Tapambwa v. Canada (Citizenship and Immigration)

Tapambwa v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2019-02-21
Neutral citation
2019 FCA 34
Notes
A correction was made on May 31, 2019.
Reported Decision
Decision Content
Date: 20190221
Docket: A-191-17
Citation: 2019 FCA 34
CORAM:
STRATAS J.A.
RENNIE J.A.
WOODS J.A.
BETWEEN:
STENSIA TAPAMBWA
and RICHARD TAPAMBWA
Appellants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on April 10, 2018.
Judgment delivered at Ottawa, Ontario, on February 21, 2019.
REASONS FOR JUDGMENT BY:
RENNIE J.A.
CONCURRED IN BY:
STRATAS J.A.
WOODS J.A.
Date: 20190221
Docket: A-191-17
Citation: 2019 FCA 34
CORAM:
STRATAS J.A.
RENNIE J.A.
WOODS J.A.
BETWEEN:
STENSIA TAPAMBWA
and RICHARD TAPAMBWA
Appellants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
RENNIE J.A.
I. Overview
[1] The main issue in this appeal is whether persons who have been excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on the basis of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the Convention) for committing crimes against humanity are entitled to have the exclusion finding reconsidered prior to deportation. This question arises in the unique and limited circumstances where the interpretation of Article 1F(a), and thus the legal foundation for the finding that the appellants were excluded from consideration as refugees under the Convention, changed between the date of the exclusion finding and the hearing before the pre-removal risk assessment (PRRA) officer.
[2] The answer to this question matters. If the appellants are excluded from consideration as Convention refugees on the basis of Article 1F(a), the nature and scope of the risks assessed by the PRRA officer are limited and the legal burden the appellants must meet in establishing those risks is elevated (IRPA, ss. 112(3)(c), 113(d)).
[3] In a risk assessment under section 97 of the IRPA, referred to as a restricted PRRA, the appellants must establish on a balance of probabilities that removal would more likely than not subject them to a personal risk of torture, death or cruel and unusual treatment (Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para. 29, 249 D.L.R. (4th) 306 (Li)). Even if such a risk is established, they may still be deported following the Minister’s balancing of the factors set out in subparagraphs 113(d)(i) and (ii) (see Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (Suresh)). On the other hand, should they succeed in convincing the PRRA officer that they face a section 97 risk, their removal is temporarily stayed (IRPA, s. 114(1)(b)).
[4] In contrast, failed refugee claimants have their pre-removal risks assessed under section 96 (IRPA, s. 113(c)). In a section 96 risk assessment, sometimes called Convention grounds assessment, the appellants must establish that they “subjectively fear[] persecution and that this fear is objectively well-founded” (Sukhu v. Canada (Citizenship and Immigration), 2008 FC 427 at para. 25). The latter element requires that there is a “reasonable chance”, a “reasonable possibility”, or a “serious possibility” of persecution on Convention grounds (Németh v. Canada (Justice), 2010 SCC 56 at para. 98, [2010] 3 S.C.R. 281 (Németh) citing Adjei v. Canada (Minister of Employment & Immigration), [1989] 2 F.C. 680 at 683, 57 D.L.R. (4th) 153 (F.C.A.)). While they must establish their case on a balance of probabilities, they do not have to establish that persecution would be more likely than not (Li at para. 11). If they convince the PRRA officer that they face a section 96 risk, refugee protection is conferred (IRPA, s. 114(1)(a)).
[5] The appellants were found by the Refugee Protection Division (RPD) to have committed crimes against humanity and were therefore excluded from claiming protection under section 98 of the IRPA which incorporates Article 1F into Canadian law. In consequence, and as directed by paragraph 113(d) of the IRPA, the PRRA officer conducted a restricted PRRA – that is, with respect to section 97 grounds alone. The officer determined that the appellants did not meet the threshold in section 97 required to stay their removal orders.
[6] The appellants contend that the PRRA officer has both the jurisdiction and legal obligation to reconsider the finding that they were excluded under Article 1F(a). They assert that their removal under their particular circumstances violates both Canada’s international law obligation to observe the principle of non-refoulement and section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, found in Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter).
[7] The Federal Court, per Southcott J. (2017 FC 522), dismissed the appellants’ application for judicial review and certified three questions for determination by this Court:
a. Do ss. 112(3)(a) and (c) of the IRPA require the Minister, when conducting a PRRA, to confirm that there remains a substantive basis for excluding the applicant from refugee protection?
b. If not, does s. 25.2 of the IRPA provide the Minister discretion, in the absence of a pre-established policy, to exempt a person making an application for protection under s. 112 of the IRPA from the restrictions that flow from s. 112(3) of the IRPA, which discretion obliges the Minister to consider and make a decision on a request that such discretion be exercised?
c. If not, does the combined effect of ss. 112(3)(a) and (c), 113(d) and 114 of the IRPA violate s. 7 of the Charter insofar as it deprives an applicant of the right to be recognized as a refugee without confirmation that there remains a substantive basis for excluding the applicant from refugee protection?
[8] The first question is framed by the fact that the legal test for exclusion determinations changed prior to the appellants’ removal from Canada. These reasons therefore necessarily address the consequences of a change in the law subsequent to a final determination of exclusion, but prior to removal from Canada.
[9] The appellants also filed a Notice of Constitutional Question, seeking an order to:
DECLARE, pursuant to s. 52(1) of the Constitution Act, 1982 and/or section 24(1) of the Charter, that the combined effect of ss. 112(3) and 113(d) and 114(1)(b) and (2) of the [IRPA] and s. 172(4)(b) of the Immigration and Refugee Protection Regulations constitutes an unjustifiable violation of s. 7 of the Charter and that they are therefore either of no force or effect; or, in the further alternative;
GRANT the Applicants an exemption, pursuant to ss. 7 and 24(1) of the Charter, from the application of ss. 112(3) and 113(d) and 114(1)(b) and (2) of the Act and s. 172(4)(b) of the Regulations, such that they are entitled to a risk assessment that includes s. 96 of the Act and to a grant of refugee protection in the event that they are found to be at risk of persecution;
[10] I would answer the three certified questions in the negative and I would dismiss the relief requested in the Notice of Constitutional Question.
II. Background
[11] The appellants are spouses and citizens of Zimbabwe. Both served in the Zimbabwe National Army. They left Zimbabwe in 2001 for the United States. They made no claim for protection while in the United States, but did so when they came to Canada in 2011.
[12] On November 20, 2012, the RPD concluded that there were serious reasons to believe that the appellants were complicit in crimes against humanity committed by the Zimbabwe National Army. In reaching this decision the RPD applied the test for complicity under Article 1F(a) of the Convention as it then stood in Canadian law (Ramirez v. Canada (Minister of Employment & Immigration), [1992] 2 F.C. 306, 89 D.L.R. (4th) 173 (F.C.A.) (Ramirez)). In light of the RPD finding, the appellants were excluded from protection under section 98 of the IRPA.
[13] The RPD made two additional determinations.
[14] Notwithstanding that Article 1F(a) excluded the appellants from consideration as Convention refugees under section 98 of the IRPA, the RPD nevertheless assessed the substance of their claims on Convention grounds under section 96. It did so in the course of its consideration of the dependent claims of their children, which were wholly dependent on the evidence of the appellants. The RPD concluded that on that evidence, if returned to Zimbabwe, the children (and necessarily the appellants) would face nothing more than a remote risk of persecution and, therefore, did not fall within the definition of refugee under section 96. The RPD also found that neither the appellants nor their children would face a personalized risk to their lives or to cruel and unusual treatment and, therefore, were not persons in need of protection under section 97 of the IRPA (Notice of Decision, AB, Tab 6A at 96–97).
[15] Seven months later, on May 16, 2013, the Immigration Division determined the appellants to be inadmissible for crimes against humanity under paragraph 35(1)(a) of the IRPA and ordered their deportation under paragraph 45(d) (Deportation Orders and Admissibility Hearing Oral Decision, AB, Tab 6B at 98–104). Paragraph 35(1)(a) provides that:
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
35 (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act
a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre
[16] On July 11, 2013, the appellants’ request for leave to apply for judicial review of the RPD decision was dismissed by the Federal Court. (Respondent’s Memorandum of Fact and Law (RM) at para. 9).
[17] Eight days later, on July 19, 2013, the Supreme Court of Canada released its decision in Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 (Ezokola). In Ezokola, the Court changed the test for complicity in crimes against humanity, as articulated in Ramirez, and as relied on by the RPD. The Ramirez test of “complicity by association” was replaced with a new “complicity by contribution” test that requires a finding that the claimant make a “significant and knowing contribution” to an organization’s crime or criminal purpose before a claimant can be excluded by virtue of Article 1F(a) (Ezokola at paras. 29–30, 84).
[18] Faced with a removal order, the appellants applied for a PRRA under subsection 112(1) of the IRPA. Central to the appellants’ argument before the PRRA officer was their assertion that as a result of the decision of the Supreme Court in Ezokola, the exclusion finding had to be reconsidered. They contended that as they had been excluded on the basis of their complicity by association, the legal basis of the exclusion finding had evaporated. The PRRA officer was therefore obligated to reconsider the exclusion finding and conduct a risk assessment under the more favourable criteria applicable to failed refugee claimants reflected in section 96.
[19] The officer concluded that there was no jurisdiction to consider either the exclusion finding or the Charter arguments (PRRA Decision, AB, Tab 4 at 69–70). As the appellants were excluded under Article 1F(a), they were persons “described” in paragraph 112(3)(c). Thus, their application was only to be considered under paragraph 113(d) – a restricted PRRA – which only permitted an assessment on the basis of the more serious risks and legal threshold set out in section 97 and in subparagraphs 113(d)(i) and (ii).
[20] With respect to the substantive question of risk, the officer determined that should the appellants be returned to Zimbabwe, they would not face a risk within the meaning of either section 96 or section 97 of the IRPA (PRRA Decision, AB, Tab 4 at 70–76).
[21] The appellants sought and obtained leave to commence a judicial review application of the PRRA officer’s decision. The application came before Southcott J.
III. Federal Court decision
[22] After reviewing the provisions of the IRPA which confer jurisdiction on the PRRA officer, the Federal Court judge found that it was not possible to interpret subsection 112(3) and section 113 of the IRPA as permitting a PRRA officer to review a prior exclusion finding. Southcott J. observed that paragraphs 112(3)(c) and 113(d) of the IRPA, which restrict the powers of a PRRA officer, are clear and unambiguous and that neither international criminal law norms nor the Charter required an interpretation of a statutory provision that it could not reasonably bear. In consequence, the judge concluded that the officer properly restricted the risk assessment under paragraph 113(d) of the IRPA to section 97 grounds alone (FC Decision at paras. 36–43, 48–49).
[23] The judge rejected the argument that section 7 of the Charter required a contemporaneous reassessment of the exclusion finding. Relying on the decisions of the Supreme Court in B010 v. Canada (Minister of Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 (B010) and Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431 (Febles), the judge observed that section 7 rights are protected by a section 97 assessment and the availability of a stay of removal (FC Decision at paras. 50, 52, 77–78).
[24] On the appellants’ request for an exemption from the exclusion finding on public policy grounds under section 25.2, the judge found that section 25.2 did not oblige the Minister to consider the request by the appellants, or of any applicant in particular. In his view, Parliament did not intend to create an additional assessment of exclusion in section 25.2. Therefore, the Minister made no error in refusing to exercise his discretion one way or another concerning the appellants’ request. As the appellants did not show that they fell within an already established public policy, the PRRA officer did not err in refusing to consider their application for section 25.2 relief on public policy grounds. The content of public policy is for the Minister alone to determine, and delegates of the Minister cannot create public policy (FC Decision at paras. 72–76).
[25] The judge then considered the reasonableness of the substantive decision of the officer under section 97 that the appellants would not face a risk on return to Zimbabwe. After a thorough and careful review of the record, he found the decision to be reasonable and dismissed the application (FC Decision at paras. 79–101).
[26] The appellants seek an order reversing the Federal Court judgment and remitting the PRRA for redetermination by a different officer. The appellants also seek an order in the nature of mandamus compelling the Minister to respond to their request for an exemption under section 25.2. In the alternative, the appellants ask for a declaration that the effect of subsections 112(3), 113(d), 114(1)(b) and 114(2) of the IRPA violate section 7 of the Charter. They ask for a declaration that paragraphs 112(3)(a) and (c) are of no force and effect under subsection 52(1) of the Constitution Act, 1982, or alternatively, a constitutional exemption under subsection 24(1) of the Charter.
IV. Analysis
A. Standard of Review
[27] The role of this Court is to determine whether the Federal Court judge identified the appropriate standard of review and applied it properly (Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45–46, [2013] 2 S.C.R. 559).
[28] Here, the judge did not err in identifying reasonableness as the standard of review concerning the PRRA officer’s interpretation of subsection 112(3) of the IRPA (FC Decision at paras. 20–22).
[29] The question whether a PRRA officer has the authority to reconsider a prior exclusion finding concerns the interpretation of the PRRA officer’s home statute and does not fall into any of the categories that rebut the presumption of reasonableness. It is clear from the legislative provisions in issue that the PRRA officer has the authority to make the inquiry into whether the appellants are described by subsection 112(3) of the IRPA. The question raised in this appeal only concerns the extent of that authority and thus cannot conceivably raise a true question of jurisdiction (Quebec (Attorney General) v. Guérin, 2017 SCC 42 at para. 32, [2017] 2 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 59, [2008] 1 S.C.R. 190 (Dunsmuir)).
[30] Turning to the Charter question, the PRRA officer determined that PRRA officers do not have jurisdiction to consider questions of constitutional validity (Covarrubias v. Canada (Minister of Citizenship & Immigration), 2006 FCA 365 at paras. 47–57, [2007] 3 F.C.R. 169). Thus, the only decision under review that addresses the Charter argument is that of the Federal Court and that will be reviewed for correctness. Regardless, as the Federal Court judge identified at paragraph 22, questions of constitutional validity are reviewed for correctness (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Dunsmuir at para. 58; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181 at para. 36; Canada (Attorney General) v. Johnstone, 2014 FCA 110 at para. 46, [2015] 2 F.C.R. 595).
[31] The appellants also challenge the implicit refusal of the Minister to exercise discretion under section 25.2 of the IRPA. What section 25.2 requires will be assessed on a correctness basis, but whether, in light of the proper interpretation of section 25.2 and the context of the case, the Minister erred in failing to exercise discretion under section 25.2 will be assessed for reasonableness.
[32] Finally, as the appellants accept, the PRRA officer’s section 97 risk assessment will be reviewed for reasonableness (FC Decision at para. 19).
[33] With the background set, I turn to the scope of a PRRA officer’s jurisdiction.
B. The interpretation of subsection 112(3) of the IRPA
[34] The crux of the appellants’ position is that paragraph 112(3)(c) is ambiguous and that the Court must adopt an interpretation that permits reconsideration of a prior exclusion finding by the PRRA officer. They contend that both section 7 of the Charter and Canada’s international law obligation to protect against refoulement require this interpretation. They also say that PRRA officers must have the ability to reconsider a prior inadmissibility finding. This is necessary because in order to receive a full PRRA, the appellants would not only need to escape paragraph 112(3)(c) (described by exclusion), but paragraph 112(3)(a) (described by inadmissibility) as well.
[35] As noted, the appellants’ argument depends on the assumption that there is an uncertainty or ambiguity in the legislation and so the interpretation that more greatly conforms to international law or the Charter should be selected. As a general proposition, this is not in doubt (R. v. Jarvis, 2019 SCC 10 at paras. 104–106). However, in this case there is no ambiguity. The language of Parliament in subsection 112(3) and paragraph 113(d) is unequivocal. If an applicant for refugee protection was excluded under Article 1F(a) of the Convention, the risk assessment to be conducted by the PRRA officer is restricted. That is the case in this appeal.
[36] Applying the modern approach to statutory interpretation (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) 193) of text, context and purpose, subsection 112(3) simply cannot be interpreted so as to permit the PRRA officer to reconsider a prior exclusion finding under paragraph 112(3)(c) or an inadmissibility finding under paragraph 112(3)(a).
[37] Paragraphs 112(3)(a) to (c) read as follows:
112 (3) Refugee protection may not be conferred on an applicant who
112 (3) L’asile ne peut être conféré au demandeur dans les cas suivants :
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée;
(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés;
…
[…]
[38] The appellants submit that paragraphs 112(3)(a) and (c) are ambiguous as to whether the PRRA officer can make a fresh assessment of exclusion and inadmissibility. Paragraph 112(3)(a) is ambiguous, they say, because it states a person falls within the paragraph where the person “is determined”, rather than “has been determined”. The use of the present tense suggests that Parliament intended that the PRRA officer have the jurisdiction to revisit the issue of exclusion.
[39] Similarly, paragraph 112(3)(c) states a person falls within its ambit only when that person had a claim for protection that was rejected “on the basis” of Article 1F(a). Since the Supreme Court subsequently changed the test for exclusion on the basis of Article 1F(a), the appellants were not excluded “on the basis” of Article 1F(a). They also assert a latent ambiguity arises once Canada’s international law obligations and the principle of non-refoulement are considered as part of the interpretive exercise.
[40] Each of these arguments fail.
[41] The text of subsection 112(3) and the scheme of the IRPA demonstrate that there is no authority in a PRRA officer to reconsider an exclusion finding. The appellants’ interpretation rests on a de-contextualized reading of subsection 112(3), does not take account of the architecture of the IRPA and seeks to give subsection 112(3) an interpretation which it is incapable of bearing. The purposes of the IRPA set out in section 3, to which the appellants resort, do not permit the Court to re-draft the scheme set out in the IRPA or to give a meaning to subsection 112(3) which is contrary to Parliament’s intent.
[42] There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26 at para. 53, [2007] 2 S.C.R. 292 (Hape)). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 at para. 47; Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed., (Markham: LexisNexis Canada Inc., 2014) at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 at paras. 82–87, [2006] 3 F.C.R. 655).
[43] Therefore both Canada’s international law obligations, in this case under the Convention, and principles underlying international law play a role in the contextual interpretation of Canadian laws (B010 at para. 47). This is reinforced by paragraph 3(3)(f) of the IRPA which directs that the Act “is to be construed and applied in a manner that … complies with international human rights instruments to which Canada is signatory”.
[44] There is, however, an important counter-weight to these principles – the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62 at para. 50; National Corn Growers Assn. v. Canada (Canadian Import Tribunal), [1990] 2 S.C.R. 1324 at page 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54).
[45] With these first principles in mind, I return to the appellants’ submission regarding paragraph 112(3)(a), namely, that the use of the present tense “is” suggests that a PRRA officer can reconsider a prior determination of inadmissibility at the time of the PRRA.
[46] In short, this argument fails because to permit a PRRA officer to reconsider a prior inadmissibility finding would usurp the processes set out in the IRPA and would be contrary to the legislative scheme. The present tense “is determined to be inadmissible” refers to the fact that once determined to be inadmissible, an applicant remains inadmissible. The claimant is before the section 97 PRRA officer only because he or she “is” inadmissible. Were it not for that fact, they would not be there in the first place. The claimant would be before a section 96 PRRA officer. Parliament did not use language such as “may be inadmissible”.
[47] Exclusion and the resulting inadmissibility is a status held by the appellants, which has previously been determined by the RPD and the Immigration Appeal Division (IAD). It is in these bodies that Parliament has reposed responsibility for those decisions. The RPD/IAD determinations are conclusive and final unless set aside by the Federal Court. Parliament’s use of the word “is” is consistent with the architecture of the IRPA and the procedures by which exclusion and inadmissibility findings are made.
[48] A PRRA officer, whether acting under section 96 or 97, is neither hearing an appeal nor making a de novo determination of the original claim for protection rejected by the RPD. When Parliament wanted to establish an appellate tribunal with respect to RPD decisions, it did so expressly. In 2012, subsection 13(1) of the Balanced Refugee Reform Act, S.C. 2010, c. 8 (BRRA) came into force, establishing the Refugee Appeal Division (see Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 F.C.R. 157 for a review of the legislative history and purpose of the Refugee Appeal Division).
[49] To be clear, the legislation says nothing that would give the PRRA officer authority to reverse a finding of inadmissibility or exclusion. To the contrary, Parliament has put that responsibility elsewhere.
[50] Sections 34 to 42 of the IRPA deem persons to be inadmissible for violations of human rights, various forms of serious criminality, medical or financial reasons. Inadmissibility findings arise by operation of law where an officer finds that the person is a person described in one of those sections. Unlike refugee claims, no further adjudication or determination is required. Persons may be deemed inadmissible.
[51] When an official believes a person is inadmissible, an inadmissibility report is prepared under subsection 44(1) of the IRPA. This report is then referred to the Minister of Immigration, Refugees and Citizenship. The Minister reviews the report and, under subsection 44(2), either issues a removal order or refers the matter to the Immigration Division for an admissibility hearing. If the latter, at the conclusion of the hearing the Immigration Division must make one of the orders set out in section 45. In this case, the Immigration Division, accepting the factual determinations of the RPD as it must (paragraph 15(b) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227) found that the appellants were inadmissible under paragraph 35(1)(a) resulting in a removal order under paragraph 45(d) (see Johnson v. Canada (Citizenship and Immigration) 2014 FC 868 at paras. 24 and 25, 463 F.T.R. 257 for elaboration of this point).
[52] Following an inadmissibility determination and a removal order, an appeal lies to the IAD (IRPA, ss. 63(2), 63(3), 63(5)). However, no appeal to the IAD may be made if the foreign national was “found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality” (IRPA, s. 64(1)).
[53] In contrast to the extensive process set up for determinations of inadmissibility, the role of a PRRA officer, whether acting under section 96 or section 97, is limited: to assess allegations of risk prior to removal at the time the decision is made based on fresh evidence or a change in country conditions subsequent to the RPD decision (Azimi v. Canada (Minister of Citizenship and Immigration), 2015 FC 1177 at para. 20 (Azimi)).
[54] Parliament has also considered the consequences arising from a positive risk assessment in the case of a person described in subsection 112(3), namely those excluded such as the appellants. Even if an applicant is successful on a restricted PRRA, the exclusion and inadmissibility findings are neither reversed nor is refugee status conferred. Rather, there is a temporary, but automatic, stay of removal (IRPA, s. 50(b)). This arises, importantly, not as the result of a discretionary decision of the PRRA officer, but by operation of the IRPA (IRPA, s. 114(1)(b)).
[55] If a temporary stay is in place, Parliament has also addressed the next steps in subsection 114(2):
Cancellation of stay
Révocation du sursis
114 (2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.
114 (2) Le ministre peut révoquer le sursis s’il estime, après examen, sur la base de l’alinéa 113d) et conformément aux règlements, des motifs qui l’ont justifié, que les circonstances l’ayant amené ont changé.
[56] The statute does not give the Minister discretion to reconsider the underlying exclusion finding. It only allows the Minister to cancel the stay and re-trigger the removal process. It would be anomalous, in the extreme, to read into the powers of a PRRA officer a power which was withheld from the Minister.
[57] The officer’s task, as prescribed by Parliament, was to consider whether, on new evidence or a change in country conditions, the risks had changed (IRPA, s. 113(d)). The officer does not have the discretion to revisit past evidence or to decide that the question of exclusion should be redetermined. Permitting the PRRA officer to do so would have the effect of injecting a level of appeal in the form of a de novo determination. It would also grant a PRRA officer a decision making authority that has been expressly conferred on the RPD and IAD. It would, in effect, re-write the statute and grant PRRA officers new and significant authority which Parliament did not grant.
[58] In conclusion, the use of the present tense “is” in paragraph 112(3)(a), does not, when situated in the architecture of the IRPA, give rise to an ambiguity. Rather, the present tense “is” is consistent with the treatment by Parliament of how inadmissibility arises – it is a status that the applicant acquired prior to his request for a PRRA. That finding prevails and there is no further determination unless the exclusion finding decision is set aside on judicial review.
[59] The exclusion finding in respect of the appellants was made on November 20, 2012, the removal order of the Immigration Division was issued on May 16, 2013 and the application for leave to commence judicial review in the Federal Court was dismissed by the Federal Court on July 11, 2013. With the dismissal of the leave application, the exclusion finding was final. There was no further right of appeal, review or recourse under the IRPA. All of these decisions took place prior to Ezokola, which was decided on July 19, 2013.
[60] As I have described, the purpose of the PRRA is not to repeat the work of the RPD and the IAD, or to sit on appeal of those decisions. The RPD and the Immigration Division are functus once they have rendered their decisions, and the question of exclusion and inadmissibility is final as far as the PRRA officer’s authority under the IRPA is concerned. Barring fresh evidence or evidence of a risk not previously assessed, the question of exclusion was finally determined with the dismissal of the appellants’ application for judicial review by the Federal Court on July 11, 2013, eight days prior to the decision in Ezokola. The appellants’ exclusion was finally determined “on the basis” of the applicable law at that time.
[61] With the refusal of leave, the decision that the appellants were complicit within the meaning of Article 1F(a) was final. The appellants’ status under the IRPA had been assessed and adjudicated, and all recourse mechanisms exhausted.
[62] Therefore, I agree with the finding of the Federal Court judge that coherence and consistency in the interpretation of the scheme support the conclusion that a PRRA officer has no jurisdiction to reconsider a prior exclusion finding. I would answer the first certified question in the negative.
C. Issue estoppel / res judicata
[63] The Minister says that the appellants’ exclusion has been finally determined and is res judicata. Relying on Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paragraph 62, [2001] 2 S.C.R. 460 (Danyluk), the appellants say that administrative decision makers such as the PRRA officer have a discretion whether or not to apply the doctrine, and that given the intervening change in the law of complicity, the officer erred in not exercising discretion to reconsider the finding.
[64] The Minister’s argument, and the ancillary arguments which it spawned in response, do not assist in the analysis of the legal issues before the Court. Indeed, the Attorney General’s reliance on the doctrine of res judicata is inconsistent with his argument with respect to the jurisdiction and role of a PRRA officer.
[65] Res judicata/issue estoppel is triggered when a decision maker with authority to determine a matter declines not to do so on the basis that the three criteria (same parties, same question, final decision) have been met (Danyluk at para. 25).
[66] A PRRA officer’s jurisdiction is to consider whether, on the basis of new evidence that has come to light or could not have reasonably been discovered at the time of the RPD hearing or on the basis of new risks not previously assessed, the claimant now faces a section 96 or 97 risk, as the case may be. Res judicata plays no role as the question answered by a PRRA officer’s decision is necessarily different from the risks considered by the RPD. While res judicata applies in respect of past risks and evidence, the PRRA officer is considering matters arising subsequent to the RPD determination. Res judicata is engaged only when the same question has been decided.
[67] As a second observation, res judicata has no bearing in circumstances when the second decision maker has no jurisdiction to make the decision in the first place. In Administrative Law, 11th ed. (New York: Oxford University Press, 2014) at p. 197, the authors note that “... the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not in law possess. ... Nor can any kind of estoppel give a tribunal wider jurisdiction than it possesses.” The objection to the second decision maker making the decision is purely a jurisdictional one, rooted in the statutory scheme.
[68] As res judicata does not assist in the disposition of the issues on appeal, it is not strictly necessary to address the appellants’ argument that the PRRA officer has discretion not to apply res judicata and to grant the appellants the benefit of a change in the law. Given the emphasis put on this point, I will nevertheless briefly address this argument.
[69] Assuming for the sake of argument that res judicata applies and the PRRA officer had discretion not to apply the doctrine, there are no relevant factors which would warrant the discretion being exercised in the appellants’ favour. Evolving law is not a reason to depart from the doctrine of issue estoppel (Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, at paras. 28–30, [2013] 3 S.C.R. 125; see as well the discussion of this point in Eli Lilly Canada Inc. v. Teva Canada Limited, 2018 FCA 53 at para. 54, per Laskin J.A.).
[70] Nor is it relevant that the point of finality was reached a mere eight days before Ezokola was decided. No principled distinction can be drawn between an applicant whose exclusion finding became final a day, a month or a year before Ezokola. To make the point, consider the circumstances of a judicial review of a PRRA officer’s decision refusing to apply the doctrine and deciding to reconsider the exclusion. Such a decision would be assessed on a reasonableness basis. When would a decision be unreasonable? One day, eight days, 30 days or six months prior to the change in law?
[71] The appellants rely on the decision of this Court in Oberlander v. Canada (Attorney General), 2016 FCA 52, 396 D.L.R. (4th) 155 (Oberlander). In Oberlander, this Court considered the effect of a change in the law of complicity in the context of citizenship revocation proceedings.
[72] I do not agree that Oberlander supports the appellants.
[73] Oberlander concerned citizenship revocation proceedings under the Citizenship Act, R.S.C. 1985, c. C-29. The Governor in Council made a complicity finding, based on pre-Ezokola law, arising from the applicants’ participation in war crimes in World War II. The complicity finding, on a pre-Ezokola basis, was upheld on judicial review in the Federal Court and on appeal. However, this Court returned the case to the Governor in Council for reconsideration of the issue of duress. On reconsideration, the Governor in Council concluded that duress was not established. The applicants applied for judicial review of the Governor in Council’s second decision. Ezokola was released prior to the second hearing. The Federal Court held that issue estoppel precluded re-litigation of the complicity finding. The applicant appealed.
[74] This Court allowed the appeal, ruling that the Federal Court failed to consider the link between the complicity finding and the issue of duress. The Court of Appeal found that the complicity finding was inherently linked to the issue of duress, and as the question whether or not duress was established was a live issue before the Court, so too was the finding of complicity.
[75] The circumstances under which issue estoppel arose in Oberlander are, therefore, quite distinct from those in this appeal. The complicity finding in Oberlander was still a live issue. The same cannot be said here.
D. Section 7 of the Charter
[76] The appellants’ position is that their removal from Canada in the absence of a risk assessment under the criteria of section 96 violates section 7 of the Charter.
[77] This argument fails on the basis of established Supreme Court jurisprudence with respect to the interface between section 7 of the Charter and exclusion findings. Further, there is no factual foundation for the section 7 argument. As explained above, in assessing the dependent claims of their children