r v. New Brunswick, 2016 FCA 300

[2017] 3 F.C.R. 263 A-35-16 2016 FCA 300 The Minister of Citizenship and Immigration ( Appellant ) v. Binder Singh ( Respondent ) Indexed as: Canada (Citizenship and Immigration) v. Singh Federal Court of Appeal, Stratas, Webb and Woods JJ.A.—Toronto, November 24, 2016.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Appeal from Federal Court decision allowing respondent’s application for judicial review of Refugee Protection Division (RPD) decision determining that respondent not Convention refugee or person in need of protection — RPD excluding respondent for criminality under United Nations Convention Related to the Status of Refugees (Refugee Convention), Art. 1F, finding no credible basis for refugee claim — Federal Court finding RPD precluded under Immigration and Refugee Protection Act from making “no credible basis” finding under s. 107(2) once person determined not to be Convention refugee or person in need of protection — Whether Federal Court selecting proper standard of review, properly reviewing administrative decision — Federal Court erring in holding standard of review correctness — Nature of RPD decision one of statutory

interpretation — RPD considering its powers under Act — Supreme Court of Canada (S.C.C.) repeatedly holding that standard of review presumed to be reasonableness in such cases — Fact RPD not considering statutory

interpretation issues not recognized by S.C.C. as reason to depart from reasonableness review — In any event, even on standard of reasonableness, RPD’s decision unreasonable — Issue before Court related to subject-matter jurisdiction of RPD — Once RPD finding claimant excluded under Refugee Convention, Art. 1F, precluded from determining that claim has no credible basis or is manifestly unfounded — Appeal dismissed.

This was an appeal from a decision of the Federal Court allowing the respondent’s application for judicial review of a decision of the Refugee Protection Division that the respondent is not a Convention refugee or a person in need of protection. The RPD determined that the respondent falls within the criminality exclusion in

Article 1F of the United Nations Convention Related to the Status of Refugees (Refugee Convention) and that there was no credible basis for his refugee claim. The Federal Court found that once the RPD determines that a person is not a Convention refugee or a person in need of protection because of an exclusion under

section 98 of the Immigration and Refugee Protection Act , the RPD is precluded under the Act from making a “no credible basis” finding under subsection 107(2) of the Act. The appellant submitted that the Federal Court erred on this statutory

interpretation issue. At issue was whether the Federal Court selected the proper standard of review and, if so, properly reviewed the administrative decision using that standard of review. Held , the appeal should be dismissed. The Federal Court erred in holding that the standard of review was correctness. The nature of the administrative decision by the RPD under review was one of statutory

interpretation. The RPD was considering its powers under the refugee protection provisions of the Act closely connected to its function. The Supreme Court has repeatedly held that reviewing courts in such cases must presume that the standard of review is reasonableness. The Federal Court held that the RPD did not consider the statutory

interpretation issues and so its decision was reviewed on the basis of correctness. The Supreme Court has not recognized this as a reason to depart from reasonableness review. In the end, the standard of review did not matter. Even on the standard of reasonableness, the RPD’s decision was unreasonable. The issue herein related to the subject-matter jurisdiction of the RPD, a live issue even if the parties before the RPD failed to raise it. An administrator cannot be clothed with subject-matter jurisdiction it does not have.

The certified question stated by the Federal Court was broader than necessary for the facts of this case. There is no question that the RPD is entitled to make “no credible basis” findings under subsection 107(2) of the Act in some circumstances. However, after the RPD has found that the claimant is excluded in

Article 1F of the Refugee Convention, it is precluded from determining that a claim has no credible basis or is manifestly unfounded. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 98, 107(2) . 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 FOLLOWED: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293; Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 S.C.R. 909. APPLIED: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190.

REFERRED TO: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Delios v. Canada (AttorneyGeneral), 2015 FCA 117, 472 N.R. 171; Canada (Attorney General) v. Boogaard, 2015 FCA 150, 474 N.R. 121; Alberta (Informationand Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Xie v. Canada (Minister of Citizenshipand Immigration), 2004 FCA 250, [2005] 1 F.C.R. 304; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27,(1998), 36 O.R. (3d) 418; Canada (Citizenship and Immigration) v. R.

K., 2016 FCA 272; Canadian National Railway Company v.BNSF Railway Company, 2016 FCA 284; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1S.C.R. 513. APPEAL from a Federal Court decision (2015 FC 1415, [2016] 3 F.C.R. 248) allowing the respondent’s application for judicial reviewof a decision of the Refugee Protection Division. Appeal dismissed. APPEARANCES Martin Anderson and Christopher Crighton for appellant. Prasanna Balasundaram and Asiya Hirji for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant.

Downtown Legal Services, Toronto, and Mamann, Sandaluk & Kingwell LLP, Toronto, for respondent. The following are the reasons for judgment of the Court delivered orally by [1] Stratas J.A.: The Minister appeals from the judgment of the Federal Court (per Annis J.): 2015 FC 1415, [2016] 3 F.C.R. 248.The Federal Court granted Mr. Singh’s application for judicial review from a decision of the Refugee Protection Division. [2] The Refugee Protection Division (or RPD) determined that Mr. Singh is not a Convention refugee or a person in need ofprotection because he falls within the criminality exclusion in

Article 1F of the United Nations Convention Related to the Status ofRefugees, 28 July 1951, [1969] Can. T.S. No. 6 [Refugee Convention]. That exclusion has been made part of Canadian law by

section 98of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The RPD went on to find under subsection 107(2) of the Actthat there is no credible basis for Mr. Singh’s refugee claim. [3] The central issue before the Federal Court was one of statutory

interpretation. Once the RPD determines that a person is not aConvention refugee or a person in need of protection because of a

section 98 exclusion, is the RPD precluded under the Act from makinga “no credible basis” finding under subsection 107(2) of the Act? [4] The Federal Court answered this in the affirmative. It set aside the decision of the RPD and remitted the matter back to it todismiss Mr. Singh’s application solely on the ground that he is not a Convention refugee or a person in need of protection under Article1F of the Refugee Convention and

section 98 of the Act. [5] The Minister appeals to this Court, submitting that the Federal Court erred on this statutory

interpretation issue. [6] On appeal from a judicial review, we are first to determine whether the Federal Court selected the proper standard of review and,if so, determine whether the Federal Court properly reviewed the administrative decision using that standard of review. If the FederalCourt did not select the proper standard of review, we are to review the administrative decision using the proper standard of review. SeeAgraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45–47. [7] The Federal Court held that the standard of review is correctness.

We disagree. [8] The first step in determining the standard of review is to characterize the nature of the administrative decision under review:Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, at paragraphs 18 and 26–28; Canada (Attorney General) v.Boogaard, 2015 FCA 150, 474 N.R. 121, at paragraph 36. [9] Here, the RPD’s decision is one of statutory

interpretation. The RPD was considering its powers under the refugee protectionprovisions of the Act, statutory provisions “closely connected to its function, with which it will have particular familiarity”: Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 54. In Dunsmuir and in a number of later cases, the Supreme Court hasrepeatedly held that reviewing courts in such cases must presume that the standard of review is reasonableness: see, e.g., Edmonton(City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Alberta (Information and PrivacyCommissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. [10] The Federal Court held (at paragraph 26) that the RPD did not consider the statutory

interpretation issues and so its decisionshould be reviewed on the basis of correctness. We disagree. The Supreme Court has not recognized this as a reason to depart fromreasonableness review. Indeed, in Edmonton East, above, the assessment board in that case did not explicitly consider its statutorypowers or engage in statutory

interpretation because of a concession made by the parties before it. In Kanthasamy v. Canada (Citizenshipand Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, the visa officer did not explicitly consider her statutory powers or engage instatutory

interpretation. Nevertheless, the Supreme Court held that reasonableness must be presumed as the standard of review. We arebound by these cases. Further, by doing what it did, perhaps the RPD can be taken to have implicitly accepted it had jurisdiction. [11] In his memorandum of fact and law, the respondent defends the Federal Court’s decision to review the RPD’s decision on thebasis of correctness because issues of international law are involved. In our view, the only possible international law element in this case

is the RPD’s decision to exclude Mr. Singh under

Article 1F of the Refugee Convention. But the judicial review in the Federal Court andthis appeal in this Court do not concern that issue. Rather, the issue is how certain provisions of the Act, a domestic Canadian statute,should be interpreted. As is seen by the Federal Court’s analysis of those sections and by the Minister’s submissions in this Court, thecontent of international law does not bear on this issue. [12] In the end, the standard of review does not matter in this case.

Even on the standard of reasonableness, we consider the RPD’sdecision to be unreasonable substantially for the reasons of the Federal Court. We substantially agree with the Federal Court’s analysis ofthe relevant provisions of the Act and how they interrelate. [13] We also agree with the Federal Court’s conclusion that this Court’s decision in Xie v. Canada (Minister of Citizenship andImmigration), 2004 FCA 250, [2005] 1 F.C.R. 304, supports its

interpretation of the relevant provisions of the Act. [14] The Minister submits that the policy objectives of simplicity and conservation of resources bear upon the statutory

interpretationprocess and impel us to accept its view of how the provisions of the Act interrelate. While in the abstract those policy objectives arelaudable, we must interpret the Act in accordance with its specific text, surrounding context in the Act and the genuine purposes of theAct: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. Following that methodology, which the Federal Courtalso followed, we substantially agree with the Federal Court’s analysis. In any event, for the reasons set out in paragraphs 73–76 of Mr.Singh’s memorandum, we are not persuaded that the Minister’s

interpretation of the relevant provisions necessarily advances simplicityand conservation of resources; indeed, a complicated web of overlapping decision makers and authorities for different aspects of an RPDdecision would remain. [15] The Minister submits that, on the basis of this Court’s recent decision of Canada (Citizenship and Immigration) v. R. K., 2016FCA 272 and Alberta Teachers’, above, the statutory

interpretation issue here was not before the Federal Court in the sense that thestatutory

interpretation issue was not raised by the RPD. Thus, the Minister submits that the Federal Court should not have stated thequestion for the consideration of this Court. [16] This was not a barrier to this Court or the Supreme Court in Kanthasamy, above, considering the issue. Further, the “new issue”objection, a discretionary one, was not raised in the Federal Court, does not appear in the notice of appeal, and was not raised in theMinister’s memorandum.

Finally, in our view, the issue before us relates to the subject-matter jurisdiction of the RPD, an issue that islive even if the parties before the RPD failed to raise it. An administrator cannot be clothed with subject-matter jurisdiction it does nothave: see Canadian National Railway Company v. BNSF Railway Company, 2016 FCA 284, at paragraph 23 and the authorities citedtherein in the context of the subject-matter jurisdiction of a court, but equally applicable to administrative bodies; see alsoTranchemontagne v.

Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, at paragraph 16. [17] The Federal Court stated the following question for the consideration of this Court: Considering the authority of the RPD under subsection 107(2) and

section 107.1 of the IRPA to determine that a claim has no crediblebasis or is manifestly unfounded, is the RPD precluded from making such determinations after, or in the alternative, to its findings thatthe claimant is excluded under

section F of

Article 1 of the Refugee Convention? [18] The question stated by the Federal Court is broader than is necessary for the facts of this case. There is no question that the RPDis entitled to make “no credible basis” findings under subsection 107(2) of the Act in some circumstances. Therefore, we wouldreformulate the question as follows: Considering the authority of the Refugee Protection Division under subsection 107(2) and

section 107.1 of the Immigration and RefugeeProtection Act to determine that a claim has no credible basis or is manifestly unfounded, is the Refugee Protection Division precludedfrom making such a determination after it has found that the claimant is excluded under

section F of

Article 1 of the RefugeeConvention? We will answer the reformulated question in the affirmative. [19] Therefore, despite the able submissions of Mr. Anderson, we will dismiss the appeal.