Docket: IMM‑2328‑17
Citation: 2017 FC 1050
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 17, 2017
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
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DJENABOU MATHOS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This applicant was granted leave for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 [IRPA]. This is an application for judicial review of the decision by the Refugee Appeal Division [RAD], which refused to assume jurisdiction to hear Ms. Mathos’ appeal of the decision by the Refugee Protection Division [RPD].
[2]
In what could seem like a comedy of errors surrounding the coming into force of the provisions creating the RAD, which greatly complicated what could have been simple, this judicial review seeks the finding that the RAD has jurisdiction to hear an appeal of an RPD decision. That is not the case based on a systematic examination of the coming‑into‑force provisions of legislative texts, while avoiding entanglement.
I.
Coming‑into‑force provisions
[3]
Originally, Parliament had chosen to set a cut‑off date for RPD decisions that could be appealed before the RAD when it was ultimately created. Thus, only RPD decisions rendered after the coming into force of section 36 of the Balanced Refugee Reform Act, S.C. 2010, c 8 [BRRA] could be subject to an appeal. Subsection 36(1) read as follows:
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Obviously, that meant that cases filed with the RPD in which it had not yet rendered a decision on the day section 36 came into force were subject to appeal before the RAD.
[4]
The date on which that provision came into force clearly had to be specified if that date was not to be the date of royal assent (Interpretation Act, R.S.C., 1985, c I‑21, subsection 3(2)). Section 42 of the BRRA serves that purpose by stipulating that the section will come into force two years after the BRRA receives royal assent. If the government were to decide to bring the BRRA into force before the two‑year period elapsed, it was authorized by the BRRA to do so by order in council:
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The BRRA received royal assent on June 29, 2010. Under subsection 42(1), section 36 would come into force no later than June 29, 2012.
[5]
However, things would not be so simple. Sections 36 and 42 of the BRRA would be amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c 17 [PCISA], which came into force on June 29, 2012. With the amendment of sections 36 and 42 in section 68 of the PCISA, not only would the decisions rendered by the RPD before section 36 came into force not be subject to appeal before the RAD, but also refugee protection claims that were referred to the RPD before subsection 36(1) came into force:
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Rather than have a set date for subsection 36(1) to come into force, as was the case in 2010, this time flexibility was maximized, and subsection 36(1) was only to come into force by an order in council of the government once subsection 42(1) was amended by section 69 of the PCISA:
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[6]
Things were now clear. By order in council, the category of cases that could not be subject to appeal was broadened, as cases referred to the RPD before the date set out in the order in council would not be subject to appeal. In other words, the only cases referred to the RPD after the second version of section 36 came into force were now forwarded for a process leading to an appeal before the RAD. Thus, the RAD would not be created with cases pending (known in government as a “backlog”
). The dates set out in the BRRA for the coming into force of section 36 were no longer relevant. Only the date set by order in council applied. The cut‑off date of June 29, 2012, no longer applied, nor did the BRRA rule that created a “backlog.”
[7]
Thus, an order in council dated August 15, 2012 (SI/2012‑65) set the coming‑into‑force date for the new section 36 as August 15, 2012. As a result, refugee protection claims referred to the RPD under the PCISA after that date would be subject to appeal before the RAD. But that was a mistake. It seems that the RAD would not be ready until later in 2012.
[8]
The error therefore had to be corrected. Parliament did so with its budget implementation act entitled Economic Action Plan 2013 Act, No. 1, S.C. 2013, c 33, by moving back the date on which appeals would be heard by the RAD. The period during which appeals to the RAD should not have been possible was from August 15, 2012, to December 15, 2012. The 2012 Act (PCISA) would have allowed an eventual appeal to the RAD for refugee protection claims referred to the RPD after the date set by the order, on August 15, 2012. The 2013 budget implementation act corrected that date retrospectively, setting it as December 15, 2012 (see Interprétation des lois, P.A. Côté, Éditions Thémis, 4th Ed., at page 508 et seq.), by way of section 167 of the Economic Action Plan 2013 Act, No. 1:
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[9]
Although section 167 did not come into force until the Economic Action Plan 2013 Act, No. 1 received royal assent on June 26, 2013, its retrospective effect was limited to the period from August 15 to December 15, 2012. It applies only to applications referred to the RPD during that time. Refugee protection claims referred to the RPD after December 15, 2012, are subject to appeal before the RAD. But what about claims referred between August 15, 2012, and December 15, 2012? If the RPD decision was rendered after June 26, 2013, for a claim referred between August 15 and December 15, 2012, it is not subject to appeal before the RAD. Parliament wanted to avoid creating a “backlog”
during the four‑month period from August 15 to December 15, 2012. Moreover, for those who received a decision before June 2013 for cases referred after August 15, 2012, section 167 would have no effect, retroactive or retrospective. One might think that Parliament wanted to give the benefit of the full effect of the legislation to those who had completed the process before the RPD prior to June 26, 2013.
[10]
The retrospective portion of the legislation must be expressly ordered or necessarily implied by the language of the Act (Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at paragraph 43). Here, the sole purpose of section 167 is to have a retrospective effect for a specific category of cases, that is, cases referred between August 15 and December 15, 2012, in which there was no decision before June 26, 2013. There is no doubt that Parliament acted expressly. Moreover, no constitutional right to an appeal before the RAD was argued, which would not have been an easy task regardless given the state of the law.
[11]
One question thus remains. When does a decision take effect? The answer is found in rule 68 of the Refugee Protection Division Rules (SOR/2012‑256):
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II.
Facts
[12]
No one is disputing that Ms. Mathos submitted her refugee protection claim on December 13, 2012, during the period in question, that is, between August 15, 2012, and December 15, 2012. That refugee protection claim was not heard until March 7, 2017, and was rejected by the RPD on March 23, 2017, well after June 26, 2013. The applicant did not submit any arguments to the contrary.
III.
Conclusion
[13]
Therefore, by operation of the Act alone, that is, section 167 of the Economic Action Plan 2013 Act, No. 1, no appeal is permitted. In fact, the refugee protection claim was “referred”
(in French, “déférée”
) before December 15, 2012. The first condition set out in section 167 is met. The second is also met. Under section 167, the condition is that the RPD decision must be rendered after June 26, 2013. In this case, it was rendered on March 23, 2017.
[14]
Since the two conditions are met, no appeal of the RPD decision before the RAD was permitted. Therefore, the application for judicial review must be dismissed, because the RAD did not have jurisdiction.
[15]
The parties agree that this is a matter of the application of interim measures to the specific facts of the case. There are no serious questions of general importance.
JUDGMENT in IMM‑2328‑17
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed;
There is no serious question of general importance to certify.
“Yvan Roy”
Judge
Certified true translation
This 10th day of October 2019
Lionbridge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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IMM‑2328‑17
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STYLE OF CAUSE:
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DJENABOU MATHOS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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PLACE OF HEARING:
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Montréal, Quebec
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DATE OF HEARING:
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November 16, 2017
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JUDGMENT AND REASONS:
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ROY J.
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DATED:
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November 17, 2017
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APPEARANCES:
Paul Emmanuel Eyouck Tang
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For the applicant
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Patricia Nobl
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For the respondent
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SOLICITORS OF RECORD:
Paul Emmanuel Eyouck Tang
Counsel
Montréal, Quebec
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For the applicant
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Attorney General of Canada
Montréal, Quebec
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For the respondent
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