Docket: IMM-6875-14
Citation:
2015 FC 855
Ottawa, Ontario, July 13, 2015
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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KALEECHARAN
KANDASAMY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is a judicial review of a Canada Border
Services Agency [CBSA] officer’s [Officer] decision to apply to the Immigration
and Refugee Board [IRB] to cease refugee protection of the Applicant.
II.
Background
[2]
The Applicant is a Sri Lankan national, who came
to Canada as a member of the country asylum in 2004 during the Sri Lankan civil
war fearing persecution at the hands of the government and the LTTE.
[3]
The civil war ended in 2009 and the Applicant
returned to Sri Lanka in 2013.
[4]
The Applicant alleges that he was questioned
upon his return to Canada without being informed that the motivation for the
questions was an investigation into cessation of protected person status.
[5]
Of particular importance is that the Applicant
was invited to an interview and/or to make submissions to the Officer before
the decision to file a cessation application was made. He did neither.
[6]
The Officer proceeded with the cessation
application citing as grounds s 108(1)(a) of the Immigration and
Refugee Protection Act, SC 2001, c 27. The relevant provisions are:
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:
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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 :
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(a) the person has voluntarily reavailed themself of the
protection of their country of nationality;
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a) il se réclame de nouveau et
volontairement de la protection du pays dont il a la nationalité;
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(b) the person has voluntarily reacquired their
nationality;
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b) il
recouvre volontairement sa nationalité;
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(c) the person has acquired a new nationality and enjoys
the protection of the country of that new nationality;
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c) il acquiert une nouvelle nationalité et
jouit de la protection du pays de sa nouvelle nationalité;
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(d) the person has voluntarily become re-established in the
country that the person left or remained outside of and in respect of which
the person claimed refugee protection in Canada; or
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d) il retourne volontairement s’établir
dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel
il a demandé l’asile au Canada;
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(e) the reasons for which the person sought refugee
protection have ceased to exist.
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e) les raisons qui lui ont fait demander
l’asile n’existent plus.
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(2) On application by the Minister, the Refugee Protection
Division may determine that refugee protection referred to in subsection
95(1) has ceased for any of the reasons described in subsection (1).
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(2) L’asile visé
au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la
Section de protection des réfugiés, de tels des faits mentionnés au
paragraphe (1).
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(3) If the application is allowed, the claim of the person is
deemed to be rejected.
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(3) Le constat
est assimilé au rejet de la demande d’asile.
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(4) Paragraph (1)(e) does not apply to a person who
establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to avail
themselves of the protection of the country which they left, or outside of
which they remained, due to such previous persecution, torture, treatment or
punishment.
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(4) L’alinéa (1)e)
ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses,
tenant à des persécutions, à la torture ou à des traitements ou peines
antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté
ou hors duquel il est demeuré.
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[7]
The Officer’s decision was based principally on
the numerous trips the Applicant took back to Sri Lanka in the recent years.
Having declined to attend an interview, the Officer concluded that based on the
available evidence, the Applicant had voluntarily re-availed himself of the
protection of the country of nationality and is a person described in s 108(1)(a).
[8]
In post-hearing submissions, the Applicant asks
that the Court follow Justice Mosley’s decision in Bermudez v Canada
(Citizenship and Immigration), 2015 FC 639 [Bermudez], rather than
Justice Strickland’s decision in Olvera Romero v Canada (Citizenship and
Immigration), 2014 FC 671, 242 ACWS (3d) 389 [Olvera Romero]. The
parties are at loggerheads about whether an officer is obliged to consider
H&C considerations before making a decision to apply for cessation.
With respect, both
decisions have only limited application here.
III.
Analysis
[9]
The only real issue is whether the Officer’s
decision was reasonable (see Olvera Romero). The sub-issue is whether
the Applicant was accorded procedural fairness.
[10]
In my view, the Applicant’s refusal to attend an
interview or make submissions (which he could have done at the interview) is
fatal to this judicial review.
[11]
While in Olvera Romero, the Court held
that participatory rights required by the duty of fairness did not call for an
interview or oral hearing, the Court in Bermudez held that an applicant
had at least the right to make submissions as to why an application to the Refugee
Protection Division should not be made.
The two decisions are
not in direct conflict on this point.
[12]
Given the importance of the process to the
Applicant, I adopt the reasoning of Justice Mosley – the rationale for imposing
some level of participation in the process.
[13]
The issue of whether an officer can or should
take into account considerations of an H&C nature is academic on this
record. The Officer never did because the Applicant did not exercise his “right
to be heard” by attending the interview or filing submissions.
[14]
An applicant has minimal procedural rights as
noted by Justices Strickland and Mosley. I concur with Justice Mosley that
these would include at least the right to make submissions to an officer,
including those H&C considerations relevant to the grounds upon which an
application for cessation may be based.
[15]
The procedural rights are minimal, in part,
because the same H&C matters may be raised at the IRB. Such a limitation on
procedural rights is consistent with the two-stage process under s 108 –
the decision by an officer to apply to the IRB and the decision by the IRB on the
merits of the cessation application.
[16]
Considering that the Applicant did not exercise
his opportunity to address the matter before the Officer made the application
to the IRB, I can find no error or unreasonableness in the Officer’s decision.
IV.
Conclusion
[17]
For these reasons, this judicial review will be
dismissed.
[18]
While this case is markedly different from Olvera
Romero and Bermudez, where questions have been certified, I will
give the parties 10 days from the date of the issuance of these Reasons to make
submissions (if any) on a certified question.