UNHCR Handbook suggests that while a passport application creates a
presumption of intention to reavail, proof to the contrary may refute that
presumption.
[16]
The
above interpretation is broadly consistent with the decisions of this Court in Yada
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 37
(QL) and also in Chandrakumar v. Canada (Minister of Employment
and Immigration),
[1997] F.C.J. No. 615 (QL).
[17]
In Chandrakumar
above, the Court reviewed a decision of the Convention Refugee
Determination Division (the CRDD), established under the previous Act, wherein
it found that the applicants were not Convention refugees because the principal
applicant’s act of renewing his Sri Lankan passport indicated that he sought to
reavail himself of the protection of his country.
[18]
In
that particular case, the applicant cited with approval of the Court an excerpt
from James C. Hathaway’s book, The Law of Refugee Status, Butterworths, Toronto,1991, at page 193,
where Professor Hathaway made the following observations regarding reavailment:
[…]
the diplomatic request must be made as an act of re-availment of protection,
thus implying an intention to have one’s interests defended by the issuing
state. In contrast, most ordinary, purely practical forms of diplomatic contact
such as requests for the certification of educational or occupational qualifications,
or access to personal birth, marital, and other records, are dictated by
practical necessity, rather than by a desire for protection.…
[…]
Since
there is not automatic linkage between the issuance or renewal of a passport
and the granting of protection, it is critical that the real reason it is being
sought form part of the determination authority’s considerations. Unless
the refugee’s motive is genuinely the entrusting of her interests to the
protection of the state of her nationality, the requisite intent is absent.
(emphasis added)
[19]
In Chandrakumar
above, the Court went on to find that the CRDD committed an error “by
failing to explore the principal applicant’s motivations in applying to renew
his Sri Lankan passport while in Germany” (paragraph 6). It was also of the view that the
CRDD must engage in an analysis of the “intention behind the renewal of a
passport”, and that it was unreasonable to assume that the simple action of
renewing a passport without any indication of the requisite intent was sufficient
to establish reavailment (paragraph 5).
[20]
At the
hearing, the applicant offered an explanation for seeking a passport from the DRC.
He indicated that he was attempting to travel to Thailand in order to have precious gems cut cheaply
as part of his international business activities. He further indicated that
because he did not yet have a Canadian passport, the Thai Embassy would not
issue him a visa. The applicant traveled to Belgium, where a friend and business associate convinced
him to get a Congolese passport. They picked up all the necessary documents for
him, dropped them off when they were completed, and later retrieved his
passport for him. Upon returning to Montreal, the applicant received a letter from the
Congolese Embassy in Belgium stating that he had been issued a passport by
mistake as he had refugee status in Canada and requested it be returned. He indicated
that he had not returned the passport because the Congolese authorities refused
to refund the fee he had paid to obtain it.
[21]
Given
the fact that the applicant was already in possession of the Congolese passport
when his Canadian travel document was stolen, the Court finds irrelevant his
argument that because a Canadian Immigration Officer requested a Congolese
passport, his action cannot be considered reavailment.
[22]
However,
the Court finds that the Board erred in its consideration of the applicant’s
explanation relating to his business activities in Thailand. As outlined in Dunsmuir,
above, a review on the standard of reasonableness is concerned with the “existence of
justification, transparency and intelligibility” in the decision. With respect, the Court
finds a justification lacking in the present case. It is unclear to the Court
why the Board believed that the applicant’s explanation with respect to why he
obtained a Congolese passport was insufficient. This conclusion may have been
open to the Board to make; however, the Court finds it unreasonable that the
Board failed to indicate why this explanation was insufficient. If the Board
did not believe the applicant’s explanation and found him not to be credible
then it should have said so. If it had another reason for not finding the
explanation sufficient, it should have stated so as well, especially with the
type of explanations provided here by the applicant to rebut his presumed intention
“to avail himself of the protection of the country of his nationality”.
[23]
True
the burden was on the applicant to rebut this presumption, and he tried. But
here his explanations as a whole were not discarded by the Board because they
were not credible; on the contrary the decision seems to imply that, the simple
fact of possessing a Congolese passport that the applicant refused for a very
specific reason to return to the Congolese authorities when requested by them
to do so, constitutes proof of his intention to reavail himself of the
protection of his country of nationality. The Court cannot accept such implied
finding in the present affair in view of the inexistence of any credibility
finding in the decision with respect to the applicant’s explanations.
[24]
For
the foregoing reasons the Court finds the Board’s decision to be unreasonable.
[25]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE FOREGOING
REASONS, THE COURT allows the application and refers the matter
back to a newly constituted Board for rehearing and redetermination as to whether
the applicant has or has not ceased to be a Convention refugee.
“Maurice
E. Lagacé”
Email this Content