TB5-04231

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. / N° de dossier de la SAR : TB5-04231 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered at Toronto, Ontario Appel instruit à Date of decision July 21, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX is a citizen of China and appeals a decision of the Refugee Protection Division (RPD) dated April 10, 2015, rejecting her claims for refugee protection. The Appellant is not submitting new evidence. [2] The RPD hearing was held on April 2, 2015 with the RPD rendering its decision on April, 10, 2015. The RPD found that the Appellant is not a Convention refugee or a person in need of protection. [3] The present RAD panel notes that the information provided by the Appellant in Schedule 121 indicates that she travelled from China to South Korea, then to the United States. She entered Canada at an unmanned border crossing and she later filed her claim for refugee protection. [4] Section 110(2)(d) of the Immigration and Refugee Protection Act (IRPA) provides that: 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; [5] The only country that is designated by regulation and party to an agreement under paragraph 102(2)(d) of the IRPA is the United States of America. [6] Article 4 of the Safe Third Party Agreement between Canada and the United States reads as follows: ARTICLE 4 1. Subject to paragraphs 2 and 3, the Party of the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry on or after the effective date of this Agreement and makes a refugee status claim. 2. Responsibility for determining the refugee status claim of any person referred to in paragraph 1 shall rest with the Party of the receiving country, and not the Party of the country of last presence, where the receiving Party determines that the person: a. Has in the territory of the receiving Party at least one family member who has had a refugee status claim granted or has been granted lawful status, other than as a visitor, in the receiving Party's territory; or b. Has in the territory of the receiving Party at least one family member who is at least 18 years of age and is not ineligible to pursue a refugee status claim in the receiving Party's refugee status determination system and has such a claim pending; or c. Is an unaccompanied minor; or d. Arrived in the territory of the receiving Party: i. With a validly issued visa or other valid admission document, other than for transit, issued by the receiving Party; or ii. Not being required to obtain a visa by only the receiving Party. 3. The Party of the country of last presence shall not be required to accept the return of a refugee status claimant until a final determination with respect to this Agreement is made by the receiving Party. 4. Neither Party shall reconsider any decision that an individual qualifies for an exception under Articles 4 and 6 of this Agreement. [7] The issue which this RAD panel needs to decide is whether the Appellant is precluded by virtue of S.102(2)(d) of the IRPA to appeal to the RAD. [8] Subparagraphs (i) and (ii) of S102(2)(d) set out the requirements which would preclude a refugee claimant to appeal to the RAD: (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 (emphasis added) (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; [9] S. 101(1)(e) reads as follows: (1) A claimant is ineligible to be referred to the Refugee Protection Division if: (e) the claimant came directly or indirectly to Canada from a country designed by the regulations, other than a country of their nationality or their former habitual residence. [10] It is important to note that S. 101(1)(e) refers to ineligibility to file a claim with the Refugee Protection Division. [11] Regulation 159.4 (1) deals with the exemption under s101(1)(e) and states; Paragraph 101(1)(e) of the Act does not apply to a claimant who seeks to enter Canada at (a) A location that is not port of entry (b) a port of entry that is a harbour port, including a ferry landing; or (c) subject to subsection (2) a port of entry that is an airport. [12] The present RAD panel is cognizant of a previous decision of the RAD which dealt with this issue under similar facts.2 After carrying out an exhaustive analysis of both the legislation and the regulations, the previous RAD panel reached the following conclusion: ...It is clear that the Appellant never sought entry at a port of entry at the land border between the US and Canada. If he had done so he might well have been determined to be one who could be the beneficiary of one of the exemptions which would permit him to make a claim for protection to the RPD inasmuch as he had a sister living in Canada at the time he entered this country. Had he followed that course, he clearly would have been prohibited from appealing any negative RPD decision to the RAD by virtue of paragraph 110(2)(d) of IRPA. However, the facts of this case are that the Appellant never did "seek entry" at a land border port of entry between the US and Canada but, rather, was discovered by CBSA after they visited his sister's residence some months after his arrival, following which he made an application for refugee protection through the Vancouver Canada Citizenship and Immigration (CIC) office, which is not a designated "port of entry" and is not on the border. His claim was thereafter referred to the RPD by a CIC officer. Immigration and Refugee Board (IRB) Records indicate that the CIC officer determined that the appellant was eligible to make a claim for refugee protection and referred the matter to the RPD, both on January 20, 2014. Not surprisingly given the circumstances, the officer did not designate the appellant as one who has an exemption to the application of the STCA because he had a sister in Canada. This is because his application for refugee protection was not made at a land border port of entry. Based on the facts, it is clear to me that both the STCA and Regulations 159.1-159.7 only have application to refugee claims made at a land port of entry. They have no application to the Appellant's case.3 [13] With all due respect to my RAD colleague, I must disagree with this conclusion. We must draw a distinction between an individual's eligibility to file a refugee claim and a claimant's right to appeal to the RAD. In my opinion, the analysis of the legislation and regulations of my colleague in the case cited deal only with issue of eligibility. The issue in question is not a claimant's eligibility to file a refugee claim but whether the IRPA precludes the Appellant to appeal to the RAD by virtues of him/her having entered Canada via the United States. In the opinion of the RAD, such a preclusion does exist because S.102(2)(d) of the IRPA does not deal with a claimant's right to file a refugee claim. It deals only with a claimant's right to appeal an RPD decision to the RAD. [14] It is important to note that Article 4 of the Agreement, S. 101(1)(e) and the regulation that applies to that section, regulation 159.4, deal with exemptions that would allow an individual to file a refugee claim with the Refugee Protection Division notwithstanding the third safe country principle. Article 4, nor S. 101(1)(e) nor regulation 159.4 discuss the issue of claimant's right to appeal to RAD. That right of appeal is dealt with in S. 110(2)(d) of the IRPA. This, in the view of the present RAD is the legal crux of the issue. For the present RAD, the exemptions provided for in Article 4, S.101(1)(e) and regulation 159.4 do not negate the requirements of S.110(2)(d) and automatically confer a right to appeal to the RAD. These exemptions only confer a right to file a claim with the Refugee Protection Division notwithstanding the Third Safe Country principle. [15] The view of the present RAD panel is that S.110(2)(d) precludes an appeal to the RAD to claimants who arrive to Canada from a safe third country. The reasons for this are as follows. [16] S.110 of IRPA provides a list of refugee claimants who do not have a right to appeal to the RAD. S. 110(2)(d) is merely part of the overall restrictive prescription of S110. Therefore, it was the intent of Parliament to create a class of refugee claimants who do not have a right to appeal their RPD decisions to the RAD and this class would include claimants who are within the definition of S.110(2)(d). [17] A reading of S.110(2)(d) supports the argument that claimants who arrive to Canada from a safe third country cannot appeal their RPD decision to the RAD.. Subparagraph (i) of S.110(2)(d) is quite direct as to who may not appeal to RAD: claimants who come to Canada directly or indirectly from a safe third country (emphasis added). However, the conjunction "and' at the end of subparagraph (i) indicates that the requirement listed in the next subparagraph (ii) must also be met. And the requirement is that the claim must not be ineligible (emphasis added) under 101(1)(e) or, from a positive interpretation, the claim must be eligible. [18] The present RAD interprets S. 110(2)(d) as follows. If the claimant is eligible to file a refugee claim with the Refugee Protection Division, (subparagraph (ii)), and the claimant has arrived to Canada from a safe third country (subparagraph (i)), then there is no appeal to the RAD of a decision of the RPD. [19] Finally, the RAD relies on the Federal Court decision which upheld the RAD when dismissing an appeal for lack of jurisdiction pursuant to s. 102(2)(d) of the Act.4 [20] An argument could be made that officers from the Minister's and the RAD's offices may have been applying S. 110(2)(d) differently than what is being proposed in this decision. However, the application of S.110(2)(d) by different departments of the Federal Government are not a binding exercise on the RAD when interpreting the meaning of S. 110(2)(d). [21] As the recent decision of the Federal Court has stated: "...these are early days for the RAD and it is on a procedural learning curve.5" The present RAD notes that this issue was not raised by the previous RAD at the first instance nor was it raised at the Federal Court. However, since this is a hearing De Novo, the present RAD raises the issue at this time. [22] The RAD provided an opportunity to both the Appellant and the Minister for written submissions of the issue of whether the RAD, by virtue of S. 110(2)(d) of the Act has jurisdiction to hear this appeal. The Appellant provided written submissions.6 The Appellant relied on Marcelin.7 However, a search of the Federal Court records indicates that that the Appellant in that claim discontinued the application for Judicial Review and therefore no decision on the merits was rendered by the Federal Court. The Appellant also relied on the previous RAD decision which dealt with this issue and on the procedures by various government agencies as to how these apply to the Third Safe Country rule. The RAD has rejected both of these arguments. [23] Therefore, under paragraph 110(2)(d) of the IRPA, no appeal may be made to the RAD in respect of the Appellant's RPD's decision. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino July 21, 2015 Date 1 Exhibit RPD-1, RPD Record, pg. 42 question 10(b). 2 X(Re), 2015 Can LII 30384 (CA IRB). 3 Ibid at paras. #35-37. 4 Castro vs. M.C.I 2015 FC 131. 5 Husain vs. M.C.I. 2015 FC 684 at para. #11. 6 Exhibit P-3, Written submissions from Appellant. 7 Marcelin v. MCI (IMM-7253-13). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB5-04231