TC3-14054

RAD File / Dossier de la SAR : TC3-14054 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date of decision August 7, 2023 Date de la décision Panel Iris Simixhiu Tribunal Counsel for the person who is the subject of the appeal Prasanna Balasundaram Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister B. Sullivan Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow the appeal brought by the Minister of Immigration, Refugees and Citizenship Canada (the Appellant or the Minister) and return the matter to the Refugee Protection Division (RPD) for redetermination. [2] Mr. XXXX XXXX XXXX XXXX (the Respondent) is a stateless Palestinian, whose claim was accepted without a hearing by the RPD, on March 6, 2022, under the Instructions Governing the Streaming of Less Complex Claims at the RPD as part of the "file-review process". The Respondent's claim was accepted along with those of his family members, who are not subject to this appeal.1 [3] The Minister filed an application to reopen the Respondent's claim before the RPD2 and, shortly afterwards, appealed his decision to the Refugee Appeal Division (RAD). In both proceedings, the Minister argued that the RPD breached the requirements of procedural fairness in two ways: (1) by accepting the Respondent's claim before receiving confirmation of his completed security screening; and (2) by failing to notify the Minister that the Respondent's claim may be inadmissible on grounds of security due to his affiliation with Fatah. [4] In a decision dismissing the application to reopen the Respondent's claim, the RPD clarified that the Respondent's claim was accepted several hours after receiving confirmation of his completed security screening. Subsequently, the Minister confirmed that they are no longer pursuing this issue on appeal.3 As such, I will not address either the Minister's former arguments or the Respondent's submissions on this issue in my decision. [5] Therefore, the only determinative issue in this appeal is whether the RPD erred in failing to provide notice to the Minister of a possible inadmissibility concern arising from the Respondent's former affiliation with Fatah. With respect for the RPD, and the Respondent's submissions, I find that the RPD erred and that the matter must be remitted for redetermination. DECISION [6] The appeal is allowed. I send this matter back to the RPD to be redetermined. NEW EVIDENCE AND ORAL HEARING New evidence [7] The Minister submitted the following new evidence with the perfected appeal record: a. Activity Security Status History from GCMS.4 The Minister's evidence reveals that the Respondent's security screening was completed on the same day as the RPD decision. [8] While the Immigration and Refugee Protection Act (IRPA) contains restrictions on the nature of the evidence submitted to the Refugee Appeal Division (RAD) by a person who is the subject of an appeal,5 no such restrictions apply to the Minister (the Appellant in this case),6 nor do they apply to the Respondent's evidence submitted in response to the Minister.7 The key consideration in such situations is whether the evidence can be considered credible or trustworthy in the circumstances.8 [9] Having reviewed the Minister's evidence, I find that it is credible and trustworthy, as it consists of official records. For this reason, the Minister's evidence is admitted. [10] In response to the Minister's appeal, the Respondent has filed the following evidence: a. Minister's Application to Reopen the Respondent's Claim before the RPD;9 b. Respondent's Reply to the Minister's Application;10 c. Minister's Reply;11 d. RPD decision on Application to Reopen;12 and e. Respondent's Letter to RAD dated May 9, 2023.13 [11] As noted above, as per subsection 110(5) of the IRPA, on a Minister's appeal, the restrictions on the admission of new evidence set out at subsection 110(4) of the IRPA do not apply. As such, I will consider the Respondent's submission and documents in its entirety because it is presented in response to the evidence presented by the Minister. Oral Hearing [12] Neither the Appellant nor the Respondent request an oral hearing. I agree that a hearing is not warranted in the circumstances. The new evidence that I have admitted does not raise a serious issue with respect to the Respondent's credibility. Most importantly, this evidence does not justify allowing or rejecting the Respondent's claim. As explained in detail below, I am not able to resolve this matter without hearing evidence that was before the RPD. For these reasons, I find that the requirements of subsection 110(6) of the IRPA are not met. ANALYSIS [13] My role is to look at all the evidence and decide if the RPD made the correct decision.14 [14] With respect for the RPD, I find that it committed a reviewable error by failing to notify the Minister of possible inadmissibility concerns with the Respondent's claim, as required in Rule 28(1)(a) of the Refugee Protection Division Rules (RPD Rules). The Respondent's claim must be returned to the RPD for redetermination by a differently constituted panel. [15] I emphasize that it is only the claim of the Respondent, who is the only person subject to this appeal, that is being returned to the RPD. I have no jurisdiction to consider and am not interfering with the RPD's decision regarding the members of his family. Breach of Procedural Fairness [16] The Minister submits that the RPD erred by failing to notify them of possible inadmissibility concerns arising from the Respondent's long employment with Fatah, and that this error resulted in a breach of the Minister's rights to procedural fairness. [17] The Respondent argues that the Minister's characterization neglects that the mandatory notification flows from an exercise of discretion. He submits that, in this case, the RPD correctly exercised its discretion because there is no reason to suspect that the division, after carefully considering the evidence before it, believed the Respondent was inadmissible. The Respondent also argues that, either way, the objective of Rule 28(1) was met because the Minister was presented with evidence of his affiliation with Fatah, notified that the claim would proceed without a hearing in May 2022, and had ten months to intervene in his claim before the RPD rendered its decision in March 2023. Finally, the Respondent argues that the Minister's parallel proceedings - namely, this appeal to the RAD and the application to reopen the claim before the RPD - amount to an abuse of process. The Minister has countered these submissions in its reply. [18] With respect for the Respondent, I am not persuaded by his arguments for the reasons that follow. [19] I note that Rule 28 of the RPD Rules indicates the following: Notice of possible inadmissibility or ineligibility 28 (1) The Division must without delay notify the Minister in writing and provide the Minister with any relevant information if the Division believes that (a) a claimant may be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality;15 [Emphasis added] [20] The purpose of Rule 28 is to ensure that the Minister is provided an opportunity to intervene in claims in which, on the basis of the evidence before the RPD, there is a possibility that a claimant is inadmissible. [21] To begin, I disagree with the Respondent that Rule 28 vests "the RPD with a degree of discretion".16 In my view, the verb "must" precludes any discretion on the part of the RPD. Rather than discretion, the term "believes"17 refers to the finding that the RPD must arrive at, regarding the possibility of a claimant being inadmissible, based on all of the available evidence. Once a finding is made to this effect, there is no discretion on the part of the RPD; on the contrary, it "must without delay notify the Minister".18 [22] Alternatively, I agree with the Minister that even if one were to accept that the RPD has some discretion in notifying the Minister of potential inadmissibility, the RPD must still provide reasons for the exercise of this discretion. [23] The evidence in this file is that the Respondent worked for Fatah for approximately XXXX XXXX. As the Minister points out, the documentary evidence is also to the effect that militant elements remain within Fatah.19 The Respondent does not contest this evidence. Moreover, as the Minister indicates, the Federal Court jurisprudence has confirmed that there are "reasonable grounds to believe that Fatah is a terrorist organization".20 The Respondent does not contest this jurisprudence either. [24] Despite this, there is no indication in the RPD decision that the Panel turned its mind to the possibility of the Respondent's inadmissibility at any point in the consideration of his claim. The RPD did not discuss this issue in its reasons. It also did not notify the Minister, at any point, of a possible admissibility concern. [25] I do not accept the Respondent's argument that the RAD must presume the RPD turned its mind to the issue of admissibility and that it did not believe that Rule 28 was an issue. The Respondent cites Cepeda-Gutierriez which stands for the preposition that the RPD is presumed to have considered all of the evidence, and that this presumption is only rebutted when the RPD fails to address contradictory evidence.21 The Respondent argues that the presumption is not rebutted in this case, as the RPD specifically mentioned his work for Fatah in its decision. [26] I am not persuaded by these submissions for the following reasons. [27] First, given the RPD's silence with respect to the application of Rule 28, I am unable to tell whether the RPD turned its mind to this issue. [28] Second, while I agree with the Respondent's interpretation of the law, I disagree with him regarding its application to the case at hand. In particular, I disagree with the Respondent that: the RPD considered all of the evidence that pointed to a different conclusion; and that the presumption is not rebutted in this case. That is because the RPD remained entirely silent on the documentary evidence noted above, which indicates that membership or affiliation with Fatah can raise admissibility concerns. [29] Certainly, I am not persuaded that it "is more likely that the RPD evaluated the evidence before it, did not have inadmissibility concerns, and did not believe that engaging Rule 28 was necessary".22 Unfortunately, there is no trace in the RPD decision of either the documentary evidence regarding Fatah or of any analysis of Rule 28. The fact that the RPD did not make any negative inferences does not indicate that it turned its mind to the admissibility issue. Given the RPD's silence on the documentary evidence regarding Fatah and in the absence of any analysis by the RPD of its obligations under Rule 28, relying on the Respondent's assumptions would amount to speculation by the RAD. [30] In view of the documentary evidence and jurisprudence on Fatah and the Respondent's affiliation with this organization, I find that there was sufficient evidence to warrant an inquiry into the Respondent's inadmissibility, and therefore the threshold of possibility in Rule 28 has been met. Accordingly, the RPD's obligation to notify the Minister was triggered. The RPD's failure to comply its obligation under Rule 28 constitutes a reviewable error which resulted in a breach of the Minister's rights to procedural fairness. [31] I disagree with the Respondent that the requirements of Rule 28(1) were met regardless of the RPD's failure to mention this rule in its decision. The Respondent argues that this case is different from the RAD decision23 referenced by the Minister24 because, unlike in the RAD case, where the RPD was only presented evidence that raised potential admissibility concerns at the hearing, in the present case, the Minister had evidence of the Respondent's affiliation with Fatah for over ten months and did not intervene.25 The Respondent's position relies on the RPD's decision to dismiss the Minister's application to reopen his claim. Specifically, the RPD reasoned that "the Minister had sufficient time and ample opportunities to intervene in this claim" given that it was informed the claim would be adjudicated through the file review process ten months prior to the RPD decision.26 [32] With all the respect for the Respondent and the RPD, I am not persuaded by this argument for several reasons. [33] First, given that the Respondent's security screening was concluded on the same day as the RPD decision - i.e., only seven hours before the decision - it is possible that the Minister did not have all the information required to arrive at an informed decision on the issue of the Respondent's admissibility. [34] Secondly, the RPD's notice to the Minister that the Respondent's claim would be adjudicated under the file review process does not absolve the RPD from its obligation to notify the Minister of a potential inadmissibility concern, as stipulated by Rule 28(1). I agree with the Minister that its failure to intervene is irrelevant. [35] I find that this case is similar to the Federal Court decision in Ahmed, which considered the RPD's obligation to notify the Minister of exclusion concerns under Article IF of the Refugee Convention, as per Rule 26(1) of the RPD Rules.27 This Rule is comparable to Rule 28(1) in that it stipulates that the RPD "must without delay notify the Minister in writing and provide any relevant information to the Minister" if "the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim" (emphasis added).28 Like in the case at hand, the Applicant in Ahmed argued that the Minister was provided with all the information that triggered the Board's obligation to inquire into the exclusion clause, but it failed to intervene. Justice McTavish stated as follows: [19] I am not, however, reviewing the decision of the Minister to intervene or not intervene in this case. I am reviewing the failure of the Board to provide notice to the Minister as required by Rule 26(1). Given my finding that the information that was before the Board was sufficient to trigger the Board's obligation to notify the Minister of the potential exclusion issue, I am satisfied that it was unfair for the Board to proceed to a hearing into the merits of Mr. Ahmed's refugee claim without having first provided the Minister with the requisite notice. Like in Ahmed, I am not assessing the Minister's decision to intervene or not in the Respondent's claim. The obligation triggered by Rule 28(1) rests solely on the RPD. As I have decided that the obligation to notify the Minister was triggered by the evidence on the Record, I find that the RPD's failure to comply with the requirements of Rule 28 resulted in a breach of procedural fairness to the Minister. The Minister's appeal does not constitute an abuse of process [36] The Respondent submits that this appeal, filed in parallel with the Minister's application to reopen his claim before the RPD, constitutes an abuse of process, particularly as the Minister did not notify either the RPD or the RAD that the same application was submitted to both Divisions. The Respondent relies on the commercial litigation case Canam Enterprises Inc v. Coles29 in support for his position. Respectfully, I am not persuaded and conclude that this appeal does not rise to the level of an abuse of process. [37] The Supreme Court of Canada ("SCC") has considered the issue of abuse of process in the context of administrative law in its decision in Blencoe.30 The SCC makes the following comments on this issue: In order to find an abuse of process, the court must be satisfied that, "the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted" (Brown and Evans, supra, at p. 9-68). According to L'Heureux-Dubé J. in Power, supra, at p. 616, "abuse of process" has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be "unfair to the point that they are contrary to the interests of justice" (p. 616). "Cases of this nature will be extremely rare" (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive.31 [Emphasis added] [38] Although the Minister filed both an application to reopen the claim before the RPD and an appeal to the RAD, neither this fact, nor the attendant hardships that it has caused for the Respondent, mean that the appeal itself amounts to an abuse of process. Both recourses were open to the Minister. I have no evidence before me that these procedures were made in bad faith, or that the Minister's actions have, in some other way, lacked candour. Without such evidence, I am unable to conclude that the process is tainted in the clearest of cases. The matter must be returned to the RPD [39] As the issue of admissibility is a preliminary matter that ought to be analyzed before inclusion, I find that this matter must be returned to the RPD for redetermination. I sympathize with the Respondent, considering the delays he has had to endure in the processing of his claim. However, I am unable to uphold the RPD decision without hearing evidence that was before the RPD. For these reasons, the matter is returned to the RPD for redetermination. CONCLUSION [40] The appeal is allowed. I send this matter back to the RPD to be redetermined by a differently constituted Panel. DIRECTIONS TO THE RPD [41] The RPD is to consider notifying the Minister of a possible inadmissibility concern, stemming from the Respondent's affiliation with Fatah, pursuant to Rule 28 of the Refugee Protection Division Rules. (signed) Iris Simixhiu Iris Simixhiu August 7, 2023 Date 1 RPD Record, RPD Reasons and Decision, at pp. 3-10. 2 Respondent's Record, Minister's Application to Reopen Claim, dated March 14, 2023, at pp. 3-6. 3 RAD Record, Minister's Reply, July 28, 2023, at p. 1. 4 Appellant's Record, Exhibit 1, at p. 5. 5 Subsection 110(4), IRPA, S.C. 2001, c.27. 6Subsection 171(a.5), IRPA, S.C. 2001, c.27. However, Rule 9(2)(d)(i) of the Refugee Appeal Division Rules adds that the Minister's written statement submitted with the appeal record should contain reference to the "relevance of that evidence". 7 Subsection 110(5), IRPA, S.C. 2001, c.27. 8 Subsection 171(a.3), IRPA, S.C. 2001, c.27. 9 Respondent's Record, Exhibit A, at pp. 3-7. 10 Ibid., Exhibit B, at pp. 8-19. 11 Ibid., Exhibit C, at pp. 20-32. 12 Ibid., Exhibit D, at pp. 33-39. 13 Ibid., Exhibit E, at pp. 40-42. 14 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 15 Refugee Protection Division Rules, SOR/2012-256, Rule 28(1). 16 Respondent's Record, Respondent's Memorandum of Arguments, at p. 44, para. 2. 17 Ibid., at p. 49, para. 20. 18 Supra, note 15. 19 National Documentation Package (NDP) for Occupied Palestinian Territory, 21 December 2022, Tab 1.9: ?The Palestinians: Background and U.S. Relations. United States. Congressional Research Service. Jim Zanotti. 27 October 2022. RL34074. 20 Anteer v. Canada (Citizenship and Immigration), 2016 FC 232, at para. 48, citing Khalil v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1332, at paras. 53-54 and Saleh v. Canada (Citizenship and Immigration), 2010 FC 303, at paras. 9, 19-20. 21 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), at paras. 27 and 28. 22 Respondent's Record, Respondent's Memorandum of Arguments, at p. 51, para. 26. 23 X (Re), 2021 CanLII 153988. 24 Respondent's Record, Minister's Application to Reopen Claim, at p. 23. 25 Respondent's Record, Respondent's Memorandum of Arguments, at pp. 51-52, paras. 28-30. 26 Respondent's Record, RPD Decision on Application to Reopen Claim, at p. 38, para. 13. 27 Canada (Citizenship and Immigration) v. Ahmed, 2015 FC 1288. 28 Refugee Protection Division Rules, SOR/2012-256, Rule 26(1). 29 Canam Enterprises Inc. v. Coles, [2000] OJ No 4607 (QL), 51 OR (3d) 481 at para. 55 (CA). 30 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307. [Blencoe]. 31 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307, at para. 120. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC3-14054 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français