TB7-01564

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 : TB7-01564 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 29, 2017 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Timothy Wichert Barrister and Solicitor Conseil(s) du (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 Refugee Appeal Division (RAD) has received a Notice of Appeal from the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX (the "Appellant"). OUTCOME [2] The appeal is dismissed for lack of jurisdiction because the appeal is in respect of a decision by the RPD for which no appeal may be made under subsection 110(2)(d) of the Immigration and Refugee Protection Act (IRPA). Background [3] The Notice of Appeal was received by the Refugee Appeal Division (RAD) on January 25, 2017. The Appellant is appealing a Notice of Decision of the RPD, dated January 3, 2017, with written Reasons deemed to be received on January 10, 2017 rejecting her claim for refugee protection. [4] Counsel for the Appellant submitted an Appellant's Record on February 9, 2017 stating, in addition to the arguments on appeal, that subsection 110(2)(d)(ii) of the IRPA violates Section 7 of the Charter of Rights and Freedoms. It is argued that this subsection of the IRPA is arbitrary and disproportionately impacts an individual's right to life, liberty and security of the person. Consequently, the Appellant has the right of appeal, pursuant to subsection 110(1) of the IRPA, and the RAD must consider the appeal on its merits. The Law [5] Subsection 110(2)(d) of the IRPA states: 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; [6] RAD Rule 25 sets out the process to be taken when raising a constitutional challenge: 25 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question. (2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes (a) the party's name; (b) the Division file number; (c) the specific legislative provision that is being challenged; (d) the material facts relied on to support the constitutional challenge; and (e) a summary of the legal argument to be made in support of the constitutional challenge. (3) The party must provide (a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act; (b) a copy of the notice to the Minister even if the Minister has not yet intervened in the appeal; (c) a copy of the notice to the UNHCR, if the UNHCR has provided notice of its intention to provide written submissions, and to any interested person; and (d) the original notice to the Division, together with proof that copies were provided under paragraphs (a) to (c). (4) Documents provided under this rule must be received by their recipients at the same time as the Division receives the appellant's record, respondent's record or the reply record, as the case may be. (5) The Division must not make a decision on the constitutional question until at least 10 days after the day on which it receives the notice of constitutional question. [7] The RAD finds that Counsel has not complied with RAD Rule 25 by completing notices as set out in RAD Rule 25(2) or by notifying the parties, as set out in RAD Rule 25(3). However, even if it had, the RAD does not have jurisdiction to decide a constitutional challenge when it has no jurisdiction to decide the appeal. SUBMISSIONS [8] The Appellant is a woman from Liberia who claims a well-founded fear of persecution in that country on account of gender-related persecution. She arrived in Canada through the United States of America and claimed refugee status at the port of entry. She was admitted to Canada as an exception to the Safe Third Country Agreement and, as such, was barred from making an appeal to the RAD. ANALYSIS [9] The Supreme Court has established in Martin1 that, where a tribunal has been explicitly granted a power to decide questions of law arising under a provision, it will be presumed to have the power to interpret and apply the Charter to that provision. In view of subsections 3(3)(d) and 162(1), the RAD appears to have the power to decide constitutional questions relating to statutory provisions relevant to proceedings under the IRPA. [10] The Supreme Court also stated in Martin that the presumption of the power to apply the Charter may be rebutted: In general terms, the presumption may only be rebutted by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations.2 [11] As such, the presumptive power of the RAD to consider the constitutional validity of a provision of the IRPA may only be rebutted by a clear implication, either in the provision or elsewhere in the IRPA that Parliament intended to withdraw the power to consider the Charter or a category of questions that would include the Charter. [12] While the courts have yet not ruled on questions arising out of subsection 110(2) of the IRPA, the RAD notes that this provision is, in some respects, very similar to subsection 64(1): No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. [13] Both subsections 64(1) and 110(2) contain the phrase, "No appeal may be made...." The Federal Court applied Martin to its analysis of subsection 64(1) and determined that the Immigration Appeal Division (IAD) lacks the power to determine the constitutionality of that section. The Federal Court observed that: ...There is simply nothing in the legislation which either expressly or implicitly grants this jurisdiction. On the contrary, the challenged provisions expressly limit the jurisdiction of the IAD insofar as they remove any right of appeal to the tribunal by a permanent resident who has been found to be inadmissible on grounds of serious criminality. In my view, Parliament could not have been more clear in its intention to limit the IAD's jurisdiction with respect to individuals who fall within paragraph 36(1)(a) of the Act.... [14] The Court found that, once a factual determination was made, the applicant was inadmissible for serious criminality, a decision that the applicant does not dispute, the IAD lost any mandate to hear an appeal. Since the IAD does not have the power to decide legal questions arising under section 64, it therefore has no power to hear constitutional challenges to that provision.3 [15] Pursuant to subsections 3(3)(d) and 162(1) of the IRPA, the RAD appears to have the power to decide constitutional questions relating to statutory provisions relevant to proceedings under the IRPA. However, this is rebutted by the clear implication, contained in subsection 110(2) that Parliament intended to withdraw the power to consider the Charter in respect of that provision. The provision expressly limits the jurisdiction of the RAD in that it removes any right of appeal to the tribunal by a national who makes the claim directly or indirectly to Canada from a country that is designated by the regulations made under subsection 102(1) and (2). Once a factual determination was made that the Appellant is a citizen of Liberia who entered Canada under an exemption to the Safe Third Country Agreement, the RAD lost any mandate to hear an appeal. Without the power to decide legal questions arising under subsection 110(2), the RAD has no power to hear constitutional challenges to that provision. [16] In N.O. v. M.C.I.,4 the Court upheld the RPD's decision on a motion to re-open. In this case, the applicant submitted an application to re-open the claim to the RPD and sought to challenge the provision in s. 170.2 stating that it was in breach of the Charter. The RPD found that it had no jurisdiction to re-open given that s. 170.2 states that a claim cannot be re-opened if there has been a final decision made by the RAD or the Federal Court. In this case, the Federal Court had made a final determination. The RPD also found that, because it had no jurisdiction to reopen, it also did not have the jurisdiction to consider a Charter challenge. [17] The Court held that: The language of this provision [s.170.2] removes the jurisdiction to reopen on any ground, when a "final decision" has been made. In my opinion, this means that the RPD did not have the jurisdiction to consider any issue of law, including issues of constitutionality.5 [18] Similarly, it stands to reason that, where the RAD does not have jurisdiction to hear the appeal of a failed refugee claimant arriving in Canada as an exemption to the Safe Third Country Agreement, the RAD does not have jurisdiction to decide a constitutional challenge to that provision. DISPOSITION [19] Subsection 110(2)(d) of the IRPA clearly establishes that the RAD has no jurisdiction to hear the appeal of a failed refugee claimant who is arriving from a country that is designated by regulation and party to the Safe Third Country Agreement. Neither does the RAD have the power to consider a challenge to the constitutionality of subsection 110(2)(d). [20] Therefore, the appeal is dismissed for lack of jurisdiction because the appeal is in respect of a decision by the RPD for which no appeal may be made under subsection 110(2)(d) of the IRPA. (signed) "Ken Atkinson" Ken Atkinson March 29, 2017 Date 1 Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 SCR 504, 2003 SCC 54 (CanLII). 2 Ibid., Martin, para. 42. 3 Kroon, Andries v. M.C.I. (F.C., no. IMM-4119-03), Rouleau, May 14, 2004, 2004 FC 697; The Court subsequently considered a similar issue in Ferri and reached the same conclusion: Ferri, Loreto Lorenzo v. M.C.I. (F.C., no. IMM-9738-04), Mactavish, November 22, 2005, 2005 FC 1580. Reported: Ferri v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 53 (F.C.). 4 N.O. v. M.C.I. (F.C., no. IMM-1376-14), Heneghan, October 29, 2015, 2015 FC 1186. 5 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB6-14330 TB6-14331 TB6-14332 TB6-14333 TB6-14334 TB6-14335 RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-01564