Ottawa, Ontario, March 21, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ivan Cadovski claimed to fear persecution in both Croatia and Macedonia. A panel of the Immigration and Refugee Board dismissed his claim for refugee protection. The Minister of Citizenship and Immigration seeks judicial review of the Board's decision on the basis that the Board failed to decide whether Mr. Cadovski was excluded from making his claim. The Minister argues that the Board failed to respect a decision of the Federal Court of Appeal, which stipulates that the Board should address any issues relating to exclusion first. Only if it finds that the applicant is not excluded from refugee protection should it go on to deal with the merits of the claim (Xie v. Canada(Minister of Citizenship and Immigration), 2004 FCA 250, [2004] F.C.J. No. 1142 (F.C.A.) (QL)).
[2] I agree with the Minister's submission that the Board made an error of law and I must, therefore, allow this application for judicial review.
I. Issue
[3] Did the Board err in concluding that it was not required, according to the Federal Court of Appeal's decision in Xie, to decide whether a refugee claimant is excluded from protection before deciding the merits of the claim?
II. Analysis
[4] I can overturn the Board's decision only if I conclude that it made an error of law.
[5] According to the Federal Court of Appeal's decision in Xie, above, the Board must decide any issues relating to a claimant's exclusion from refugee protection before dealing with the merits of the claim. The Court noted that once the Board finds that a claimant is excluded from refugee protection, there is nothing more it can or should do for him or her. The claimant's remaining remedies rest with the Minister, not the Board (Xie, above, at para. 38).
[6] Here, Mr. Cadovski was alleged to have been a member of the Croatian military in 1992-1993. Accordingly, the Minister maintained before the Board that Mr. Cadovski was excluded from obtaining refugee protection in Canada by virtue of Article 1 F(a) of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 and s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c-27 (IRPA) (relevant enactments are set out in an Annex). Article 1F(a) of the Convention provides:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
[7] The Board concluded that the Federal Court of Appeal's decision did not apply where (as here) the applicant made a claim against a second country, not connected to the alleged grounds for exclusion (i.e. Macedonia), or where (as here) the applicant had failed to prove that he would be persecuted in that country. I see no basis for the Board's conclusion. There is nothing in the Federal Court of Appeal's decision in Xie that would suggest that it does not apply in situations where a person makes a claim against two countries. The Court emphasized that the Board must first decide if a claimant is excluded from refugee protection because it has sole jurisdiction to do so. Further, if it finds that a claimant is excluded from protection, it need not decide any other issues. It will then fall to the Minister to decide whether the claimant is entitled to protection according to s. 112(3)(c) and s. 113(d) of IRPA, which specifically apply to persons who have been found to be excluded from refugee protection, and which are narrower than the provisions that apply to those who have not been found to be excluded.
[8] In my view, the Board erred in law in failing to apply correctly the Federal Court of Appeal's decision in Xie and I must, therefore, allow this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and the matter should be returned to the Board for a new hearing before a different panel;
2. No question of general importance is stated.
Annex
| Immigration and Refugee Protection Act, S.C. 2001, c-27
Exclusion - Refugee Convention 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection
Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
[...]
Restriction (3) Refugee protection may not result from an application for protection if the person
[...]
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention;
Consideration of application 113. Consideration of an application for protection shall be as follows:
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. |
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. C-27
Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
Demande de protection 112. (1) La personne se trouvant au Canada et qui n'est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
[...]
Restriction (3) L'asile ne peut être conféré au demandeur dans les cas suivants :
[...]
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;
Examen de la demande 113. Il est disposé de la demande comme il suit :
d) s'agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l'article 97 et, d'autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu'il constitue pour la sécurité du Canada. |
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-1047-05
STYLE OF CAUSE: MCI v. IVAN CADOVSKI
PLACE OF HEARING: Toronto, ON.
DATE OF HEARING: January 12, 2006
REASONS FOR JUDGMENT
APPEARANCES:
Ms. Deborah Drukarsh FOR THE APPLICANT
Unrepresented FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT Toronto, ON
tOTTT
Unrepresented FOR THE RESPONDENT