Seklani v. Canada (Public Safety and Emergency Preparedness)

Seklani v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2020-07-23
Neutral citation
2020 FC 778
File numbers
IMM-5192-19
Notes
A correction was made on October 7, 2021
Reported Decision
Decision Content
Date: 20200723
Docket: IMM-5192-19
Citation: 2020 FC 778
Montréal (Québec), July 23, 2020
PRESENT: Mr. Justice Gascon
BETWEEN:
ABDULMALIK ABDURAZAK JABIR SEKLANI
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
I. Overview
[1] In June 2019, Parliament enacted paragraph 101(1)(c.1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], a new ineligibility provision that precludes asylum claimants who have made a claim for refugee protection in a country with which Canada has an information-sharing agreement from having their claim heard and adjudicated by the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB]. These countries with which Canada has an agreement or arrangement for the purpose of facilitating information sharing to assist in the administration and enforcement of immigration and citizenship laws include the United States, the United Kingdom, Australia and New Zealand. Together with Canada, they are known as the “Five Eyes” countries (X (Re), 2014 FCA 249 at para 6).
[2] The Applicant, Mr. Abdulmalik Abdurazak Jabir Seklani, entered Canada from the United States on June 8, 2019, at an unofficial port of entry, and sought refugee protection in Canada the following day. In August 2019, an officer of the Canada Border Services Agency [CBSA] determined that Mr. Seklani had filed, prior to his arrival in Canada, an application for refugee protection in the United States. Therefore, the CBSA Officer found Mr. Seklani ineligible to file a claim for refugee protection with the RPD, pursuant to this new paragraph 101(1)(c.1) of the IRPA [Decision].
[3] By way of his application for judicial review challenging the CBSA officer’s Decision, Mr. Seklani asks the Court to declare paragraph 101(1)(c.1) of the IRPA inconsistent with 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 [Charter]. Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Mr. Seklani claims that removing access to the RPD for all persons who have made prior refugee claims in one of the “Five Eyes” countries increases the risk that a person will be returned to persecution, torture, cruel and unusual treatment or death without having the opportunity to have their risk of refoulement meaningfully assessed. He maintains that, since he has not had his refugee protection claim assessed by the United States or any other country, the ineligibility created by paragraph 101(1)(c.1) is arbitrary, overbroad and grossly disproportionate to the objectives of the IRPA. He submits that the section 7 violations resulting from this provision are therefore not in accordance with the principles of fundamental justice.
[4] The sole issue raised by Mr. Seklani’s application is whether paragraph 101(1)(c.1) of the IRPA violates section 7 of the Charter. For the reasons that follow, Mr. Seklani’s application will be dismissed as section 7 of the Charter is not engaged by this ineligibility provision. A long list of cases from the Supreme Court of Canada [SCC] and the Federal Court of Appeal [FCA] have already found that the nexus between an inadmissibility or exclusion determination and the removal of an asylum claimant is not close enough to trigger life, liberty and security rights under section 7. The ineligibility situation now covered by paragraph 101(1)(c.1) of the IRPA is no different, and the same principles apply: section 7 rights are engaged at the removal stage, not at the prior stage of making a refugee claim and of determining eligibility when such stage is only one preliminary step in the deportation process. Furthermore, Mr. Seklani has failed to demonstrate that the ineligibility provision at paragraph 101(1)(c.1) increases the risk of refoulement or infringes his life, liberty or security. I am satisfied that the pre-removal risk-assessment [PRRA] process which remains available to Mr. Seklani is a proceeding consistent with the Charter and is one of several mechanisms available to Mr. Seklani under the IRPA to properly ensure that the principle of non-refoulement is respected.
II. Background
A. The factual context
[5] The facts underlying this application are simple. Mr. Seklani is a citizen of Libya. In 2016, he travelled to the United States, where he sought refugee protection, alleging a risk of persecution by Libyan militias. However, Mr. Seklani began to fear violence and growing anti-immigrant rhetoric in the United States, and he therefore decided to come to Canada, as many other migrants living in the United States have done since 2017. As far as Mr. Seklani knows, his claim for protection was never assessed in the United States and he has received no decision from the U.S. immigration authorities.
[6] Mr. Seklani entered Canada on June 8, 2019, using an unofficial point of entry located on Roxham Road in the province of Quebec. Because he did not arrive at an official land border port of entry, Mr. Seklani was not subject to the application of the Safe Third Country Agreement between Canada and the United States [STCA]. On June 12, 2019, his asylum claim was deemed eligible and was referred back to the RPD for assessment. However, on August 12, 2019, after a review of his file, the CBSA officer determined that Mr. Seklani had filed, prior to his arrival in Canada, an application for refugee protection in the United States. Given that the United States is one of the “Five Eyes” countries with which Canada has an information-sharing agreement, the officer found Mr. Seklani ineligible to file an asylum claim pursuant to the newly enacted paragraph 101(1)(c.1) of the IRPA.
[7] The Decision under review is short and adds up to only a few lines. It is a “Notice of ineligible refugee claim” pursuant to subsections 104(1) and 104(2) of the IRPA, in which the CBSA officer simply states that Mr. Seklani is a “person who, before they made a refugee claim in Canada, made a refugee claim in a country with which Canada has an information-sharing agreement”, and that his claim is therefore ineligible under paragraph 101(1)(c.1) of the IRPA. In other words, the Decision is strictly an ineligibility determination.
B. The statutory framework
[8] On April 8, 2019, the Budget Implementation Act, 2019, No. 1, SC 2019 c 29 [BIA] was tabled. Among other things, the BIA introduced paragraph 101(1)(c.1) of the IRPA as a new ineligibility requirement. On June 21, 2019, the BIA received royal assent and, by the operation of section 309, paragraph 101(1)(c.1) of the IRPA became enforceable to all claimants who sought refugee protection between April 8, 2019 and June 21, 2019, except for cases where substantive evidence was heard by the RPD. This exception does not apply in this case and it is not disputed by Mr. Seklani that the new paragraph 101(1)(c.1) covers his situation.
[9] This provision reads as follows:
Ineligibility
Irrecevabilité
101(1) A claim is ineligible to be referred to the Refugee Protection Division if
101(1) La demande est irrecevable dans les cas suivants :
[…]
[…]
(c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;
c.1) confirmation, en conformité avec un accord ou une entente conclus par le Canada et un autre pays permettant l’échange de renseignements pour l’administration et le contrôle d’application des lois de ces pays en matière de citoyenneté et d’immigration, d’une demande d’asile antérieure faite par la personne à cet autre pays avant sa demande d’asile faite au Canada;
[10] Paragraph 101(1)(c.1) is the latest addition to a long list of refugee claims which are deemed ineligible to be referred to the RPD. Parliament has previously determined, in subsection 101(1) of the IRPA, that several other categories of asylum claimants are precluded from accessing the IRB. These include: those who have already been conferred refugee protection under the IRPA (paragraph 101(1)(a)); those whose claims have already been denied by the IRB (paragraph 101(1)(b)); those whose claims have already been found to be ineligible, withdrawn or abandoned by the IRB (paragraph 101(1)(c)); those who have been recognized as Convention refugees by another country and who can be returned to that country (paragraph 101(1)(d)); those who entered Canada from the United States through a land border port of entry, in application of the STCA between Canada and the United States (paragraph 101(1)(e)); and those who have been found inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality, subject to certain exceptions (paragraph 101(1)(f)).
[11] As part of the amendments introduced by the BIA, Parliament also added section 113.01 to the IRPA, to complement the new ineligibility provision. This new section provides that all asylum claimants found ineligible under paragraph 101(1)(c.1) are given a mandatory hearing before a PRRA officer, except if their PRRA application is granted without a hearing. This new provision reads as follows:
Mandatory hearing
Audience obligatoire
113.01 Unless the application is allowed without a hearing, a hearing must, despite paragraph 113(b), be held in the case of an applicant for protection whose claim for refugee protection has been determined to be ineligible solely under paragraph 101(1)(c.1).
113.01 À moins que la demande de protection ne soit accueillie sans la tenue d’une audience, une audience est obligatoire, malgré l’alinéa 113b), dans le cas où le demandeur a fait une demande d’asile qui a été jugée irrecevable au seul titre de l’alinéa 101(1)c.1).
[12] Section 113.01 thus creates an exception to the general rule set forth at paragraph 113(b) of the IRPA and section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations] for consideration of PRRA applications. These provisions generally establish that, on PRRA applications, a hearing will only be required when there is new evidence raising issues about the credibility of the applicant, where such evidence is central to the decision with respect to the application for protection and when this evidence, if accepted, would justify allowing the application.
[13] According to the Respondent, the Minister of Public Safety and Emergency Preparedness [Minister], the purpose of these combined amendments was to discourage filing of multiple asylum claims in different countries with which Canada has an information-sharing agreement, while preserving a fair process to properly adjudicate these refugee protection claims through what has been described by the Minister as an “enhanced” PRRA process.
C. The standard of review
[14] In Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the SCC set out a revised framework for determining the standard of review with respect to the merits of administrative decisions (Vavilov at para 10). In that decision, the SCC articulated a new approach to determining the applicable standard of review, holding that administrative decisions should presumptively be reviewed on a standard of reasonableness, unless either the legislative intent or the rule of law requires that the standard of correctness be applied (Vavilov at paras 10, 17). It is not disputed that the question of whether a provision of a decision maker’s enabling statute violates the Charter is to be reviewed under the correctness standard (Vavilov at paras 55-57; see also Nova Scotia (Workers’ Compensation Board) v Martin; Nouvelle-Écosse (Workers’ Compensation Board) c Laseur, 2003 SCC 54 at para 65 and Revell v Canada (Citizenship and Immigration), 2019 FCA 262 [Revell] at para 34).
[15] Therefore, the standard of correctness applies to this litigation whereby Mr. Seklani challenges the ineligibility provision contained at paragraph 101(1)(c.1) of the IRPA on Charter grounds.
D. Preliminary issue
[16] Before turning to the merits of Mr. Seklani’s application, a preliminary matter must first be addressed. Mr. Seklani challenges the affidavit of Mr. Mathew Myre, Senior Director, Asylum Policy at Immigration, Refugees and Citizenship Canada [IRCC], filed by the Minister as part of his response record [Myre Affidavit]. While Mr. Seklani does not explicitly request that the Myre Affidavit be struck, he claims that it is “filled with speculative and uncorroborated generalities” demonstrating the arbitrariness of paragraph 101(1)(c.1) of the IRPA, and that the Court should give it no probative value.
[17] I do not agree.
[18] It is well recognized that, in applications for judicial review, the general rule is that materials which were not in front of the decision-maker cannot be considered by the reviewing court, except for limited exceptions (Gittens v Canada (Attorney General), 2019 FCA 256 at para 14; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [AUCC] at paras 19-20). Those limited exceptions extend to materials that: 1) provide general background assisting the reviewing court in understanding the issues; 2) demonstrate procedural defects or a breach of procedural fairness in the administrative process; or 3) highlight a complete absence of evidence before the decision maker (Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at para 98; Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 23, 25; AUCC at paras 19-20; Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 16-18).
[19] Regarding affidavits, Rule 81 of the Federal Courts Rules, SOR/98-106 [Rules] provides that the alleged facts shall be confined to facts within the deponent’s personal knowledge and must be delivered “without gloss or explanation” (Canada (Attorney General) v Quadrini, 2010 FCA 47 [Quadrini] at para 18). Moreover, the Court may strike or disregard all or parts of affidavits where they are abusive or clearly irrelevant, or where they contain opinions, arguments or legal conclusions (Quadrini at para 18; Cadostin v Canada (Attorney General), 2020 FC 183 at para 36). The general rule is that a lay witness may not give opinion evidence but may only testify to facts within his or her knowledge, observation and experience (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess] at para 14; Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 [TREB] at para 78). Expert evidence is an exception to this general rule barring opinion evidence. The main rationale for excluding lay witness opinion evidence is that it is generally not helpful to the decision-maker and may be misleading (White Burgess at para 14). As admitted by the Minister, Mr. Myre is not an expert in the technical sense, and the Myre Affidavit was indeed not entered as expert opinion evidence. Mr. Myre was therefore a lay witness and the Myre Affidavit was submitted to provide context regarding the adoption and the purpose of the new ineligibility provision set forth at paragraph 101(1)(c.1) of the IRPA.
[20] The SCC has recognized that “[t]he line between ‘fact’ and ‘opinion’ is not clear” (Graat v The Queen, [1982] 2 SCR 819, 144 DLR (3d) 267 at p 835). The courts have thus developed some freedom to receive lay witnesses’ opinions when the witness has personal knowledge of the observed facts and testifies to facts within his or her observation, experience and understanding of events, conduct or actions. In that respect, the FCA recently stated that, in the context of a proceeding before the Competition Tribunal (a specialized administrative decision maker), opinion from a lay witness is acceptable “where the witness is in a better position than the trier of fact to form the conclusions; the conclusions are ones that a person of ordinary experience can make; the witnesses have the experiential capacity to make the conclusions; or where giving opinions is a convenient mode of stating facts too subtle or complicated to be narrated as facts” (TREB at para 79). As such, when a witness has personal knowledge of observed facts such as a company’s relevant, real world, operations, the evidence may be accepted by a court or an administrative decision maker even if it is opinion evidence (TREB at para 80; Pfizer Canada Inc. v Teva Canada Limited, 2016 FCA 161 at paras 105-108).
[21] In my view, the Myre Affidavit provides relevant background and contextual information upon which the Court may rely in this application for judicial review, and it fits within one of the recognized exceptions set out in AUCC and its progeny. Furthermore, the Myre Affidavit contains proper evidence which falls within the boundaries of what the case law mentioned above has recognized as acceptable lay opinion evidence. The Myre Affidavit indicates that Mr. Myre had personal knowledge of the policy development and the underlying goals of the new ineligibility provision, as well as the legislative processes leading to the amendments, allowing him to testify on these matters (Hassouna v Canada (Citizenship and Immigration), 2016 FC 1189 at paras 14-15). The affidavit explains the role played by Mr. Myre in the policy development and the objectives of the amended legislation, and his personal awareness and knowledge of the relevant statistics, of the role and training of IRCC officers handling PRRA applications, and of the PRRA process introducing mandatory hearings for asylum claimants found ineligible under paragraph 101(1)(c.1) of the IRPA. Contrary to what Mr. Seklani argues, I do not find that the Myre Affidavit and Mr. Myre’s responses to the written examination conducted by counsel for Mr. Seklani are speculative to any extent.
[22] I instead agree with the Minister that the information provided by Mr. Myre comes from his personal experience and participation in his capacity as Director of Asylum Policy and a member of the Refugee Affairs Branch at IRCC. Mr. Myre is a manager and policy officer who is well aware of what transpired prior to the enactment of paragraph 101(1)(c.1) and section 113.01 of the IRPA. He was personally part of multiple policy discussions on these issues with senior officials of IRCC, including the Minister. In his affidavit, he testified to facts within his observation, experience and understanding of events, conduct or actions. In addition, the information provided in the Myre Affidavit is relevant and helpful to this litigation. For all those reasons, I therefore see no ground to set it aside in totality or in part, or to give it no probative value.
III. Analysis
[23] Mr. Seklani claims that paragraph 101(1)(c.1) of the IRPA violates section 7 of the Charter as the new ineligibility rule is arbitrary, overbroad and grossly disproportionate to the objectives of the IRPA. He maintains that the rule is arbitrary because there is no rational connection between the punitive harm it inflicts and the objective of deterring asylum shopping, and because it is contrary to the IRPA’s objective to grant fair consideration to those who come to Canada claiming persecution. He further argues that the rule is overbroad because it limits the procedural and substantive protections available for bona fide refugee claimants, including those from countries which Canada has recognized are unsafe for removal even for individuals who do not claim protection. Finally, he submits that the rule is grossly disproportionate because it punishes refugee claimants for having sought protection elsewhere by threatening them with removal to a country where they face persecution without ever having the opportunity to have their risk of return meaningfully assessed. According to Mr. Seklani, there is no justification under section 1 of the Charter for these significant infringements of his section 7 rights.
[24] Mr. Seklani also claims that the modification to the PRRA regime to allow for mandatory hearings for refugee claimants excluded by the application of paragraph 101(1)(c.1) of the IRPA does not constitute an adequate alternative to an independent tribunal trained specifically to assess refugee claims, as the RPD is. As such, Mr. Seklani claims that the procedures provided by the new section 113.01 fail to conform to the principles of fundamental justice as required by the SCC in Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 [Singh].
[25] Finally, Mr. Seklani contends that the new PRRA process does not apply to his situation. As a Libyan national, he is currently subject to an administrative deferral of removal [ADR], which makes him ineligible for a PRRA for the time being. Consequently, he maintains that he remains in “legal limbo” because of his undecided refugee claim made in the United States and says that, as a result of paragraph 101(1)(c.l) of the IRPA, his refugee claim will never be assessed. Mr. Seklani submits that this situation causes him psychological harm and removes his ability to heal from that trauma through closure, which further engages the security of his person under section 7 of the Charter.
[26] I am not persuaded by any of Mr. Seklani’s arguments.
[27] The onus is on Mr. Seklani to prove the violation of his Charter rights, on a balance of probabilities (Chaoulli v Quebec (Attorney General), 2005 SCC 35 at para 30; Canada (Prime Minister) v Khadr, 2010 SCC 3 at para 21). As acknowledged by Mr. Seklani in his submissions, a violation of section 7 of the Charter occurs where: 1) a government action deprives individuals of their right to life, liberty or security of the person; and 2) the deprivation is not in accordance with the principles of fundamental justice (Carter v Canada, 2015 SCC 5 at paras 55, 80; R v Malmo-Levine, 2003 SCC 74 at para 83; Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 75-76, 81). When examining if legislation is consistent with section 7, the Court must engage in a two-step analysis. First, it must determine if section 7 rights are engaged; second, once section 7 is engaged, it must determine if the alleged infringement is made in accordance with the principles of fundamental justice (Revell at para 25).
[28] For the following reasons, I conclude that section 7 is not engaged by the RPD bar created by paragraph 101(1)(c.1) as this ineligibility determination does not deprive Mr. Seklani from his right to life, liberty or security of the person, nor does it increase his risk of refoulement. Moreover, the “enhanced” PRRA mechanism to which Mr. Seklani has access offers an adequate process to be granted refugee protection. Finally, Mr. Seklani has not demonstrated that paragraph 101(1)(c.1) of the IRPA is arbitrary, overbroad or grossly disproportionate, and that it violates the principles of fundamental justice.
A. Section 7 is only engaged at the point of removal
[29] The jurisprudence in the immigration context is clear and unanimous: section 7 rights are considered and engaged at the removal stages of the refugee protection process. Not at the earlier eligibility or admissibility determination stages. Both the SCC and the FCA have repeatedly and systematically found that section 7 of the Charter is not engaged by previously legislated inadmissibility, exclusion or ineligibility criteria and procedure (B010 v Canada (Citizenship and Immigration), 2015 SCC 58 [B010] at para 75; Febles v Canada (Citizenship and Immigration), 2014 SCC 68 [Febles] at para 67; Revell at paras 56-57; Moretto v Canada (Citizenship and Immigration), 2019 FCA 261 [Moretto] at paras 42-44; Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 [Kreishan] at para 121). All these decisions, and an extensive list of cases following them, establish that a finding of inadmissibility, exclusion or ineligibility is distinct from effecting removal of a refugee protection claimant and that, since several other safeguards and steps remain in the process and allow for a risk assessment prior to removal, such findings do not engage section 7 of the Charter. Stated differently, section 7 is not triggered by the determination of exclusion from one refugee determination channel since the potential risks to health and safety are too remote given the availability of further proceedings prior to deportation or removal of the refugee protection claimant, at which point section 7 interests will be considered.
[30] Mr. Seklani has not convinced me that, while paragraph 101(1)(c.1) of the IRPA involves a new and different ground of ineligibility, it creates a situation or circumstances that would call for a different treatment of the section 7 arguments. In the Decision, the CBSA officer merely determined that Mr. Seklani could not present his claim to the RPD; the officer did not purport to order Mr. Seklani’s removal to his country of origin, Libya. Limiting the access to the RPD process through this new ineligibility provision does not have the effect of removing Mr. Seklani from Canada; it is merely a step in the administrative process that could eventually lead to a removal from Canada. However, Mr. Seklani is far from the removal stage, and he will benefit from numerous other safeguards.
[31] The IRPA provides for a number of safety valves and multiple steps where the effect of a possible removal will be considered before it is actually imposed. Me. Seklani and other refugee protection claimants in a similar situation can apply for a PRRA, they can seek an administrative deferral of removal by a CBSA officer, and/or they can seek a stay of removal from this Court if the deferral is unsuccessful (B010 at para 75; Febles at paras 67-68). They can also seek judicial review by this Court of any adverse decision on their PRRA application or request for deferral of removal. Section 7 of the Charter does not protect the right of individuals to access the RPD, but rather the right of individuals not to be subject to removal without a proper assessment of the risks they face if they are returned to their country of origin. In other words, Mr. Seklani’s section 7 arguments made at this early eligibility determination stage, prior to any prospect of removal, are simply premature.
[32] This principle has been well established by the jurisprudence over the years. In Jekula v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 266 [Jekula], the Court had to determine whether inadmissibility for reasons of criminality or participation in crimes against humanity infringed the refugee claimants’ section 7 rights. In that case, which has been repeatedly cited with approval by the SCC and the FCA, Justice Evans concluded that the right to be heard in front of the Refugee Division (as the RPD was then known) was not included in section 7 rights: the “right to life, liberty and security of the person” includes the right to not be removed to a place where one would face death, torture or cruel and unusual treatment or punishment, not access to a specific forum per se. After all, wrote Justice Evans, the RPD is “merely one step in the administrative process that may lead eventually to removal from Canada” (Jekula at para 32). And he thus concluded that section 7 rights are not engaged at such eligibility or admissibility determination stages of the refugee protection process.
[33] Since then, the courts have systematically concluded that it is only at the subsequent removal stages that section 7 can be engaged. In Febles, the SCC considered section 98 of the IRPA, which excludes from refugee protection all persons referred to in Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (Refugee Convention), namely “all persons who have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”. In that decision, the SCC found that the rights protected by section 7 of the Charter were triggered at a later stage as “the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place”, even in a situation such as this one where the individual was excluded from advancing a claim of refugee protection (Febles at para 67). In B010, the SCC found that the appellants were not caught by paragraph 37(1)(b) of the IRPA meant to make people smugglers inadmissible for organized criminality, and determined that section 7 of the Charter was not engaged at the stage of determining admissibility to Canada under subsection 37(1) (B010 at para 75).
[34] Similarly, in Revell, the FCA concluded that an inadmissibility determination from the Immigration Division on the grounds of serious criminality under paragraph 36(1)(a) and organized criminality under (a) of the IRPA did not engage the section 7 rights of the appellant. The following conclusion of the FCA in Revell is particularly relevant for the case of Mr. Seklani:
[56] However, this is not the same as saying that a person’s substantive rights to life, liberty, and security must be considered at every step of the process. The jurisprudence in the immigration context is clear: section 7 rights are considered at the removal or pre-removal detention stage. The Supreme Court drew a similar distinction in the extradition context in United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R 587 at paragraph 34:
Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada’s international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive’s constitutional rights. At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process.
[57] For all of the foregoing reasons, I am of the view that the Judge did not err in dismissing Mr. Revell’s section 7 arguments as being premature and in finding that an inadmissibility determination does not engage section 7. This finding is sufficient to dispose of the appeal. I will nevertheless address the questions identified above in order to provide a complete answer to the certified questions.
[Emphasis added]
[35] In Revell and in the companion Moretto case, the FCA noted the long line of cases having found that the nexus between an inadmissibility determination and removal is not close enough to trigger section 7 (Revell at para 38; Moretto at 43). In Moretto, the FCA reaffirmed that an inadmissibility determination does not engage section 7, and that section 7 arguments raised at the inadmissibility determination stage are premature (Moretto at paras 42-44). In that case, the FCA dealt with the automatic cancellation of a permanent resident’s stay of removal pursuant to subsection 68(4) of the IRPA. It found that this provision mandates a finding of inadmissibility which does not engage section 7 of the Charter even if, at this stage, a PRRA had been denied and there were only limited options left in the deportation process, including the administrative deferral of removal stage. Again, the FCA restated that an inadmissibility finding is distinct from actually effecting removal, given that other steps remain available to the refugee protection claimant (Moretto at para 44).
[36] In Kreishan, the FCA had to determine whether access to the Refugee Appeal Division [RAD] was protected by section 7 of the Charter (Kreishan at paras 5-6). In a context somewhat analog to the present debate, the appellants in Kreishan were contesting amendments to the IRPA that removed the possibility to appeal to the RAD for claimants who requested refugee status in Canada under one of the exceptions to the STCA. This RAD bar, said the FCA, was arguably not a preliminary stage of the type at issue in Febles and B010, but rather a stage closer to and “immediately preceding” removal (Kreishan at para 76). Nevertheless, in Kreishan, the FCA still emphasized that removal is the event that triggers section 7 rights, not the prior steps leading to it. Citing Jekula, the FCA concluded that non-access to the RAD does not infringe section 7 of the Charter:
[121] Analogy may be drawn to other asylum claimants who, for reasons of criminality or participation in crimes against humanity, are inadmissible under Article 1F of the Convention. In commenting on the role of section 7 in relation to this category of claimants, Evans J. (as he then was) observed in Jekula v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 9099 (FC), [1999] 1 FC 266, 154 F.T.R. 268 (Jekula), “while it is true that a finding of ineligibility deprives [a] claimant of access to an important right, namely the right to have a claim determined by the Refugee Division, this right is not included in ‘the right to life, liberty and security of the person’” … “[A] determination that a refugee claimant is not eligible to have access to the Refugee Division is merely one step in the administrative process that may lead eventually to removal from Canada” (at paras. 31-32).
[122] So too is the denial of an appeal to the RAD. It is but one measure in a process that may lead to removal. The section 7 interests of all claimants, regardless of the underlying administrative basis of their rejection – excluded under Article 1F, rejected by the RAD or rejected by the RPD, ineligible to appeal as having no credible basis – are protected at the removal stage, whether by a PRRA, a request to defer removal or the right to seek a stay of removal in the Federal Court. This section does not mandate appeals or judicial review at every stage of a process (Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267, 155 Imm. L.R. (2d) 40 (F.C.T.D.).
[Emphasis added]
[37] I do not find any meaningful distinction between the various situations described in these SCC and FCA precedents and the case at hand. To quote Kreishan once more, “section 7 is engaged at the point of removal, and is protected by the opportunity to seek a deferral of removal administratively, failing which, to seek a stay in the Federal Court” (Kreishan at para 127). It is true that the Court has yet ruled on the particular circumstances created by the new ineligibility provision set out in paragraph 101(1)(c.1) of the IRPA or determined whether section 7 is engaged where ineligibility criteria preclude a refugee claim that has not been assessed by any country or procedure, and where the person is not otherwise inadmissible to Canada or excluded from refugee protection. However, Mr. Seklani has not referred the Court to any precedent or circumstance that would allow me to distinguish the situation created by paragraph 101(1)(c.1) from the unanimous case law establishing that no section 7 rights arise prior to the removal stage. Nor has Mr. Seklani provided any reason to persuade me that the new ineligibility described at paragraph 101(1)(c.1) of the IRPA should be treated any differently, that he does have the same protections at the removal stage, or that the new ineligibility provision makes his removal any more imminent than other inadmissibility or exclusion determinations.
[38] In his submissions, Mr. Seklani attempted to rely on Canada (Minister of Employment and Immigration) v Agbasi, [1993] 2 FC 620 [Agbasi], a case which preceded the long list of appellate-level decisions mentioned above. In Agbasi, the Court mentioned that “the application of eligibility criteria might be open to a challenge on Charter grounds” and that, under certain circumstances, it could be theoretically conceivable that the application of eligibility criteria could be “inconsistent with considerations of fundamental justice” (Agbasi at para 33). However, this case dates back to 1993, and I am not aware of any decision (nor has Mr. Seklani cited any) having found that a determination of inadmissibility, exclusion or ineligibility triggers the potential implication of section 7 rights, when a refugee claimant can benefit from with the usual safeguards to have his risk assessed prior to removal.
[39] As was the case for other precedents involving inadmissibility provisions or even cases involving section 98 of the IRPA where refugee claimants are excluded altogether from the IRB, removing access to the RPD for claimants who filed refugee claims in the “Five Eyes” countries does not increase the risk that a person will be returned to persecution, torture, cruel and unusual treatment or death. This will be assessed at later stages in the refugee protection process, namely by PRRA officers at the PRRA application stage, by CBSA officers at the administrative deferral of removal stage, and by this Court on judicial review of PRRA or refusal of deferral decisions and on motions seeking a stay of a removal order. These safeguards are sufficient to ensure that persons such as Mr. Seklani will not be removed in a manner inconsistent with section 7 of the Charter (Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34 at para 88).
[40] I pause a moment to briefly comment on Mr. Seklani’s assertion that his situation would somehow be worse or more critical because he is a citizen of Libya and because he will not have access to the PRRA process in the foreseeable future in light of the ADR currently in place for that country. Mr. Seklani contends that he should have a right to have his refugee protection claim heard and that, since he is subject to an ADR and his claim in the United States has never been settled, he should not be left in a state of legal and psychological limbo.
[41] I find this argument to be without any merit. As the Minister correctly pointed out, the ADR is to the benefit of Mr. Seklani: as long as removals to Libya are deferred, Mr. Seklani will enjoy the de facto protection of Canada, and he will remain far from being removed to his country of nationality. He will not lose anything during the suspension period, and his right to an eventual PRRA will remain intact. No matter the ADR in place and despite the fact that his PRRA assessment is being delayed because of it, Mr. Seklani will still have the opportunity to have his refugee protection claim heard through a PRRA application once the ADR is lifted. There is simply no legal foundation nor any logic to suggest that the passage of time under the ADR is detrimental to Mr. Seklani, affects his likelihood of being removed to Libya or has any adverse impact on his section 7 rights.
[42] Mr. Seklani also contends that the legal limbo in which he has been placed causes him to suffer from “serious state-imposed psychological harm”, which infringes the security of the person and engages his section 7 rights. This argument is also baseless since Mr. Seklani has not filed any medical evidence whatsoever in support of his allegation of psychological harm. I note that Mr. Seklani’s affidavit is totally silent on any form or