TB3-04893

RAD File No. / N° de dossier de la SAR : TB3-04893 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 18, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Erin M. Bobkin 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 (de la) ministre REASONS AND DECISION [1] XXXXX XXXXX (the Appellant) has provided the Refugee Appeal Division (RAD) with a Notice of Appeal from a Refugee Protection Division (RPD) decision. The Notice, received by the RAD on July 18, 2013, relates to a decision of the RPD received by the Appellant on July 3, 2013. [2] Section 109.1(1) of the Immigration and Refugee Protection Act (IRPA) provides that the Minister may, by order, designate a country for the purposes of Section 110(2) of IRPA. Section 110(2)(d.1) of IRPA provides that no appeal may be made of a decision of the RPD allowing or rejecting a claim for refugee protection made by a national of a country that was, on the day the decision was made, designated under Section 109.1(1). [3] The Appellant is a citizen of Croatia. The Minister has, by order effective December 15, 2012, designated Croatia under Section 109.1(1) of IRPA. According to the Appellant's Notice of Appeal filed to the RAD, his claim was rejected by the RPD by a Notice of Decision dated June 28, 2013. On the date of that decision, Croatia was a country designated under Section 109.1(1), and under Section 110(2)(d.1), no appeal of that decision may be made to the RAD. Application for an Extension of Time to Perfect [4] On August 2, 2013, the Appellant made an application asking the RAD to extend the time limit for him to perfect his appeal. He submits that there is another matter before the Federal Court based on very similar facts. In that case, a failed refugee claimant from Croatia, known as Y.Z., challenges the constitutionality of Sections 109.1 and 110(2)(d.1) of IRPA.1 The Appellant asks for an order extending the time for filing his appeal record sine die until leave is determined in the matter before the Federal Court and, if leave is granted there, extending the time for filing his appeal record until the Federal Court disposes of that case. In the alternative, if the RAD denies his request for an extension sine die, the Appellant requests an order extending the time for perfecting his appeal for fifteen days from the date of the RAD's decision. [5] The Appellant included a factum from Y.Z. in his appeal record. On September 26, 2013, the RAD wrote to the Appellant and the Minister. The RAD noted that the Federal Court file in the case of Y.Z. appears to be subject to a confidentiality order, and asked the Appellant and the Minister for submissions on whether the RAD can properly consider the factum from that file. The Appellant responded and advised the RAD that the file of Y.Z. is not sealed, but has been redacted for anonymity. In the Appellant's view, this does not preclude use of the factum in any way, as it remains public. The Minister did not respond to the RAD's letter, nor has the Minister intervened in this appeal or in the application for an extension of time. [6] The Appellant argues that an extension of time is warranted. In his submission, the factors in RAD Rule 6(7) favour the granting of his application.2 The application was made in a timely manner, sets out an arguable case regarding the substance of the appeal, does not prejudice the Minister, and is justified in view of the nature and complexity of the appeal. The RAD's Jurisdiction [7] Although the Appellant relies upon the factum filed to the Federal Court by Y.Z., that factum does not contain any arguments suggesting that IRPA gives the RAD jurisdiction to consider an appeal from an Appellant whose country of nationality is a designated under s. 109.1. In fact, the factum in Y.Z. and the Memorandum submitted in support of the present application concede that the effect of paragraph 110(2)(d.1) is to deprive nationals of DCO countries of a right of appeal to the RAD. [8] Section 110(2) of IRPA provides the following restrictions on appeals: No appeal may be made in respect of any of the following: .... (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1). [9] The statute stipulates that the RAD has no jurisdiction to hear this appeal. Neither the Appellant nor Y.Z. have challenged this reading of the statute. While the statute is under constitutional challenge, that challenge has not yet been decided. [10] Section 3(3)(d) of IRPA requires that decisions made under the Act accord with the Charter: This Act is to be construed and applied in a manner that ... (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada[.] [11] The Supreme Court has established in Martin that, where a tribunal has been explicitly or implicitly 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.3 In view of Sections 3(3)(d) and 162(1) of IRPA, the RAD appears to have the power to decide constitutional questions relating to statutory provisions relevant to proceedings under IRPA. [12] 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.4 [13] As such, the presumptive power of the RAD to consider the constitutional validity of a provision of IRPA may only be rebutted by a clear signal, either in the provision or elsewhere in IRPA, that Parliament intended to withdraw the power to consider the Charter or a category of questions that would include the Charter. [14] While the courts have yet not ruled on questions arising out of Section 110(2) of 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. [15] 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: [32]...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..... [33] In the present case, 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.5 [16] Pursuant to Sections 3(3)(d) and 162(1) of IRPA, the RAD appears to have the power to decide constitutional questions relating to statutory provisions relevant to proceedings under IRPA. However, this is rebutted by the clear signal, 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 of a country designated under Section 109.1(1). Once a factual determination was made that the Appellant is a citizen of Croatia-a finding that he does not dispute-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. [17] In Rumpler, the Federal Court found that where the IAD does not have jurisdiction to cancel a removal order once it has been issued, it necessarily has no jurisdiction to grant a request for an extension of time to lodge an appeal of the removal order.6 Similarly, it stands to reason that where the RAD does not have jurisdiction to hear the appeal of a failed refugee claimant from a designated country of origin, the RAD does not have jurisdiction to grant a request for an extension of time to perfect such an appeal, either sine die or for the fifteen days requested in the alternative. DISPOSITION [18] Section 110(2) of IRPA clearly establishes that the RAD has no jurisdiction to hear the appeal of a failed refugee claimant who is a national of a country designated under Section 109.1(1). Neither does the RAD have the power to consider a challenge to the constitutionality of Section 110(2). The RAD therefore does not have jurisdiction to grant this application for an extension of time, which is denied. [19] This appeal is dismissed for lack of jurisdiction. (signed) "Edward Bosveld" Edward Bosveld October 18, 2013 Date REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / APPLICATION / EXTENSION OF TIME / DESIGNATED COUNTRY / MALE / LACK OF JURISDICTION / CROATIA 1 Y.Z. and the Canadian Association of Refugee Lawyers v. Minister of Citizenship and Immigration, IMM-3700-13. 2 In fact, Rule 6(7) relates to an extension of time to reply to a response by the Minister. 3 Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 SCR 504. 4 Ibid., Martin, para. 42. 5 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.). 6 M.C.I. v. Rumpler, Eluzur (F.C., no. IMM-962-08), Pinard, November 14, 2008; 2008 FC 1264, at 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-04893