MB4-02901

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 File No. / No de dossier de la SAR : MB4-02901 MB4-02902 Private Proceeding / Huis clos Re-Determination of the Appeal Reasons and Decision ? Motifs et décision Appellant Minister of Public Safety and Emergency Preparedness Canada Appelant Respondents XXXX XXXX XXXX XXXX XXXX XXXX XXXX Intimés Appeal considered at Montréal, Quebec Appel instruit à Date of decision February 19, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the respondents Me Stéphanie Valois Conseil des intimés Designated representative N/A Représentant(e) désigné(e) Counsel for the appellant Gabriele Spina Conseil de l'appelant REASONS AND DECISION INTRODUCTION [1] The Minister of Public Safety and Emergency Preparedness Canada (the Minister) is appealing against the Refugee Protection Division (RPD) decision to allow the claim for refugee protection of respondents XXXX XXXX XXXX and XXXX XXXX XXXX. BACKGROUND [2] The respondents, XXXX XXXX XXXX and XXXX XXXX XXXX, who are citizens of the Democratic Republic of the Congo (DRC), claimed refugee protection in May 2013 at a Canadian border crossing, arriving from the United States. [3] Following a hearing held in two sessions on July 12, 2013, and September 11, 2013, the RPD, in a written decision dated June 10, 2014, determined that the respondents were "Convention refugees" and therefore allowed their refugee protection claim. [4] The Minister appealed the RPD decision to the Refugee Appeal Division (RAD), asking it to set aside the determination of the RPD and to reject the respondents' refugee protection claims, mainly on the ground that they had not established their identity. [5] After holding a hearing on March 30, 2015, the RAD, in a written decision dated April 20, 2015, dismissed the appeal and confirmed the determination of the RPD, namely, that the respondents were "Convention refugees." [6] The Minister applied to the Federal Court of Canada for judicial review of the RAD decision, and in a decision rendered on October 27, 2015, the Court allowed the application for judicial review, on the ground that the RAD decision was not reasonable, and referred the file back to the RAD for reconsideration by a differently constituted panel, hence this decision. [7] In a letter dated January 21, 2016, that he sent to the RAD, the respondents' counsel submits that the RAD does not have jurisdiction to hear the appeal filed by the Minister, on the ground that the respondents are [translation] "caught by the exception to the Safe Third Country Agreement," under paragraph 110(2)(d) of the Immigration and Refugee Protection Act (IRPA). [8] In a letter sent to the RAD on February 2, 2016, the Minister submits that the RAD has jurisdiction to hear the appeal, as it [translation] "has before it an order from the Federal Court to proceed with a reconsideration of the matter, and is not dealing with a notice of appeal." ANALYSIS [9] In my opinion, although the issue of the RAD's lack of jurisdiction was not raised until the respondents' counsel did so in his letter of January 21, 2016, and despite the order from the Federal Court, before which the issue of jurisdiction was neither raised nor assessed, I have no choice but to dismiss the Minister's appeal for lack of jurisdiction because it concerns an RPD decision in respect of which no appeal may be made under subparagraph 110(2)(d)(i) of the amended IRPA, which states the following: 110. (2) No appeal may be made in respect of any of the following: (d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (ii) the claim - by virtue of regulations made under paragraph 102(1)(c) - is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; [10] On the day on which their claim was made, the United States was a country that was designated by regulations and a party to an agreement referred to in paragraph 102(2)(d). Respondents XXXX XXXX XXXX and XXXX XXXX XXXX came directly from the United States, but their claim for refugee protection was nevertheless eligible to be referred under the Immigration and Refugee Protection Regulations. Furthermore, pursuant to subparagraph 110(2)(d)(i) of the IRPA, no appeal may be made to the RAD in respect of the RPD decision. [11] Therefore, to respond to the Minister's submissions, the RAD is [translation] "proceeding with a reconsideration of the matter," as ordered by the Federal Court, but it determines from the outset that is does not have jurisdiction to hear this appeal. REMEDY [12] The appeal is dismissed because the RAD lacks jurisdiction. Normand Leduc Normand Leduc February 19, 2016 Date IRB translation Original language: French 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB4-02901 MB4-02902 3