Olvera Romero v. Canada (Citizenship and Immigration)

Olvera Romero v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-07-09
Neutral citation
2014 FC 671
File numbers
IMM-6485-13
Notes
A correction was made on June 15, 2015
Reported Decision
Decision Content
Date: 20140709
Docket: IMM-6485-13
Citation: 2014 FC 671
Ottawa, Ontario, July 9, 2014
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
SILVIA OLVERA ROMERO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for leave and judicial review of the decision of a hearings officer of the Canada Border Services Agency (CBSA), dated September 19, 2013, to make an application for cessation of refugee protection (cessation application) to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), pursuant to s. 108 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). The Applicant also alleges that the Minister’s interpretation of the legislative scheme violates s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (Charter).
Factual Background [2] The Applicant is a citizen of Mexico. She and her husband entered Canada in 1997. In May 1999 the RPD determined that they were Convention refugees because they had a well-founded fear of persecution, pursuant to s. 96 of the IRPA, by individuals associated with the then ruling political party in Mexico. Their daughter was born in Canada in 1999. The Applicant subsequently separated from her husband and, in July 2010, she became a permanent resident of Canada.
[3] On August 6, 2013, the Applicant was returning from Mexico, accompanied by her daughter, when she was questioned by a CBSA officer (CBSA Officer) at Vancouver International Airport concerning that and her prior trips to Mexico. On September 19, 2013, Ms. Susan Barr, the CBSA hearings officer and Minister’s delegate (Hearings Officer or Minister’s Delegate), made a cessation application pursuant to s. 108 of the IRPA. The basis of the application included that the Applicant had informed the CBSA Officer that she had obtained a Mexican passport some time after her landing on July 5, 2010, it had been renewed on April 8, 2013 and was valid until April 8, 2019. Further, that since 2004 she had made four trips to Mexico. The first was from June 2004 until 2007 following her separation from her husband. During that time, she lived with her brother and her daughter attended school in Mexico. Her second trip was in July 2011, her third was in May 2013, and her fourth was in July 2013. When asked why she no longer feared returning to Mexico she stated that the Mexican government had changed and she now felt that it was safe to visit her mother.
[4] The cessation application asked that the RPD determine, pursuant to s. 108(2) of the IRPA, that the Applicant’s refugee protection has ceased for the reasons listed in s. 108(1).
Legislative Background [5] Section 108 of the IRPA states as follows:
Cessation of Refugee Protection
Perte de l’asile
Rejection
Rejet
108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
108. (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants :
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité;
(b) the person has voluntarily reacquired their nationality;
b) il recouvre volontairement sa nationalité;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
d) il retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l’asile au Canada;
(e) the reasons for which the person sought refugee protection have ceased to exist.
e) les raisons qui lui ont fait demander l’asile n’existent plus.
Cessation of refugee protection
Perte de l’asile
(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).
(2) L’asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1).
Effect of decision
Effet de la décision
(3) If the application is allowed, the claim of the person is deemed to be rejected.
(3) Le constat est assimilé au rejet de la demande d’asile.
Exception
Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
[6] The effect of a successful cessation application on permanent residents was altered by the passage of the Balanced Refugee Reform Act, SC 2010, c 8 (BRRA) and the Protecting Canada’s Immigration System Act, SC 2012, c 17 (PCISA), the relevant provisions of which came into force on December 15, 2012 by order in council (PC 2012-1588). Specifically, pursuant to s. 46(1)(c.1) of the IRPA, permanent residence is now lost upon a positive cessation decision being made by the RPD:
46. (1) A person loses permanent resident status
46. (1) Emportent perte du statut de résident permanent les faits suivants :
[…]
[…]
(c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d); or
c.1) la décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant, sur constat des faits mentionnés à l’un des alinéas 108(1)a) à d), la perte de l’asile;
[…]
[…]
[7] Further, s. 40.1(2) of the IRPA was amended such that, upon a positive determination of cessation of refugee protection, the person under consideration is rendered inadmissible:
40.1 (1) A foreign national is inadmissible on a final determination under subsection 108(2) that their refugee protection has ceased.
40.1 (1) La décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant la perte de l’asile d’un étranger emporte son interdiction de territoire.
(2) A permanent resident is inadmissible on a final determination that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d).
(2) La décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant, sur constat des faits mentionnés à l’un des alinéas 108(1)a) à d), la perte de l’asile d’un résident permanent emporte son interdiction de territoire.
[8] Section 25 of the IRPA requires the Minister to consider, as an exception to the requirement that application be made from outside Canada, a request for permanent residence by a foreign national who is within Canada in certain circumstances, including on the basis of humanitarian and compassionate (H&C) considerations. However, this is subject to the s.25(1.2) exceptions, which include a twelve month waiting period from the time the claim was last rejected pursuant to s. 25(1.2)(c). This, in turn, is subject to the s. 25(1.21) exceptions including that pursuant to s.25(1.21)(b) the twelve month delay does not apply in respect of a foreign national whose removal would have an adverse effect on the best interests of a child directly affected.
Humanitarian and compassionate considerations — request of foreign national
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
25. (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.
Exceptions
Exceptions
(1.2) The Minister may not examine the request if
(1.2) Le ministre ne peut étudier la demande de l’étranger faite au titre du paragraphe (1) dans les cas suivants :
[…]
[…]
(c) subject to subsection (1.21), less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected, determined to be withdrawn after substantive evidence was heard or determined to be abandoned by the Refugee Protection Division or the Refugee Appeal Division.
c) sous réserve du paragraphe (1.21), moins de douze mois se sont écoulés depuis le dernier rejet de la demande d’asile, le dernier prononcé de son retrait après que des éléments de preuve testimoniale de fond aient été entendus ou le dernier prononcé de son désistement par la Section de la protection des réfugiés ou la Section d’appel des réfugiés.
Exception to paragraph (1.2)(c)
Exception à l’alinéa (1.2)c)
(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national
(1.21) L’alinéa (1.2)c) ne s’applique pas à l’étranger si l’une ou l’autre des conditions suivantes est remplie :
[…]
[…]
(b) whose removal would have an adverse effect on the best interests of a child directly affected.
b) le renvoi de l’étranger porterait atteinte à l’intérêt supérieur d’un enfant directement touché.
Issues [9] The Applicant submits that the issues are as follows:
i. Does an officer breach a duty of fairness in failing to give notice and provide an opportunity to make submissions before initiating an application for cessation?
ii. Does an officer have discretion to consider H&C factors before deciding to apply for cessation with respect to a permanent resident?
[10] Subsequent to the judicial review of this matter being set down for hearing, the Applicant also filed a Notice of Constitutional Question stating that she questioned the constitutional validity, applicability and effect of ss.108(2), 46(1)(c.1) and 40.1 of the IRPA. Specifically:
iii. If the Minister’s interpretation of the legislation and lack of discretion is correct, then the legislation is unconstitutional as there is no mechanism to consider the breaches of s. 7 inherent in the application of the IRPA on two levels:
(a) The devastating psychological impact of the loss of permanent residence in the circumstance, in particular when the provisions are applied retrospectively; and
(b) The purported inability to give any consideration whatsoever to the impact on a child directly affected.
[11] The Respondent submits that the issue is whether the Applicant has established that she has been denied procedural fairness. The Respondent also submits that the Notice of Constitutional Question is deficient and should be struck. Further, that the questions are not proper nor justiciable because they are premature.
[12] In my view, the issues can be framed as follows:
i. Was the Applicant denied procedural fairness?
ii. Does the Hearings Officer have discretion to consider H&C factors prior to submitting a cessation application?
iii. Should the Notice of Constitutional Question be set aside?
iv. If there is no ability for the Hearings Officer to consider H&C factors on a cessation application, does this violate s. 7 of the Charter?
Standard of Review [13] The parties make no submissions on the standard of review.
[14] A standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 57 [Dunsmuir]; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18).
[15] Issues of procedural fairness attract the standard of review of correctness (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]).
[16] There is clear authority that deference will usually result when a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity (Dunsmuir, above]; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61). This presumption has been applied to decisions of ministers (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 50; Canada (Citizenship and Immigration) v Kandola, 2014 FCA 85 at paras 40-41, 86) and minister’s delegates (Kinsel v Canada (Minister of Citizenship and Immigration), 2014 FCA 126 at para 26). In my view, the presumption has not been rebutted in this case given the discretionary nature of the decision. Thus, the application and interpretation of the relevant provisions of the IRPA will attract the reasonableness standard in these circumstances.
[17] Reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir, above, at paras 45, 47-48; Khosa, above, at paras 59, 62).
[18] For the constitutional issue, the applicable standard of review depends on whether the constitutionality of a law is at issue or an administrative decision is said to violate Charter rights (Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 at para 36 [Doré]). The former situation would attract the correctness standard (Dunsmuir, above, at para 58; Doré, above, at para 36), while the latter would be reviewed on a reasonableness standard because it is fact specific (Doré, above, at paras 35-36, 52-58). Here, the Applicant challenges the Minister’s interpretation of the legislation and therefore, in my view, this necessarily involves the constitutionality of a law attracting the correctness standard.
Amendment of Style of Cause – Preliminary Matter [19] As a preliminary matter, the Respondent asks that the style of cause be amended to remove the Minister of Public Safety as the Respondent and replace him with the Minister of Citizenship and Immigration (CIC). The latter is responsible for the administration of s. 108 of the IRPA and the former was incorrectly named on the cessation application.
[20] The Applicant takes the position that while she does not oppose adding the Minister of CIC, she does oppose the removal of the Minister of Public Safety because it was CBSA that made the decision to make the cessation application.
[21] Paragraph (b) of the Order Setting Out the Respective Responsibilities of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness Under the Act, SI/2005-120 confirms that the Minister of CIC is the Minister responsible for applying for cessation under s. 108(2). Furthermore, in CIC’s Instrument of Designation and Delegation, described in further detail below, the Minister of CIC delegates to CBSA hearings officers the authority to make an application to the RPD for a determination of cessation of refugee protection pursuant to s. 108(2) of the IRPA. Accordingly, while the decision was made by a CBSA officer, it was under the Minister of CIC’s delegated authority. Given this, the style of cause should properly name the Minister of CIC and remove the Minister of Public Safety and is hereby amended accordingly.
Issue 1: Was the Applicant denied procedural fairness? Applicant’s Position [22] The Applicant submits that the effect of ss. 108(2), 46(1)(c.1), 40.1(2), and 21(3) of the IRPA is, if the cessation application is successful, that she would immediately lose her permanent residence status and become inadmissible. Because the cessation decision is not made in the context of an admissibility hearing or an examination, there is no appeal available pursuant to s. 63(3) of the IRPA and s. 110(2)(c) precludes appeal to the RPD and a potential of a stay under s. 23(1). Further, pursuant to s. 108(3), the Applicant’s claim is deemed to be rejected with the result that all of the consequences that follow the rejection of a refugee claim also follow a positive cessation finding. This includes being unable to apply for permanent residence on H&C grounds for twelve months (s. 25(1.2)(c)) unless one of the s. 25(1.21) exceptions apply. Even in that event, there is no statutory stay of removal while an H&C application is made and no impediment to immediate removal pursuant to s. 48(2).
[23] The loss of permanent residence also results in the loss of the right to work in Canada without authorization. Even if there is a pending H&C application and she can apply for a work permit, this could take several months to be issued. Thus, a well established former permanent resident such as the Applicant would have to leave their employment in the interim. The Applicant would also be precluded from applying for a temporary resident permit pursuant to s.24(4) of the IRPA, and would not be eligible for a Pre-Removal Risk Assessment (PRRA) pursuant to s. 112(2)(c), both for a period of twelve months.
[24] Given the seriousness of these consequences, the Applicant submits that the level of procedural fairness owed by a hearings officer, as the Minister’s delegate, to an individual before making a cessation application should be governed by the two-step analysis taken by this Court in Hernandez v Canada (Minister of Citizenship and Immigration), 2005 FC 429, [2006] 1 FCR 3 [Hernandez]. This would also determine the scope of the hearings officer’s discretion pursuant to the statutory framework. The Applicant submits that the hearings officer is not compelled by s. 108(2) to make the cessation application and has broad discretion in that regard as demonstrated by past practice.
[25] The Applicant also submits that when the subject amendments to the IRPA were being effected, the Minister made repeated representations to Parliament that cessation applications would only be initiated in situations where individuals had re-established themselves in their country of nationality immediately upon obtaining permanent residence. This implies Parliament’s intent that there be an element of fraud in connection with the original application and, therefore, a much broader discretion on the part of the Minister’s delegate than the Respondent has advanced in this proceeding. In the result, CBSA should not be seeking to determine if there is merely a technical basis for a cessation application, but whether, in the context of each specific case, the reavailment provides a compelling basis for believing that the original claim was fraudulent.
[26] Further, the Immigration Manual: Enforcement (ENF) – Chapter ENF 24 Ministerial Interventions (ENF-24) establishes CIC’s policy and demonstrates that an application for cessation pursuant to s. 108(2) should only be made after balancing considerations that are beyond the scope of s. 108(1). It does not support the Respondent’s position that the Hearings Officer has no discretion other than to assess whether a prima facie case for a cessation application exists.
[27] The scope of the duty of fairness owed is to be assessed in accordance with the factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-28 [Baker]. An analysis of those factors leads to the conclusion that the duty includes being afforded the opportunity to make submissions prior to a hearings officer’s decision to make a cessation application.
Respondent’s Position [28] The Respondent submits that the Applicant misconstrues the distinction between the role of the Hearings Officer with that of the role of the RPD in a cessation proceeding. The IRPA explicitly states that it is the RPD, and not the Hearings Officer, who makes a decision as to whether refugee protection has ceased. The Applicant’s assertion that she is entitled to notice and an opportunity to make submissions is, therefore, premature and misplaced. The Refugee Protection Division Rules, SOR/2012-256 (RPD Rules) provide for a hearing, right to counsel, comprehensive disclosure, and the right to call witnesses and to lead evidence, all before the RPD makes its decision. Accordingly, the Applicant will be afforded procedural protections before a decision is made that may result in a loss of her refugee status.
[29] Further, the Hearings Officer does not have H&C jurisdiction under the IRPA. The IRPA and the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can TS No 6 [Refugee Convention] indicate that H&C factors are not relevant to a determination of whether refugee protection has ceased on the basis that it is no longer warranted.
[30] The Hearings Officer’s role is limited to completing an “Application for Cessation of Refugee Protection” form based on prima facie evidence and facts that criteria for cessation of refugee protection are met, and, representing the Minister before the RPD. It is the RPD, and not the Hearings Officer, who will assess the evidence and determine if the Applicant’s refugee status has ceased. The Hearing Officer’s act of filing the cessation application was, at most, a preliminary decision which did not give rise to a duty of fairness (Guay v Lafleur, [1965] SCR 12 [Guay]; Knight v Indian Head School Division No 19, [1990] 1 SCR 653 at para 26 [Knight]; Baker, above). Even where applicable, the common law duty of procedural fairness does not require notice or an opportunity to make submissions before a tribunal proceeding is initiated, provided that there are procedural protections at the tribunal processing stage (Hyundai Motor Co v Canada (Attorney General), [1987] FCJ No 724 (TD), 14 FTR 316 [Hyundai]; Kindler v Canada (Minister of Citizenship and Immigration), [1987] FCJ No 507 (CA), 41 DLR (4th) 78 [Kindler]; Mohammed v Canada (Minister of Employment and Immigration), [1988] FCJ No 1141 (CA), 55 DLR (4th) 321 [Mohammed]). Further, the Baker factors weigh against imposing a requirement of notice and submissions for pre-cessation applications.
[31] The heart of the Applicant’s position is that fairness requires that she have an opportunity to convince the Hearings Officer not to file the cessation application, notwithstanding the evidence of a prima facie case, on the basis of countervailing H&C considerations including the best interests of her daughter. However, this would undermine the IRPA regime with respect to H&C applications and relies on a misreading of ENF-24.
[32] A non-citizen does not have any right to H&C assessments in connection with every immigration process that may adversely affect their status. Such assessments are generally properly the subject of H&C applications pursuant to s. 25 of the IRPA. H&C considerations play no role in determining whether refugee protection has ceased pursuant to s. 108 (Varga v Canada (Minister of Citizenship and Immigration), 2006 FCA 394 at para 13 [Varga]; Medovarski v Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 SCR 539 at para 47 [Medovarski]). Nor does ENF-24 support a view that the Hearings Officer has H&C jurisdiction. The factors listed therein pertain to the criteria for cessation of refugee protection, set out in s.108(1), incorporating Article 1C of the Refugee Convention and the guidance of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook) with respect to the application of those criteria. This is not indicative of broad discretion to consider factors unrelated to the grounds for cessation of refugee protection, such as H&C considerations.
[33] The Respondent submits that Hernandez, above, is distinguishable and has been superseded by more recent authority (Nagalingam v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1411 at paras 34-35 [Nagalingam]; Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at paras 13, 21-23, [2007] 1 FCR 409 [Cha]; Faci v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693 [Faci]). Even in the s. 44 context, procedural fairness does not mandate a right to notice or to make submissions before an officer prepares a s. 44 report and in those circumstances, officers do not consider H&C factors.
Analysis [34] The Applicant’s argument is, essentially, that s. 108(2) affords the RPD little, if any discretion. Once the cessation application is before it, if one of the s. 108(1) criteria is met, then it must determine that refugee protection has ceased with the inevitable consequence of a loss of permanent residence. Therefore, procedural fairness requires that before that stage is reached, and when the Hearings Officer is determining whether there is a basis for making a cessation application, there must be notice and an opportunity to make submissions. Further, that the Hearings Officer has broad discretion to decide, based on the information so gathered and submitted, whether or not the application should actually be made.
[35] In order for that position to succeed, there must first be a duty of fairness, the content of which requires giving notice and providing an opportunity to make submissions. And, if so, a further duty or the discretion of the Hearings Officer to consider factors, including H&C grounds, at the pre-cessation application stage when deciding whether to proceed with that application.
[36] As a starting point, it should be noted that s. 108 of the IRPA, which addresses cessation, was not amended by the BRRA or the PCISA. Section 108(2) states that on application by the Minister, the RPD may determine that refugee protection referred to in s. 95(1) has ceased for any of the reasons set out in s. 108(1). Thus, the cessation process was, and remains, a two-step process.
[37] It is also important to view the Applicant’s assertion of a lack of procedural fairness within the larger context of refugee protection law. The Refugee Convention defines a refugee and sets out a series of obligations owed to them by contracting states (Németh v Canada (Minister of Justice), 2010 SCC 56, [2010] 3 SCR 281 at para 17). The UNHCR Handbook addresses Article 1C, the “cessation clauses,” stating that they are based on the consideration that international protection should not be granted when it is no longer necessary or justified.
[38] Article 1C sets out the circumstances where that protection will no longer apply:
This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of his country of nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because of circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former residence.
[39] The UNHCR Handbook notes that the first four clauses reflect a change of the situation that has been brought about by the refugee. Conversely, the last two clauses are based on the consideration that international protection is no longer justified on account of changes in the country where persecution was feared because the reasons for a person becoming a refugee have ceased to exist. The cessation clauses are negative in character and are exhaustively enumerated. They should be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status.
[40] The UNHCR Handbook also offers an interpretation of certain of these clauses. As to Article 1C (1), it states that this applies to a refugee who possesses a nationality and remains outside their country of nationality. A refugee who has voluntarily re-availed of national protection is no longer in need of international protection. He has demonstrated that he is no longer “unable or unwilling to avail himself of the protection of the country of his nationality” (i.e. s. 96 of the IRPA). This clause implies three requirements: voluntariness; intention (the refugee must intend by his action to re-avail himself of the protection of the country of his nationally); and, re-availment (the refugee must actually obtain such protection).
[41] In determining whether refugee status is lost in these circumstances, the UNHCR Handbook states that a distinction should be drawn between actual re-availment of protection and occasional or incidental contacts with the national authorities. If a refugee applies for and obtains a national passport or its renewal, it will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality: “… obtaining an entry permit or a national passport for the purposes of returning will, in the absence of proof to the contrary, be considered as terminating refugee status.”
[42] Similar considerations apply with regard to Article 1C (2). While Article 1C (1) concerns a person having a nationality, but who ceases to be a refugee if he re-avails himself of the protection attaching to such nationality, Article 1C (2) concerns the loss of refugee status by re-acquiring the nationality previously lost.
[43] Article 1C (4), voluntary re-establishment, applies to both refugees who have a nationality and to stateless refugees. It relates to refugees who, having returned to their country of origin or previous residence, have not previously ceased to be refugees under Article 1C (1) or (2) while still in their country of refuge. It is to be understood as return with a view to permanently residing there: “A temporary visit by a refugee to his former home country, not with a national passport but, for example, with a travel document issued by his country of residence, does not constitute “re-establishment” and will not invoke loss of refugee status….”
[44] The cessation criteria under Article 1C are reflected in s. 108(1) of the IRPA. The procedural mechanism whereby the RPD assesses information provided by CBSA for the purpose of determining whether refugee protection has ceased pursuant to s. 108(1) is the cessation application made by a hearings officer pursuant to s. 108(2). Hearings officers have the delegated authority to make s. 108(2) cessation applications on behalf of the Minister pursuant to a CIC Instrument of Designation and Delegation.
[45] Rule 64 of the RPD Rules states that an application to cease refugee protection made by the Minister (or his delegate) must be made in writing and in accordance with that Rule. It specifies the content of the application including the decision that the Minister (or his delegate) wants the RPD to make and the reasons why the RPD should make that decision. In this case, the written cessation application was completed and, pursuant to Rule 50(4), listed the documentary evidence that the Hearings Officer, as the Minister’s delegate, sought the RPD to consider. This included the solemn declaration of the CBSA Officer who interviewed the Applicant at the airport.
[46] The Affidavit of Aaron Smith, Senior Policy Advisor, Refugee Affairs Branch, CIC (Smith Affidavit), states that a hearings officer may gather additional information with respect to the facts that are relevant to the grounds for cessation under s. 108(1) including interviewing the person concerned in some circumstances. The hearings officer then reviews the information for the purpose of assessing whether there is prima facie evidence or facts to establish that any of the s. 108(1) criteria are met (Smith Affidavit, para 19(a)).
[47] It is within the above context that the procedural fairness issue must be considered.
a) Does a duty of fairness exist? [48] The Respondent submits that the Hearings Officer is, at best, making only a preliminary decision, being the decision to make the cessation application. Because the final decision and attendant procedural fairness rights lie with the RPD, there is no duty to act fairly at the cessation application stage (Guay, above; Knight, above, at para 26).
[49] A review of Knight, above, relied upon by the Respondent, indicates that it dealt with a termination of employment pursuant to a contract and the Education Act. The Supreme Court of Canada found that the existence of a duty of fairness depends on the nature of the decision to be made, the relationship between the parties and the effect of the decision on the individuals’ rights. The Court stated that the finality of the decision is also a factor to be considered and that, “A decision of a preliminary nature will not in general trigger the duty to act fairly, whereas a decision of a more final nature may have such an effect.”
[50] However, as stated by Justice Le Dain in Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at para 14:
…This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual…
[51] In J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf) (Toronto: Canvasback, 1998), Brown & Evans state that “contemporary administrative law takes a very broad view of the range of rights, privileges and interest that will attract a right of procedural fairness” (p. 7-47). Privileges “refer to benefits, the grant or revocation of which are to a greater or lesser extent within the discretion of the relevant agency,” and would include the ability of a non-citizen to enter Canada (p. 7-51). For example, in a circumstance which involved denial of a security certificate, which in turn would lead to a denial of citizenship and liability to deportation, a duty of fairness is owed (Al Yamani v Canada (Solicitor General), [1995] FCJ No 1453 (TD), 129 DLR (4th) 226 (FCTD). Further, interests may include benefits to which there is no legal entitlement, but which are none the less important (p. 7-52).
[52] As to when an interest is affected, Brown & Evans state:
At one time, implied rights to participate in decision-making by public bodies appeared to be limited to the exercise of powers that finally decided the rights of individuals. However, the “fairness revolution” that has transformed administrative law in Canada since the early 1980’s has expanded not only to the range of interests protected by the duty of fairness, but also the types of administrative action, to include more than final determinations of legal rights. For example, suspensions, the refusal of discretionary benefits, investigations, public inquiries, referrals to a hearing, and recommendations, may now attract the duty of fairness.
[Emphasis in original]
[53] Brown & Evans also state that although the Supreme Court in Knight, above, stated that a decision of a preliminary nature will not generally trigger the duty to act fairly, there are many instances where the duty does apply to non-final decision-making:
Of course, public administration should not be encumbered by a requirement to notify affected individuals and to consider their representation before each step of a decision-making process. On the other hand, the practical seriousness of non-final processes such as investigations, public inquiries, recommendations, and references to more formal proceedings may warrant procedural safeguards.
In some instances the benefit of avoiding the harm that an erroneous preliminary decision may potentially inflict will be outweighed by the administrative burden that the duty of fairness is likely to impose…
Conversely, there are circumstances in which the duty of fairness is likely to apply. More specifically, any administrative action that could either significantly influence the ultimate decision or expose the individual to some other harm may be subject to the duty of fairness. Of course, in those circumstances, the content of the duty will always vary, depending upon the context in which it arises.
[54] In my view, and contrary to the Respondent’s submission, the Hearings Officer is not just filling out a form. She is considering the facts presented to her by the CBSA Officer. And, according to Mr. Smith, she has the discretion to gather further information and conduct an interview of the person concerned for the purpose of determining if a prima facie case for cessation exists. If she determines that it does, then she makes a recommendation for cessation, as she did in this case. My interpretation of Knight, above, is that it does not definitely preclude a duty of procedural fairness being owed in preliminary decisions.
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