MB8-04948

Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés Immigration and Refugee Board of Canada Refugee Appeal Division N° de dossier de la SAR/RAD File No.: MB8-04948 Huis clos/Private Proceeding Motifs et décision - Reasons and Decision Appelant(e)(s) XXXX XXXX XXXX XXXX Appellant(s) Appel instruit à Montréal, Québec Appeal considered / heard at Date de la décision June 5, 2018 Date of Decision Tribunal Me Elaine Doyle Panel Conseil(s) du (de la/des) Appelant(e)(s) Me Daniel Radin Counsel for the Appellant(s) Représentant(e)(s) désigné(e)(s) N/A Designated Representative(s) Conseil du (de la) Ministre N/A Counsel for the Minister REASONS AND DECISION [1] On March 2, 2018, the Refugee Appeal Division (RAD) received a Notice of Appeal regarding the Refugee Protection Division (RPD) decision in the claim of XXXX XXXX XXXX XXXX (the Appellant). [2] With his Notice of Appeal, the Appellant filed an application asking the RAD to adjourn the case sine die until the Federal Court renders its decision in the Kreishan case (IMM-3193-15), where the Court was to decide whether paragraph 110(2)(d) of the Immigration and Refugee Protection Act1 (the Act) is constitutional. The Appellant indicated that the resolution of the Kreishan matter would dictate his proper venue to challenge the decision of the RPD, considering that a valid paragraph 110(2)(d) of the Act prevents him from appealing the RPD decision before the RAD. On March, 12, 2018, the RAD accepted the request of the Appellant. [3] An application was granted to hold the file in abeyance only for as long as the Federal Court rendered its decision in Kreishan. On May 4, 2018, the Federal Court decided in Kreishan v. M.C.I., 2018 FC 481, that paragraph 110(2)(d) of the Act is constitutionally valid. A notice of appeal was filed before the Federal Court of Appeal on May 28, 2018, (Kreishan A-153-18), but that does not change the constitutional validity of the provision. Now that the Federal Court has rendered its decision in Kreishan and since the RAD must proceed in a timely manner, as it is mandated to do, the matter is now ready for decision. [4] The RAD does not have jurisdiction to hear an appeal of a RPD decision that is compliant with paragraph 110(2)(d) of the Act. [5] According to the evidence in the file, a designation was made that the Appellant was subject to an exception to the Safe Third Country Agreement, as described in paragraph 110(2)(d) of the Act, and in accordance with paragraph 159.5(a) to (d) of the Immigration and Refugee Protection Regulations2 (the Regulations), since he had family members in Canada. [6] The Appellant was eligible to make a claim to the RPD by virtue of the Regulations, but no appeal may be made to the RAD with respect to the RPD decision. [7] Consequently, the RAD does not have jurisdiction to hear an appeal of the RPD decision concerning the Appellant's claim. [8] The appeal is dismissed for lack of jurisdiction. Elaine Doyle Me Elaine Doyle June 5, 2018 Date /ag 1 Immigration and Refugee Protection Act, S.C. (2001), c. 27, as amended. 2 Immigration and Refugee Protection Regulations, SORS/2002-227, amended. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français N° de dossier de la SAR/RAD File No.: MB8-04948 3