TB6-00046

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 : TB6-00046 TB6-00047 TB6-00048 TB6-00049 TB6-00050 TB6-00051 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (aka XXXX XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 9, 2016 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Benjamin J. Liston 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 Christine Houde Conseil du ministre REASONS AND DECISION [1] The Refugee Appeal Division (RAD) received a Notice of Appeal from the decision of the Refugee Protection Division (RPD) in the claims of XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (the "Persons"). [2] The Notice of Appeal was received by the Refugee Appeal Division (RAD) on December 15, 2015. The Persons are appealing a decision of the RPD dated with written reasons received on December 14, 2015 rejecting their claims for refugee protection. [3] The Appellants are stateless Palestinians with temporary resident status in the United Arab Emirates. They arrived in the United States on XXXX XXXX, 2015, then travelled to a land port of entry and made claims for refugee protection in Canada on September 15, 2015. Their claims were determined eligible and they were permitted entry into Canada pursuant to the family member exception to the Safe Third Country Agreement (STCA). [4] Counsel for the appellants has submitted an Appellants' Record on January 13, 2016 stating, in addition to the arguments on appeal, that subsection 110(2)(d)(ii) is unconstitutional and must therefore be declared by the RAD to be of no force or effect. Consequently, the appellants have the right of appeal pursuant to subsection 110(1) of the Immigration and Refuge Protection Act (IRPA) and that the RAD must consider the appeal on its merits. The Minister intervened on January 28, 2016 and February 22, 2016, arguing that the RAD does not have jurisdiction to decide a challenge to the Charter or to decide an appeal by an appellant who has made a claim for refugee status by virtue of an exception to the Safe Third Country Agreement. [5] Section 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 constitution 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 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 Sections 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. [8] 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 [9] 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 indication, 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. [10] While the courts have yet not ruled on questions arising out of Section 110(2) of the IRPA, the RAD notes that this provision is, in some respects, very similar to Section 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. [11] Both Section 64(1) and Section 110(2) contain the phrase, "No appeal may be made...." The Federal Court applied Martin to its analysis of Section 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.... [12] The Court found that once a factual determination was made that 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 [13] Pursuant to Sections 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 indication, contained in Section 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 Section 102(1) and (2). Once a factual determination was made that the Appellant 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 Section 110(2), the RAD has no power to hear constitutional challenges to that provision. [14] 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. [15] 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 [16] 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 in exemption to the Safe Third Country Agreement, the RAD does not have jurisdiction to decide a constitutional challenge to that provision. DISPOSITION [17] Section 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 Section 110(2)(d). [18] Therefore, the appeal is dismissed for lack of jurisdiction because the appeal is in respect of a decision by the Refugee Protection Division for which no appeal may be made under s.110(2)(d) of the amended Immigration and Refugee Protection Act. (signed) "Deborah Morrish" Deborah Morrish March 9, 2016 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.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-00046 TB6-00047 TB6-00048 TB6-00049 TB6-00050 TB6-00051