2019 FCA 34, 2019 FCA 34

A-191-17 2019 FCA 34 Stensia Tapambwa and Richard Tapambwa ( Appellants ) v. Minister of Citizenship and Immigration ( Respondent ) Indexed as: Tapambwa v. Canada (Citizenship and Immigration) Federal Court of Appeal, Stratas, Rennie and Woods JJ.A.—Toronto, April 10, 2018; Ottawa, February 21, 2019.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeal from Federal Court decision dismissing application for judicial review of decision by pre-removal risk assessment (PRRA) officer refusing appellants’ PRRA application — Appellants, Zimbabweans, seeking refugee protection under Immigration and Refugee Protection Act, s. 98 — Refugee Protection Division (RPD) concluding appellants complicit in crimes against humanity — Applying test for complicity under United Nations Convention Relating to the Status of Refugees (Convention), Art. 1F(a) — Excluding appellants from protection — Finding appellants not falling within definition of refugee, not persons in need of protection under Act , ss. 96 , 97 — Immigration Division ordering appellants’ deportation — Appellants applying for PRRA under Act , s. 112(1) — Arguing “complicity by contribution” test in Ezokola v.

Canada (Citizenship and Immigration) (Ezokola) replacing “complicity by association” test, exclusion finding having to be reconsidered — PRRA officer concluding no jurisdiction to consider exclusion finding — Federal Court finding, inter alia, not possible to interpret Act , ss. 112(3) , 113 as permitting PRRA officer to review prior exclusion finding — Of view that Parliament not intending to create additional assessment of exclusion under Act , s. 25.2 — Finding respondent not erring in refusing to exercise discretion concerning appellants’ request — Whether: PRRA officers able to reconsider prior inadmissibility finding; Minister’s refusal to consider appellants’ application under Act , s. 25.2 reasonable — Language in Act , ss. 112(3) , 113 (

d) unequivocal — Risk assessment restricted if applicant excluded under Convention — S. 112(3) not permitting PRRA officer to reconsider prior exclusion or inadmissibility finding — PRRA officer limited to assessing allegations of risk prior to removal at time decision made based on fresh evidence or change in country conditions subsequent to RPD decision — Minister not having discretion to reconsider underlying exclusion finding — Only allowed to cancel stay, re-trigger removal process — Exclusion finding herein final — Evolving law not reason to depart from doctrine of issue estoppel — Minister having no obligation under Canadian Charter of Rights and Freedoms to establish public policy granting appellants unrestricted PRRA on request — PRRA officer’s decision reasonable — Appeal dismissed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court dismissing application for judicial review of decision by pre-removal risk assessment (PRRA) officer refusing appellants’ PRRA application — Appellants seeking refugee protection under Immigration and Refugee Protection Act, s. 98 — Refugee Protection Division concluding appellants complicit in crimes against humanity — Excluding appellants from protection under s. 98 — Finding appellants not falling within definition of refugee, not persons in need of protection under Act , ss. 96 , 97 — Immigration Division ordering appellants’ deportation — Appellants applying for PRRA under Act , s. 112(1) — PRRA officer concluding no jurisdiction to consider appellants’ Charter arguments — Federal Court concluding Charter , s. 7 not requiring contemporaneous reassessment of exclusion finding — Whether appellants’ removal absent risk assessment under Act , s. 96 criteria violating Charter , s. 7 — Such removal not violating Charter , s. 7 — Appellants’ argument running counter to Supreme Court case law — Exclusion removing appellants from refugee determination process, s. 96 risk assessment — S. 7 rights protected by safeguards available to appellants under Act — S. 7 interests engaged at removal stage.

This was an appeal from a decision by the Federal Court dismissing the appellants’ application for judicial review of a decision by a pre- removal risk assessment (PRRA) officer refusing the appellants’ PRRA application. The appellants, citizens of Zimbabwe who had served in the Zimbabwe National Army, sought refugee protection under

section 98 of the Immigration and Refugee Protection Act ( Act ). The Refugee Protection Division (RPD) of the Refugee and Immigration Board of Canada concluded that there were serious reasons to believe that the appellants were complicit in crimes against humanity committed by the Zimbabwe National Army. The RPD applied the test for complicity under

Article 1F(

a) of the United Nations Convention Relating to the Status of Refugees (Convention) and found that the appellants were excluded from protection under

section 98 . The RPD also found that the appellants did not fall within the definition of refugee under

section 96 of the Act and were not persons in need of protection under

section 97 of the Act . The Immigration Division later determined that the appellants were inadmissible for crimes against humanity under paragraph 35(1)(

a) of the Act and ordered their deportation. The appellants applied for a PRRA under subsection 112(1) of the Act . They argued that as a result of the decision of the Supreme Court in Ezokola v. Canada (Citizenship and Immigration) , wherein the test of “complicity by association” was replaced with a new “complicity by contribution” test, the exclusion finding had to be reconsidered. The PRRA officer concluded that there was no jurisdiction to consider either the exclusion finding or the appellants’ Charter arguments, and that their application was only to be considered under paragraph 113 (

d) of the Act . The Federal Court found that it was not possible to interpret subsection 112(3) and

section 113 of the Act as permitting a PRRA officer to review a prior exclusion finding. The Federal Court concluded that the officer properly restricted the risk assessment under paragraph 113 (

d) of the Act to

section 97 grounds alone. The Federal Court also concluded that

section 7 of the Charter did not require a contemporaneous reassessment of the exclusion finding. On the appellants’ request for an exemption from the exclusion finding on public policy grounds under

section 25.2, the Federal Court was of the view that Parliament did not intend to create an additional assessment of exclusion therein. It found that the respondent Minister made no error in refusing to exercise his discretion concerning the appellants’ request. The main issues were whether PRRA officers have the ability to reconsider a prior inadmissibility finding, whether the appellants’ removal in the absence of a risk assessment under the criteria of

section 96 of the Act violates

section 7 of the Charter , and whether the Minister’s implicit refusal to consider the appellants’ application under

section 25.2 of the Act was reasonable. Held , the appeal should be dismissed. The language in subsection 112(3) and paragraph 113 (

d) of the Act is unequivocal. If an applicant for refugee protection was excluded

under

Article 1F(

a) of the United Nations Convention Relating to the Status of Refugees, the risk assessment to be conducted by thePRRA officer is restricted. Subsection 112(3) cannot be interpreted so as to permit the PRRA officer to reconsider a prior exclusionfinding under paragraph 112(3)(

c) or an inadmissibility finding under paragraph 112(3). The purposes of the Act set out in

section 3 donot permit the Court to give a meaning to subsection 112(3) which is contrary to Parliament’s intent. To permit a PRRA officer toreconsider a prior inadmissibility finding would usurp the processes set out in the Act and would be contrary to the legislative scheme.The present tense “is determined to be inadmissible” refers to the fact that once determined to be inadmissible, an applicant remainsinadmissible. Parliament did not use language such as “may be inadmissible”. The use of the word “is” is consistent with the architectureof the Act and the procedures by which exclusion and inadmissibility findings are made. The role of a PRRA officer, whether actingunder

section 96 or

section 97, is limited: to assess allegations of risk prior to removal at the time the decision is made based on freshevidence or a change in country conditions subsequent to the RPD decision. The statute does not give the Minister discretion toreconsider the underlying exclusion finding. It only allows the Minister to cancel the stay and re-trigger the removal process. It would beanomalous to read into the powers of a PRRA officer a power which was withheld from the Minister.

Permitting the PRRA officer tohave the discretion to revisit past evidence or to decide that the question of exclusion should be redetermined would have the effect ofinjecting a level of appeal in the form of a de novo determination. The exclusion finding herein was final. There was no further right ofappeal, review or recourse under the Act. The exclusion finding, the removal order and the dismissal of the leave application all tookplace prior to Ezokola. With the refusal of leave, the decision that the appellants were complicit within the meaning of

Article 1F(

a) wasfinal. Assuming that res judicata applied and the PRRA officer had discretion not to apply the doctrine, there were no relevant factorswhich would have warranted the discretion being exercised in the appellants’ favour. Evolving law is not a reason to depart from thedoctrine of issue estoppel. Nor was it relevant that the point of finality was reached eight days before Ezokola was decided. The appellants’ removal in the absence of a risk assessment under the criteria of

section 96 did not violate

section 7 of the Charter. Theirargument that they must have their risks assessed against

section 96 criteria ran counter to the Supreme Court’s decisions in Suresh v.Canada (Minister of Citizenship and Immigration), B010 v. Canada (Citizenship and Immigration and Febles v. Canada (Citizenshipand Immigration). Exclusion removed the appellants from the refugee determination process, and, as a direct consequence, from asection 96 risk assessment. Nevertheless, the appellants’

section 7 Charter rights were protected by the safeguards available to themunder the Act. It is at the removal stage where the

section 7 interests are engaged. There was no factual foundation to sustain theargument that removal in the absence of a

section 96 assessment engaged the appellants’

section 7 rights. The Minister could not be seized with an obligation under the Charter to grant the appellants’ application under

section 25.2 of the Act.The Charter cannot be used to force the Minister to grant an unrestricted PRRA where the legislation (subsection 112(3) of the Act)prevents it. The legislative history of

section 25.2, the distinction between subsection 25(1) and

section 25.2, the nature of public policyitself, coupled with the discretionary language of the section, all point to the conclusion that the Minister had no obligation to establish apublic policy that would have granted the appellants, as pre-Ezokola claimants, an unrestricted PRRA on request. An open-endedobligation to consider all requests that the requirements of the Act be waived and to establish a relevant policy within which the requestfor a waiver would be considered would create, at the apex of the system, a further final appeal to the Minister in all cases, includingthose on the eve of removal.

Where Parliament has granted discretion to grant relief on a case-by-case basis, it did so expressly and withlimitations.

Section 25.2 cannot be read as providing a recourse that Parliament has expressly made unavailable to the appellants insubsection 25(1). To allow PRRA officers to grant or deny exemptions under

section 25.2 based on their own personal view of whatconstitutes good public policy is discordant with the legislative history and the plain text of

section 25.2. The Convention does notcompel the Minister to consider applications for relief under

section 25.2 in circumstances such as the appellants’. Finally, the PRRA officer’s decision was reasonable. The PRRA officer assessed each piece of evidence individually and collectivelyand found that it fell short of establishing a possible

section 97 risk. The officer’s concerns about the credibility of the evidence were notunreasonable. STATUTES AND REGULATIONS CITED Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 13(1). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 7, 24(1). Citizenship Act, R.S.C., 1985, c. C-29. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 25(1), 25.1, 25.2, 34–42, 34, 35, 37, 44(1),(2), 45, 50(b), 63(2),(3),(5),64(1), 96, 97, 98, 112(1),(2),(3), 113, 114(1),(2). Immigration and Refugee Protection Regulations, SOR/2002-227, s. 15(b). 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: Suresh v.

Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; B010 v. Canada (Citizenship andImmigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431;Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 R.C.S. 27, (1989), 154 D.L.R. (4th) 193. DISTINGUISHED:

Oberlander v. Canada (Attorney General), 2016 FCA 52, 396 D.L.R. (4th) 155. CONSIDERED: Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239, 249 D.L.R. (4th) 306; Sukhu v. Canada(Citizenship and Immigration), 2008 FC 427; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Ramirez v. Canada(Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306, (1992), 89 D.L.R. (4th) 173 (C.A.); Ezokola v.Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; R. v.

Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Azimi v.Canada (Minister of Citizenship and Immigration), 2015 FC 1177; Atawnah v. Canada (Public Safety and Emergency Preparedness),2016 FCA 144, [2017] 1 F.C.R. 153. REFERRED TO: Adjei v. Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C. 680, (1989), 57 D.L.R. (4th) 153(C.A.); Ramirez v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306, (1992), 89 D.L.R.(4th) 173 (C.A.); Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Quebec (AttorneyGeneral) v.

Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Covarrubias v.Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169; Alberta (Information and PrivacyCommissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Begum v. Canada (Citizenship and Immigration),2018 FCA 181, [2019] 2 F.C.R. 488; Canada (Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595; R. v. Jarvis, 2019SCC 10, [2019] 1 S.C.R. 488; de Guzman v.

Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655;Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R 269; National Corn Growers Assn. v. Canada (Canadian ImportTribunal), (FCA), [1989] 2 F.C. 517, (1988), (FCA), 58 D.L.R. (4th) 642 (C.A.); Gitxaala Nationv. Canada, 2015 FCA 73; Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157; Johnson v. Canada(Citizenship and Immigration), 2014 FC 868, 463 F.T.R. 257; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R.460; Régie des rentes du Québec v.

Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 S.C.R. 125; Eli Lilly Canada Inc. v. TevaCanada Limited, 2018 FCA 53; Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133;Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; De Araujo v. Canada (Citizenshipand Immigration), 2007 FC 363, 311 F.T.R. 306. AUTHORS CITED Library of Parliament. Legislative

Summary of Bill C-11:

An Act to amend the Immigration and Refugee Protection Act and the FederalCourts Act (Balanced Refugee Reform Act), Publication No. 40-3-C11-E, 12 May 2010. Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed., Markham, Ont.: LexisNexis, 2014. Wade, Henry William Rawson and Christopher Forsyth. Administrative Law, 11th ed. New York: Oxford University Press, 2014. APPEAL from a Federal Court decision (2017 FC 522, [2017] 4 F.C.R. 458) dismissing the appellants’ application for judicial review ofa decision by a pre-removal risk assessment (PRRA) officer refusing the appellants’ PRRA application.

Appeal dismissed. APPEARANCES Jared Will and Joshua Blum for appellants. James Todd and Aleksandra Lipska for respondent. SOLICITORS OF RECORD Jared Will & Associates, Toronto, for appellants. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment rendered in English by RENNIE J.A.: I. Overview [1] The main issue in this appeal is whether persons who have been excluded from refugee protection under

section 98 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on the basis of

Article 1F(

a) of the United Nations ConventionRelating to the Status of Refugees, [July 28, 1951] [1969] Can. T.S. No. 6 (the Convention) for committing crimes against humanity areentitled to have the exclusion finding reconsidered prior to deportation. This question arises in the unique and limited circumstanceswhere the

interpretation of

Article 1F(a), and thus the legal foundation for the finding that the appellants were excluded fromconsideration as refugees under the Convention, changed between the date of the exclusion finding and the hearing before the pre-removal risk assessment (PRRA) officer. [2] The answer to this question matters. If the appellants are excluded from consideration as Convention refugees on the basis ofArticle 1F(a), the nature and scope of the risks assessed by the PRRA officer are limited and the legal burden the appellants must meet inestablishing those risks is elevated (IRPA, paragraphs 112(3)(c), 113(d)). [3] In a risk assessment under

section 97 of the IRPA, referred to as a restricted PRRA, the appellants must establish on a balance of

probabilities that removal would more likely than not subject them to a personal risk of torture, death or cruel and unusual treatment (Liv. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239, 249 D.L.R. (4th) 306 (Li), at paragraph 29).Even if such a risk is established, they may still be deported following the Minister’s balancing of the factors set out in subparagraphs113(d)(

i) and (ii) (see Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (Suresh)). On theother hand, should they succeed in convincing the PRRA officer that they face a

section 97 risk, their removal is temporarily stayed(IRPA, paragraph 114(1)(b)). [4] In contrast, failed refugee claimants have their pre-removal risks assessed under

section 96 (IRPA, paragraph 113(c)). In a section96 risk assessment, sometimes called Convention grounds assessment, the appellants must establish that they “subjectively fearpersecution and that this fear is objectively well-founded” (Sukhu v. Canada (Citizenship and Immigration), 2008 FC 427, at paragraph25). The latter element requires that there is a “ˈreasonable chanceˈ”, a “ˈreasonableˈ possibility”, or a “ˈserious possibilityˈ” ofpersecution on Convention grounds (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 (Németh), at paragraph 98 citingAdjei v.

Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C. 680, at page 683, (1989), 57D.L.R. (4th) 153 (C.A.)). While they must establish their case on a balance of probabilities, they do not have to establish that persecutionwould be more likely than not (Li, at paragraph 11). If they convince the PRRA officer that they face a

section 96 risk, refugeeprotection is conferred (IRPA, paragraph 114(1)(a)). [5] The appellants were found by the Refugee Protection Division (RPD) to have committed crimes against humanity and weretherefore excluded from claiming protection under

section 98 of the IRPA which incorporates

Article 1F into Canadian law. Inconsequence, and as directed by paragraph 113(

d) of the IRPA, the PRRA officer conducted a restricted PRRA—that is, with respect tosection 97 grounds alone. The officer determined that the appellants did not meet the threshold in

section 97 required to stay theirremoval orders. [6] The appellants contend that the PRRA officer has both the jurisdiction and legal obligation to reconsider the finding that theywere excluded under

Article 1F(a). They assert that their removal under their particular circumstances violates both Canada’sinternational law obligation to observe the principle of non-refoulement and

section 7 of the Canadian Charter of Rights and Freedoms,being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (theCharter). [7] The Federal Court, per Southcott J. (2017 FC 522, [[2017] 4 F.C.R. 458 (F.C. Decision)]), dismissed the appellants’ applicationfor judicial review and certified three questions for determination by this Court: a. Do paragraphs 112(3)(

a) and (

c) of the IRPA require the Minister, when conducting a PRRA, to confirm that there remains asubstantive basis for excluding the applicant from refugee protection? b. If not, does

section 25.2 of the IRPA provide the Minister discretion, in the absence of a pre-established policy, to exempt a personmaking an application for protection under

section 112 of the IRPA from the restrictions that flow from subsection 112(3) of the IRPA,which discretion obliges the Minister to consider and make a decision on a request that such discretion be exercised? c. If not, does the combined effect of paragraphs 112(3)(

a) and (c), 113(

d) and

section 114 of the IRPA violate

section 7 of the Charterinsofar as it deprives an applicant of the right to be recognized as a refugee without confirmation that there remains a substantive basisfor excluding the applicant from refugee protection? [8] The first question is framed by the fact that the legal test for exclusion determinations changed prior to the appellants’ removalfrom Canada.

These reasons therefore necessarily address the consequences of a change in the law subsequent to a final determination ofexclusion, but prior to removal from Canada. [9] The appellants also filed a notice of constitutional question, seeking an order to: DECLARE, pursuant to s. 52(1) of the Constitution Act, 1982 and/or section 24(1) of the Charter, that the combined effect of ss. 112(3)and 113(

d) and 114(1)(

b) and (2) of the [IRPA] and s. 172(4)(

b) of the Immigration and Refugee Protection Regulations constitutes anunjustifiable violation of s. 7 of the Charter and that they are therefore either of no force or effect; or, in the further alternative; GRANT the Applicants an exemption, pursuant to ss. 7 and 24(1) of the Charter, from the application of ss. 112(3) and 113(

d) and114(1)(

b) and (2) of the Act and s. 172(4)(

b) of the Regulations, such that they are entitled to a risk assessment that includes s. 96 of theAct and to a grant of refugee protection in the event that they are found to be at risk of persecution; [10] I would answer the three certified questions in the negative and I would dismiss the relief requested in the notice of constitutionalquestion. II. Background [11] The appellants are spouses and citizens of Zimbabwe. Both served in the Zimbabwe National Army. They left Zimbabwe in 2001for the United States.

They made no claim for protection while in the United States, but did so when they came to Canada in 2011. [12] On November 20, 2012, the RPD concluded that there were serious reasons to believe that the appellants were complicit incrimes against humanity committed by the Zimbabwe National Army. In reaching this decision the RPD applied the test for complicityunder

Article 1F(

a) of the Convention as it then stood in Canadian law (Ramirez v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306, (1992), 89 D.L.R. (4th) 173 (C.A.) (Ramirez)). In light of the RPD finding, the appellantswere excluded from protection under

section 98 of the IRPA. [13] The RPD made two additional determinations. [14] Notwithstanding that

Article 1F(

a) excluded the appellants from consideration as Convention refugees under

section 98 of the

IRPA , the RPD nevertheless assessed the substance of their claims on Convention grounds under

section 96. It did so in the course of its consideration of the dependent claims of their children, which were wholly dependent on the evidence of the appellants. The RPD concluded that on that evidence, if returned to Zimbabwe, the children (and necessarily the appellants) would face nothing more than a remote risk of persecution and, therefore, did not fall within the definition of refugee under

section 96. The RPD also found that neither the appellants nor their children would face a personalized risk to their lives or to cruel and unusual treatment and, therefore, were not persons in need of protection under

section 97 of the IRPA (notice of decision, A.B., Tab 6A, at pages 96–97). [ 15 ] Seven months later, on May 16, 2013, the Immigration Division determined the appellants to be inadmissible for crimes against humanity under paragraph 35(1)(

a) of the IRPA and ordered their deportation under paragraph 45(d) (deportation orders and admissibility h earing oral decision, A.B., Tab 6B, at pages 98–104). Paragraph 35(1)(

a) provides that: Human or international rights violations 35

(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (

a) committing

an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act ; [ 16 ] On July 11, 2013, the appellants’ request for leave to apply for judicial review of the RPD Decision was dismissed by the Federal Court (respondent’s memorandum of fact and law (R.M.), at paragraph 9). [ 17 ] Eight days later, on July 19, 2013, the Supreme Court of Canada released its decision in Ezokola v. Canada (Citizenship and Immigration) , 2013 SCC 40 , [2013] 2 S.C.R. 678 ( Ezokola ).

In Ezokola , the Court changed the test for complicity in crimes against humanity, as articulated in Ramirez , and as relied on by the RPD. The Ramirez test of “complicity by association” was replaced with a new “complicity by contribution” test that requires a finding that the claimant make a “significant and knowing contribution” to an organization’s crime or criminal purpose before a claimant can be excluded by virtue of

Article 1F(a) ( Ezokola , at paragraphs 29–30, 84 ). [ 18 ] Faced with a removal order, the appellants applied for a PRRA under subsection 112(1) of the IRPA . Central to the appellants’ argument before the PRRA officer was their assertion that as a result of the decision of the Supreme Court in Ezokola , the exclusion finding had to be reconsidered. They contended that as they had been excluded on the basis of their complicity by association, the legal basis of the exclusion finding had evaporated. The PRRA officer was therefore obligated to reconsider the exclusion finding and conduct a risk assessment under the more favourable criteria applicable to failed refugee claimants reflected in

section 96. [ 19 ] The officer concluded that there was no jurisdiction to consider either the exclusion finding or the Charter arguments (PRRA decision, A.B., Tab 4, at pages 69–70). As the appellants were excluded under

Article 1F(a), they were persons “described” in paragraph 112(3)(c). Thus, their application was only to be considered under paragraph 113(d) — a restricted PRRA — which only permitted an assessment on the basis of the more serious risks and legal threshold set out in

section 97 and in subparagraphs 113(d)(

i) and (ii). [ 20 ] With respect to the substantive question of risk, the officer determined that should the appellants be returned to Zimbabwe, they would not face a risk within the meaning of either

section 96 or

section 97 of the IRPA (PRRA decision, A.B., Tab 4, at pages 70–76). [ 21 ] The appellants sought and obtained leave to commence a judicial review application of the PRRA officer’s decision. The application came before Southcott J. III. Federal Court decision [ 22 ] After reviewing the provisions of the IRPA , which confer jurisdiction on the PRRA officer, the Federal Court Judge found that it was not possible to interpret subsection 112(3) and

section 113 of the IRPA as permitting a PRRA officer to review a prior exclusion finding. Southcott J. observed that paragraphs 112(3) (

c) and 113 (

d) of the IRPA , which restrict the powers of a PRRA officer, are clear and unambiguous and that neither international criminal law norms nor the Charter required an

interpretation of a statutory provision that it could not reasonably bear. In consequence, the Judge concluded that the officer properly restricted the risk assessment under paragraph 113 (

d) of the IRPA to

section 97 grounds alone (F.C. Decision, at paragraphs 36–43, 48–49). [ 23 ] The Judge rejected the argument that

section 7 of the Charter required a contemporaneous reassessment of the exclusion finding. Relying on the decisions of the Supreme Court in B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 , [2015] 3 S.C.R. 704 ( B010 ) and Febles v. Canada (Citizenship and Immigration) , 2014 SCC 68 , [2014] 3 S.C.R. 431 ( Febles ), the Judge observed that

section 7 rights are protected by a

section 97 assessment and the availability of a stay of removal (F.C. Decision, at paragraphs 50, 52, 77–78). [ 24 ] On the appellants’ request for an exemption from the exclusion finding on public policy grounds under

section 25.2, the Judge found that

section 25.2 did not oblige the Minister to consider the request by the appellants, or of any applicant in particular. In his view, Parliament did not intend to create an additional assessment of exclusion in

section 25.2. Therefore, the Minister made no error in refusing to exercise his discretion one way or another concerning the appellants’ request. As the appellants did not show that they fell within an already established public policy, the PRRA officer did not err in refusing to consider their application for

section 25.2 relief on public policy grounds. The content of public policy is for the Minister alone to determine, and delegates of the Minister cannot create public policy (F.C. Decision, at paragraphs 72–76). [ 25 ] The Judge then considered the reasonableness of the substantive decision of the officer under

section 97 that the appellants would not face a risk on return to Zimbabwe. After a thorough and careful review of the record, he found the decision to be reasonable and dismissed the application (F.C. Decision, at paragraphs 79–101). [ 26 ] The appellants seek an order reversing the Federal Court judgment and remitting the PRRA for redetermination by a different officer. The appellants also seek an order in the nature of mandamus compelling the Minister to respond to their request for an exemption under

section 25.2. In the alternative, the appellants ask for a declaration that the effect of subsection 112(3) , paragraphs 113 (d),

114(1)(

b) and subsection 114(2) of the IRPA violate

section 7 of the Charter. They ask for a declaration that paragraphs 112(3)(

a) and(

c) are of no force and effect under subsection 52(1) of the Constitution Act, 1982, or alternatively, a constitutional exemption undersubsection 24(1) of the Charter. IV. Analysis A. Standard of Review [27] The role of this Court is to determine whether the Federal Court Judge identified the appropriate standard of review and applied itproperly (Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs45–46). [28] Here, the Judge did not err in identifying reasonableness as the standard of review concerning the PRRA officer’s

interpretationof subsection 112(3) of the IRPA (F.C. Decision, at paragraphs 20–22). [29] The question whether a PRRA officer has the authority to reconsider a prior exclusion finding concerns the

interpretation of thePRRA officer’s home statute and does not fall into any of the categories that rebut the presumption of reasonableness. It is clear from thelegislative provisions in issue that the PRRA officer has the authority to make the inquiry into whether the appellants are described bysubsection 112(3) of the IRPA. The question raised in this appeal only concerns the extent of that authority and thus cannot conceivablyraise a true question of jurisdiction (Quebec (Attorney General) v.

Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at paragraph 32; Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), at paragraph 59). [30] Turning to the Charter question, the PRRA officer determined that PRRA officers do not have jurisdiction to consider questionsof constitutional validity (Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169, atparagraphs 47–57). Thus, the only decision under review that addresses the Charter argument is that of the Federal Court and that will bereviewed for correctness.

Regardless, as the Federal Court Judge identified at paragraph 22, questions of constitutional validity arereviewed for correctness (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3S.C.R. 654, at paragraph 30; Dunsmuir, at paragraph 58; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, [2019] 2F.C.R. 488, at paragraph 36; Canada (Attorney General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595, at paragraph 46). [31] The appellants also challenge the implicit refusal of the Minister to exercise discretion under

section 25.2 of the IRPA. Whatsection 25.2 requires will be assessed on a correctness basis, but whether, in light of the proper

interpretation of

section 25.2 and thecontext of the case, the Minister erred in failing to exercise discretion under

section 25.2 will be assessed for reasonableness. [32] Finally, as the appellants accept, the PRRA officer’s

section 97 risk assessment will be reviewed for reasonableness (F.C.Decision, at paragraph 19). [33] With the background set, I turn to the scope of a PRRA officer’s jurisdiction. B. The

interpretation of subsection 112(3) of the IRPA [34] The crux of the appellants’ position is that paragraph 112(3)(

c) is ambiguous and that the Court must adopt an

interpretation thatpermits reconsideration of a prior exclusion finding by the PRRA officer. They contend that both

section 7 of the Charter and Canada’sinternational law obligation to protect against refoulement require this

interpretation. They also say that PRRA officers must have theability to reconsider a prior inadmissibility finding. This is necessary because in order to receive a full PRRA, the appellants would notonly need to escape paragraph 112(3)(c) (described by exclusion), but paragraph 112(3)(a) (described by inadmissibility) as well. [35] As noted, the appellants’ argument depends on the assumption that there is an uncertainty or ambiguity in the legislation and sothe

interpretation that more greatly conforms to international law or the Charter should be selected. As a general proposition, this is not indoubt (R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at paragraphs 104–106). However, in this case there is no ambiguity. Thelanguage of Parliament in subsection 112(3) and paragraph 113(

d) is unequivocal. If an applicant for refugee protection was excludedunder

Article 1F(

a) of the Convention, the risk assessment to be conducted by the PRRA officer is restricted. That is the case in thisappeal. [36] Applying the modern approach to statutory

interpretation (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1S.C.R. 27, (1989), 154 D.L.R. (4th) 193), at paragraph 21, of text, context and purpose, subsection 112(3) simply cannot be interpretedso as to permit the PRRA officer to reconsider a prior exclusion finding under paragraph 112(3)(

c) or an inadmissibility finding underparagraph 112(3)(a). [37] Paragraphs 112(3)(

a) to (

c) read as follows: 112 (1) … Restriction

(3) Refugee protection may not be conferred on an applicant who (

a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (

b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Actof Parliament punishable by a maximum term of imprisonment of at least 10 years or with respect to a conviction outside Canada for anoffence that, if committed in Canada, would constitute an offence under

an Act of Parliament punishable by a maximum term ofimprisonment 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 [38] The appellants submit that paragraphs 112(3)(

a) and (

c) are ambiguous as to whether the PRRA officer can make a freshassessment of exclusion and inadmissibility. Paragraph 112(3)(

a) is ambiguous, they say, because it states a person falls within theparagraph where the person “is determined”, rather than “has been determined”. The use of the present tense suggests that Parliamentintended that the PRRA officer have the jurisdiction to revisit the issue of exclusion. [39] Similarly, paragraph 112(3)(

c) states a person falls within its ambit only when that person had a claim for protection that wasrejected “on the basis” of

Article 1F(a). Since the Supreme Court subsequently changed the test for exclusion on the basis of Article1F(a), the appellants were not excluded “on the basis” of

Article 1F(a). They also assert a latent ambiguity arises once Canada’sinternational law obligations and the principle of non-refoulement are considered as part of the interpretive exercise. [40] Each of these arguments fail. [41] The text of subsection 112(3) and the scheme of the IRPA demonstrate that there is no authority in a PRRA officer to reconsideran exclusion finding. The appellants’

interpretation rests on a de-contextualized reading of subsection 112(3), does not take account ofthe architecture of the IRPA and seeks to give subsection 112(3) an

interpretation which it is incapable of bearing. The purposes of theIRPA set out in

section 3, to which the appellants resort, do not permit the Court to redraft the scheme set out in the IRPA or to give ameaning to subsection 112(3) which is contrary to Parliament’s intent. [42] There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform tointernational law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 (Hape), at paragraph 53).

Absent contrary indication, legislativeprovisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape, at paragraph53; B010, at paragraph 47; Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed., (Markham, Ont.: LexisNexis, 2014), at §18.6;see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at paragraphs 82–87). [43] Therefore both Canada’s international law obligations, in this case under the Convention, and principles underlying internationallaw play a role in the contextual

interpretation of Canadian laws (B010, at paragraph 47). This is reinforced by paragraph 3(3)(

f) of theIRPA which directs that the Act “is to be construed and applied in a manner that … complies with international human rights instrumentsto which Canada is signatory”. [44] There is, however, an important counter-weight to these principles—the doctrine of Parliamentary supremacy. An unambiguousprovision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh, at paragraph 35;Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at paragraph 50; National Corn Growers Assn. v.

Canada(Canadian Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, at page 1371; Gitxaala Nation v.

Canada, 2015 FCA 73, atparagraph 16; Hape, at paragraph 54). [45] With these first principles in mind, I return to the appellants’ submission regarding paragraph 112(3)(a), namely, that the use ofthe present tense “is” suggests that a PRRA officer can reconsider a prior determination of inadmissibility at the time of the PRRA. [46] In short, this argument fails because to permit a PRRA officer to reconsider a prior inadmissibility finding would usurp theprocesses set out in the IRPA and would be contrary to the legislative scheme.

The present tense “is determined to be inadmissible”refers to the fact that once determined to be inadmissible, an applicant remains inadmissible. The claimant is before the

section 97 PRRAofficer only because he or she “is” inadmissible. Were it not for that fact, they would not be there in the first place. The claimant wouldbe before a

section 96 PRRA officer. Parliament did not use language such as “may be inadmissible”. [47] Exclusion and the resulting inadmissibility is a status held by the appellants, which has previously been determined by the RPDand the Immigration Appeal Division (IAD). It is in these bodies that Parliament has reposed responsibility for those decisions. TheRPD/IAD determinations are conclusive and final unless set aside by the Federal Court. Parliament’s use of the word “is” is consistentwith the architecture of the IRPA and the procedures by which exclusion and inadmissibility findings are made. [48] A PRRA officer, whether acting under

section 96 or 97, is neither hearing an appeal nor making a de novo determination of theoriginal claim for protection rejected by the RPD. When Parliament wanted to establish an appellate tribunal with respect to RPDdecisions, it did so expressly. In 2012, subsection 13(1) of the Balanced Refugee Reform Act, S.C. 2010, c. 8 (BRRA) came into force,establishing the Refugee Appeal Division (see Huruglica v.

Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157,for a review of the legislative history and purpose of the Refugee Appeal Division). [49] To be clear, the legislation says nothing that would give the PRRA officer authority to reverse a finding of inadmissibility orexclusion. To the contrary, Parliament has put that responsibility elsewhere. [50] Sections 34 to 42 of the IRPA deem persons to be inadmissible for violations of human rights, various forms of seriouscriminality, medical or financial reasons.

Inadmissibility findings arise by operation of law where an officer finds that the person is aperson described in one of those sections. Unlike refugee claims, no further adjudication or determination is required. Persons may bedeemed inadmissible. [51] When an official believes a person is inadmissible, an inadmissibility report is prepared under subsection 44(1) of the IRPA. Thisreport is then referred to the Minister of Immigration, Refugees and Citizenship.

The Minister reviews the report and, under subsection44(2), either issues a removal order or refers the matter to the Immigration Division for an admissibility hearing. If the latter, at theconclusion of the hearing the Immigration Division must make one of the orders set out in

section 45. In this case, the ImmigrationDivision, accepting the factual determinations of the RPD as it must (paragraph 15(

b) of the Immigration and Refugee ProtectionRegulations, SOR/2002-227) found that the appellants were inadmissible under paragraph 35(1)(

a) resulting in a removal order underparagraph 45(d) (see Johnson v. Canada (Citizenship and Immigration), 2014 FC 868, 463 F.T.R. 257, at paragraphs 24 and 25, forelaboration of this point).

[ 52 ] Following an inadmissibility determination and a removal order, an appeal lies to the IAD ( IRPA, subsections 63(2) , 63(3) , 63(5) ). However, no appeal to the IAD may be made if the foreign national was “found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality” ( IRPA, subsection 64(1) ). [ 53 ] In contrast to the extensive process set up for determinations of inadmissibility, the role of a PRRA officer, whether acting under

section 96 or

section 97, is limited: to assess allegations of risk prior to removal at the time the decision is made based on fresh evidence or a change in country conditions subsequent to the RPD decision ( Azimi v. Canada (Minister of Citizenship and Immigration) , 2015 FC 1177 ( Azimi ), at paragraph 20 ). [ 54 ] Parliament has also considered the consequences arising from a positive risk assessment in the case of a person described in subsection 112(3), namely those excluded such as the appellants.

Even if an applicant is successful on a restricted PRRA, the exclusion and inadmissibility findings are neither reversed nor is refugee status conferred. Rather, there is a temporary, but automatic, stay of removal ( IRPA, paragraph 50 (b)). This arises, importantly, not as the result of a discretionary decision of the PRRA officer, but by operation of the IRPA ( IRPA, paragraph 114(1) (b)). [ 55 ] If a temporary stay is in place, Parliament has also addressed the next steps in subsection 114(2) : 114 (1) … Cancellation of stay

(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113 (

d) and the regulations, the grounds on which the application was allowed and may cancel the stay. [ 56 ] The statute does not give the Minister discretion to reconsider the underlying exclusion finding. It only allows the Minister to cancel the stay and re-trigger the removal process. It would be anomalous, in the extreme, to read into the powers of a PRRA officer a power which was withheld from the Minister. [ 57 ] The officer’s task, as prescribed by Parliament, was to consider whether, on new evidence or a change in country conditions, the risks had changed ( IRPA, paragraph 113 (d)).

The officer does not have the discretion to revisit past evidence or to decide that the question of exclusion should be redetermined. Permitting the PRRA officer to do so would have the effect of injecting a level of appeal in the form of a de novo determination. It would also grant a PRRA officer a decision making authority that has been expressly conferred on the RPD and IAD.

It would, in effect, rewrite the statute and grant PRRA officers new and significant authority which Parliament did not grant. [ 58 ] In conclusion, the use of the present tense “is” in paragraph 112(3) (a), does not, when situated in the architecture of the IRPA , give rise to an ambiguity. Rather, the present tense “is” is consistent with the treatment by Parliament of how inadmissibility arises — it is a status that the applicant acquired prior to his request for a PRRA.

That finding prevails and there is no further determination unless the exclusion finding decision is set aside on judicial review. [ 59 ] The exclusion finding in respect of the appellants was made on November 20, 2012, the removal order of the Immigration Division was issued on May 16, 2013, and the application for leave to commence judicial review in the Federal Court was dismissed by the Federal Court on July 11, 2013. With the dismissal of the leave application, the exclusion finding was final. There was no further right of appeal, review or recourse under the IRPA .

All of these decisions took place prior to Ezokola , which was decided on July 19, 2013. [ 60 ] As I have described, the purpose of the PRRA is not to repeat the work of the RPD and the IAD, or to sit on appeal of those decisions. The RPD and the Immigration Division are functus once they have rendered their decisions, and the question of exclusion and inadmissibility is final as far as the PRRA officer’s authority under the IRPA is concerned.

Barring fresh evidence or evidence of a risk not previously assessed, the question of exclusion was finally determined with the dismissal of the appellants’ application for judicial review by the Federal Court on July 11, 2013, eight days prior to the decision in Ezokola . The appellants’ exclusion was finally determined “on the basis” of the applicable law at that time. [ 61 ] With the refusal of leave, the decision that the appellants were complicit within the meaning of

Article 1F(

a) was final. The appellants’ status under the IRPA had been assessed and adjudicated, and all recourse mechanisms exhausted. [ 62 ] Therefore, I agree with the finding of the Federal Court Judge that coherence and consistency in the

interpretation of the scheme support the conclusion that a PRRA officer has no jurisdiction to reconsider a prior exclusion finding. I would answer the first certified question in the negative. C. Issue estoppel / res judicata [ 63 ] The Minister says that the appellants’ exclusion has been finally determined and is res judicata . Relying on Danyluk v.

Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 S.C.R. 460 ( Danyluk ), at paragraph 62 , the appellants say that administrative decision makers such as the PRRA officer have a discretion whether or not to apply the doctrine, and that given the intervening change in the law of complicity, the officer erred in not exercising discretion to reconsider the finding. [ 64 ] The Minister’s argument, and the ancillary arguments which it spawned in response, do not assist in the analysis of the legal issues before the Court.

Indeed, the Attorney General’s reliance on the doctrine of res judicata is inconsistent with his argument with respect to the jurisdiction and role of a PRRA officer. [ 65 ] Res judicata issue estoppel is triggered when a decision maker with authority to determine a matter declines not to do so on the basis that the three criteria (same parties, same question, final decision) have been met ( Danyluk , at paragraph 25 ).

[ 66 ] A PRRA officer’s jurisdiction is to consider whether, on the basis of new evidence that has come to light or could not have reasonably been discovered at the time of the RPD hearing or on the basis of new risks not previously assessed, the claimant now faces a

section 96 or 97 risk, as the case may be. Res judicata plays no role as the question answered by a PRRA officer’s decision is necessarily different from the risks considered by the RPD. While res judicata applies in respect of past risks and evidence, the PRRA officer is considering matters arising subsequent to the RPD determination. Res judicata is engaged only when the same question has been decided. [ 67 ] As a second observation, res judicata has no bearing in circumstances when the second decision maker has no jurisdiction to make the decision in the first place.

In Administrative Law , 11th ed. (New York: Oxford University Press, 2014), at page 197, the authors note that “the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not in law possess ...

Nor can any kind of estoppel give a tribunal wider jurisdiction than it possesses.” The objection to the second decision maker making the decision is purely a jurisdictional one, rooted in the statutory scheme. [ 68 ] As res judicata does not assist in the disposition of the issues on appeal, it is not strictly necessary to address the appellants’ argument that the PRRA officer has discretion not to apply res judicata and to grant the appellants the benefit of a change in the law.

Given the emphasis put on this point, I will nevertheless briefly address this argument. [ 69 ] Assuming for the sake of argument that res judicata applies and the PRRA officer had discretion not to apply the doctrine, there are no relevant factors which would warrant the discretion being exercised in the appellants’ favour. Evolving law is not a reason to depart from the doctrine of issue estoppel ( Régie des rentes du Québec v. Canada Bread Company Ltd. , 2013 SCC 46 , [2013] 3 S.C.R. 125, at paragraphs 28–30 ; see as well the discussion of this point in Eli Lilly Canada Inc. v.

Teva Canada Limited , 2018 FCA 53 , at paragraph 54 , per Laskin J.A.). [ 70 ] Nor is it relevant that the point of finality was reached a mere eight days before Ezokola was decided. No principled distinction can be drawn between an applicant whose exclusion finding became final a day, a month or a year before Ezokola . To make the point, consider the circumstances of a judicial review of a PRRA officer’s decision refusing to apply the doctrine and deciding to reconsider the exclusion. Such a decision would be assessed on a reasonableness basis. When would a decision be unreasonable?

One day, eight days, thirty days or six months prior to the change in law? [ 71 ] The appellants rely on the decision of this Court in Oberlander v. Canada ( Attorney General) , 2016 FCA 52 , 396 D.L.R. (4th) 155 ( Oberlander ). In Oberlander , this Court considered the effect of a change in the law of complicity in the context of citizenship revocation proceedings. [ 72 ] I do not agree that Oberlander supports the appellants. [ 73 ] Oberlander concerned citizenship revocation proceedings under the Citizenship Act , R.S.C., 1985, c. C-29 .

The Governor in Council made a complicity finding, based on pre- Ezokola law, arising from the applicants’ participation in war crimes in World War II. The complicity finding, on a pre- Ezokola basis, was upheld on judicial review in the Federal Court and on appeal. However, this Court returned the case to the Governor in Council for reconsideration of the issue of duress. On reconsideration, the Governor in Council concluded that duress was not established. The applicants applied for judicial review of the Governor in Council’s second decision. Ezokola was released prior to the second hearing.

The Federal Court held that issue estoppel precluded re-litigation of the complicity finding. The applicant appealed. [ 74 ] This Court allowed the appeal, ruling that the Federal Court failed to consider the link between the complicity finding and the issue of duress.

The [Federal] Court of Appeal found that the complicity finding was inherently linked to the issue of duress, and as the question whether or not duress was established was a live issue before the Court, so too was the finding of complicity. [ 75 ] The circumstances under which issue estoppel arose in Oberlander are, therefore, quite distinct from those in this appeal. The complicity finding in Oberlander was still a live issue. The same cannot be said here. D.

Section 7 of the Charter [ 76 ] The appellants’ position is that their removal from Canada in the absence of a risk assessment under the criteria of

section 96 violates

section 7 of the Charter . [ 77 ] This argument fails on the basis of established Supreme Court jurisprudence with respect to the interface between

section 7 of the Charter and exclusion findings. Further, there is no factual foundation for the

section 7 argument. As explained above, in assessing the dependent claims of their children on the basis of the risks asserted by the appellants, the RPD found that there was no risk under

section 96. The RPD separately considered the appellants’ claims under

section 97 criteria, likewise finding no risk. As I will explain later in these reasons, the appellants’ challenge to these findings fails, with the result that the appellants’ Charter argument is hypothetical. [ 78 ] Three principles frame the analysis in respect of

section 7 of the Charter and the removal of persons from Canada, whether on the grounds of inadmissibility or otherwise. [ 79 ] First, Suresh teaches that a

section 97 risk assessment does not violate

section 7. The Supreme Court of Canada held that the applicant must make out a prima facie case that there may be a risk of torture or similar abuse before the Minister must conduct a risk assessment prior to removal. Even where the threshold has been met, the Minister may nevertheless order removal after weighing the risk to the applicant and the Canadian public interest ( Suresh , at paragraph 58 ). [ 80 ] The second principle arises from Febles.

The Supreme Court held that the Parliament has the power to pass legislation that complies with Canada’s obligations under the Convention, or to pass legislation that either exceeds or falls short of the Convention’s protections. Affirming the decision of this Court, the Supreme Court found that there was no doubt or ambiguity that Parliament’s intention in

section 98 of the IRPA was to exclude from refugee protection all persons within the ambit of

Article 1F. The Court noted “[t]here is similarly no role to play for the Charter in interpreting s. 98 of the IRPA ” ( Febles , at paragraph 67 ). The existence of

Article

1F is itself confirmation of the principle that there is no positive right at international law for all persons to be able to make a claim for refugee protection. [ 81 ] The third principle arises from B010. Building on Febles the Court affirmed that “̒even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that placeˈ” (i.e., a risk assessment under

section 97) ( B010 , at paragraph 75 , citing Febles , at paragraph 67 ; IRPA, sections 97 , 112 , subparagraph 113 (d)(

i) and paragraph 114(1) (b)). The Court held that this rationale applies equally to determinations of inadmissibility ( B010 , at paragraph 75 ).

Section 7 is therefore not engaged by a finding of inadmissibility or exclusion. [ 82 ] It follows that the appellants’ argument that they must have their risks assessed against

section 96 criteria runs contrary to the jurisprudence of the Supreme Court. As the determination of exclusion or inadmissibility does not engage

section 7, it necessarily follows that

section 7 is not engaged by the denial of a

section 96 risk assessment. This is the consequence of the trilogy of S.C.C. decisions ( Suresh , Febles , B010 ). Exclusion removes the appellants from the refugee determination process, and, as a direct consequence, from a

section 96 risk assessment. [ 83 ] Nevertheless, it is clear that the appellants’

section 7 Charter rights are protected by the safeguards available to them under the IRPA . In Febles , the Court found that if excluded, the appellant can apply for a stay of removal in the face of

section 97 risks. It is at the removal stage where the

section 7 interests are engaged ( Febles , at paragraphs 67, 68 ). [ 84 ] The decision of this Court in Atawnah v. Canada (Public Safety and Emergency Preparedness) , 2016 FCA 144 , [2017] 1 F.C.R. 153 ( Atawnah ) is demonstrative of this point. [ 85 ] At issue in Atawnah was paragraph 112 (2) (b.1) of the IRPA , which barred access to any PRRA for refugee claimants from designated countries who had abandoned their claim for refugee status until 36 months had passed from the date of abandonment. [ 86 ] The appellants, facing removal to Israel within the 36 months, argued that their removal from Canada without a

section 96 risk assessment violated

section 7. They also argued that paragraph 112(2) (b.1) of the IRPA violated

section 7 as their refugee claim had never been determined. [ 87 ] Consistent with Febles , this Court held that individuals who are barred from a full PRRA, as are the appellants here, have their

section 7 risks assessed at the removal stage. The manner in which

section 7 risks of applicants who are PRRA-barred are assessed is a process where “an enforcement officer assesses the sufficiency of the evidence of risk, and if satisfied the evidence is sufficient, defers removal and refers the risk assessment to another decision maker” ( Atawnah , at paragraph 27 ). An enforcement officer’s refusal to defer removal may be challenged in the Federal Court, and a stay of removal may be obtained pending the outcome of an application for judicial review.

The Federal Court can, and often does, consider a request for a stay of removal in a more comprehensive manner than an enforcement officer can consider a request for deferral ( Shpati v. Canada (Public Safety and Emergency Preparedness) , 2011 FCA 286 , [2012] 2 F.C.R. 133 , at paragraph 51 ).

Dawson J.A. concluded [in Atawnah , at paragraph 18] that the rights available to those being removed in the absence of the basis of any PRRA were “not illusory” , but real and effective. [ 88 ] In sum, consistent with the decision of the Supreme Court in Febles , the discretion of the removals officer, under the supervisory jurisdiction of the Federal Court, discharges the

section 7 obligations owed to the appellants. These safeguards are sufficient to ensure that persons such as the appellants are removed in a manner consistent with

section 7 of the Charter . [ 89 ] I turn to the second reason why the appellants’ Charter argument must fail. In the context of the RPD’s consideration of the children’s dependent claims, the same risks asserted by the appellants were assessed under

section 96 and rejected (RPD Decision, paragraphs 1, 4). The RPD concluded that the claims were not credible and that “they would face nothing more than a remote risk if they were returned to Zimbabwe. They are not Convention Refugees ” (RPD Decision, at paragraph 36). [ 90 ] Unless the appellants convince this Court that the PRRA officer’s decision is unreasonable, there is no factual foundation to sustain the argument that removal in the absence of a

section 96 assessment engages the appellants’

section 7 rights. As will be discussed in part F of these reasons, there is no basis to set aside the findings of the PRRA officer in this respect. E. Was the Minister’s implicit refusal to consider the appellants’ application under

section 25.2 reasonable? [ 91 ] I turn to the second certified question: Does s. 25.2 of the IRPA provide the Minister discretion, in the absence of a pre-established policy, to exempt a person making an application for protection under s. 112 of the IRPA from the restrictions that flow from s. 112(3) of the IRPA , which discretion obliges the Minister to consider and make a decision that such discretion be exercised? [ 92 ] I believe the substance of the question was well framed by the Federal Court Judge. He asked “must the Minister exercise discretion under

section 25.2 of the IRPA to exempt the applicants from the application of subsection 112(3) , such that failure to consider their request for an exemption vitiates the PRRA decision?” (F.C. Decision, at paragraph 11). [ 93 ] I would answer this question, as reframed, in the negative. [ 94 ] I note at the outset whether or not the Minister has discretion to grant relief generally under

section 25.2 is not at issue. The appellants concede this point, accepting the reasons of the Federal Court. This concession is appropriate. The plain reading of subsection 25.2(1) and the absence of imperative language points to the existence of a discretion. Whether or not a pre-established public policy is a prerequisite to requiring the exercise of the Minister’s discretion under

section 25.2 remains to be decided. [ 95 ] Subsection 25.2(1) provides: Public policy considerations

25.2

(1) The Minister may , in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act , grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations . [Emphasis added.] [ 96 ] The thrust of the appellants’ arguments is that the Minister is obligated to exercise his discretion under

section 25.2 and establish a policy which would grant them, as pre- Ezokola claimants, an unrestricted PRRA. A policy must be established and the discretion must also be exercised favourably to bring Canadian law into conformity with international law and the Charter . [ 97 ] There is no doubt that the scope of ministerial discretion may be constrained by the Charter ( Canada ( Attorney General ) v. PHS Community Services Society , 2011 SCC 44 , [2011] 3 S.C.R. 134, at paragraphs 114 , 117, 128).

However, the Charter cannot be used to force the Minister to grant an unrestricted PRRA where the legislation (here subsection 112(3) ) prevents it. [ 98 ] The appellants contend, on basic principles of administrative law, that where a statute provides a discretion and the office holder refuses to acknowledge or reply to a request that it be exercised, as is the case here, a court can compel the exercise of the discretion. [ 99 ] As a general proposition, the appellants’ argument is sound. But it must be situated in its legislative context.

The parties join issue on the specific question whether the existence of a specific pre-existing public policy is a prerequisite to any legal obligation on the Minister to exercise his discretion. The appellants say that the IRPA obliges the Minister to consider requests on a case-by-case basis and to affirmatively establish a policy. The Minister says that unless there is content or a framework or criteria which constitute “public policy” , there is no obligation to act. [ 100 ] The appellants’ argument fails when

section 25.2 is read in its full context, as it must. The legislative history of

section 25.2, the distinction between subsection 25(1) and

section 25.2, the nature of public policy itself, coupled with the discretionary language of the section, all point to the conclusion that the Minister has no obligation to establish a public policy on request. [ 101 ] Parliament has expressly addressed the circumstances where the Minister may waive the requirements of the IRPA . Subsection 25(1) allows the Minister to grant relief on humanitarian and compassionate grounds to foreign nationals who do not meet the requirements of the IRPA .

Importantly, for the purposes of context, persons who are inadmissible on the basis of sections 34 , 35 or 37, such as the appellants, cannot avail themselves of the discretion Parliament granted the Minister under subsection 25(1) . [ 102 ]

Section 25.2 provides a similar discretion. The foreign national must comply with any ministerial conditions and the Minister must be satisfied that the waiver is justified by public policy. [ 103 ] These similarities aside, there is, however, a stark distinction between subsection 25(1) and

section 25.2 . The former contains mandatory language. The Minister “must” consider requests for humanitarian and compassionate relief.

Section 25.2 in contrast, is discretionary. The Minister “may” consider granting relief. This is not a situation where the permissive or discretionary word, “may”, can be read as mandatory. [ 104 ] There are other hurdles to the appellants’ argument. [ 105 ] First, there is no objective content to public policy. The content of public policy is vested in the Minister and has not been delegated ( De Araujo v. Canada (Citizenship and Immigration) , 2007 FC 363 , 311 F.T.R. 306, at paragraphs 19–23 ). On the appellants’

interpretation, the Minister has an open-ended obligation to consider all requests that the requirements of the IRPA be waived and to establish a relevant policy within which the request for a waiver would be considered. This would be a significant shift in, indeed a judicial amendment to, the legislative scheme.

It would create, at the apex of the system, a further final appeal to the Minister in all cases, including those on the eve of removal. [ 106 ] Second, where Parliament has granted discretion to grant relief on a case-by-case basis, it did so expressly and with limitations — the waiver from the requirements of the IRPA must be based on humanitarian and compassionate considerations ( IRPA,

section 25.1 ). Further, and as previously noted, those who are inadmissible on the grounds of sections 34 , 35 and 37, are ineligible for humanitarian and compassionate relief. That door being closed to the appellants, they urge an

interpretation of

section 25.2 which would allow them to come in through the back door. I am not prepared to read into

section 25.2 a recourse that Parliament has expressly made unavailable to them in subsection 25(1). [ 107 ] Third, the appellants’ argument amounts to a requirement that the Minister establish a policy that applies to them — a policy which would waive subsection 112(3) in the case of pre- Ezokola inadmissibility findings. Thus viewed, the appellants’ mandamus argument, in essence, compels the Minister not only to establish a public policy, but to establish public policy which would operate in their favour. [ 108 ] The legislative history of

section 25.2 suggests that this was not Parliament’s intent. Recall that “public policy considerations” were, by virtue of the BRRA , extracted from subsection 25(1) and placed within the sole remit and initiative of the Minister. The legislative

summary of

section 25.1 (Library of Parliament, Legislative

Summary of Bill C-11:

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act ( Balanced Refugee Reform Act ); Publication No. 40-3-C11-E (12 May 2010) (revised 12 January 2011)) reads: 2.3.1 Removal of Public Policy Considerations from Examinations Conducted on Request (Clauses 4 and 5) Clauses 4 and 5 of Bill C-11 amend section 25(1) to divide the humanitarian and compassionate decision making process into three Ministerial powers. Clauses 4 and 5 also limit the Minister’s consideration of public policy considerations to situations where the Minister, on his or her initiative, undertakes an examination of the foreign national’s circumstances (new

section 25.2 ). [ 109 ] The Federal Court found that there was no existing public policy applicable to the appellants and that there had not been any delegation by the Minister to officials to apply a public policy. In these circumstances, to allow PRRA officers to grant or deny exemptions under

section 25.2 based on their own personal view of what constitutes good public policy is discordant with the legislative

history and the plain text of

section 25.2. I note that in Azimi , Fothergill J. found that the PRRA officer lacked jurisdiction to consider a prior exclusion finding despite the change in Ezokola as there was no statutory basis upon which a PRRA officer could invoke the Minister’s discretion under

section 25.1 of the IRPA and, on their own initiative, grant an exemption from paragraph 113(

d) on humanitarian and compassionate grounds. [ 110 ] The appellants also rely on paragraph 3(3)(f), which requires that the IRPA be “construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.” As with their Charter argument, the appellants argue that

section 25.2 is necessary to achieve compliance with the Convention in the event that the text of subsection 112(3) cannot be interpreted to achieve compliance. This argument is premised on the contention that the Federal Court erred in finding there is no “clear authority that Canada’s international obligations include a requirement for reconsideration based on evolution of jurisprudence” (F.C. Decision, at paragraph 35). [ 111 ] For substantially the same reasons of the Federal Court, I agree that no such authority exists.

Coupled with the principle established by Febles , described above at paragraph 80 of these reasons, I am unable to conclude that the Convention compels the Minister to consider applications for relief under

section 25.2 in circumstances such as the appellants’, particularly in light of the recourse otherwise available to them. [ 112 ] The availability of a restricted PRRA under

section 97 in combination with the opportunity to apply for a stay of removal are, in and of themselves, sufficient to protect the appellants’ Charter rights. It follows in these circumstances that the Minister cannot be seized with an obligation under the Charter to grant the appellants’ application under

section 25.2. F. The reasonableness of the PRRA officer’s decision [ 113 ] I turn to the final ground of appeal — the appellants’ challenge to the underlying decision of the PRRA officer that they would not face any risk under

section 97 if returned to Zimbabwe. The Federal Court Judge did not err in applying a reasonableness standard of review to this finding. [ 114 ] To be successful in a

section 97 risk assessment, a failed claimant must establish on a balance of probabilities that removal would more likely than not subject them to a personal risk of torture, death or cruel and unusual treatment ( Li , at paragraph 29 ). The Federal Court Judge conducted a thorough and careful review of the PRRA officer’s decision, which I adopt. Based on my review of the PRRA officer’s reasons and the evidence, I would dismiss this ground of appeal. [ 115 ] The officer assessed each of the appellants’ allegations of risk and the evidence in support.

The officer concluded that the appellants failed to provide sufficient objective evidence demonstrating that they would face a personal risk to their lives or to cruel and unusual punishment should they return to Zimbabwe. [ 116 ] The appellants contend that the PRRA officer’s risk assessment was unreasonable and that the officer relied on an outdated expert report instead of the expert evidence they submitted. They say the officer erred in finding that any risks flowing from the appellant, Mr. Tapambwa, being mistakenly identified as his twin brother were speculative and impersonal.

They also assert the officer failed to consider the cumulative weight of the evidence, including in the 2013 incident alleging the Zimbabwean government was looking for Mr. Tapambwa. [ 117 ] The Federal Court Judge concluded that the decisions reached were within the range of acceptable outcomes and were defensible on the facts and law. The Judge correctly characterized the arguments advanced by the appellants as challenging the officer’s assessment of the credibility and weight to be accorded the evidence. I do not accept the argument that the judge ignored “the cumulative weight of the evidence” .

The evidence has to first be found to be credible and probative in order for it to be given weight. Here, the PRRA officer’s conclusions with respect to both credibility and weight were entirely reasonable and open on the record before him, and sufficient in and of themselves to dispose of the allegation of risk. [ 118 ] The officer addressed the expert evidence tendered by the appellants (page 72 of the Appeal Book), and found that it did “not rebut the significant findings of the board with respect to the applicants’ credibility” (see the Appeal Book, Tab E, at page 280 for that expert evidence). I agree.

The expert report, whatever its weight, could not displace the RPD decision with respect to credibility. I would add that at its best, the expert affidavit does not advance the appellants’ case. As the Federal Court Judge noted, the affiant “expressly states that it is uncertain whether the applicants’ failed asylum status on its own would place them at risk of persecution” (F.C. Decision, at paragraph 100). [ 119 ] As to the question whether the appellants’ particular profile placed them at an elevated risk, as argued by the expert, the RPD did in fact look at this risk in light of their personal profile.

Moreover, by their own admission (in footnote 103 of their factum), the appellants are in fact challenging the RPD’s reliance on an allegedly outdated report. This is a collateral attack on a decision that was denied leave to judicially review. [ 120 ] The appellants’ second argument is also without merit. The officer did not find that the potential for being mistaken for Mr. Tapambwa’s twin brother was merely speculative. Rather, the officer found that the evidence submitted did not demonstrate that he would be mistaken for his twin such that a

section 97 risk of harm would result (see 4 th paragraph on page 13 of the PRRA officer’s decision (page 75 of the Appeal Book)). [ 121 ] Finally, with respect to the evidence concerning events in 2013 and 2014, the officer noted and explained in detail the following pieces of evidence: ● Mr. Tapambwa’s mother’s letter (see the first half of page 12 of the PRRA officer’s decision (page 74 of the Appeal Book) and see Exhibit “D” in the Appeal Book, Tab C, at page 136 for the letter); ● his mother’s medical report (see the second paragraph on page 12 of the officer’s decision (page 74 of the Appeal Book) and see Exhibit “E” in the Appeal Book, Tab C, at page 142 for the medical report);

● two letters from the lawyer who was retained to find Mr. Tapambwa’s missing father (see the last paragraph on page 12 and the top paragraph on page 13 of the officer’s decision (pages 74 and 75 of the Appeal Book) and see Exhibit “F” and “G” in the Appeal Book, Tab C, at pages 145 and 148 for the lawyer’s letters); and ● a letter from Mr.

Tapambwa’s uncle (see the second paragraph on page 13 of the officer’s decision (page 75 of the Appeal Book) and see Exhibit “H” in the Appeal Book, Tab C, at page 154 for the uncle’s letter). [ 122 ] I am not satisfied that there was any error in the officer’s treatment of any of this evidence. The PRRA officer assessed each piece of evidence individually and collectively and found that it fell short of establishing a possible

section 97 risk. In addition to the insufficiency of the evidence, the officer also had concerns about its credibility. I am not persuaded that those concerns were unreasonable. To the contrary, the officer provided clear and rational explanations as to why he or she came to that view. The officer in fact, looked at the whole of the evidence, contrary to what has been argued before us. The application was rejected “[b]ased on the totality of the evidence before [the officer]” (see 3rd paragraph on page 14 of the PRRA officer’s decision (page 76 of the Appeal Book)). V.

Conclusion [ 123 ] I would therefore answer the three certified questions, as reframed, in the negative, and dismiss the appeal. Stratas J.A.: I agree. Woods J.A.: I agree. APPENDIX B Immigration and Refugee Protection Act (S.C. 2001, c. 27 ) Humanitarian and compassionate considerations — request of foreign national 25

(1) Subject to subsection (1.2), the Minister must, on request of a for

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