TB5-04493

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 : TB5-04493 TB5-04494 TB5-04495 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 XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 21, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Rokakis 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] XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX (the Appellants), are citizens of Lebanon, and they appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. [2] The Appellants did not submit new evidence on appeal and are not requesting a new hearing. [3] The RPD heard the claims on April 1, 2015, and in a written decision dated April 10, 2015, the RPD rejected the claims and found that the Appellants were not convention refugees or persons in need of protection. [4] The Appellants declared that they travelled from Lebanon to XXXX and from XXXX to XXXX on XXXX XXXX, 2014. They stayed in the USA and from there they drove to Canada entering at XXXX on XXXX XXXX XXXX 2015. In Canada they claimed refugee protection, inland, after they were found to be eligible to claim protection on February 3, 2015. DETERMINATION: [5] The Appellants came to Canada directly from the United States, a signatory to the Third Safe Country Agreement (Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries) and thus, they are precluded from an Appeal to the Refugee Appeal Division (RAD) pursuant to ss. 110(2)(d) of the Immigration and Refugee protection Act1 (IRPA). Legislation Affecting Persons arriving from the USA [6] The RAD notes that Section 110(2)(d) of the 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 (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; [7] 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. [8] Since the Appellants entered Canada directly from the United States, they were found to be eligible to make claims for protection to the RPD by virtue of the regulations. The issue however, is whether they can appeal the RPD's decision to the RAD pursuant to paragraph 110(2)(d) of the IRPA. [9] Since this was not an issue before the RPD, written submissions were solicited from the Appellant and the Minister on this issue. The Appellant responded but the Minister did not. APPELLANT'S SUBMISSIONS: [10] The Appellant submitted that the RAD does have jurisdiction to hear this appeal, as per the IRPA and the related Regulations (159.4 of the IRPR). [11] The Appellant arguments are essentially that: [12] The Canada-U.S. Safe Third Country Agreement does not apply to claimants who made claims at inland offices, and hence the operation of s. 110(2)(d) of IRPA does not apply to these Appellants since they initiated their claims inland. The Appellant added that s. 110(2)(D) of IRPA does not apply in this case by operation of s.159.4 of IRPR. [13] The Appellants entered Canada through a port of entry but claimed protection inland. Regulation 159.4 applies to persons who enter Canada from the United States by means other than a port of entry, harbour port, ferry landing or subject to s. 159.4(2) IRPR, an airport. [14] I note that in one RAD determination (VB4-01273, dated March 6, 2015), the RAD member stated: 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. [15] With all due respect to my colleague who wrote that decision, I disagree with his conclusions. I believe that the distinction between person's eligibility to file a refugee claim and a claimant's right to appeal to the RAD has not been clearly considered, which is relevant. The Appellant and the RAD in the case cited above deal with the issue of eligibility to make a claim to the RPD, which is clearly not in dispute. [16] Moreover, the fact that the RAD may have been exercising jurisdictions on such cases in the past is not relevant. The RAD's earlier position on the Standard of Review was overturned by the Federal Court. The Jurisprudence regarding the RAD is still evolving and several questions have been certified. [17] There is a distinction between the right to claim protection to the RPD and that the rights to have appeal of RPD's decision heard by the RAD. This is particularly so for persons who enter Canada directly (or indirectly) from the USA. [18] Just because one has the right to have his or her claim heard by the RPD, the IRPA does not give one the automatic right to have one's appeal heard by the RAD. For example, nationals of Designated Countries of Origin (DCO's) are eligible to claim protection before the RPD however, failed DCO country nationals do not have access to the RAD for appeal to the RPD's decision. [19] The issue of whether the Appellants are precluded by the IRPA to appeal to the RAD because they entered Canada "directly or indirectly" from the USA is addressed in ss. 102(2)(d) of the IRPA. This subsection is specific to a claimant's right of appeal of RPD's decision to the RAD. This subsection is not regarding right to a RPD hearing. [20] The RAD notes that directions regarding claimants who are ineligible to be referred to the Refugee Protection Division are provided in ss. 101(1)(e). In addition, Article 4 of the Agreement (see Appendix A), ss. 101(1)(e), and the regulation 159.4 provide exemptions that allow an individual to file a refugee claim with the RPD notwithstanding the third safe country agreement. [21] The Article 4, ss. 101(1)(e) of IRPA and the regulation 159.4 of IRPR are not regarding a claimant's right to appeal to RAD; that right of appeal is dealt with in s. 110(2)(d) of the IRPA. The exemptions cited in Article 4, ss. 101(1)(e) and regulation 159.4 do not negate the requirements of s.110(2)(d) and do not automatically confer a right to appeal to the RAD. These exemptions clearly confer a right to file a claim with the RPD notwithstanding the third safe country agreement. [22] Section 110 of IRPA provides direction regarding refugee claimants who do not have a right to appeal to the RAD, and subsection 110(2)(d) is an integral part of the overall restrictions of s. 110. Subparagraph (i) of ss. 110(2)(d) clearly states that no appeal may be made to the RAD by claimants who come to Canada directly or indirectly from a safe third country, the USA. The conjunction "and" at the end of subparagraph (i) only 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. [23] Based on the foregoing, in my opinion, the ss. 110(2)(d) states that a person who arrived to Canada from a safe third country, was found to be is eligible to claim refugee protection cannot appeal to the RAD. [24] I note that in Castro2, Justice Phelan upheld the RAD decision dismissing an appeal for lack of jurisdiction pursuant to s. 102(2)(d) of the Act. There are of course differences in these two cases however, in my opinion, the court ruled on the issue of appeal to the RAD. [25] Based on the foregoing, the RAD finds that the Appellant in this case is precluded pursuant to ss. 110(2)(d) to appeal to the RAD the RPD's negative determination. [26] This appeal is dismissed due to lack of jurisdiction. (signed) "Atam Uppal" Atam Uppal July 21, 2015 Date Appendix A: The Article 4 of the Safe Third Party Agreement between Canada and the United States, the only country that is designated by regulation and party to an agreement under paragraph 102(2)(d) of the IRPA, 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. 1 As enacted by S.C. 2001, c. 27 [IRPA]. 2 Castro v. M.C.I. (F.C., no. IMM-6545-13), Phelan, February 3, 2015, 2015 FC 131. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-04493 TB5-04494 TB5-04495