Singh v. Canada (Citizenship and Immigration), docket IMM-14804-23

JUDGMENT AND REASONS

[1] On March 28, 2023, the Refugee Appeal Division (“RAD”) of the Immigration and Refugee Board delivered its reasons rejecting the Applicants’ claims for refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”). By doing so the RAD confirmed the Refugee Protection Division’s [RPD] June 16, 2022, decision rejecting the Applicants’ claims for refugee protection.

[2] The Applicants sought judicial review of the RAD’s decision and filed an Application for Leave and for Judicial Review on April 21, 2023, in the proceeding bearing Docket number IMM-5168-23. The parties settled that proceeding and agreed that the RAD had imposed a too high threshold in its assessment of the second prong of the Internal Flight Alternative [IFA] test to be applied in its analysis of the Applicants’ refugee claims.

[3] On July 11, 2023, Justice Walker (as she then was) issued a judgment giving effect to the parties’ settlement, set aside the March 28, 2023, RAD decision, and remitted the matter to be re-determined by a different panel of the RAD.

[4] The Applicants’ matter was redetermined by a differently constituted RAD panel and a new decision was issued on November 1, 2023 (the Decision). The Decision held that the RPD was correct in finding that the Applicants are neither Convention refugees nor persons in need of protection within the meaning of section 96 and subsection 97(1) of the IRPA.

[5] The Applicants sought judicial review of the Decision by filing another Application for Leave and for Judicial Review on November 22, 2023.

[6] The Applicants served and filed their Applicants’ Record on January 9, 2024. The Applicants’ Record as filed included a copy of the Decision, as well as an Applicants’ Memorandum bearing Docket number IMM-14804-23.

[7] The Applicants’ Memorandum submitted in support of their application in this proceeding was a verbatim copy of the memorandum they had served and filed in support for their earlier proceeding seeking judicial review of the March 28, 2023, RAD decision. Its content was limited to representations with respect to the March 28, 2023, RAD decision that had been settled and set aside by Justice Walker.

[8] The result and effect of this verbatim reproduction of the Applicants’ prior memorandum, save for the inclusion of an updated court docket number, is that the Applicants’ Memorandum and arguments filed in this proceeding contained no arguments or representations with respect to the Decision actually under review.

[9] The Respondent served and filed his Memorandum of Argument on February 8, 2024. Paragraphs 2, 3 and 4 of the Respondent’s Memorandum read and were bolded in the original as follows:

2. On March 28, 2023, the RAD dismissed, for the first time, the Applicants’ appeal. The Applicants filed for an Application for Leave and for Judicial Review (ALJR) in the file bearing the number IMM-5168-23. On July 11, 2023, this Court granted their application after both parties brought on consent a Motion for Judgment and referred the matter back to the RAD for redetermination. The present ALJR concerns the redetermination of their appeal by the RAD.

3. With due respect, the Applicants’ Memorandum is a true copy of the Memorandum that they submitted in support of their ALJR in the file IMM-5168-23. A simple reading of their submissions reveals that the references are extracts of the previous RAD decision.

4. As the Applicant’s arguments are of no relevance regarding the RAD’S reasons in the case at bar, they fail to identify any error. Consequently, we submit that this Application for Leave and for Judicial Review should be dismissed.

[10] The Applicants made no changes to their filed materials including to their Applicants’ Memorandum after their receipt of the Respondent’s Memorandum of Argument despite the unmistakable notice contained at paragraphs 3 and 4 of the Respondent’s Memorandum of Argument.

[11] This matter came on for hearing with the Applicants still relying on arguments and materials filed in relation to a proceeding that had been resolved since before this proceeding was commenced. More importantly, the Applicants still relied on arguments with respect to a decision that was not before the Court and had been set aside, while making no arguments with respect to the Decision that was before the Court.

[12] The Court brought the issue to the Applicants’ attention at the outset of the hearing. The Applicants were cautioned that their failure to provide the Respondent with notice of their intended argument as they pertained to the Decision under review constituted a failure to comply with the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, and that any argument they intended to make orally would be considered as new, previously undisclosed to the Respondent, and very likely inadmissible as argument made without notice.

[13] The Applicants were nevertheless provided with some time during an adjournment to review their email and electronic files with the hope of locating written argument pertaining to this proceeding and to reconsider their argument and position as they considered necessary.

[14] The Applicants confirmed to the Court after the brief adjournment granted to them that they relied on the arguments made and contained in their Applicants’ Memorandum as contained in their Applicants’ Record.

[15] After considering the Applicants’ Memorandum, the Court must echo the content of paragraphs 3 and 4 of the Respondent’s Memorandum of Argument: the arguments submitted by the Applicants are with respect to a decision that is not before the Court in this proceeding. The Applicants’ arguments fail to identify any error or unreasonableness in the Decision under review.

[16] The standard of review on an application for judicial review of a decision by the RAD is reasonableness and the Applicants have the burden of showing that the decision under review is unreasonable (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), at paras 23 and 100). The Applicants have not presented arguments regarding how the Decision is unreasonable because all of their arguments are with respect to a decision that is no longer under review, and, in any event, has been set aside by a Judgment of this Court. They have clearly not met their burden in this proceeding.

[17] As the Applicants have not met their burden to show that the Decision is unreasonable, their application for judicial review must be dismissed.

JUDGMENT in IMM-14804-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There is no question for certification.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD