2011 FC 643, 2011 FC 643

[2013] 1 F.C.R. 203 IMM-5706-10 2011 FC 643 Masoud Boroumand (Applicant) v. The Minister of Citizenship and Immigration (Respondent) Indexed as: Boroumand v. Canada (Citizenship and Immigration) Federal Court, Tremblay-Lamer J.—Toronto, May 17; Ottawa, June 3, 2011.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of decision by pre-removal riskassessment (PRRA) coordinator determining that applicant not entitled to refugee protection under Immigration and Refugee ProtectionAct (IRPA), s. 114(1)(a) — Applicant imprisoned for drug trafficking, excluded from refugee protection — PRRA officer findingapplicant at risk upon return to Iran — However, Minister’s delegate denying application for protection pursuant to IRPA, s. 112(1) —Federal Court ordering redetermination of delegate’s decision — Applicant subsequently receiving pardon, claiming no longerinadmissible due to serious criminality — PRRA coordinator indicating that grant of pardon not quashing exclusion decision; applicantnot receiving status as protected person; any redetermination now moot — Whether PRRA coordinator erring in concluding thatapplicant not entitled to refugee protection — Applicant no longer subject to IRPA, s. 112(3)(

c) disqualifications by virtue of pardon,Criminal Records Act, s. 5(b) — However, applicant not automatically entitled to refugee protection — Pardon not leaving originalapplication for protection intact while removing negative consequences of being considered under s. 112(3) — Redetermination ofapplication for protection rendered moot by pardon — Removal order no longer enforceable — Applicant entitled to apply under s.112(1) if subject to future removal order — Application dismissed. This was an application for judicial review of a decision by a pre-removal risk assessment (PRRA) coordinator determining that theapplicant was not entitled to refugee protection under paragraph 114(1)(

a) of the Immigration and Refugee Protection Act (IRPA). The applicant, a citizen of Iran, entered Canada using a false passport. He was sentenced to prison for drug trafficking and a deportationorder was issued. The Immigration and Refugee Board (IRB) excluded the applicant from refugee protection pursuant to

Article 1F(

c) ofthe United Nations Convention Relating to the Status of Refugees. The applicant applied for protection pursuant to subsection 112(1) ofIRPA and a PRRA officer found that the applicant would be at risk upon his return to Iran. However, a Minister’s delegate later deniedthe applicant’s application for protection. The Federal Court set aside that decision and ordered a redetermination by a different delegate.After receiving a pardon for his convictions, the applicant wrote to immigration officials that he was no longer inadmissible due toserious criminality pursuant to paragraph 112(3)(

b) of IRPA. The PRRA coordinator indicated that the granting of the pardon in theapplicant’s case did not quash the exclusion decision. The PRRA coordinator also determined that the applicant had not received statusas a protected person by virtue of his application for protection and that any redetermination of his application was now moot. At issue was whether the PRRA coordinator erred in concluding that the applicant was not entitled to refugee protection under paragraph114(1)(

a) as a result of the pardon. Held, the application should be dismissed. The IRB’s decision excluding the applicant pursuant to

Article 1F(

c) of the Convention amounted to a “disqualification” on a prospectivebasis. By virtue of the pardon and paragraph 5(

b) of the Criminal Records Act, the applicant was no longer subject to thedisqualifications set out in paragraph 112(3)(

c) of IRPA. However, this did not automatically entitle him to refugee protection. Nodecision to allow the applicant’s application for protection was ever made within the meaning of subsection 114(1) of IRPA. As such,paragraph 114(1)(

a) was not engaged. The pardon should not operate in such a way as to leave the applicant’s original application forprotection intact while removing the negative consequences of being considered under subsection 112(3), thus paving the way forautomatic refugee protection. This does not logically flow from

section 5 of the Criminal Records Act. The PRRA coordinator wascorrect in determining that any further determination of the applicant’s application for protection had been rendered moot by virtue of thepardon. The removal order, underpinning the application for protection, was no longer enforceable. Should the applicant become subjectto an enforceable removal order in the future, he will be entitled to apply under subsection 112(1) again. Assuming his circumstances donot change, he will not be treated as a person described by either paragraph 112(3)(

b) or 112(3)(c). STATUTES AND REGULATIONS CITED Criminal Records Act, R.S.C., 1985, c. C-47, s. 5 (as am. by S.C. 2010, c. 5, s. 5; c. 17, s. 64). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 71, 72(1), 96, 97, 98, 112, 113, 114. TREATIES AND OTHER INSTRUMENTS CITED United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F. CASES CITED applied: Smith v. Canada (Minister of Citizenship and Immigration), (FC), [1998] 3 F.C. 144 (T.D.).

distinguished: Nazifpour v. Canada (Minister of Citizenship and Immigration) , 2007 FCA 35 , [2007] 4 F.C.R. 515, 278 D.L.R. (4th) 268, 60 Imm. L.R. (3d) 159. considered: Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, 304 D.L.R. (4th) 1, 82 Admin. L.R. (4th) 1; Therrien (Re) , 2001 SCC 35 , [2001] 2 S.C.R. 3, 200 D.L.R. (4th) 1, 30 Admin. L.R. (3d) 171. referred to: Boroumand v. Canada (Minister of Citizenship and Immigration) , 2007 FC 1219 , [2008] 3 F.C.R. 507, 66 Imm. L.R. (3d) 57; Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Canada (Minister of Citizenship and Immigration) v. Saini , 2001 FCA 311 , [2002] 1 F.C. 200, 206 D.L.R. (4th) 727, 19 Imm. L.R. (3d) 199. application for judicial review of a decision by a pre-removal risk assessment coordinator determining that the applicant was not entitled to refugee protection under paragraph 114(1) (

a) of the Immigration and Refugee Protection Act . Application dismissed. APPEARANCES Lorne Waldman for applicant. Mary Matthews for respondent. SOLICITORS OF RECORD Waldman & Associates , Toronto, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by [ 1 ] Tremblay-Lamer J.: This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), of the decision of a Citizenship and Immigration Canada (CIC) pre-removal risk assessment coordinator (the coordinator), dated September 16, 2010, whereby the coordinator determined that the applicant was not entitled to refugee protection under paragraph 114(1) (

a) of the IRPA. I. Background [ 2 ] The applicant is a citizen of Iran. He came to Canada in 1988 using a false Spanish passport and without a visa. [ 3 ] In September of 1992, he was convicted of three drug trafficking offences and sentenced to four years in prison. In February of 1993, a deportation order was issued on the basis of that conviction. [ 4 ] In April of 1993, the applicant claimed refugee protection. By a decision dated February 22, 1994, the Immigration and Refugee Board (IRB) decided that the applicant was excluded from refugee protection as a result of the drug convictions pursuant to

Article 1F(

c) of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (the Convention). Application for leave and judicial review of this determination was denied on September 8, 1994. [ 5 ] Although the applicant was scheduled for removal on August 23, 1995, he fled the province of Ontario for British Columbia where he assumed his brother’s identity.

In December of 2002, the applicant was arrested and held in immigration detention until October of 2004 at which point he was released on bond. [ 6 ] In 2004, the applicant applied for protection pursuant to subsection 112(1) of the IRPA .

A pre-removal risk assessment (PRRA) officer interviewed the applicant and on October 4, 2004, found that the applicant would “likely face a risk of torture, risk to life and risk of cruel and unusual treatment or punishment upon return to Iran due to his drug trafficking conviction”. [ 7 ] However, processing of the applicant’s application for protection required more than just a risk assessment.

Since the applicant was a person described in subsection 112(3) of the IRPA—he was inadmissible on grounds of serious criminality as a result of the 1992 convictions (paragraph 112(3)( b )) and he had made a claim for refugee protection that was rejected on the basis of

Article 1F of the Convention on February 22, 1994 ( paragraph 112(3) ( c ))— subparagraph 113 ( d )(

i) of the IRPA required that the applicant’s case be considered both on the basis of the risk factors set out in

section 97 , and also on the basis of whether or not he posed a danger to the public in Canada. The matter was referred to the Minister’s delegate to perform the requisite balancing. [ 8 ] On March 29, 2007, the Minister’s delegate denied the applicant’s application for protection. The applicant applied for judicial review and on November 21, 2007, Justice Frederick Gibson of this Court allowed the application, set aside the decision, and ordered that a re-determination be carried out by a different Minister’s delegate ( Boroumand v.

Canada (Minister of Citizenship and Immigration) , 2007 FC 1219 , [2008] 3 F.C.R. 507). [ 9 ] On December 21, 2009, prior to any redetermination, the National Parole Board awarded the applicant a pardon under the Criminal Records Act , R.S.C., 1985, c. C-47 in relation to the 1992 convictions. [ 10 ] By letter dated January 18, 2010, applicant’s counsel wrote to immigration officials indicating that the applicant had received a pardon and, as a result, was no longer inadmissible due to serious criminality and was no longer a person described in subsection 112(3)

of the IRPA . Counsel sought confirmation of the fact that, because of the positive risk opinion issued in 2004, and because the applicant was no longer a person described in subsection 112(3) , the applicant was automatically entitled to protected person status and, thus, could apply for permanent residence on that basis. Counsel indicated that the applicant would proceed to make a formal application for permanent residence as a protected person. II. The decision under review [ 11 ] By letter dated September 16, 2010, a PRRA coordinator with CIC responded to counsel’s January 18, 2010 letter.

He indicated that pardons are to be given prospective effect and, as such, the granting of the pardon in the applicant’s case did not quash the exclusion decision made pursuant to

Article 1F(

c) of the Convention on February 22, 1994. [ 12 ] In any event, as a result of the pardon, the removal order made against the applicant in 1993 was no longer enforceable and, as such, the Federal Court order for redetermination had effectively been rendered moot.

The coordinator pointed out that the applicant would become eligible to apply for protection again under subsection 112(1) of the IRPA should he become subject to another enforceable removal order. [ 13 ] In essence, the coordinator determined that the applicant had not received status as a protected person by virtue of his 2004 application for protection and that any redetermination of his application was now moot. III.

Legislative background [ 14 ] Subsection 112(1) of the IRPA allows a person who is subject to an enforceable removal order to apply to the Minister of Citizenship and Immigration for 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). [ 15 ] Subsection 112(3) indicates that certain groups of applicants are not eligible to receive refugee protection. These groups include persons who are determined to be inadmissible on grounds of serious criminality with respect to certain convictions, and persons who claimed refugee protection and who were rejected on the basis of

Article 1F of the Convention: 112. … Restriction

(3) Refugee protection may not result from an application for protection if the person … (

b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two 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; (

c) made a claim to refugee protection that was rejected on the basis of

section F of

Article 1 of the Refugee Convention; or [ 16 ] Although a positive determination will not result in the conferral of refugee protection for the people described in subsection 112(3) , paragraph 114(1) (

b) of the IRPA indicates that a positive determination will nonetheless result in a stay of removal for these people. For all other applicants, a positive determination does result in the conferral of refugee protection: Effect of decision 114.

(1) A decision to allow the application for protection has (

a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (

b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. [ 17 ] Not only will a positive determination have a different result for people described in subsection 112(3) , but their applications will also be considered in a different way. Paragraphs 113 (

c) and 113(

d) of the IRPA recognize that there are essentially two streams for processing applications under subsection 112(1) : one for applicants who are not described in subsection 112(3) and one for applicants who are described in subsection 112(3) . While the focus for the former group are considerations under sections 96 to 98 of the IRPA (the Convention refugee and persons in need of protection provisions), the latter group will have risk factors under

section 97 balanced against countervailing considerations such as the safety and security of the Canadian public:

Considerationof application 113. Consideration of an application for protection shall be as follows: … (

c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (

d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out insection 97 and (

i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are adanger 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 ofacts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. IV. Issue Did the coordinator err in concluding that the applicant was not entitled to refugee protection under paragraph 114(1)(

a) of the IRPA as aresult of the pardon? V. Standard of review [18] Determining the effect of a pardon on an outstanding application for protection under subsection 112(1) of the IRPA is largely aquestion of statutory

interpretation. The Supreme Court of Canada in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,[2009] 1 S.C.R. 339 (Khosa), at paragraph 44, indicated that, “[e]rrors of law are generally governed by a correctness standard.”However, deference will often result where an expert tribunal is interpreting its own statute (Khosa, above, at paragraph 44; Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 54). [19] Although I accept that a PRRA officer—and in this case a PRRA coordinator—has significant experience interpreting andapplying sections 112–114 of the IRPA, that experience does not extend to the

interpretation and application of the pardon provisionsfound in the Criminal Records Act. As such, the appropriate standard of review to apply in this case is correctness. VI.

Analysis [20] The applicant argues that the coordinator erred by finding that he was still a person described in subsection 112(3) of the IRPA—and, thus, would still be subject to the second, more restrictive, stream of processing and would be ineligible for refugee protection onany outstanding or future application for protection under subsection 112(1). [21] The applicant submits that, in fact, the pardon that he received in 2009 effectively removed him from the group of peopledescribed in subsection 112(3). Paragraph 112(3)(

b) no longer applies, he says, because he is no longer inadmissible on grounds ofserious criminality. He also contends that paragraph 112(3)(

c) no longer applies. In this regard, while he admits that a claim for refugeeprotection was rejected on the basis of

Article 1F(

c) in his case, he contends that rejection can no longer be counted against him becausethe jurisprudence of this Court in Smith v. Canada (Minister of Citizenship and Immigration), (FC), [1998] 3 F.C. 144(T.D.) (Smith) establishes that a pardon eliminates any future sanction that arises as a result of the pardoned conviction. [22] The respondent does not take issue with the applicant’s contention that paragraph 112(3)(

b) of the IRPA no longer applies in hiscase. However, the respondent does take issue with the applicant’s submissions regarding paragraph 112(3)(

c) of the IRPA. Therespondent argues that the coordinator was correct in stating that paragraph 112(3)(

c) continued to describe the applicant: he had made aclaim for refugee protection and that claim was rejected on the basis of

Article 1F(

c) of the Convention in February of 1994. [23] The respondent relies on Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515(Nazifpour) for the proposition that such an exclusion finding cannot be revisited on the basis of new evidence, such as the pardon.

Inany event, pardons are to be given prospective effect and that the grant of a pardon does not have the effect of quashing any decisionspreviously made (Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3 (Therrien) and Canada (Minister of Citizenship and Immigration) v.Saini, 2001 FCA 311, [2002] 1 F.C. 200 (Saini)). [24] Although the decision of the Federal Court of Appeal in Nazifpour, above, arises out of a similar set out facts, I nonetheless agreewith the applicant that it is not responsive to the issue raised here. The sole issue before the [Federal] Court of Appeal in Nazifpour waswhether

section 71 of the IRPA extinguished the jurisdiction of the Immigration Appeal Division (IAD) to reopen an appeal of adeportation order on the basis of new evidence. The Court found that it did and that, despite the fact that there had been a pardon in theapplicant’s case, the IAD did not have jurisdiction to reconsider his appeal. [25] The applicant in the current case does not seek to have the IAD reopen an appeal, nor does he seek to have the RefugeeProtection Division reopen the February 1994 exclusion decision.

Instead, the applicant argues that the sanctions flowing from theexclusion decision—i.e. ineligibility for refugee protection and different processing under a subsection 112(1) protection application—cannot be applied subsequent to the pardon. [26]

Section 5 [as am. by S.C. 2010, c. 5, s. 5; c. 17, s. 64] of the Criminal Records Act sets out the intended effect of a pardon issuedpursuant to that Act. Of particular interest is paragraph 5(

b) which indicates, in part, that a pardon “removes any disqualification orobligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament”:

Effect of pardon 5. The pardon … (

b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament — other than

section 109 , 110 , 161 , 259 , 490.012 , 490.019 or 490.02901 of the Criminal Code , subsection 147.1(1) or

section 227.01 or 227.06 of the National Defence Act or

section 36.1 of the International Transfer of Offenders Act — or of a regulation made under

an Act of Parliament. [ 27 ] Justice Andrew MacKay in Smith , above, at paragraphs 16–20 , conducted a review of the relevant case law and found that a pardon under the Criminal Records Act had the effect of, “cleansing the individual of the stain caused by the conviction and limiting the uses to which the fact of the conviction [could] be put”.

It is not that the conviction did not ever exist—it did—it is just that, going forward, any disqualifications resulting from the conviction are to be removed. [ 28 ] In Smith , above, Justice MacKay was considering an application for judicial review of a deportation order and an exclusion order. The deportation order had been issued based on a conviction for which the applicant had subsequently received a pardon, while the exclusion order had been issued based on the deportation order.

Justice MacKay considered: (1) whether or not the orders at issue amounted to “disqualification[s]” within the meaning of paragraph 5 (

b) of the Criminal Records Act , and (2) whether those disqualifications arose “by reason of the conviction” within the meaning of paragraph 5( b ). He concluded that both the exclusion order and the deportation order amounted to “disqualification[s]” against remaining in Canada and that both were sufficiently linked to the conviction that they amounted to disqualifications “by reason of the conviction”. [ 29 ] In the current case, I am of the view that the IRB’s decision that the applicant was excluded pursuant to

Article 1F(

c) of the Convention amounts to a “disqualification” on a prospective basis. For one thing, this finding prevents him from obtaining refugee protection on any future application for protection under subsection 112(1) of the IRPA . Upon reviewing the record, it is also clear that the IRB’s decision in this regard was based exclusively on the convictions for which the applicant has now been pardoned. The IRB indicated: This panel believes that the trafficking of heroin, an elicit drug, by the claimant … is contrary to the purposes and principles of the United Nations.

Therefore the panel, after considering all the evidence, is of the view that the claimant Masoud Boroumand, is not a Convention refugee because he is specifically excluded from the definition, as indicated in

Article 1FC of the United Nations Convention relating to the status of refugees, because he has been guilty of acts contrary to the purposes and principles of the United Nations. I am satisfied that the IRB’s February 22, 1994 exclusion decision amounts to a disqualification that the applicant is now subject to by reason of the pardoned convictions. As such, by virtue of the pardon and paragraph 5 (

b) of the Criminal Records Act , the applicant should no longer be subject to the disqualifications set out in paragraph 112(3) (

c) of the IRPA . [ 30 ] This conclusion is not at odds with Therrien and Saini , above, as cited by the respondent. Those cases stand for the proposition that the grant of a pardon does not retroactively erase the conviction itself; it only removes the resulting disqualifications on a prospective basis. In Therrien , the Supreme Court of Canada determined, along the same lines as Justice MacKay in Smith , that “while a pardon does not make the past go away, it expunges consequences for the future” ( Therrien , above, at paragraph 127 ).

There is no doubt that the IRB’s exclusion decision was valid at the time that it was made.

However, by virtue of the pardon, that exclusion decision cannot operate to disqualify the applicant for refugee protection under subsection 112(3) of the IRPA any longer. [ 31 ] Although the applicant is no longer a person described in subsection 112(3) of the IRPA , it does not mean, in my opinion, that he is automatically entitled to refugee protection. [ 32 ] The applicant suggests that the favourable risk assessment completed in October of 2004 should now be treated as a decision to allow the applicant’s original application under subsection 112(1) and to confer refugee protection pursuant to paragraph 114(1) ( a ).

Any other approach, the applicant submits, would be tantamount to a continuing disqualification and would be contrary to

section 5 of the Criminal Records Act . I disagree. [ 33 ] Although it is true that a PRRA officer did determine that the applicant would be at risk if he returned to Iran in 2004, no “decision to allow” the applicant’s application for protection was ever made within the meaning of subsection 114(1) of the IRPA . As such, paragraph 114(1) (

a) is not engaged. It is important to remember that the 2004 risk assessment was rendered in the context of an enforceable removal order which was issued as a direct result of the 1992 criminal convictions. Had there been no enforceable removal order, the applicant would not have had access to the PRRA application process.

The applicant cannot now argue that the pardon should operate in such a way as to leave his original application for protection intact—reliant as it was on the existence of the removal order which, in turn, was based on his criminal convictions—while at the same time removing the negative consequences of being considered under subsection 112(3) , thus paving the way for automatic refugee protection. This does not logically flow from

section 5 of the Criminal Records Act . [ 34 ] Instead, the coordinator was correct that any further determination of the applicant’s 2004 application for protection has effectively been rendered moot by virtue of the pardon. The removal order issued in 1993, underpinning the 2004 application, is no longer enforceable. [ 35 ] Should the applicant become subject to an enforceable removal order in the future, he will be entitled to apply under subsection 112(1) of the IRPA again. On a subsequent application, assuming his circumstances do not change, the applicant will not be treated as a person described by either paragraph 112(3) (

b) or 112(3)(

c) of the IRPA. [ 36 ] For the foregoing reasons, the application for judicial review is dismissed.

JUDGMENT THIS COURT ADJUDGES that the application for judicial review be dismissed.