2015 FC 329, 2015 FC 329

IMM-5302-14 2015 FC 329 Obaildullah Siddiqui ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Siddiqui v. Canada (C itizenship and I mmigration ) Federal Court, Noël J.—Vancouver, February 9; Ottawa, March 17, 2015.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of Immigration and Refugee Board, Refugee Protection Division (RPD) decision allowing respondent’s application pursuant to Immigration and Refugee Protection Act (IRPA), s. 108(1) (a), deeming applicant’s refugee protection claim to be rejected — Applicant, Afghan, resettled as member of source country class, becoming permanent resident — Subsequently travelling to Afghanistan, China on Afghan passport issued to him — RPD determining applicant reavailing himself of protection of Afghanistan — Whether RPD decision to allow application for cessation of refugee status reasonable — By application of IRPA, ss. 95(1) (a), 95(2) 108(2), 46(1)(c.1) permanent residents having received refugee protection status may lose refugee protection, permanent resident status — Cessation clauses therefore applying to applicant — Cessation of protection of refugee status applying to Country of asylum class — Person categorized in Country of asylum class “person in similar circumstances” as Convention refugee, as defined in IRPA, ss. 12(3) , 95(1)(a) — RPD conducting proper analysis for determination of cessation of refugee status under s. 108(1)(a), applying requirements that must be satisfied for reavailment under United Nations Convention Relating to the Status of Refugee — Applicant not rebutting presumption of intent to reavail himself of protection of Afghanistan by obtaining passport — Question certified — Application dismissed.

This was an application for judicial review of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada allowing the respondent’s application pursuant to paragraph 108(1) (

a) of the Immigration and Refugee Protection Act (IRPA) and deeming the applicant’s refugee protection claim to be rejected. The applicant, an Afghan, was accepted for resettlement to Canada as a member of the source country class and became a permanent resident. An Afghan passport was subsequently issued to him, which he used for travel to Afghanistan, to take business trips to China, for identification when checking into hotels and to obtain visas to travel to India. The RPD determined that the applicant had reavailed himself of the protection of Afghanistan.

He voluntarily obtained an Afghan passport; he had the requisite intent to reavail; and he actually obtained the protection of Afghanistan. The applicant submitted, inter alia , that subsection 108(1) of IRPA only applies to Convention refugees and persons in need of protection; that if the cessation clauses do have an impact on his status, the RPD erred in applying a cessation clause that derives from and is in relation to Convention refugees; that the facts of this case raised the issue of the applicability of paragraph 108(1)(

e) of IRPA; and that he was excluded from cessation proceedings because he was a permanent resident. The main issue was whether the RPD decision to allow the application for cessation of refugee status for the applicant was reasonable. Held , the application should be dismissed. By application of paragraph 95(1) ( a ), subsection 95(2) , subsection 108(2) and paragraph 46(1)( c.1 ) of IRPA , any permanent resident that has received refugee protection status, by application of paragraph 108(1) (

a) of IRPA, can have his or her refugee protection cease and thus lose their permanent resident status. The cessation clauses therefore applied to the applicant. The applicant’s argument that the cessation of protection of refugee status applies to Convention refugees and not to the applicant’s risk category, namely the Country of asylum class, did not hold. The definition of a Convention refugee contained in Citizenship and Immigration Canada’s Overseas Processing Manual (OP) , in place at the time of the applicant’s assessment, differs from the definition of a refugee in the Country of asylum class.

That being said, reading IRPA as a whole, a person categorized in the Country of asylum class is “a person in similar circumstances” as a Convention refugee, as defined in subsection 12(3) and paragraph 95(1) (

a) of IRPA. Subsection 108(2) of IRPA, the cessation clause, specifically refers to subsection 95(1) of IRPA. The RPD conducted the proper analysis for a determination of cessation of refugee status under paragraph 108(1)(

a) of IRPA. It applied the three requirements that must be satisfied for reavailment under the United Nations Convention Relating to the Status of Refugee . The applicant’s action of obtaining an Afghan passport created the presumption that he intended to reavail himself of the protection of the country of his nationality. He did not rebut this presumption. The intervention of this Court was thus not warranted. A question was certified as to whether, in a cessation application pursuant to paragraph 108(1)(

a) of IRPA, the same or substantially the same legal considerations, precedents, and analysis apply to persons found to be Convention refugees as to persons found to be in need of protection as members of the Country of asylum class. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 12(3), 46(1) ( c.1 ), 72(1), 74( d ), 95, 98, 108. TREATIES AND OTHER INSTRUMENTS CITED United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6, Art. 1C(1). CASES CITED APPLIED:

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Bell ExpressVu Limited Partnership v. Rex, 2002SCC 42, [2002] 2 S.C.R. 559; Toussaint v. Canada (Minister of Citizenship and Immigration), 2011 FCA 146, [2013] 1 F.C.R. 3;Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (C.A.) (QL); Canada(Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89, 36 Imm. L.R. (3d) 167; Varela v.

Canada (Minister of Citizenship andImmigration), 2009 FCA 145, [2010] 1 F.C.R. 129. CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. REFERRED TO: Nsende v. Canada (Minister of Citizenship and Immigration), 2008 FC 531, [2009] 1 F.C.R. 49; Chandrakumar v. Canada (Employmentand Immigration), (F.C.A.); Cabrera Cadena v. Canada (Public Safety and Emergency Preparedness), 2012 FC 67,408 F.T.R. 1. AUTHORS CITED Citizenship and Immigration Canada. Overseas Processing Manual (OP).

Chapter OP 5: Overseas Selection and Processing ofConvention Refugees Abroad Class and Members of Humanitarian-protected Persons Abroad Classes, August 13, 2009, online:<http://www.cic.gc.ca/english/resources/manuals/op/op05-eng.pdf>. United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for DeterminingRefugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, reedited January 1992. appLICATION for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board allowing therespondent’s application pursuant to paragraph 108(1)(

a) of the Immigration and Refugee Protection Act and deeming the applicant’srefugee protection claim to be rejected. Application dismissed. APPEARANCES Douglas Cannon for applicant. Banafsheh Sokhansanj and Timothy E. Fairgrieve for respondent. SOLICITORS OF RECORD Elgin, Cannon & Associates, Vancouver, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Noël J.: I.

Introduction [1] This is an application by Obaildullah Siddiqui (the applicant) for leave to commence an application for judicial review pursuantto subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of Michal Mivasair of theRefugee Protection Division (RPD) dated June 20, 2014, which allowed the Minister of Public Safety and Emergency Preparedness’sapplication pursuant to paragraph 108(1)(

a) of IRPA. The refugee protection claim of the applicant was deemed to be rejected. II. Facts [2] The applicant is a 43-year-old man from Afghanistan. [3] He fled Afghanistan in 1987 to live in Pakistan. [4] The applicant filed a refugee protection claim in June 2007, alleging a well-founded fear of persecution in Afghanistan. In 2010,he was accepted for resettlement to Canada by the Canadian government as a member of the source country class.

He came to Canadawith his wife and three children as resettled persons sponsored by a private “group of five”. [5] The applicant became a permanent resident on January 25, 2011. [6] An Afghan passport was issued to him on October 19, 2011. [7] The applicant subsequently took three trips to Afghanistan: (1) from July 14, 2012 to September 4, 2012, where the applicanttravelled with his two sons (six weeks); (2) from April 11, 2013 to June 25, 2013, where he travelled alone (nine weeks); and (3) fromJuly 24, 2013 to January 20, 2014, where he travelled with one of his sons (six months). [8] The applicant further used his Afghan passport to take business trips to China, for identification when checking into hotels and toobtain visas to travel to India. [9] On November 6, 2013, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and

Immigration (the Minister) filed an application for an order that the refugee status of the applicant cease and be rejected under paragraph108(1)(

a) and subsection 108(2) of IRPA. The Minister claimed that the applicant had reavailed himself of the protection of his countryof nationality. III. Impugned Decision [10] The RPD stated that

section 108 of IRPA places the burden of proof on the Minister to demonstrate that an individual who hadbeen determined a Convention refugee under IRPA has ceased to be a Convention refugee. The applicant must then answer to theallegations of the Minister, once a prima facie case has been established. Here, the Minister met his burden. Thus, pursuant to paragraph108(1)(a), the applicant has voluntarily reavailed himself of the protection of Afghanistan. The applicant did not rebut the allegationsagainst him on a balance of probabilities. [11] The RPD relied on Nsende v.

Canada (Minister of Citizenship and Immigration), 2008 FC 531, [2009] 1 F.C.R. 49 (Nsende) inanalysing whether the applicant had reavailed himself of the protection of Afghanistan. Relying on Chandrakumar v. Canada(Employment and Immigration), (F.C.A.), the RPD wrote that the motivation of the refugee for applying for apassport also needs to be taken into consideration. [12] The RPD first explained that, in this case, the applicant first voluntarily obtained an Afghan passport even though he could havereceived a travel document from Canada for his travels.

Second, the applicant had the requisite intent to reavail since he knew what hewas doing. Third, the applicant actually obtained the protection from Afghanistan, since he applied and obtained an Afghan passport andalso applied for visas to China and India with his Afghan passport. The applicant created the expectation in all of the countries to whichhe travelled that he is an Afghani citizen. [13] The Minister’s application pursuant to paragraph 108(1)(

a) of IRPA was therefore allowed, the applicant’s claim for refugeeprotection was deemed rejected and the applicant thus ceased to be a Convention refugee. IV.

Parties’ Submissions [14] The applicant first submits that subsection 108(1) of IRPA only applies to Convention refugees and persons in need of protection.The applicant does not fall in either of those categories since he was allowed to come to Canada as a member of the humanitarianprotected person abroad class. [15] The respondent replies by stating that the applicant is not challenging the RPD’s finding that he has reavailed himself of theprotection of Afghanistan after receiving refugee protection in Canada, but instead seeks judicial review of issues which were not raisedbefore the RPD.

This Court should thus decline to consider the issues not raised by the applicant before the RPD in this judicial review.If this Court however chooses to hear the matter, the respondent argues that

section 108 of IRPA applies to the applicant since it is notlimited to Convention refugees. Subsection 108(2) of IRPA allows the Minister to apply to the RPD for a determination that refugeeprotection conferred under

section 95 of IRPA has ceased. [16] Alternatively, the applicant argues that if the cessation clauses do have an impact on his status, the RPD erred in applying acessation clause that derives from and is in relation to Convention refugees to the applicant’s circumstances. The respondent respondsthat the terms used by the RPD when it writes that the applicant has been determined to be a Convention refugee do not change thenature or the analysis of the case at bar. Refugee protection was conferred to the applicant under paragraph 95(1)(

a) of IRPA and hebecame a protected person under subsection 95(2) of IRPA. When a person has been conferred refugee status under subsection 95(2) ofIRPA, the cessation clause under subsection 108(2) of IRPA is applicable. [17] The applicant further submits that if the cessation clauses are applicable to his circumstances, the facts of his case raise the issueof the applicability of paragraph 108(1)(

e) of IRPA. The applicant argues that had the RPD considered paragraph 108(1)(

e) of IRPA,then the applicant might have been found to have ceased to need refugee protection pursuant to paragraph 108(1)(

e) of IRPA, the RPDwould not have been compelled to go any further as per subsection 108(2) of IRPA, and the applicant’s permanent resident status wouldhave remained intact because this cessation clause is the only one that does not automatically result in the loss of permanent residentstatus. On this issue, the respondent states that at the hearing before the RPD, the RPD made it clear that only paragraph 108(1)(

a) wasgoing to be considered. [18] Lastly, based on

section 98 of IRPA, the applicant submits that he is excluded from cessation proceedings, because, as apermanent resident, the applicant enjoys all the rights and obligations that are attached to Canadian nationality. The respondent howeverreplies by stating that

section 108 of IRPA does apply to permanent residents when read together with paragraph 46(1)(c.1) of IRPA. V. Issues [19] The applicant proposes the following issues: 1. Is the cessation clause in paragraph 108(1)(

a) of IRPA applicable to a person who has not been found to be a Conventionrefugee? 2. Did the RPD err in law by failing to consider the applicability of paragraph 108(1)(

e) of IRPA to the facts of this case? 3. Is the applicant excluded, by virtue of his permanent resident status, from cessation proceedings? [20] The respondent raises the following issues: 1. Should this Court consider issues on this judicial review that were not raised before the RPD? 2. Does

section 108 of IRPA apply to the applicant?

3. Did the RPD err by failing to consider whether the applicant’s refugee protection had ceased under paragraph 108(1)(

e) becauseof changes in Afghanistan? [21] I have reviewed the parties’ records and respective submissions and there are two issues to be addressed here: 1. Should this Court consider issues that were not raised before the RPD? 2. Is the RPD decision to allow the application for cessation of refugee status for the applicant pursuant to paragraph 108(1)(

a) ofIRPA reasonable? VI. Standard of Review [22] The RPD decision to allow the application for the cessation of refugee status of the applicant under

section 108 of IRPA is aquestion of mixed fact and law and thus attracts the reasonableness standard (Cabrera Cadena v. Canada (Public Safety and EmergencyPreparedness), 2012 FC 67, 408 F.T.R. 1, at paragraph 12; Nsende, above, at paragraphs 6–9). The Court shall only intervene if itconcludes that the decision is unreasonable, and falls outside the “range of possible, acceptable outcomes which are defensible in respectof the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47). VII. Analysis A.

Should this Court consider issues that were not raised before the RPD? [23] As a preliminary matter, this issue was dealt with at the beginning of the hearing. I first told counsel that I would not deal withany matter that was not at first raised with the RPD, subject to what follows. These are my reasons. [24] First, only paragraph 108(1)(

a) of IRPA was raised and argued by both parties before the RPD (applicant’s record (AR), page 86,at lines 4–5). The applicant could have raised the applicability of paragraph 108(1)(

e) of IRPA before the RPD but did not. As a matter offact, counsel for the applicant objected to the reference to paragraph 108(1)(

e) of IRPA, which caused the RPD to say that it would onlydeal with subsection 108(1) of IRPA (see transcript of the hearing, pages 256–257 of the tribunal record). In Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Supreme Court explains that a court“has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (paragraph22). The “tribunal [of] first instance [should be given] the opportunity to deal with the issue first and to make its views known” (ibid, atparagraph 24).

The Supreme Court also explains that this is particularly important in situations where issues raised for the first time onjudicial review relate to the tribunal’s specialised expertise (ibid, at paragraph 25). This is the case here. The RPD was the proper forumto hear the issues the applicant is raising in this judicial review, as it is a specialized tribunal. To raise an issue for the first time onjudicial review may unfairly prejudice the opposing party, the respondent in this case, and may deny the Court the adequate evidentiaryrecord required to consider the issue (ibid, at paragraph 26).

Therefore, this Court will not deal with issues that were not raised before theRPD, except for the issues that a reasonableness determination calls for. [25] That being said, I will address whether the RPD decision is reasonable. As such, I will have to deal with the scope of theapplication to be given to paragraph 108(1)(

a) of IRPA, since the RPD referred in its decision to the applicant as a Convention refugeetwice and not as a member of a humanitarian protected person abroad class (which includes the Country of asylum class) as he is. B. Is the RPD decision to allow the application for cessation of refugee status for the applicant pursuant to paragraph 108(1)(

a) ofIRPA reasonable? [26] To begin with, contrary to the applicant’s submissions that the cessation clauses do not apply to him as he is not a Conventionrefugee or a person in need of protection, but was rather allowed to come to Canada as a member of the humanitarian protected personabroad class, which includes the Country of asylum class, does not hold. This can be understood by reading the content of IRPA as awhole. Indeed: “[t]oday, there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”(Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paragraph 21; Bell ExpressVu Limited Partnership v.Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paragraph 26). This principle of statutory

interpretation has been reiterated in the immigrationand refugee context by the Federal Court of Appeal in Toussaint v. Canada (Minister of Citizenship and Immigration), 2011 FCA 146,[2013] 1 F.C.R. 3, at paragraph 30. Indeed, by application of paragraph 95(1)(a), subsection 95(2), subsection 108(2) and paragraph46(1)(c.1) of IRPA, any permanent resident that has received refugee protection status, by application of paragraph 108(1)(

a) of IRPA,can have his or her refugee protection cease and thus lose their permanent resident status. The cessation clauses therefore apply to theapplicant. [27] Moreover, the applicant’s argument that the cessation of protection of refugee status applies to Convention refugees and not tothe applicant’s risk category, namely the Country of asylum class, does not hold. The [Overseas Processing Manual (OP).

Chapter] OP5: Overseas Selection and Processing of Convention Refugees Abroad Class and Members of the Humanitarian-protected PersonsAbroad Classes [Citizenship and Immigration Canada, August 13, 2009] in place at the time of the applicant’s assessment defines all thedifferent types of refugees.

The definition of a Convention refugee differs from the definition of a refugee in the Country of asylum class.That being said, reading IRPA as a whole, I find that a person categorized in the Country of asylum class is “a person in similarcircumstances” as a Convention refugee, as defined in subsection 12(3) and paragraph 95(1)(

a) of IRPA. Moreover, the applicant hashimself stated that he is a “person in similar circumstances” as defined under subsection 95(1) of IRPA (applicant’s further memorandumof arguments (AFMA), page 6, at paragraph 12). He was issued a permanent resident visa in October 2010 and became a permanentresident in January 2011 (AR, page 28). Subsection 108(2) of IRPA, the cessation clause, specifically refers to subsection 95(1) of IRPA.Thus, again, the cessation clauses are applicable to the applicant.

Also, the fact that the RPD refers to the applicant as a Conventionrefugee on two occasions in its decision (AR, page 5, at line 7; page 10, at line 14) does not change the approach to be followed in such acase and in the analysis. I also note that the RPD refers to the applicant as a protected person twice in its reasons (AR, page 7, at line 4;page 8, at line 24). It is thus apparent from the decision that the RPD was concerned with the protection status of the applicant.

[ 28 ] Paragraph 108(1) (

a) of IRPA states that “a claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection” if “the person has reavailed themselves of the protection of their country of nationality”. Paragraph 108(1)(

a) of IRPA finds its source in

Article 1C(1) of the 1951 United Nations Convention Relating to the Status of Refugee [July 28, 1951, [1969] Can. T.S. No. 6] (the Convention), which states that “[t]his Convention shall cease to apply to any person falling under the terms of

section A if: (1) [h]e has voluntarily re-availed himself of the protection of the country of his nationality”. The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees of the United Nations High Commission for Refugees (the UNHCR Handbook) provides interpretive guidance as to what reavailment means ( Nsende , above, at paragraph 12 ). Paragraph 119 of the UNHCR Handbook indicates the three requirements that must be satisfied for reavailment under the Convention: (

a) voluntariness: the refugee must act voluntarily; (

b) intention: the refugee must intend by his action to re-avail himself of the protection of the country of his nationality; and (

c) re-availment: the refugee must actually obtain such a protection ( ibid , at paragraph 13). [ 29 ] Moreover, paragraph 121 of UNHCR Handbook provides for a distinction between “actual re-availment of protection and occasional and incidental contacts with the national authorities”: “[i]f a refugee applies for and obtains a national passport or its renewal, it will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality.” This suggests that while a passport application creates a presumption of intention to reavail, proof to the contrary may refute that presumption ( ibid , at paragraph 15). [ 30 ] In the case at bar, the RPD conducted the proper analysis for a determination of cessation of refugee status under paragraph 108(1) (

a) of IRPA . Applying the three requirements listed above, the applicant first voluntarily obtained an Afghan passport. He could have used a travel document from Canada for his travels, but instead voluntarily decided to obtain an Afghan passport because it was faster (AR, page 90, at lines 18–20). The applicant subsequently used this passport to travel to Afghanistan (AR, pages 93–111) and China (AR, pages 91–93, 100). [ 31 ] Second, the applicant had the intention to reavail himself of the protection of Afghanistan.

His actions, such as using his Afghan passport to travel to China and to Afghanistan, along with travelling to Afghanistan for business purposes and enrolling one of his sons in school during his last trip to Afghanistan demonstrate his intention to reavail. Indeed, the UNHCR Handbook explains that “[v]isiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations” (UNHCR Handbook, at paragraph 125).

Here, the applicant first travelled back to Afghanistan to visit his sick father. This alone cannot justify reavailment. That being said, the applicant also travelled back to Afghanistan for business reasons, namely for exporting used cars from Canada to Afghanistan (AR, page 103). Also, although the applicant claimed that he did fear being in Afghanistan, he travelled back a second time simply to show his mother that he was not ill as she had been told by other relatives (AR, pages 106–107).

On his last trip to Afghanistan, the applicant explained that he went back with his son to try to have him appreciate the life he has in Canada and tried to enroll him into public school in Afghanistan (AR, page 109). All those actions illustrate that the applicant had the intention to reavail himself of the protection of Afghanistan. [ 32 ] Third, the applicant obtained the protection of his country of nationality since the applicant used his passport not only to obtain visas to China and India, but also to identify himself at hotels in China.

Just as the RPD explained in its decision, the applicant’s actions in using his passport not only to travel to his home country but also to China creates the expectation that he is travelling as an Afghani citizen and not as a permanent resident of Canada. [ 33 ] The applicant’s action of obtaining an Afghan passport created the presumption that he intended to reavail himself of the protection of the country of his nationality. He did not rebut this presumption. The intervention of this Court is thus not warranted. VIII. Conclusion [ 34 ] The requirements of paragraph 108(1) (

a) of IRPA for the applicant’s reavailment of the protection of Afghanistan are satisfied. The RPD decision is thus reasonable. The application for judicial review is dismissed. [ 35 ] The applicant suggested the following question for certification: In a cessation application pursuant to paragraph 108(1) (

a) of IRPA , do the same or substantially the same legal considerations, precedents, and analysis apply to persons found to be Convention refugees as to persons found to be in need of protection as members of the Country of asylum class? [ 36 ] Both parties essentially submit similar arguments in favour or in opposition to the certification of this question as the ones submitted for this judicial review. Having said that, this legal issue was not dealt with by the RPD as it was not raised by the applicant’s counsel.

The applicant submits this question for certification because the RPD erroneously found he was a Convention refugee instead of a member of the Country of asylum class. According to the applicant, this prevented the RPD from conducting a proper analysis of the applicability of paragraph 108(1) (

a) of IRPA to the applicant’s particular circumstances. The respondent opposes the certification because it is not determinative of this judicial review as it is based on an argument that was not made before the RPD. [ 37 ] The principles governing the certification of a question pursuant to paragraph 74 (

d) of IRPA were set out by the Federal Court of Appeal. The question “must be one … [that] transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application” ( Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (C.A.) (QL), at paragraphs 4–6 [of QL] ) and must be serious and of general importance and dispositive of the appeal ( Canada (Minister of Citizenship and Immigration) v. Zazai , 2004 FCA 89 , 36 Imm. L.R. (3d) 167, at paragraphs 11–12 ; Varela v.

Canada (Minister of Citizenship and Immigration) , 2009 FCA 145 , [2010] 1 F.C.R. 129, at paragraphs 22–29 ). [ 38 ] The Court dealt above with the issue raised about the applicability of paragraph 108(1) (

a) of IRPA to both Convention refugee and persons found in need of protection as members of the Country of asylum class. I did so because of the confusion of the RPD’s decision when referring to the applicant as a Convention refugee twice but also as a protected person on two occasions. It was therefore essential to deal with this confusion in order to determine the reasonableness of the decision. I say this being fully conscious that the applicant has not raised this issue with the RPD and I do not have the benefit of having any reasons for the RPD on this matter.

[ 39 ] In fairness to all, I do consider that the proposed question transcends the interests of the immediate parties, is a serious issue of general importance and dispositive of the appeal if it is to be found that paragraph 108(1) (

a) of IRPA is limited in its scope to only Convention refugees. Therefore, the question will be certified. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review of the RPD decision dated June 20, 2014, is dismissed and the proposed question: In a cessation application pursuant to paragraph 108(1) (

a) of IRPA , do the same or substantially the same legal considerations, precedents, and analysis apply to persons found to be Convention refugees as to persons found to be in need of protection as members of the Country of asylum class? is certified.