Date: 20100510
Docket:
A-275-09
Citation: 2010 FCA 118
CORAM: NOËL
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Appellant
and
GUANQIU ZENG
and YANHONG FENG
Respondents
REASONS FOR
JUDGMENT
LAYDEN-STEVENSON
J.A.
Introduction
[1]
This
appeal concerns Section E of Article 1 (Article 1E) of the United Nations
Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (the
Convention) and more particularly, the issue of asylum shopping. Article 1E is
an exclusion clause. It precludes the conferral of refugee protection if an
individual has surrogate protection in a country where the individual enjoys
substantially the same rights and obligations as nationals of that country. Asylum
shopping refers to circumstances where an individual seeks protection in one
country, from alleged persecution, torture, or cruel and unusual punishment in
another country (the home country), while entitled to status in a “safe”
country (the third country).
[2]
The
appellant Minister of Citizenship and Immigration (the Minister) appeals from
the judgment of Gibson D.J. of the Federal Court (the application judge) on an
application for judicial review of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board. The RPD determined that
the respondents, Zeng and Feng, were excluded from refugee protection pursuant
to Article 1E.
[3]
In
allowing the application for judicial review, the application judge identified
a discrepancy in the jurisprudence regarding the appropriate date for assessing
the applicability of the Article 1E exclusion (date of application or date of
hearing). He concluded that a more fluid approach is required and proposed a
three-step test to be followed in Article 1E exclusion determinations.
[4]
At
paragraph 34 of his reasons, the application judge articulated the test as
follows:
1. Did
the applicant or applicants, as of the date of his, her or their application
for protection in Canada, have status in a third country, on the facts of this
matter Chile, to which are attached rights and obligations recognized by the
competent authorities of that country to be equivalent to those attached to the
possession of the nationality of that country? If the answer to that question
is “no”, then the applicant or applicants are not excluded under Article 1E. If
the answer to the question is “yes”, then the decision-maker should go on to the
following question:
2. Would
the applicant or applicants, if he, she or they have attempted to enter the
country in question, in this case Chile, on the date their refugee claim was
determined, on a balance of probabilities, have been admitted to the country in
question with status equivalent to that which they had on the date they applied
for protection in Canada? If the answer to the foregoing question is “yes” then
the applicant or applicants should be excluded under Article 1E. If the answer
if “no”, the decision-maker should proceed to the following question:
3.
If
the applicant or applicants would not be admitted to the country in question,
in this case Chile, could the
applicant or applicants have prevented that result and, if so, did he, she or
they have good and sufficient reason for failing to do so? If the applicant or
applicants could have preserved his, her or their right to be permitted entry
and failed to do so without good and sufficient reason for failing to do so,
the applicant or applicants should be excluded under Article 1E. If the
applicant or applicants could not have preserved his, her or their right of
entry or could have but provided good and sufficient reason for failing to do
so, then he, she or they should not be excluded under Article 1E.
[5]
The
application judge certified the following question:
Is it permissible for the Refugee
Division to consider an individual’s status in a third country upon arrival in Canada
and thereafter, up until and including the date of the hearing before the
Refugee Division in order to determine whether an individual should be excluded
under Article 1E of the Refugee Convention? Is it also permissible for the
Refugee Division to consider what steps the individual took or did not take to
cause or fail to prevent the loss of status in a third country in assessing
whether Article 1E should apply?
Relevant Facts
[6]
Zeng
and Feng, citizens of the People’s Republic of China (PRC), are
married and
have two children. Their daughter was born
in China and has
always lived there. Their son was born in Chile.
[7]
On
November 6, 2002, Zeng left the PRC to work in Chile. He obtained
permanent resident status there on November 8, 2005. Feng followed on a
visitor’s visa on December 23, 2003. On April 23, 2004, she obtained a work
permit and on November 17th of that year, obtained temporary
residence status. She applied for permanent residence status in October, 2005.
Her application was pending when the couple left Chile, with their
son, on May 19, 2006.
[8]
Zeng
and Feng testified before the RPD that they left Chile with the
intention of returning to the PRC permanently. After transiting through Canada
and Hong
Kong,
they arrived in the PRC on May 23, 2006. They allege that, after arriving there,
they faced persecutory treatment from the authorities because of their breach
of the one-child policy.
[9]
Leaving
their daughter in the care of her paternal grandparents, as they had done
before, the respondents left the PRC with their son on June 19, 2006. They
transited through Hong Kong where they obtained a visa from the Chilean Embassy
allowing Feng to return to Chile (her temporary status had expired in
November, 2005). When they arrived in Vancouver, Canada, on June 21st,
they did not continue the journey to Santiago via Toronto. Rather,
they remained in Canada. One week later, they claimed refugee
protection.
Legislative Provisions
[10]
The
text of all statutory provisions referred to in these reasons is attached as
Schedule “A”. Section 98 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) incorporates Article 1E of the Convention into domestic
law. For ease of reference, the text of section 98 as well as Article 1E is set
out below.
|
Immigration and
Refugee Protection Act, S.C. 2001, c. 27
98. A person referred to in section E or F
of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
United Nations Convention Relating to
the Status of Refugees, 189
U.N.T.S. 150
1E. This Convention shall not
apply to a person who is recognized by the competent authorities of the
country in which he has taken residence as having the rights and obligations
which are attached to the possession of the nationality of that country.
|
Loi sur l’immigration et la
protection des réfugiés, L.C. 2001, ch.27
98.
La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
Convention des Nations Unies relative
au statut des réfugiés, 189
U.N.T.S. 150
1E. Cette Convention ne sera
pas applicable à une personne considérée par les autorités compétentes du
pays dans lequel cette personne a établi sa résidence comme ayant les droits
et les obligations attachés à la possession de la nationalité de ce pays.
|
The Standards of Review
[11]
The
parties agree, and I concur, that the test for exclusion under Article 1E of
the Convention is a question of law of general application to the refugee
determination process and is reviewable on a standard of correctness. Whether
the facts give rise to exclusion is a question of mixed fact and law yielding
substantial deference to the RPD. On an appeal from a decision disposing of an
application for judicial review, the question is whether the reviewing court
identified the appropriate standard of review and applied it correctly.
The Certified Question
[12]
The
certified question comprises two parts. The first part relates to whether it is
permissible for the RPD “to consider an individual’s status in a third country
upon arrival in Canada and thereafter, up until and including, the
date of the hearing.” The second part asks whether it is permissible for the
RPD to consider “what steps the individual took or did not take to cause or
fail to prevent the loss of status in a third country, in assessing whether
Article 1E should apply.”
Part 1- The Time Issue
[13]
There
is no debate on this issue. The parties agree, as do I, that the date must be
fluid to ensure consideration is given to both the status and the actions of a
claimant throughout. The facts at the date of the application are relevant; the
facts as of the date of the hearing are relevant; pre-application facts may be
relevant, depending upon the circumstances. These cases are largely fact-driven.
[14]
Such
an approach is consistent with the one taken by this Court in Madhi v. Canada (Minister of
Citizenship and Immigration) (1995), 191 N.R. 170; 32 Imm. L.R. (2d) 1
(F.C.A.) (Madhi) and by Justice Rothstein, then of the Federal Court
Trial Division, in Wassiq v. Canada (Minister of
Citizenship and Immigration) (1996), 112 F.T.R. 143; 33 Imm. L.R. 143
(F.C.T.D.) (Wassiq). See also: the concurring opinion of Sharlow J.A. in
Parshottam v. Canada (Minister of
Citizenship and Immigration) (2008), 382 N.R. 186; 75 Imm. L.R. (3d) 165
(F.C.A.) (Parshottam), in the context of a pre-removal risk assessment
(PRRA).
[15]
Madhi
does
not stand for the proposition that the relevant date is the date of the
application. The Madhi case concerned an application by the Minister to
vacate an individual’s refugee status on the basis that it was obtained by
misrepresentation and concealment. The question of misrepresentation turned on
the information provided in the application. However, at paragraphs 11 and 12
of the reasons for judgment, the court held that the individual’s status at the
time of the hearing was a relevant consideration in determining whether
protection could nonetheless be granted.
[16]
In
sum, an inquiry regarding whether a claimant should be excluded under Article
1E should take into account all relevant facts to the date of the hearing.
[17]
I
agree with the Minister that the first step of the application judge’s test
does not allow for the possibility that a claimant’s status could change
between the date of the application and the date of the hearing (for example, a
pending application for status could have been granted in the interim). The
respondent acknowledges that this is the case.
Part 2 – The Status
Issue
[18]
The
Minister, in written submissions, took the approach that asylum shopping
results in pre-emptive application of the Article 1E exclusion even when the
individual no longer has status in the third country. That position, while maintained
at the hearing, was refined to take into account the specific circumstances
discussed later in these reasons. The respondent argued that the true issue is
whether the claimant requires protection at the date of the hearing, regardless
of whether the claim might involve asylum shopping.
[19]
At
the hearing of this appeal, the submissions of the parties evolved toward common
ground. The Minister and the respondents agreed on a number of basic propositions,
each of which I consider to be unassailable. Those propositions are:
§
the
objectives set out in subsection 3(2) of the IRPA seek, among other things, to
provide protection to those who require it and, at the same time, provide a
fair and efficient program that maintains the integrity of the system;
§
the
purpose of Article 1E is to exclude persons who do not need protection;
§
asylum
shopping is incompatible with the surrogate dimension of international refugee
protection;
§
Canada must respect
its obligations under international law;
§
there
may be circumstances where the loss of status in the third country is through
no fault of a claimant in which case the claimant need not be excluded.
[20]
The
Minister’s quarrel is with a claimant who controls the third country status by choosing
not to access it and then loses it as a result. The refugee claim process is
not intended to provide a route to better protection when there is existing and
available protection elsewhere.
[21]
However,
in view of the propositions that require the provision of protection to those
in need as well as adherence to Canada’s international law obligations, the
Minister concedes that, in limited circumstances, when Article 1E is applied to
those asylum shoppers who cannot return to the third country, the potential for
removal from Canada to the home country without the benefit of a risk
assessment exists. If this were to occur, it opens the door to the possibility
of Canada indirectly
running afoul of its international obligations.
[22]
The
Minister recognizes that the PRRA process does not provide a complete response
to the dilemma. If a PRRA officer concludes that Article 1E applies, even if
risk is established, refugee protection cannot follow by virtue of section 98
of the IRPA. Further, the claimant cannot reap the benefit of a section 114
stay of removal because Article 1E does not fall within subsection 112(3).
Although it is within the power of the PRRA officer to determine that Article
1E does not apply, the paragraph 113(a) requirement for new evidence (in order
to arrive at such a determination) presents a formidable hurdle for the
claimant to overcome.
[23]
The
respondents propose, in circumstances where an individual has voluntarily
forfeited (or has chosen not to access) the protection of the third country,
but is at risk in the home country, the exclusion should not apply. Rather, the
RPD should proceed to the section 96 and, if required, the section 97 inquiry
where the claimant’s actions would go to the issue of credibility. The Minister
asserts that such an approach renders Article 1E redundant and suggests section
25 (exemption on humanitarian and compassionate grounds) as a possible
alternative, when return to the third country is not an option.
[24]
I
do not consider the Minister’s suggestion to be a viable solution. Section 25
is a discretionary remedy granted in exceptional circumstances. Employing it in
the suggested manner could result in a fettering of that discretion.
[25]
The
application judge’s proposed test does not address this dilemma for, at the
third step, if a claimant could have prevented the loss of status in the third
country and did so without good reason, the claimant is excluded on the basis
of Article 1E. This conclusion results in the same quandary. Because the
application judge’s proposed test is flawed at the first and third steps, it
cannot stand in its present form.
[26]
It
seems to me that it is possible to fashion a response to the concern within the
confines of the Article 1E analysis. In my view, that is the preferable route
given the statutory objectives and the principles delineated in paragraph 19 of
these reasons. The respondents acknowledge that the practical effect arising
from the formulation of the test described in these reasons is the same as that
arising from the solution they proposed.
[27]
Accordingly,
the reformulated test to be applied to Article 1E determinations, set out in
the paragraph below, will accommodate the substance of the earlier-noted
propositions in a meaningful way, within the framework of the Article 1E
analysis.
[28]
Considering
all relevant factors to the date of the hearing, does the claimant have status,
substantially similar to that of its nationals, in the third country? If the
answer is yes, the claimant is excluded. If the answer is no, the next question
is whether the claimant previously had such status and lost it, or had access
to such status and failed to acquire it. If the answer is no, the claimant is
not excluded under Article 1E. If the answer is yes, the RPD must consider and
balance various factors. These include, but are not limited to, the reason for
the loss of status (voluntary or involuntary), whether the claimant could
return to the third country, the risk the claimant would face in the home
country, Canada’s international obligations, and any other relevant facts.
[29]
It
will be for the RPD to weigh the factors and arrive at a determination as to
whether the exclusion will apply in the particular circumstances.
[30]
Counsel
are to be commended for their thoughtful and articulate submissions on this
issue. I found them to be most helpful.
The RPD Decision
[31]
The
RPD conducted the exclusion analysis as of the date of the hearing. No issue is
taken with that approach. After examining the rights and obligations attached
to permanent resident status in Chile, it was satisfied that
such persons possess the rights and obligations of Chilean nationals. The RPD
reviewed the respondents’ testimony, the documentary evidence, the submissions
of the respondents’ counsel and those of the Minister. It relied upon exhibit
17 (appeal book, vol. 2, tab 6, pp. 653-665). These documents were the product
of the Minister’s request to the Chilean authorities. They stated that both
respondents had attained permanent residence visa status in Chile.
[32]
The
RPD was satisfied, on a balance of probabilities, that exhibit 17 best
reflected the position of the Chilean government regarding the respondents’
status at the time of the hearing. It also demonstrated that the respondents possessed
the rights and obligations attached to a person of Chilean nationality.
[33]
The
application judge, applying his proposed test, found that the RPD failed to
properly consider whether the respondents’ status would have lapsed due to
their absence from Chile for more than one year. The application judge
concluded that it was impossible for the RPD to have fulfilled the objective to
offer protection to the displaced and persecuted as set out in paragraph
3(2)(a) of the IRPA without examining the respondents’ fear of persecution if
they were required to return to the PRC because they might not be readmitted to
Chile.
[34]
I
reiterate that the task, on an appeal from a judicial review, is to determine
whether the reviewing judge identified the proper standard of review and
applied it correctly. The application judge determined that whether the facts
“support the conclusion that a person is excluded pursuant to Article 1E of the
Refugee Convention, by virtue of section 98 is a question within the
specialized area of expertise of the RPD and thus attracts a standard of review
of reasonableness.” I agree. I am also satisfied, for reasons that will become
apparent, that the analysis conducted by the RPD conforms to the reformulated
test articulated at paragraph 28 of these reasons.
[35]
In my
view, the RPD considered the discrepancies in the documents, but nevertheless
concluded, on a balance of probabilities, that the respondents were persons
recognized by the competent authorities in Chile as having most of the rights and
obligations which are attached to a person of that nationality. At paragraph 32
of its reasons, the RPD specifically referred to the submissions of the
respondents’ counsel regarding the possible expiration of the respondents’
status. Noting this contention, the RPD concluded:
In my assessment,
the Minister has established that Article 1E is applicable to
these two
claimants. The evidence indicates, on a balance of probabilities,
that the
claimants held permanent residence status in Chile at the time
of the hearing.
Moreover, if
the status could have been lost, as suggested by claimant’s counsel, because
the claimants
were outside of Chile for more than a year without applying to extend
their
permanent status, the failure to make such an application is that of the
claimants
themselves which, as stated by the authorities, cannot avail to their benefit.
(my emphasis)
[36]
A finding
that specific evidence is credible and indicative, on a balance of
probabilities, that the respondents possessed status in Chile is a factual finding to which deference
is owed. Moreover, on the record, it is a reasonable one because it falls
within “a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. It is
not open to the reviewing court to substitute its appreciation of the
appropriate solution: Canada (Citizenship and Immigration)
v. Khosa,
[2009] 1 S.C.R. 339.
[37]
Returning
to the test set out in paragraph 28 and its first question – considering all
relevant factors to the date of the hearing, does the claimant have status
substantially similar to that of its nationals in the third country – the RPD
answered the question affirmatively thereby ending the matter. It did so after
thoroughly reviewing the evidence and the submissions. Its subsequent comment,
regarding the possibility that the status was lost,” is gratuitous and irrelevant.
Conclusion
[38]
I would
answer the certified questions as follows:
Is it permissible for the Refugee Division to consider an
individual’s status in a third country upon arrival in Canada and thereafter,
up until and including the date of the hearing before the Refugee Division in
order to determine whether an individual should be excluded under Article 1E of
the Refugee Convention?
Answer: Yes
[39]
Is it also
permissible for the Refugee Division to consider what steps the individual took
or did not take to cause or fail to prevent the loss of status in a third
country in assessing whether Article 1E should apply?
Answer: Yes, subject to the qualification expressed in paragraph
28 of these reasons.
[40]
I would
allow the appeal and set aside the decision of the application judge. Rendering
the judgment that the Federal Court ought to have rendered, I would dismiss the
application for judicial review.
“Carolyn
Layden-Stevenson”
“I
agree.
Marc
Noël J.A.”
“I
agree David Stratas J.A.”
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