Docket: IMM-371-14
Citation:
2014 FC 1246
Ottawa, Ontario, December 19, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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ABDLWAHID HAQI
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
Abdlwahid Haqi sought refugee protection in Canada claiming to fear persecution as a result of his activities with the Kurdish
Democratic Party of Iran. Before his refugee claim could be heard, Mr. Haqi’s
case was referred to the Immigration Division of the Immigration and Refugee Board
for a determination as to his admissibility. This referral had the effect of
suspending the proceedings then pending before the Refugee Protection Division
until such time as the Immigration Division decided the question of Mr. Haqi’s
admissibility.
[2]
The Immigration Division subsequently found that
Mr. Haqi was inadmissible to Canada for being a member of an organization
for which there are reasonable grounds to believe had engaged in the subversion
by force of the Iranian government.
[3]
After the Immigration Division made its
decision, a Canada Border Services Agency officer gave notice under section 104
of the Immigration and Refugee Protection Act advising Mr. Haqi and the
Refugee Protection Division that Mr. Haqi had been determined to be
inadmissible on security grounds with the result that his refugee claim was not
eligible for consideration by the Refugee Protection Division. The effect of
this notice was to end the suspension of Mr. Haqi’s refugee claim and
terminate the proceeding.
[4]
Mr. Haqi says that the officer had the
discretion not to terminate his refugee claim, and that he erred in failing to exercise
that discretion. As a consequence, Mr. Haqi seeks an order quashing the section
104 notice, and asks that the matter be remitted to a different CBSA officer
for re-determination.
[5]
As will be explained below, I am of the view
that section 104 does not confer discretion on CBSA officers to decline to give
notice terminating a refugee claim once an officer has concluded that the claim
is ineligible for consideration by the Refugee Protection Division on security
grounds. Consequently, this application will be dismissed.
I.
Background
[6]
Mr. Haqi is an Iranian citizen of Kurdish
ethnicity who came to Canada in 2011, making his claim for refugee protection
upon his arrival. Mr. Haqi’s refugee claim was based upon his alleged fear
of the Iranian police and intelligence authorities who were concerned about his
activities with the Kurdish Democratic Party of Iran (KDPI).
[7]
Mr. Haqi disclosed in his Personal
Information Form that he had founded and operated a secret cell of the KDPI in Iran. This disclosure led a Canada Borders Services Agency (CBSA) officer to prepare a
report under section 44 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, advising that the officer was of the opinion that Mr. Haqi
was inadmissible to Canada as a result of his membership in the KDPI. The case
was then referred to the Immigration Division (ID) for a determination as to Mr. Haqi’s
admissibility.
[8]
The Refugee Protection Division (RPD) had yet to
schedule Mr. Haqi’s refugee hearing at the time that it was notified of
the referral of the section 44 report to the ID. In accordance with paragraph
103(1)(a) of IRPA, this notice had the effect of suspending Mr. Haqi’s
RPD proceedings. The full text of the relevant statutory provisions is attached
as an appendix to these reasons.
[9]
Before the ID, Mr. Haqi admitted to having
been a long-term member of the KDPI, and further admitted that the KDPI is “an organization” for the purposes of section 34 of IRPA,
which deals with inadmissibility on security grounds. He submitted, however,
that in considering the activities of the KDPI, the term “subversion by force” should be interpreted in the
context of the historical oppression of the Kurdish people in Iran.
[10]
According to Mr. Haqi, the violent actions
of the KDPI were not “illicit” or “for improper purposes”, but were justified under
international laws relating to armed conflicts. Mr. Haqi argues, in the
alternative, that he only became a member of the KDPI after it had renounced
the use of force.
[11]
The ID rendered its decision on December 27,
2013, noting that the jurisprudence has established that section 34 of IRPA
should be broadly interpreted. It further found as a fact that the KDPI had
mounted armed attacks on the Iranian government and that it had advocated for,
and used, armed conflict with the intent of destabilizing the regime in power
in an effort to compel the recognition of the rights of the Kurdish people.
[12]
The ID recognized Mr. Haqi’s argument that
the KDPI was entitled to use force in advancing the Kurdish people’s right to
self-determination against an oppressive regime. It held, however, that this
argument was one that should properly be advanced as a mitigating factor in
support of a request for ministerial relief under section 42.1 of IRPA.
[13]
Having concluded that Mr. Haqi was a member
of an organization for which there are reasonable grounds to believe had engaged
in the subversion by force of the Iranian government, the ID found that Mr. Haqi
was inadmissible to Canada and issued a deportation order against him. This
decision was recently upheld by this Court: Haqi v. Canada (Minister of Citizenship and Immigration), 2014 FC 1167, [2014] F.C.J. No. 1214.
[14]
On January 7, 2014, a CBSA officer notified the
RPD and Mr. Haqi that Mr. Haqi’s refugee claim was ineligible for
referral to the RPD. The officer noted that in accordance with paragraph
101(1)(f) of IRPA, a claim is ineligible to be referred to the RPD where
a claimant has been determined to be inadmissible on security grounds.
[15]
In accordance with subsection 104(2) of IRPA,
the service of this notice had the effect of terminating Mr. Haqi’s
pending proceedings before the RPD. It is this notice that is being challenged
by Mr. Haqi in this application for judicial review.
II.
The Decision Under Review
[16]
The decision at issue in this proceeding is
brief, and provides that:
The Refugee Protection Division is hereby
notified that pursuant to section 104 of the Immigration and Refugee
Protection Act, it has been determined that your claim for refugee
protection is ineligible to be considered by the Refugee Protection Section,
for the following reasons:
In accordance with paragraph
101(1)(f), the Immigration Division has ruled that you have been determined to
be inadmissible on grounds of security, as described in section 34 of the Immigration
and Refugee Protection Act.
Consequently, pursuant to section
104, this notice terminates consideration of your claim for refugee protection.
III.
Issue
[17]
According to Mr. Haqi, the issues raised by
this case are “the scope of the discretion of an
officer to terminate a refugee claim under s. 104 of IRPA and whether
that discretion was exercised fairly in the present case”.
[18]
Before addressing the scope of a CBSA officer’s
discretion, however, a threshold question must first be addressed, which is
whether section 104 of IRPA does in fact confer any discretion on CBSA
officers not to terminate refugee proceedings in cases where the ID has
determined that an individual is inadmissible on grounds of security.
[19]
Although the CBSA officer’s decision does not
expressly address this question, it is implicit from the officer’s use of the
word “consequently” in the last paragraph of the
notice that he was of the view that once the ID determined that an individual
is inadmissible on security grounds, a refugee claim is ineligible for
consideration by the RPD and the termination of any pending RPD proceedings
necessarily follows.
IV.
Standard of Review
[20]
Neither party addressed the question of the
applicable standard of review in their submissions.
[21]
In accordance with the decision of the Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 57,
62, [2008] 1 S.C.R. 190, in identifying the appropriate standard of review, the
Court must first determine whether the jurisprudence has already satisfactorily
determined the degree of deference to be accorded to the particular type of
question at issue. If that is the case, it is not necessary to carry out a full
standard of review analysis.
[22]
In Tjiueza v. Canada (Public Safety and
Emergency Preparedness), 2009 FC 1247 at para. 11, [2010] 4 F.C.R. 523,
Justice de Montigny held that the issue of whether paragraph 104(1)(b) of IRPA
conferred any discretion on a CBSA officer with respect to the issuance of a
notice terminating refugee proceedings involves a question of law, with the
result that the correctness standard of review should apply.
[23]
It bears noting, however, that Tjiueza
was decided in 2009, and that the law has evolved significantly since that time
as it relates to the degree of deference owed to statutory decision-makers:
see, for example, Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras.
26-28, [2011] 1 S.C.R. 160; Hernandez Febles v. Canada (Minister of Citizenship
and Immigration), 2012 FCA 324, 357 D.L.R. (4th) 343, aff’d 2014 SCC 68,
376 D.L.R. (4th) 387. In light of this more recent jurisprudence, the
reasonableness standard of review presumptively applies to the officer’s
interpretation of his home statute.
[24]
At the same time, the issue in this case is a
question of pure statutory interpretation. There is no privative clause in IRPA,
and CBSA officers have no expertise in statutory interpretation. These factors
suggest that the presumption that the reasonableness standard should apply has
been rebutted in this case.
[25]
At the end of the day, however, it may be that
this is a situation where the distinction between the correctness and
reasonableness standards of review is more illusory than real. This is because
there are only two possible answers to the question of statutory interpretation
posed by this case: a CBSA officer acting under paragraph 104(1)(b) of IRPA
either has discretion to decline to issue a notice terminating a refugee claim
where a person has been found to be inadmissible on security grounds, or does
not possess any such discretion. Consequently, the “range
of possible acceptable outcomes which are defensible in respect of the facts
and the law” is very narrow in this case.
[26]
Indeed, in British Columbia (Securities
Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895, the Supreme Court
held that if the usual tools of statutory interpretation suggest that there is
a single reasonable interpretation of a statutory provision, and the other
possible interpretation is adopted, that interpretation must be unreasonable.
[27]
I would, moreover, come to the same conclusion
by applying either standard of review, as I am satisfied that the officer’s
implicit interpretation of the legislation at issue was both reasonable and
correct.
V.
The Significance of this Court’s Decision in Tjiueza
[28]
The only previous judicial consideration of the
notice provisions of subsection 104(1) of IRPA appears to be Justice de
Montigny’s decision in Tjiueza, where he concluded that a CBSA officer
has no discretion to decline to issue a notice under section 104 of IRPA
following a finding of inadmissibility on security grounds by the ID. The
respondent says there is no reason for me to depart from the reasoning in Tjiueza,
which is dispositive of the issues raised by Mr. Haqi.
[29]
Mr. Haqi submits that there have been two
significant changes to the law since Tjiueza was decided, with the
result that I should revisit the interpretation of section 104 adopted in Tjiueza
as it relates to the question of discretion.
[30]
Before addressing Mr. Haqi’s arguments
regarding recent changes in the law, however, I must first consider what it was
that this Court actually decided in Tjiueza. It is then necessary to have
regard to the principles of judicial comity in order to determine the
implications of the Tjiueza decision for this case.
A.
The Tjiueza Decision
[31]
Tjiueza involved
an applicant who was a member of the Caprivi Liberation Movement (CLM) in Namibia, an organization that was alleged to have engaged in the subversion by force of the
Namibian government. A CBSA officer prepared a report under subsection 44(1) of
IRPA indicating that the officer was of the opinion that Mr. Tjiueza
was inadmissible to Canada as a result of his membership in the CLM. Mr. Tjiueza’s
case was then referred to the ID for an admissibility hearing, and Mr. Tjiueza’s
refugee claim was suspended pursuant to paragraph 103(1)(a) of IRPA.
[32]
The ID subsequently deemed Mr. Tjiueza to
be inadmissible on security grounds. In coming to this conclusion, the ID
acknowledged that there was no evidence that Mr. Tjiueza participated in,
supported or had prior knowledge of any violent acts that the CLM may have committed.
After the ID issued its decision, a CBSA officer gave notice under paragraph
104(1)(b) of IRPA terminating Mr. Tjiueza’s refugee claim.
[33]
The issue in Tjiueza was whether the CBSA
officer had any discretion not to issue the section 104 notice, and, if so,
whether he failed to properly exercise that discretion.
[34]
Mr. Tjiueza noted, as does Mr. Haqi,
that subsection 104(1), uses permissive language, providing that “[a]n officer may, with respect to a claim that is
before the Refugee Protection Division ... give notice that an officer has
determined that ...(b) the claim is ineligible under paragraph 101(1)(f)” [my
emphasis]. According to both Mr. Tjiueza and Mr. Haqi, the use
of the permissive “may” means that even if an applicant’s claim is ineligible
to be referred to the RPD under paragraph 101(1)(f) of IRPA, a CBSA
officer nevertheless has discretion as to whether or not to issue a notice
terminating the claim.
[35]
Citing section 11 of the Interpretation Act,
R.S. 1985, c. I-21, Justice de Montigny accepted that the word “may” normally
entails an element of discretion. He went on, however, to conclude that “this cannot be determinative in the case at bar if only
because the French version of section 104(1) (“L'agent donne un avis...”) is
more imperative and appears to direct the officer to give a notice in the
circumstances set out in paragraphs (a) to (d)”: Tjiueza, above at
para. 13.
[36]
Justice de Montigny further concluded that
subsection 104(1) of IRPA could not be considered in isolation, and that
a close examination of the entire statutory scheme revealed Parliament’s
intention to remove discretion where a refugee claimant is determined to be
inadmissible.
[37]
Justice de Montigny noted that section 101 of IRPA
identifies the grounds on which claims will be ineligible to be referred to the
RPD for determination. In accordance with paragraph 101(1)(f) of the Act, a
claim will be ineligible if “the claimant has been
determined to be inadmissible on grounds of security...”: Tjiueza,
above at para. 14.
[38]
Justice de Montigny observed that in accordance
with subsections 100(1) and (3) of IRPA, “an
officer must determine whether a refugee protection claim is eligible to be
referred to the RPD within 3 working days after receipt of the claim. If no
determination is made within 3 days, the claim is deemed to be referred to the
RPD”. He went on to observe that paragraph 100(2)(a) of the Act “provides that the officer shall suspend consideration of the
eligibility of the person’s claim if a report has been referred, pursuant to s.
44, for an admissibility hearing to determine whether the person is
inadmissible on grounds of security”: at Tjiueza, above para. 15.
[39]
Once a refugee claim has been referred to the
RPD, Justice de Montigny observed that section 103(1)(a) of IRPA “allows an officer to give notice to the RPD that a matter
has been referred to the ID to determine whether the claimant is inadmissible
on certain grounds, including security” and that this notice “has the effect of suspending the RPD proceedings”: Tjiueza,
above at para. 16.
[40]
Justice de Montigny noted that “[t]he grounds on which an RPD hearing may be suspended are
limited, and do not include all the grounds on which a claim might be
ineligible”, and that “[t]he suspension of a
claim prevents the RPD from making a decision before the claim’s eligibility
has been determined”: Tjiueza, above at para. 16.
[41]
As Justice de Montigny noted, once RPD
proceedings have been suspended under section 103(1)(a) of IRPA as a result
of notice having been given under section 104 of the Act, “they may only be continued again if an officer notifies the
RPD that the suspended claim is eligible”: Tjiueza, above at
para. 17.
[42]
Insofar as section 104 of IRPA is
concerned, Justice de Montigny noted that this provision allows CBSA officers
to terminate RPD proceedings where an officer “determines
that the claim is ineligible, or that an ineligible claim was referred to the
RPD based on misrepresentation or the withholding of material facts”. He
further noted that the power to terminate a pending RPD proceeding “does not depend on the RPD proceedings having first been
suspended”: Tjiueza, above at para. 18.
[43]
With this understanding of the statutory scheme,
Justice de Montigny then addressed the proper interpretation of subsection
104(1) of IRPA. Because of the importance of his analysis to the case at
hand, I will reproduce the relevant portions of his decision in its entirety:
20 Mr. Tjiueza argues that
section 104 of IRPA gave Officer Gross discretion as to whether or not
to notify the RPD that his claim was ineligible, thereby terminating Mr. Tjiueza’s
RPD proceedings. Mr. Tjiueza’s argument, if accepted, would result in the
absurd result that his RPD proceedings would be suspended indefinitely.
21 Indeed, on its face, the language
of s. 103 suspends RPD proceedings indefinitely unless they are resumed under
s. 103(2). Section 103(1) says that proceedings “are suspended” on notice by
the officer that the matter has been referred to the ID. They are not suspended
“pending” or “until” the ID’s decision. Section 103(2) states that “On notice
by an officer that the suspended claim was determined to be eligible”, the RPD
proceedings will continue. The statute provides no other method to have a
proceeding continue. Thus, it appears that if an officer does not expressly determine
a claim to be either eligible or ineligible, the RPD proceedings will remain
suspended. I agree with the respondent that Parliament could not have intended
to give the officer the discretion to suspend RPD proceedings indefinitely.
22 It seems more logical to interpret
ss. 103 and 104 together as a statutory scheme that envisions an officer
suspending RPD proceedings only until he can gather enough information, via the
ID’s decision, to make a determination of eligibility. The scheme then
envisions the officer ending the suspension either by giving notice to the RPD
that the suspended claim has been determined to be eligible under s. 103(2), or
by giving notice that the claim is ineligible as a result of the ID decision
under s. 104.
23 For these reasons, while section
104 of IRPA does generally give an officer discretion as to whether or
not to re-determine the eligibility of a claim, that discretion does not exist
in the case of a claim that has been suspended under s. 103 of IRPA. In
the case of a claim that has been suspended, any discretion that may exist
regarding re-determining the eligibility of a claim would have been exercised
in making the decision under section 103 to suspend the RPD proceedings. Once a
claim is suspended, IRPA only provides for two possible results: either
the proceedings are continued because an officer notifies the RPD that the
claim is eligible, or the proceedings are terminated because an officer
notifies the RPD that the claim is not eligible.
24 Some guidance as to Parliament’s
intentions may also be gleaned from Citizenship and Immigration Canada's manual
PP1: Processing Claims for Refugee Protection in Canada, which states as
follows (at p. 49):
An officer “may” proceed with a
redetermination of eligibility if there is information to indicate that the
claimant should not have been found eligible to make a claim or is no longer
eligible to make a claim. [Section] 104 allows an officer to redetermine the
eligibility of a claim and to notify the RPD that the claim is no longer
eligible, thus ending their jurisdiction over the case. Although
redetermination is discretionary, if there is evidence to prove that a person
is ineligible, redetermination should be the preferred course of action.
However, there may be situations where it is appropriate to have the RPD make a
decision on the claim.
25 This manual therefore confirms
that the officer generally has discretion under s. 104. However, it states that
the officer would only exercise this discretion because situations may arise
where the RPD ought to make a decision on the claim (for example in cases
involving exclusion clauses). Since a claim that has been suspended under s.
103 will remain suspended indefinitely, the RPD will never make a decision on
this sort of claim. Thus it seems that the discretion in s. 104 was never meant
to apply in this situation.
26 This interpretation is consistent
with the provisions of IRPA and the objectives of this act that require
refugee protection claims to be dealt with efficiently and expeditiously. In
particular, s. 162(2) of IRPA requires the RPD “to deal with all
proceedings before it as informally and quickly as the circumstances and the
considerations of fairness and natural justice permit”.
27 Furthermore, this interpretation
is supported by the fact that an indefinite suspension would not give any
practical benefit to the applicant. The applicant still would not have his
refugee claim determined by the RPD. As a result, he would not be entitled to
permanent resident status and the associated rights and privileges. He would
remain subject to the removal order issued by the ID. He would also remain
subject to the restriction on persons found inadmissible for security reasons
that a Pre-Removal Risk Assessment (PRRA) application cannot result in refugee
protection. In short, if the officer exercised a discretion under s. 104 not to
terminate the RPD proceeding, it would offer no practical benefit to the
applicant. It seems absurd that Parliament would grant an officer a discretion
whose exercise would serve no practical purpose. It would run counter to s. 12
of the Interpretation Act, supra, which states that “[e]very enactment is
deemed remedial, and shall be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its objects”.
[44]
Having concluded that the CBSA officer dealing
with Mr. Tjiueza’s case had no discretion not to deliver a section 104 notice
terminating Mr. Tjiueza’s refugee proceeding, Justice de Montigny
determined that there was no need to address Mr. Tjiueza’s arguments
regarding the scope of the officer’s discretion and the fairness of the
process.
[45]
Justice de Montigny concluded his analysis by
observing that “[n]eedless to say, even though Mr.
Tjiueza’s claim cannot be heard by the RPD, he may still have his risk assessed
by making a [Pre-removal Risk Assessment] application”: at para. 28.
[46]
Although Justice de Montigny certified a
question for the Federal Court of Appeal in Tjiueza relating the
interpretation of subsection 104(1) of IRPA, no appeal was taken from
that decision.
[47]
Having reviewed what it was that Tjiueza
decided, I must determine what the effect of that decision is for this case.
This first requires a consideration of the principle of judicial comity.
VI.
Judicial Comity
[48]
Under principles of stare decisis, judges
of one Court are not bound by decisions of members of their own Court. However,
in accordance with the principle of judicial comity, judges should follow the
decisions of their colleagues involving the interpretation of statutory
provisions unless there is good reason to depart from a prior decision.
[49]
As the Federal Court of Appeal observed in Allergan
Inc. v. Canada (Minister of Health), 2012 FCA 308, at para. 43, [2012]
F.C.J. No. 1467, the doctrine of judicial comity is intended to promote
certainty in the law by preventing judges of the same court deciding the same
issue differently.
[50]
That said, it is also well-established that a
judge of this Court may depart from a colleague’s interpretation of a statutory
provision where the judge is convinced that a departure is necessary, and can
articulate cogent reasons for doing so: Allergan Inc., above at para.
48.
[51]
There are a number of reasons why a judge may
choose not to follow the interpretation given to a statutory provision by
another judge of this Court. It may be that intervening decisions have affected
the validity of the prior decision, or that the earlier decision failed to
consider a binding precedent or relevant statute. A judge may also depart from
an earlier decision where that decision was “unconsidered”,
that is where the exigencies of a proceeding require an immediate ruling
without an opportunity to fully consult the authorities, or where following the
earlier decision would result in an injustice: Almrei v. Canada (Minister of
Citizenship & Immigration), 2007 FC 1025 at paras. 61-62, [2007] F.T.R.
49, Baron v. Canada (Public Safety and Emergency Preparedness), 2008 FC 341
at para. 52, 324 F.T.R. 133.
[52]
Where any of these circumstances are found to
exist, a judge may depart from the earlier decision “provided
that clear reasons are given for the departure and, in the immigration context,
an opportunity to settle the law is afforded to the Federal Court of Appeal by
way of a certified question”: Baron, above at para. 52.
[53]
Given that Justice de Montigny has already
provided a carefully considered opinion in Tjiueza as to whether an
officer has discretion under section 104 of IRPA, the question is
whether Mr. Haqi has demonstrated good reason to diverge from Justice de
Montigny’s interpretation of the statutory provision in issue. This question will
be considered next.
VII.
Has There Been a Material Change in the Law
Since Tjiueza?
[54]
Mr. Haqi argues that changes in Canada’s immigration law since Justice de Montigny rendered his decision in December of
2009. In support of this contention, he points to the Supreme Court’s decision
in Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC
40, [2013] 2 S.C.R. 678, and the enactment of the Protecting Canada’s Immigration
System Act, S.C. 2012, c. 17 (PCISA), submitting that these
developments in the law require this Court to reconsider its earlier
interpretation of subsection 104(1) of IRPA and come to a different
determination.
[55]
According to Mr. Haqi, as a result of Ezokola
and PCISA, IRPA’s eligibility provisions no longer reflect
exclusion under the United Nations Convention Relating to the Status of
Refugees, 28 July 1951, [1969] 189 U.N.T.S. 137, Can. T.S. 1969 No. 6 as
closely as they did at the time Justice de Montigny rendered his decision in Tjiueza.
[56]
The respondent says that any changes to the law
resulting from Ezokola and PCISA have no impact on the issue in
this case, and that I should therefore adopt Justice de Montigny’s interpretation
of subsection 104(1) of IRPA.
[57]
Before addressing these arguments, it is helpful
to have a clear understanding of the terms “eligibility”,
“admissibility” and “exclusion”,
as they are used in IRPA:
i. “Eligibility” refers to whether
a refugee claim is eligible for referral to the RPD. The eligibility regime is
set out at sections 100 to 104 of IRPA, where Parliament has clearly indicated
that not every refugee claim should be considered by the RPD. If a claim is
ineligible, for example, on security grounds, the RPD does not have
jurisdiction to hear or determine the claim.
ii. “Inadmissibility” refers to
whether foreign nationals or permanent residents may enter and/or remain in Canada. The grounds for inadmissibility are set out in sections 33 to 42.1 of IRPA. Those
inadmissible to Canada include members of organizations involved in the
subversion by force of a government.
iii. “Exclusion” relates to whether a
claimant satisfies the definition of a “refugee” in light of Articles 1(E) and
1(F) of the Refugee Convention, which are incorporated by reference into
IRPA through 98 of the Act. Articles 1(E) and 1(F) exclude certain
persons from the refugee definition, including (as was the case in Ezokola),
persons complicit in war crimes and crimes against humanity.
[58]
Each of these terms has a distinct meaning, and
can operate independently of the others. Most of the eligibility grounds
under section 101 of IRPA have nothing to do with admissibility. For
example, a refugee claim may be ineligible for referral to the RPD because
the person making the claim arrived in Canada from a safe third country. The
exception is ineligibility under paragraph 101(1)(f), which as previously
noted, makes a claim ineligible to be referred to the RPD where a
claimant has been determined to be inadmissible on security grounds.
[59]
Similarly, a person may be excluded under
Article 1(E) of the Refugee Convention, not for reasons relating to his
or her admissibility to Canada, but because the individual already has
citizenship in another country. In a similar vein, a person may become inadmissible
to Canada under section 36 of IRPA as a result of their serious
criminality in this country, conduct that would not lead to exclusion of
the individual under Articles 1(E) or 1(F) of the Refugee Convention.
[60]
With this understanding of the relevant
terminology, I will now address Mr. Haqi’s arguments.
A.
The Impact of Ezokola
[61]
Mr. Haqi argues that prior to the Supreme
Court’s decision in Ezokola, a person found to be inadmissible under
section 34 of IRPA would likely also be excluded from the refugee
definition under Article 1(F) of the Refugee Convention. However, Mr.
Haqi says that he could not be found to have voluntarily made a significant and
knowing contribution to the KDPI’s actions under the stricter Ezokola
test for complicity, and would thus not be excluded from the protection of the Refugee
Convention.
[62]
Mr. Haqi submits that in light of the broad
interpretation given to section 34 of IRPA, in order to comply with Canada’s international obligations, CBSA officers must have the discretion to consider
whether exclusion is indeed possible before terminating a refugee claim. He
further submits principles of fairness require claimants to be afforded an
opportunity to make submissions in this regard.
[63]
According to Mr. Haqi, recent changes to
immigration legislation have significantly limited the remedies available to
claimants in his circumstances. These changes include the curtailing of access
to humanitarian and compassionate relief for those found inadmissible on
security grounds, and restrictions being placed on the availability of
ministerial relief under section 42.1 of IRPA to applicants who can
satisfy the Minister that it is not contrary to the national interest to
declare them admissible to Canada.
[64]
As a consequence, Mr. Haqi submits that an
applicant in his situation faces years of uncertain status, as well as inability
to travel or to sponsor family members, all in direct contravention of Canada’s obligations under the Refugee Convention. Mr. Haqi asserts that this situation
causes him stress and violates his rights under section 7 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.
[65]
It should be noted that Mr. Haqi has not
challenged subsection 104(1) of IRPA under the Charter. Although Mr. Haqi
only briefly touched on the issue, I understand him to argue that the
legislation should be interpreted in a way that avoids infringing on his Charter
rights.
[66]
While Courts are required to resolve any
ambiguity in legislation in a manner that would allow for the legislation to be
Charter-compliant, this interpretive principle only applies where the
legislation is in fact ambiguous. As will be explained below, I have found no
such ambiguity here.
[67]
I agree with the respondent that Mr. Haqi’s
reliance on the Supreme Court’s decision in Ezokola is misplaced, as
Ezokola has no bearing on IRPA’s eligibility regime generally, or on
the interpretation of sections 103 and 104 of IRPA in particular. Ezokola
addressed the scope of the refugee definition, and specifically, exclusion from
that definition under Article 1(F) of the Refugee Convention, a
provision that is only engaged where a refugee claim is eligible for
consideration by the RPD, which Mr. Haqi’s was not.
[68]
I further agree with the respondent that Mr. Haqi
appears to have confused the issue of whether the RPD has jurisdiction to
consider a refugee claim (eligibility) with whether, assuming that the
RPD has jurisdiction, a person concerned is in fact a Convention refugee (exclusion:
the issue in Ezokola).
[69]
Because the CBSA officer concluded that Mr. Haqi’s
claim for refugee protection was ineligible for consideration by the RPD as a
result of his inadmissibility on security grounds, it necessarily followed that
the RPD had no jurisdiction to consider the question of exclusion and the
impact of Ezokola.
B.
The Impact of the Protecting Canada’s Immigration System Act
[70]
Mr. Haqi also argues that the enactment of PCISA
requires this Court to reconsider its earlier interpretation of subsection
104(1) of IRPA in Tjiueza and come to a different conclusion.
[71]
Mr. Haqi has not referred to any specific
provision of the legislation in support of this argument, submitting instead
that “the expanded scope of the ineligibility
provisions following the amendments in the Protecting Canada’s Immigration
System Act … along with an ever-expanding application of s. 34 by the
Minister, this will only be the first of many refugee claimants facing
ineligibility in circumstances where they would not face exclusion under the
Convention”.
[72]
As the respondent notes, the only changes that PCISA
made to sections 103 and 104 of IRPA was to remove references to the “Refugee Appeal Division” from subsections 103(1) and
(2). I am not therefore persuaded that the passage of PCISA should lead
me to a different conclusion to the one reached by Justice de Montigny in Tjiueza.
VIII.
Final Observations
[73]
For these reasons, Mr. Haqi has not
persuaded me that the principles of judicial comity should not apply in this
case, or that there is a basis for reaching a different conclusion regarding
the proper interpretation of subsection 104(1) of IRPA than that in Tjiueza.
[74]
There are, moreover, additional considerations
that support Justice de Montigny’s conclusion that no discretion is conferred
on CBSA officers by subsection 104(1) of IRPA.
[75]
The first relates to the use
of the word “may” in the English version of subsection 104(1) of IRPA.
As noted earlier, Justice de Montigny accepted that the word “may” normally entails
an element of discretion, but concluded that it did not in this instance as the
French version of subsection 104(1) is imperative, and directs officers to give
notice of the termination of refugee proceedings in the prescribed
circumstances: see Tjiueza, above at para. 13.
[76]
Indeed, as the Supreme Court has observed, if
there is a discrepancy between the English and French versions of the same
text, where one version is ambiguous and the other is clear and unequivocal,
the common meaning of the two versions should be preferred. Where one version
is broader than the other, the common meaning should favour the more restricted
or limited meaning: R. v. Daoust, 2004 SCC 6 at para. 26, [2004] 1
S.C.R. 217.
[77]
It also bear noting that use of the word “may” creates
a presumption of discretion, and not a hard and fast rule. Depending
upon the circumstances, “may” can imply the
existence of a broad discretion, provide for a limited discretion, or be the
imperative equivalent of “shall”: R. v.
Lavigne, 2006 SCC 10 at paras. 22-38, [2006] 1 S.C.R. 392. See also Ruth
Sullivan, Sullivan on the Construction of Statutes 5th ed. (Markham: LexisNexis, 2008) at 68-74.
[78]
As explained in Tjiueza, a review of the
legislative scheme as a whole, coupled with the imperative language of the
French version of subsection 104(1) of IRPA supports the conclusion that
the word “may” should be interpreted as having a mandatory effect. As a result,
there is no discretion on the part of CBSA officers not to give notice of the termination
of a refugee claim once a claimant has been found to be inadmissible to Canada
on security grounds.
[79]
Finally, a review of the legislative history of
subsection 104(1) of IRPA leads to a similar conclusion.
[80]
Under paragraph 46.01(1)(e) of the former Immigration
Act, R.S.C. 1985, c.I-2, a refugee claimant who had been determined to be
inadmissible on security grounds was not automatically ineligible for
consideration by the predecessor to the RPD. Such claims were ineligible for
hearing only if the Minister issued an opinion that it would be contrary to the
national interest to have the claim determined.
[81]
In 2002, IRPA replaced the Immigration
Act. In enacting subsection 104(1) of IRPA, Parliament expressly
declined to include a provision comparable to paragraph 46.01(1)(e) of the old
Act.
[82]
As was noted in the “clause
by clause” analysis that accompanied the proposed legislation, “[t]he ineligibility provisions in the [Immigration Act]
deny access to the refugee determination system to persons found to be
inadmissible on grounds of security including terrorism or human rights
violations if the Minister is of the opinion that it would be contrary to the
national interest to have the claim determined”. In contrast, subsection
104(1) was intentionally drafted in order to “better
protect the safety and security of Canadians” by eliminating the need
for a ministerial opinion.
[83]
This change suggests that Parliament’s intention
was to have ineligibility flow automatically from inadmissibility on security
grounds, reflecting the increased prioritization of security concerns in IRPA:
Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC
51 at para. 10, [2005] 2 S.C.R. 539.
IX.
Conclusion
[84]
Having concluded that Mr. Haqi has not
established good reason to adopt an interpretation of paragraph 104(1)(b) of IRPA
different from that adopted by Justice de Montigny in Tjieuza, it
follows that Mr. Haqi’s application for judicial review is dismissed.
X.
Certification
[85]
Mr. Haqi proposes the following question
for certification:
After an RPD hearing has been suspended
under s. 103 of the Immigration and Refugee Protection Act if the ID
determines that the claimant is inadmissible for security reasons in
circumstances which would not lead to the claimant being excluded under Article
1 of the Convention on the Status of Refugees, does an officer have
discretion, before terminating the claim under s. 104, to wait for a decision
as to whether relief under s. 42.1 will be granted by the Minister?
[86]
The respondent opposes certification of this or
any question, submitting that there is no reason to doubt the correctness of
Justice de Montigny’s decision in Tjiueza. In the alternative, the
respondent says that if a question is to be certified in this case, it should
be the same question that was certified in Tjiueza, which was:
After an RPD hearing has been suspended
under section 103 of the Immigration and Refugee Protection Act pending
the outcome of an ID hearing and re-determination of a claim’s eligibility, if
the ID determines that the claimant is inadmissible for security reasons, does
the officer have discretion under the Immigration and Refugee Protection Act
to not re-determine the claim’s eligibility and to not notify the RPD of the
officer’s decision on eligibility, and thereby suspend the RPD hearing
indefinitely?
[87]
I am of the view that the question of law raised
by this case is appropriate for certification as it is a question of general
importance that transcends the interests of the immediate parties and would be
determinative of the appeal: Varela v
Canada (Citizenship and Immigration), 2009 FCA 145 at para 28, [2009] F.C.J. No 549.
[88]
However, the question proposed by Mr. Haqi
is problematic in two respects. First, it presupposes that the circumstances
giving rise to Mr. Haqi’s inadmissibility could not lead to him being
excluded under Article 1(F) of the Convention on the Status of Refugees as his
complicity in the subversion by force of the Iranian government could not be
established on the Ezokola test. While it is not for me to make that
determination, suffice it to say that I do not think that the issue is quite as
clear as Mr. Haqi would suggest.
[89]
The more fundamental problem with Mr. Haqi’s
proposed question is that it presupposes that there was a pending
application for ministerial relief when the CBSA officer delivered the section
104 notice.
[90]
Mr. Haqi’s argument that the section 104
notice should have been held in abeyance pending a decision in his application
for ministerial relief was raised for the first time at the hearing of his
application. Not only was this an entirely new argument, there was, moreover,
nothing in the record to indicate that Mr. Haqi had in fact ever filed an
application for ministerial relief. Indeed, there was considerable confusion at
the hearing as to whether such relief had been requested.
[91]
In post-hearing submissions, Mr. Haqi
confirmed that no such application had been made, either in January of 2014,
when the CBSA officer issued the notice under subsection 104(1) of IRPA,
or by the time that his application for judicial review was heard in September
of 2014. It appears that Mr. Haqi only filed an application for ministerial
relief after the hearing of this application for judicial review - some nine
months after the decision at issue in this proceeding. Consequently, the
question as formulated by Mr. Haqi simply does not arise on the facts of
this case.
[92]
I am also concerned that the question proposed
by the respondent is somewhat problematic as it presupposes that interpreting
subsection 104(1) as conferring discretion on a CBSA officer not to give notice
to the RPD has the effect of indefinitely suspending the RPD proceedings. It
seems to me that this is something that should be considered in answering
a question as to the proper interpretation of subsection 104(1), rather than
forming part of the question itself.
[93]
Consequently I propose to certify a modified
version of the question certified in Tjiueza, namely:
After a Refugee Protection Division proceeding
has been suspended under paragraph 103(1)(a) of the Immigration and Refugee
Protection Act pending the outcome of an Immigration Division hearing into
a refugee claimant’s admissibility, if the Immigration Division determines that
the claimant is inadmissible for security reasons under section 34(1)(f) of IRPA,
does a CBSA officer have any discretion under subsection 104(1)(b) of IRPA
to not determine the claim’s eligibility and to not notify the Refugee
Protection Division of the officer’s decision on eligibility?
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