Kreishan v. Canada (Citizenship and Immigration)

Kreishan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2018-05-04
Neutral citation
2018 FC 481
File numbers
IMM-1354-16, IMM-1604-16, IMM-248-16, IMM-3193-15, IMM-932-16
Decision Content
Date: 20180504
Dockets: IMM-3193-15
IMM-248-16
IMM-932-16
IMM-1354-16
IMM-1604-16
Citation: 2018 FC 481
Toronto, Ontario, May 4, 2018
PRESENT: The Honourable Madam Justice Heneghan
Docket: IMM-3193-15
BETWEEN:
REEM YOUSEF SAEED KREISHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-248-16
AND BETWEEN:
GIOVANI ACEVEDO ARANGO (AKA GIOVANNI ACEVEDO ARANGO)
CRISTIAN CAMILO ACEVEDO GOMEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-932-16
AND BETWEEN:
MOHAMMED ZAKIR HOSSAIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-1354-16
AND BETWEEN:
SUAD SULIEMAN ODEH ABU SHABAB ABDALLA MAHMOUD ABOUSHABAB MAHA MAHMOUD MOHAMED OUDAH ALY MAHMOUD MOHAMED OUDAH MOHAMED MAHMOUD OUDAH TAGI MAHMOUD MOHAMED ABOSHABAB AND THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-1604-16
AND BETWEEN:
HUDA MARWAN KASHTEM MHD NAZIR DEIRANI, BARA’A DERANI, AND THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. OVERVIEW
[1] The within applications for judicial review challenge the constitutionality of paragraph 110(2)(d) of the Immigration and Refugee Protection Act, S.C. 2001, c 27, (“the Act”). That provision limits access to the Refugee Appeal Division (the “RAD”) of the Immigration and Refugee Board (the “IRB”) for certain classes of asylum seekers who enter Canada from the United States of America, pursuant to the 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 [2004] Can T.S. No 2, the “Safe Third Country Agreement” (the “STCA”).
[2] The constitutional challenge is based upon section 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, (the “Charter”).
[3] The Applicants served Notice of a Constitutional Question pursuant to section 57 of the Federal Courts Act, R.S.C., 1985, c. F-7, upon the Attorney General of Canada, as well as upon the Attorneys General of all the Provinces and Territories, and provided proof of such service.
[4] No Provincial or Territorial Attorney General chose to participate in the hearing of these matters.
[5] The Act was amended by the Balanced Refugee Reform Act, S.C. 2010, c. 8 (the “BRRA”). This statute implemented the RAD.
[6] The Act was further amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 (the “PCISA”) which imposed limitations upon claimants who have a right of appeal to the RAD.
[7] The challenged section reads as follows:
110 (2) No appeal may be made in respect of any of the following:
110 (2) Ne sont pas susceptibles d’appel:
. . .
. . .
(d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if
d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois :
(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
(i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d),
(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;
(ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c);
[8] The context for the limitation in subparagraph 110(2)(d)(i) is the STCA. That agreement was signed on December 5, 2002. On October 12, 2004, the United States was designated as a “safe third country” by the Governor in Council. The STCA came into effect on December 29, 2004.
[9] The purpose of the STCA is that refugee claimants must seek protection in the first country they have an opportunity to do so. Article 4 creates exceptions to that primary rule:
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.
1. Sous réserve des paragraphes 2 et 3, la partie du dernier pays de séjour examine, conformément aux règles de son régime de détermination du statut de réfugié, la demande de ce statut de toute personne arrivée à un point d’entrée d’une frontière terrestre à la date d’entrée en vigueur du présent accord, ou par après, qui fait cette demande.
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:
2. La responsabilité de la détermination du statut de réfugié demandé par toute personne visée au paragraphe 1 revient à la partie du pays d’arrivée, non pas à celle du pays du dernier séjour lorsque la partie du pays d’arrivée établit que cette personne :
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
a. a, sur le territoire de la partie du pays d’arrivée, au moins un membre de sa famille dont la demande du statut de réfugié a été accueillie ou qui a obtenu un autre statut juridique que celui de visiteur sur le territoire de la partie du pays d’arrivée;
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
b. a, sur le territoire de la partie du pays d’arrivée, au moins un membre de sa famille âgé d’au moins dix-huit ans, n’est pas inadmissible à faire valoir une demande du statut de réfugié dans le cadre du régime de détermination du statut de réfugié de la partie du pays d’arrivée et à une telle demande en instance;
c. Is an unaccompanied minor; or
c. est un mineur non accompagné;
d. Arrived in the territory of the receiving Party:
d. est arrivée sur le territoire de la partie du pays d’arrivée :
i. With a validly issued visa or other valid admission document, other than for transit, issued by the receiving Party; or
i. en possession d’un visa régulièrement émis ou d’un autre titre d’admission valide, autre qu’une autorisation de transit, émis par cette même partie;
ii. Not being required to obtain a visa by only the receiving Party.
ii. ou sans être requise d’obtenir un visa, uniquement par la partie du pays d’arrivée.
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.
3. La partie du dernier pays de séjour n’est pas obligée d’accepter de reprendre un demandeur du statut de réfugié tant que la partie du pays d’arrivée n’a pas statué définitivement au regard du présent accord.
4. Neither Party shall reconsider any decision that an individual qualifies for an exception under Articles 4 and 6 of this Agreement.
4. Les parties ne peuvent ni l’une ni l’autre revoir une décision attestant qu’une personne peut faire l’objet d’une exception prévue par les articles 4 et 6 du présent accord.
[10] The Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations") define the STCA in section 159.1 as follows:
Agreement means the Agreement dated December 5, 2002 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. (Accord)
Accord L’Entente entre le gouvernement du Canada et le gouvernement des États-Unis d’Amérique pour la coopération en matière d’examen des demandes d’asile présentées par des ressortissants de tiers pays en date du 5 décembre 2002. (Agreement)
[11] Section 159.1 also includes a definition of “designated country” as follows:
designated country means a country designated by section 159.3. (pays désigné)
pays désigné Pays qui est désigné aux termes de l’article 159.3. (designated country)
[12] Section 159.3 of the Regulations is also relevant and provides as follows:
159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act.
159.3 Les États-Unis sont un pays désigné au titre de l’alinéa 102(1)a) de la Loi à titre de pays qui se conforme à l’article 33 de la Convention sur les réfugiés et à l’article 3 de la Convention contre la torture et sont un pays désigné pour l’application de l’alinéa 101(1)e) de la Loi.
[13] Section 159.5 of the Regulations sets out exceptions to the STCA, as follows:
159.5 Paragraph 101(1)(e) of the Act does not apply if a claimant who seeks to enter Canada at a location other than one identified in paragraphs 159.4(1)(a) to (c) establishes, in accordance with subsection 100(4) of the Act, that
159.5 L’alinéa 101(1)e) de la Loi ne s’applique pas si le demandeur qui cherche à entrer au Canada à un endroit autre que l’un de ceux visés aux alinéas 159.4(1)a) à c) démontre, conformément au paragraphe 100(4) de la Loi, qu’il se trouve dans l’une ou l’autre des situations suivantes
(a) a family member of the claimant is in Canada and is a Canadian citizen;
a) un membre de sa famille qui est un citoyen canadien est au Canada;
(b) a family member of the claimant is in Canada and is
b) un membre de sa famille est au Canada et est, selon le cas :
(i) a protected person within the meaning of subsection 95(2) of the Act,
(i) une personne protégée au sens du paragraphe 95(2) de la Loi,
(ii) a permanent resident under the Act, or
(ii) un résident permanent sous le régime de la Loi,
(iii) a person in favour of whom a removal order has been stayed in accordance with section 233;
(iii) une personne à l’égard de laquelle la décision du ministre emporte sursis de la mesure de renvoi la visant conformément à l’article 233;
c) a family member of the claimant who has attained the age of 18 years is in Canada and has made a claim for refugee protection that has been referred to the Board for determination, unless
c) un membre de sa famille âgé d’au moins dix-huit ans est au Canada et a fait une demande d’asile qui a été déférée à la Commission sauf si, selon le cas :
((i) the claim has been withdrawn by the family member,
(i) celui-ci a retiré sa demande,
(ii) the claim has been abandoned by the family member,
(ii) celui-ci s’est désisté de sa demande,
(iii) the claim has been rejected, or
(iii) sa demande a été rejetée,
(iv) any pending proceedings or proceedings respecting the claim have been terminated under subsection 104(2) of the Act or any decision respecting the claim has been nullified under that subsection;
(iv) il a été mis fin à l’affaire en cours ou la décision a été annulée aux termes du paragraphe 104(2) de la Loi;
(d) a family member of the claimant who has attained the age of 18 years is in Canada and is the holder of a work permit or study permit other than
d) un membre de sa famille âgé d’au moins dix-huit ans est au Canada et est titulaire d’un permis de travail ou d’un permis d’études autre que l’un des suivants :
(i) a work permit that was issued under paragraph 206(b) or that has become invalid as a result of the application of section 209, or
(i) un permis de travail qui a été délivré en vertu de l’alinéa 206b) ou qui est devenu invalide du fait de l’application de l’article 209,
(ii) a study permit that has become invalid as a result of the application of section 222;
(ii) un permis d’études qui est devenu invalide du fait de l’application de l’article 222;
(e) the claimant is a person who
e) le demandeur satisfait aux exigences suivantes :
(i) has not attained the age of 18 years and is not accompanied by their mother, father or legal guardian,
(i) il a moins de dix-huit ans et n’est pas accompagné par son père, sa mère ou son tuteur légal,
(ii) has neither a spouse nor a common-law partner, and
(ii) il n’a ni époux ni conjoint de fait,
(iii) has neither a mother or father nor a legal guardian in Canada or the United States;
(iii) il n’a ni père, ni mère, ni tuteur légal au Canada ou aux États-Unis;
(f) the claimant is the holder of any of the following documents, excluding any document issued for the sole purpose of transit through Canada, namely,
f) le demandeur est titulaire de l’un ou l’autre des documents ci-après, à l’exclusion d’un document délivré aux seules fins de transit au Canada :
(i) a permanent resident visa or a temporary resident visa referred to in section 6 and subsection 7(1), respectively,
(i) un visa de résident permanent ou un visa de résident temporaire visés respectivement à l’article 6 et au paragraphe 7(1),
(ii) a temporary resident permit issued under subsection 24(1) of the Act,
(ii) un permis de séjour temporaire délivré au titre du paragraphe 24(1) de la Loi,
(iii) a travel document referred to in subsection 31(3) of the Act,
(iii) un titre de voyage visé au paragraphe 31(3) de la Loi,
(iv) refugee travel papers issued by the Minister, or
(iv) un titre de voyage de réfugié délivré par le ministre,
(v) a temporary travel document referred to in section 151;
(v) un titre de voyage temporaire visé à l’article 151;
(g) the claimant is a person
g) le demandeur :
(i) who may, under the Act or these Regulations, enter Canada without being required to hold a visa, and
(i) peut, sous le régime de la Loi, entrer au Canada sans avoir à obtenir un visa
(ii) who would, if the claimant were entering the United States, be required to hold a visa; or
,(ii) ne pourrait, s’il voulait entrer aux États-Unis, y entrer sans avoir obtenu un visa;
(h) the claimant is
h) le demandeur est :
(i) a foreign national who is seeking to re-enter Canada in circumstances where they have been refused entry to the United States without having a refugee claim adjudicated there, or
(i) soit un étranger qui cherche à rentrer au Canada parce que sa demande d’admission aux États-Unis a été refusée sans qu’il ait eu l’occasion d’y faire étudier sa demande d’asile,
(ii) a permanent resident who has been ordered removed from the United States and is being returned to Canada.
(ii) soit un résident permanent qui fait l’objet d’une mesure prise par les États-Unis visant sa rentrée au Canada.
[14] Article 4, above, applies to a claimant or claimants who arrive at a land border port of entry only.
[15] Paragraph 101(1)(e) of the Act imposes a limitation on eligibility to seek refugee protection in Canada for persons entering from a designated country and provides as follows:
101 (1) A claim is ineligible to be referred to the Refugee Protection Division if
…
(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or
101 (1) La demande est irrecevable dans les cas suivants:
…
e) arrivée, directement ou indirectement, d’un pays désigné par règlement autre que celui dont il a la nationalité ou dans lequel il avait sa résidence habituelle;
Section 159.5 of the Regulations, quoted above, allow certain persons to seek refugee protection in Canada, even after entering from a designated country and codifies the exceptions to the general proposition that claimants should apply for protection in the first country of landing.
II. BACKGROUND
[16] Cause number IMM-3193-15 is the lead file in a proceeding that was consolidated with four other applications for judicial review, by Order dated December 8, 2016.
[17] By a Direction issued on January 13, 2017, cause number IMM-3193-15 was designated as the “lead” file in the consolidated proceedings.
[18] The facts below are taken from the materials contained in the Common Record filed by the Applicants and, in some cases, from the Certified Tribunal Records (“CTRs”) relating to the individual Applicants.
[19] In cause number IMM-3193-15, Ms. Reem Yousef Saeed Kreishan (the “Applicant”), a Sunni Muslim woman of Jordanian nationality, sought protection on the grounds that she feared abuse from her father who was pressuring her to seek a divorce from her Canadian husband. The Applicant left Jordan on February 1, 2015 and travelled to the United States. She did not seek protection in that country and entered Canada on February 16, 2015, where she made a claim.
[20] The Refugee Protection Division (the “RPD”) found that there was no serious possibility of persecution on a Convention ground nor that, on a balance of probabilities, the Applicant faced personal risk to her life or cruel or unusual punishment if returned to Jordan. It determined that the Applicant was neither a Convention refugee nor a person in need of protection pursuant to section 96 or subsection 97(1), respectively, of the Act.
[21] The Applicant’s appeal to the RAD was dismissed on jurisdictional grounds, that is pursuant to paragraph 110(2)(d) of the Act.
[22] In cause number IMM-248-16, Mr. Giovani Acevedo (aka Giovanni Acevedo Arango) (the “Principal Applicant”) and his minor son Christian Arango, (collectively “the Applicants”), claimed protection in Canada on the basis of fear of the Revolutionary Armed Forces of Colombia (the “FARC”). The Applicants are citizens of Columbia. The Principal Applicant alleged that he had been subject to extortion, threats and harassment from the FARC. The son’s claim relied on the allegations of risk made by his father.
[23] The Principal Applicant went to the United States of America on a tourist visa. On June 24, 2015, he attended at the Fort Erie Refugee Processing Unit to make a refugee claim. He was found eligible to make a refugee claim on the basis that he has a family member, an “anchor relative”, in Canada.
[24] The minor son Christian presented himself at the Fort Erie Refugee Processing Unit on August 7, 2015, for the purpose of making a refugee claim. He had entered the United States under a tourist visa. He was allowed to enter Canada, to make a refugee claim, on the grounds that his father was in Canada as a refugee claimant.
[25] Following a hearing, the RPD found that the Applicants had failed to rebut the presumption of state protection in Colombia and their claims for protection were dismissed.
[26] Their appeal to the RAD was dismissed, on the basis of lack of jurisdiction, pursuant to paragraph 110(2)(d) of the Act.
[27] In cause number IMM-932-16, Mr. Mohammed Zakir Hossain (the “Applicant”), a citizen of Bangladesh and a non-practising Muslim, sought protection on the basis of fear of persecution at the hands of religious zealots. He left Bangladesh in April 2015 and went to the United States of America, in possession of a visa for entry. He claimed refugee protection in Canada on May 11, 2015. He was permitted to enter Canada on the basis that he had a brother in this country.
[28] The RPD rejected the Applicant’s claim, on the grounds that his failure to seek protection in the United States undermined his credibility, his evidence was unreliable and that an Internal Flight Alternative (“IFA”) was available to him in his home country.
[29] The Applicant’s appeal to the RAD was dismissed, pursuant to paragraph 110(2)(d) of the Act.
[30] In cause number IMM-1354-16, Mrs. Suad Sulieman Odeh Abu Shabab (the “Principal Applicant”), Mr. Abdalla Mahmoud Aboushabab (the “Male Applicant”), and minor children Maha Mahmoud Mohamed Oudah, Aly Mahmoud Mohamed Oudah, Mohamed Mahmoud Oudah, and Tagi Mahmoud Mohamed Oudah (collectively the “Applicants”) are stateless Palestinians. They left the United Arab Emirates in August 2015, holding visitors’ visas for the United States. The Principal Applicant’s husband travelled with his family but due to the illness of his mother, he left the United Sates and returned to the United Arab Emirates.
[31] The Applicants entered Canada on September 15, 2015 and claimed protection. They had not sought protection while in the United States. The Applicants were permitted to make their claims due to the presence in Canada of a family member, that is a sister-in-law of the Principal Applicant.
[32] The RPD made negative credibility findings against the Applicants. It also found that elements of discrimination against them in the United Arab Emirates did not rise to the level of persecution. Their claims were dismissed.
[33] Upon appeal to the RAD, the appeal was dismissed for lack of jurisdiction, pursuant to paragraph 110(2)(d) of the Act.
[34] In cause number IMM-1604-16, Mrs. Huda Marwan Kashtem (the “Principal Applicant”) and her minor children Mhd Nazir Deiraani and Bara’a Derani (collectively “the Applicants”) sought protection against Syria, alleging fear of the Syrian military and the Syrian National Defence Forces. The RPD did not believe the evidence of the Applicants and commented unfavourably upon their failure to seek protection in the United States.
[35] The Applicants’ appeal to the RAD was dismissed for lack of jurisdiction pursuant to paragraph 110(2)(d) of the Act.
III. THE EVIDENCE
[36] The evidence of the parties was filed by affidavits. The Applicants filed a Common Record that included Affidavits filed on behalf of some of the individual Applicants, that is from Abdalla Mahmoud Aboushabab, sworn on April 26, 2016; Mrs. Suad Sulieman Odeh Abu Shabab, sworn on April 26, 2016; Mrs. Huda Marwan Kashtem, sworn on May 4, 2016; Mr. Mohammed Zakir Hossain, sworn on February 7, 2017, and Mr. Giovanni Acevedo Arango, sworn on February 10, 2017. Exhibits were attached to some of these affidavits, including for example in respect of Mrs. Abu Shabab and Mr. Hossain, copies of their Basis of Claim (“BOC”) forms.
[37] Mr. Aboushabab, in his affidavit, described his experience in seeking refugee status.
[38] His mother, Mrs. Suad Sulieman Odeh Abu Shabab, described her journey to Canada. Attachments to her affidavit include her BOC narrative, the decision of the RPD and a copy of the affidavit that she provided to the RAD.
[39] Mrs. Kashtem, in her affidavit, described the travels of her family from Saudi Arabia, through the United States and their entry into Canada. Attachments to her affidavit include the decision of the RPD rejecting the claim for refugee protection.
[40] Mr. Hossain, a claimant from Bangladesh, described his exit from that country and travel to Canada via the United States. He also referred to his unsuccessful application for a stay of his removal from Canada, following the rejection of his claim before the RPD and subsequent dismissal of his appeal to the RAD.
[41] Mr. Hossain was deported from Canada to Bangladesh on March 11, 2016. He deposed that upon his return to his country of origin he was attacked by unknown assailants and received death threats. He described his feelings of insecurity resulting from the recent commentary and Executive Orders of President Donald Trump. He testified that he had suffered a heart attack on May 21, 2016.
[42] Mr. Arango attached, as an exhibit, a medical report from Dr. Parul Agarwal about a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) and the stress of the refugee claim process upon his mental health. That medical report is dated July 11, 2016 and was struck from the record by Order made on April 27, 2017.
[43] The Applicants also filed affidavits from Dr. Sean Rehaag, a professor at Osgoode Hall Law School, sworn June 3, 2016; Ms. Celina Kilgallen-Asencio, sworn May 31, 2016; Mr. Raoul Boulakia, June 1, 2016; Mrs. Turkan Goren, May 24, 2016; Mr. Henry Barragan Gonzalez, sworn June 2, 2016; Ms. Janet Dench, May 31, 2016; Dr. Cécile Rousseau, sworn July 28, 2016; Ms. Amanda Britton, sworn July 20, 2016; and Ms. Samira Remtulla, sworn March 16, 2017.
[44] The affidavit of Dr. Rehaag was tendered as expert evidence, addressing the history of the RAD, the difference between proceedings before the RAD and applications for judicial review, the RAD bars, Access to Information Request disclosure dealing with data about decisions made by the RAD, and an overview of the decisions made by the RAD in the first two years of its operations.
[45] Dr. Rehaag attached to his affidavit an article entitled, “Unappealing: An Assessment of the Limits on Appeal Rights in Canada's New Refugee Determination System” (2016) 49:1 U.B.C. L. Rev. 203.
[46] The affidavit of Ms. Kilgallen-Asencio, a student-at-law with the Refugee Law Office, contains two exhibits. Exhibit A provides statistics about the number of refugee claims referred to the RPD through an exception to the STCA, from December 15, 2012 to December 31, 2015. 6,818 claims were referred and 4,995 were accepted. 1,639 negative decisions were delivered by the RPD. The statistics were further analyzed ­­­according to country of citizenship and the category of STCA exception.
[47] Exhibit B to the affidavit of Ms. Kilgallen-Asencio is a report from Immigration, Refugees and Citizenship Canada (“IRCC”) outlining the number of refugee claims received under an exception to the STCA according to country of citizenship and type of exception, from December 15, 2012 to December 31, 2015.
[48] Mr. Boulakia is a lawyer certified by the Law Society of Upper Canada as a specialist in Citizenship, Immigration and Refugee Protection Law. He describes the efforts of two of his clients to avoid deportation and the refusal of their motions to stay their deportation.
[49] Mrs. Goren is a failed refugee claimant from Turkey. In her affidavit, she describes her travel to Canada via a land port, from the United States, pursuant to the family exception to the STCA. Her claim for refugee protection was dismissed on the basis of negative credibility findings and her application for judicial review was dismissed, on the grounds that the decision of the RPD was reasonable. She is awaiting the determination of her Pre-Removal Risk Assessment (“PRRA”).
[50] Mr. Gonzalez is a failed refugee claimant from Colombia. Following dismissal of his motion for a stay, he sought assistance from the United Nations Human Rights Committee (“UNHRC”). The UNHRC made a discretionary decision to grant him “interim measures”; the Government of Canada agreed not to deport him pending the UNHRC’s final determination of his complaint.
[51] Ms. Dench is the Executive Director of the Canadian Council for Refugees. Her affidavit was tendered as an expert opinion based on her knowledge “of claimants impacted by s.110(2)(d)(ii)”.
[52] Ms. Dench provided background information about the Canadian Council for Refugees, including its advocacy about the establishment of the RAD and the implementation of the STCA. Among the exhibits to her affidavit is a statement from the Council entitled “New Bill Further Undermines Refugees”, addressing the Council’s concerns with several of the proposed amendments in the PCISA, encompassing the designation of countries of origin, shorter timelines for preparing for refugee hearings, and the RAD bar. Copies of country reports from the IRB and the RAD, as well as a copy of a U.S Department of State Country Reports on Human Rights Practice, were also attached as exhibits.
[53] Ms. Dench also attached a copy of submissions made to the Parliament of Canada by the United Nations High Commissioner for Refugees (the “UNHCR”) on Bill C-31 which introduced the RAD bars.
[54] Dr. Rousseau is a child psychiatrist and professor of psychiatry at McGill University in Montreal. She presented herself as an expert in refugee mental health, especially trauma. She addressed the difficulties faced by refugee claimants, especially trauma victims, people with mental health issue and unaccompanied minors, in effectively making claims to the RPD. She commented on the psychological consequences of negative refugee claims and the prospect of deportation. She also described various disorders and gave examples of the difficulty in providing evidence that will be found credible.
[55] Ms. Britton is a paralegal with the Refugee Law Office. Attached to her affidavit are the results of access to information requests made to the IRCC, seeking disclosure of briefing and consultation materials related to the decision to bar access to the RAD. These results include email correspondence between Citizenship and Immigration Canada employees’ discussing the drafting of the bill and an excerpt of the questions and proposed answers arising from the amendments.
[56] Ms. Samira Remtulla is a Legal Assistant with the firm representing the Kashtem Applicants. Attached to her affidavits are correspondence between counsel for the Applicants and the Respondent relating to the satisfaction of undertakings made during the cross-examination of Ms. Vasavada. These questions include the amount of money spent on failed refugee claimants and the amount of time between a negative RPD decision and removal.
[57] The Respondent filed the affidavit of Unnati Vasavada, Assistant Director of the Asylum Policy Unit with IRCC. She described the role of her unit and gave a history of the STCA, as well as commentary on the policy context for that agreement.
[58] Ms. Vasavada also gave details about the number of claims made under the exceptions to the STCA and about the implementation of the RAD, including the purpose of the reforms to the refugee process. She specifically identified discouragement of “forum shopping” as an objective of the RAD bar.
[59] Exhibits attached to the Vasavada affidavit are submissions presented by the UNHCR to Parliament, specifically to the Standing Committee on Citizenship and Immigration, May 29, 2006. Those submissions addressed the role of the UNHCR in monitoring the implementation of the STCA, statistics relating to the number of claimants at American border crossings, the number of claimants applying under the exceptions to the STCA and the number of negative RPD claims in total, compared to the number of refused claims for persons claiming under the STCA exceptions.
[60] The evidence filed also includes transcripts of cross-examinations.
[61] The Applicants cross-examined Ms. Vasavada. Among other things, she was questioned about the mechanisms for “manifestly unfounded” and “no credible basis” findings; the purpose of the STCA relative to Canada’s “humanitarian tradition” and the Convention on the Rights of the Child, Can. T.S. 1992 No. 3. She was also questioned about the policy behind the RAD bar, as well as behind the PRRA bar.
[62] The Respondent cross-examined Dr. Rehaag, Ms. Dench and Dr. Rousseau.
[63] Dr. Rehaag was questioned about his statements concerning the objective of the STCA, whether it is to prevent forum shopping or some broader purpose. He was questioned about the information contained in the charts attached to his article, specifically the numbers relating to the success rate of STCA applicants in comparison with the general success rate of refugee claimants.
[64] Dr. Rehaag was also questioned as to whether he agreed with the general propositions made by the government witness, Ms. Vasavada, about unfounded claims, significant delays before the reforms were put in place, and how unfounded claims contribute to these delays to the detriment of successful refugee claimants. He did agree.
[65] Ms. Dench was questioned about the role of the Canadian Council of Refugees as an intervenor and as an advocate for refugees. She commented upon the access by refugee claimants to legal aid and lawyers, generally. She was questioned as to whether she agreed with the general propositions made by Ms. Vasavada. She did agree.
[66] In her cross-examination, Dr. Rousseau described the system by which refugee claimants get access to psychological care and the difficulties experienced by psychiatric professionals in producing reports that are helpful to the IRB and to the Court. She also described distortions to claimants’ evidence that can be caused by PTSD and the psychological impact upon claimants when informed of removal, that is becoming suicidal and homicidal.
[67] Dr. Rousseau also described situations in which a rejected claimant may or may not seek psychological help.
IV. ISSUES
A. Preliminary Issues
[68] There are three preliminary points raised by the Respondent to be addressed before consideration of the substantive issues raised in these applications.
[69] The Respondent raises, as preliminary issues, mootness of the applications for judicial review filed by Suad Sulieman Odeh Abu Shabab et al in cause number IMM-1354-16, Huda Marwan Kashtem et al in cause number IMM-1604-16 and Mohammed Zakir Hossain in cause number IMM- 932-16. He also argues , as a preliminary matter, that the affidavit of Ms. Dench not be accepted as expert evidence and in any event, be afforded little weight since it is more a statement of advocacy than an opinion which may assist the Court.
[70] In causes IMM- 1354-16 and IMM- 1604-16, the Applicants were successful in obtaining leave to judicially review their initial negative RPD decisions. The negative decisions were set aside and sent back to the RPD for redetermination. The Respondent argues the decision of this Court in the present proceeding will not resolve a “live controversy” which affects their current rights.
[71] The Respondent argues that the within applications for judicial review on behalf of Ms. Abu Shabab and her family and Mrs. Kashtem and her children are moot since their prior applications for judicial review relative to the original decisions of the RPD were successful; the original decisions were set aside and remitted for redetermination. He submits that there is no live issue for determination now, with respect to an appeal before the RAD.
[72] The Applicants disagree and argue that a “live controversy” exists whenever a judgment affects or may affect the rights of an individual, citing Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at paragraph 15. They argue that in the cases of the Abu Shabab and Kashtem families, a live controversy still exists as there is the potential that their claims will be denied at the RPD and the RAD bar will still apply.
[73] I agree with the submission of the Respondent on this issue. The Abu Shabab and Kashtem Applicants have already obtained a remedy, that is a new hearing before the RPD.
[74] If the re-determination before the RPD leads to a positive decision for the Abu Shabab and Kashtem claimants, there will no longer be a “live controversy” between those Applicants and the Respondent.
[75] In Borowski, supra, the Supreme Court of Canada commented on the doctrine of mootness, at paragraph 353, as follows:
15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot…
16 The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case... In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[76] In O. (N.) v. Canada (Minister of Citizenship and Immigration), 2016 FCA 214, the Federal Court of Appeal considered the doctrine of mootness. The applicant had sought judicial review of a decision of the RPD refusing an application to reconsider an application seeking to re-open a claim for refugee protection. The application for judicial review was dismissed and the applicant appealed.
[77] Between the filing of her appeal before the Federal Court of Appeal and the hearing of that appeal, N.O was granted status. The respondent moved to strike the appeal on the grounds of mootness. The Federal Court of Appeal said the following at paragraphs 2 and 4:
2 N.O. opposes the Minister's motion, arguing that the appeal is not moot because she could still be subject to deportation if, for whatever reason, she lost her permanent resident status. At that point, the bar on the reopening of refugee claim found at section 170.2 of the Immigration and Refugee Protection Act S.C. 2001, c. 27(the Act) would apply so that she would be subject to deportation without having her refugee claim adjudicated. N.O. finds herself in this position because her original refugee claim, which was dismissed, was not based on the true facts for her flight from her country of origin, facts which she suppressed for reasons which are not material to this motion.
…
4 The fact that N.O. is now a permanent resident makes this appeal moot. She no longer has the threat of deportation hanging over her. The outcome of this appeal, one way or the other, will have no practical effect on her situation. It is true that N.O. could lose her permanent resident status at some point but this is speculative and would not justify proceeding with an appeal which is moot: Nazifpour v. Canada (Minister of Citizenship & Immigration), 2007 FCA 35, [2007] F.C.J. No. 179 (F.C.A.), at para. 4.
[78] If the Abu Shabab and Kashtem claimants are successful before the RPD after the redetermination of their claims, there will no longer be a live controversy. If they are unsuccessful, they will be subject to the terms of paragraph 110(2)(d), in accordance with the disposition of the present application.
[79] The Respondent also submits that the application for judicial review, in cause number IMM-932-16 on behalf of Mr. Hossain, should be dismissed since he was lawfully removed from Canada, pursuant to a Removal Order that was not stayed upon a motion before the Federal Court. The Respondent argues that in his case, the appropriate remedy is to an Order quashing the decision of the RAD, with no redetermination of the matter since a claim for protection, either as a Convention refugee or a person in need of protection, can only be made from within Canada.
[80] In response, the Applicants argue that as long as Mr. Hossain is outside of Bangladesh when a decision is ma