2017 FC 292, 2017 FC 292

[2018] 1 F.C.R. 473 IMM-5590-15 2017 FC 292 Said Abdukadir Farah ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Farah v. Canada (Citizenship and Immigration) Federal Court, Southcott J.—Toronto, February 13; Ottawa, March 20, 2017.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of Citizenship and Immigration Canada (CIC) decision finding that applicant’s claim for refugee protection not eligible to be referred to Immigration and Refugee Board of Canada, Refugee Protection Division (RPD) pursuant to Immigration and Refugee Protection Act, s. 101(1) (d), making exclusion order against applicant — Applicant recognized as Convention refugee in Uganda — Fleeing to Canada after receiving threats — Refugee protection claim found ineligible — Pre-removal risk assessment (PRRA) application rejected pursuant to Act , s. 115(1) — Applicant arguing, inter alia, Act, s. 101(1) (

d) term “can be sent or returned” ambiguous as it could refer to whether he can be legally admitted to Uganda or, alternatively, to whether Canada can legally send him to Uganda — Whether ineligibility under s. 101(1)(

d) applying to claimants making refugee claims against country that has recognized them as refugees — No basis to conclude that CIC erring in adopting

interpretation of s. 101(1)(

d) that conforms with past case law — No difference of substance in language of s. 101(1) (

d) when compared to relevant language of predecessor provision, i.e. Immigration Act s. 46.01(1)(a) — No reason to depart from analysis,

interpretation provided in Kaberuka v. Canada (Minister of Employment and Immigration), Jekula v. Canada (Minister of Citizenship and Immigration) — No more ambiguity in use of word “can” in Act, s. 101(1)(

d) than in Immigration Act, s. 46.01(1)(a) — S. 46.01(1)(

a) analysis in Kaberuka taking into account Canadian Charter of Rights and Freedoms values — Kaberuka also concluding Canada’s obligations under United Nations Convention Relating to the Status of Refugees, Art. 33 preserved by operation of Immigration Act, s. 53(1), now Act, s. 115(1) — Wangden v. Canada (Minister of Citizenship and Immigration) also not warranting different

interpretation of s. 101(1)(d) — With respect to interaction of Act, ss. 112 , 115 , these sections are within

Part 2, Division 3, which is intended to address protection against the risk that may be occasioned by removal — It is this protection, not the determination of ineligibility to claim refugee status, which attracts Charter scrutiny — Question certified — Application dismissed. This was an application for judicial review of a decision by Citizenship and Immigration Canada (CIC) finding that the applicant’s claim for refugee protection was not eligible to be referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada pursuant to paragraph 101(1) (

d) of the Immigration and Refugee Protection Act , and making an exclusion order against him. The applicant, a citizen of Somalia and a Sufi Muslim was recognized as a Convention refugee in Uganda. He received threatening phone calls after speaking out against Al Shabaab in the Somali community in Uganda. The applicant felt unsafe in Uganda and arrived in Canada where he claimed refugee protection. The applicant was found to be ineligible based on his status as a Convention refugee in Uganda.

His pre-removal risk assessment (PRRA) application was rejected on the basis that he was not a person described in subsection 115(1) of the Act . The applicant argued, inter alia , that the term “can be sent or returned” in paragraph 101(1)(

d) is ambiguous. He submitted that it could refer to whether he can be legally admitted to Uganda or, alternatively, to whether Canada can legally send him to Uganda, taking into account Canada’s obligations under the United Nations Convention Relating to the Status of Refugees (Refugee Convention) and the Canadian Charter of Rights and Freedoms . The applicant also submitted that CIC erred in adopting the

interpretation which considered whether he could physically and legally be re-admitted to Uganda. At issue was whether ineligibility under paragraph 101(1) (

d) of the Act applies to claimants who are making a refugee claim against the country that has recognized them as refugees. Held , the application should be dismissed. There was no basis to conclude that CIC erred in adopting the

interpretation of paragraph 101(1)(

d) that conforms with the past case law. There is no difference of substance in the language of paragraph 101(1)(d), “can be sent or returned to that country”, when compared with the relevant language in the predecessor paragraph 46.01(1)(

a) of the Immigration Act , “a country to which the person can be returned”, which would justify departure from the analysis and

interpretation provided in Kaberuka v. Canada (Minister of Employment and Immigration) and in Jekula v. Canada (Minister of Citizenship and Immigration) . Regardless of whether one might consider the word “can” to be ambiguous and capable of the two different

interpretations identified by the applicant, there is no more ambiguity in the use of that word in paragraph 101(1) (

d) of the Act than there was in paragraph 46.01(1)(

a) of the Immigration Act . Current principles of statutory

interpretation, applied to paragraph 101(1)(d), do not justify a departure from the

interpretation provided in Kaberuka , wherein the Court’s

interpretation of paragraph 46.01(1)(

a) formed part of a broader analysis as to whether it was consistent with sections 7 , 12 and 15 of the Charter . As such, Charter values were taken into account in the analysis of the operation of this legislative scheme. The Court also concluded that Canada’s obligations under

Article 33 of the Refugee Convention were preserved by the operation of subsection 53(1) of the Immigration Act , now subsection 115(1) of the Act. The Federal Court’s analysis in Wangden v. Canada (Minister of Citizenship and Immigration) also does not warrant an

interpretation of paragraph 101(1)(

d) different than that derived from Kaberuka and Jekula . Questions were raised surrounding the interaction of subsections 112(1) and 115(1) of the Act. Sections 112 and 115 are within

Part 2, Division 3 of the Act, relating to pre-removal risk assessment and intended to address protection against the risk that may be occasioned by removal. It is the protection against risk of removal considered in this Division, not the determination of ineligibility to claim refugee status such as was the subject of the impugned decision in the present case, which attracts scrutiny under the Charter.

A question was certified as to whether, as a matter of statutory

interpretation, ineligibility under paragraph 101(1)(

d) of the Act includesthose who are making a refugee claim against the country that has recognized them as refugees. STATUTES AND REGULATIONS CITED

An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 36(1). Canadian Charter of Rights and Freedoms, being

Part 1 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, 12, 15. Immigration Act, R.S.C., 1985, c. I-2, ss. 3, 46.01(1),(2), 53(1). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2)(a), 37(1)(b), 101(1), 112, 115. Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 20(1)(a),(2)(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. 33. CASES CITED APPLIED: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Huruglica v.

Canada (Citizenship and Immigration), 2016 FCA 93,[2016] 4 F.C.R. 157; Kaberuka v. Canada (Minister of Employment and Immigration), (FCA), [1995] 3 F.C. 252, 32Imm. L.R. (2d) 38 (T.D.); Jekula v. Canada (Minister of Citizenship and Immigration), (FC), [1999] 1 F.C. 266,(1998), 154 F.T.R. 268 (T.D.), affd (2000), 266 N.R. 355, [2000] F.C.J. No. 1956 (QL) (C.A.). CONSIDERED: Wangden v. Canada (Minister of Citizenship and Immigration), 2008 FC 1230, [2009] 4 F.C.R. 46, affd 2009 FCA 344, 86 Imm. L.R.(3d) 165; Tobar Toledo v. Canada (Citizenship and Immigration), 2013 FCA 226, [2015] 1 F.C.R. 215; J.P. v.

Canada (Public Safetyand Emergency Preparedness), 2013 FCA 262, [2014] 4 F.C.R. 371; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58,[2015] 3 S.C.R. 704. REFERRED TO: Gaspard v. Canada (Citizenship and Immigration), 2010 FC 29; Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274;Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Bell ExpressVu Limited Partnership v. Rex, 2002SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Canadian Doctors for Refugee Care v.

Canada (AttorneyGeneral), 2014 FC 651, [2015] 2 F.C.R. 267; Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia,2007 SCC 27, [2007] 2 S.C.R. 391; Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, 253 D.L.R. (4th)425; Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224. AUTHORS CITED House of Commons Debates, 34th Parl., 3rd Sess., Vol. XI (November 23, 1992). United Nations High Commissioner for Refugees. UNHCR Note on the

Interpretation of

Article 1E of the 1951 Convention relating tothe Status of Refugees, March 2009. APPLICATION for judicial review of a decision by Citizenship and Immigration Canada finding that the applicant’s claim for refugeeprotection was not eligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board of Canada pursuantto paragraph 101(1)(

d) of the Immigration and Refugee Protection Act, and making an exclusion order against him. Applicationdismissed. APPEARANCES Leigh Salsberg for applicant. Neeta Logsetty for respondent. SOLICITORS OF RECORD Leigh Salsberg, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Southcott J.: I. Overview

[ 1 ] This is an application for judicial review of a decision by Citizenship and Immigration Canada (CIC), dated December 10, 2015, finding that the applicant’s claim for refugee protection is not eligible to be referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada and making an exclusion order against him. This ineligibility determination was made pursuant to paragraph 101(1) (

d) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), due to the applicant’s recognition as a Convention refugee in Uganda. The applicant seeks an order setting aside the exclusion order and determination of ineligibility, and sending his refugee claim back for redetermination. [ 2 ] As explained in greater detail below, this application is dismissed, because I have found that CIC did not err in interpreting and applying paragraph 101(1) (

d) of IRPA , determining that the applicant is not eligible to be referred to the RPD notwithstanding his assertion that he fears persecution in the country which granted him refugee status. II. Background [ 3 ] The applicant, Said Abdukadir Farah, is a 34-year-old citizen of Somalia and a Sufi Muslim. Mr. Farah fled to Uganda with his wife in 2008 due to fear of Al Shabaab, and he and his wife were recognized as Convention refugees in Uganda in 2010. [ 4 ] Mr. Farah claims that he spoke out against Al Shabaab in the Somali community in Uganda and that in 2014 he began to receive threatening phone calls.

He approached the Ugandan police three times, but received no protection. He also claims that he made efforts to relocate to northern Uganda but was unable to rent accommodation due to discrimination against Somalis in Uganda. Mr. Farah felt unsafe in Uganda and left in May 2015, arriving in Canada in October 2015 and claiming refugee protection in November 2015. [ 5 ] Mr. Farah presented a valid Ugandan refugee travel document with his refugee claim in Canada. His claim has not been determined by the RPD, because he was found to be ineligible under paragraph 101(1) (

d) of IRPA based on his status as a Convention refugee in Uganda. Mr. Farah submitted a pre-removal risk assessment (PRRA) application, but his application was rejected the week prior to the hearing of this judicial review application. At the hearing, Mr. Farah provided the Court with a copy of the negative PRRA decision. III. Legislation [ 6 ] The full text of subsection 101(1) of IRPA , including paragraph 101(1) (

d) to which this application relates, is as follows: Ineligibility 101

(1) A claim is ineligible to be referred to the Refugee Protection Division if (

a) refugee protection has been conferred on the claimant under this Act ; (

b) a claim for refugee protection by the claimant has been rejected by the Board; (

c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned; (

d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country; (

e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or (

f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). [Emphasis added.] IV. Issue [ 7 ] Mr. Farah submits that the sole issue to be decided by the Court is whether, as a matter of statutory

interpretation, ineligibility under paragraph 101(1) (

d) of IRPA applies to claimants who are making a refugee claim against the country that has recognized them as refugees. V. Standard of Review [ 8 ] Mr. Farah submits that, as the sole issue raised in this application is an issue of law, surrounding statutory

interpretation, a standard of correctness applies. He relies on Wangden v. Canada (Minister of Citizenship and Immigration) , 2008 FC 1230 , [2009] 4 F.C.R. 46 ( Wangden ), upheld 2009 FCA 344 , 86 Imm. L.R. (3d) 165; and Tobar Toledo v. Canada (Citizenship and Immigration) , 2013 FCA 226 , [2015] 1 F.C.R. 215 ( Tobar Toledo ). [ 9 ] The respondent takes the position that the Court should apply the standard of reasonableness, because the determination being reviewed by the Court is either a question of fact or one of

interpretation of the decision maker’s home statute (see Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ); Wangden , at paragraphs 14–17; Gaspard v. Canada (Citizenship and Immigration) , 2010 FC 29 , at paragraph 14 ). [ 10 ] The decision the Court is reviewing involves the

interpretation of paragraph 101(1) (

d) of IRPA . The authorities upon which Mr. Farah relies support his position on standard of review. In Wangden , at paragraph 18, Justice Mosley held that the

interpretation of paragraph 101(1)(

d) of IRPA ought to be reviewed on a standard of correctness. In Tobar Toledo , at paragraphs 45–48 , the Federal Court of Appeal considered paragraph 101(1)(

b) of IRPA, which makes a claim ineligible to be referred to the RPD if a claim for refugee protection by the claimant has been rejected by the Immigration and Refugee Board, and held that the findings of law reached by the border services officer in the context of that

section were reviewable on the standard of correctness.

[11] On the other hand, Dunsmuir, at paragraphs 68–71, provides strong support for the application of the standard of reasonableness,as this is a matter of

interpretation of CIC’s enabling legislation. The Federal Court of Appeal in Huruglica v. Canada (Citizenship andImmigration), 2016 FCA 93, [2016] 4 F.C.R. 157, at paragraph 30, has recently reiterated the presumption that reasonableness applies toall questions of law arising from the

interpretation of an administrative body’s home statute. Mr. Farah’s arguments in the present caserelate to the effect of the Refugee Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can.T.S. No. 6] and the Canadian Charter of Rights and Freedoms (Charter) as tools of statutory

interpretation. I am therefore also consciousof recent jurisprudence to the effect that the

interpretation of the Refugee Convention does not fall into one of the categories of questionsto which the correctness standard continues to apply (Majebi v. Canada (Citizenship and Immigration), 2016 FCA 274, at paragraph 5)and which favours the reasonableness standard in the application of the Charter other than in the context of an argument of constitutionalinvalidity (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613). [12] Overall, I consider the direction of the recent jurisprudence to favour the application of the reasonableness standard to the issuein the present case. However, my conclusion on the issue of statutory

interpretation in this case is not based on any particular deferenceto the impugned decision, as CIC’s adoption and application of the

interpretation challenged by Mr. Farah is implicit in the decision,without any express analysis of the issue. It is unnecessary for me to reach a definitive conclusion on the standard of review, as I wouldfind in favour of the respondent whether applying a standard of reasonableness or correctness in considering CIC’s

interpretation andapplication of paragraph 101(1)(d). VI. Analysis [13] Mr. Farah’s arguments turn on the meaning of the term “can be sent or returned” in paragraph 101(1)(

d) of IRPA, which term heargues is ambiguous. He submits that it could refer to whether he can be legally admitted to the country of refuge, Uganda. This is theinterpretation upon which the impugned decision is implicitly based. However, he argues that this term could alternatively refer towhether Canada can legally send him to Uganda, taking into account Canada’s obligations under the Refugee Convention and theCharter. This is the

interpretation that Mr. Farah urges the Court to adopt. [14] Mr. Farah submits that CIC erred in adopting the

interpretation which considered whether he could physically and legally be re-admitted to Uganda. He acknowledges that this

interpretation is consistent with the existing jurisprudence on this issue. In Kaberuka v.Canada (Minister of Employment and Immigration), (FCA), [1995] 3 F.C. 252 (T.D.) (Kaberuka), the Federal Courtconsidered paragraph 46.01(1)(

a) of the Immigration Act, R.S.C., 1985, c. I-2 (Immigration Act), which was the predecessor provision toparagraph 101(1)(

d) of IRPA and stated as follows: 46.01

(1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if theperson (

a) has been recognized as a Convention refugee by a country other than Canada, that is a country to which the person can be returned. [15] At pages 269–270 of Kaberuka, the Federal Court noted that

An Act to amend the Immigration Act and other Acts inconsequence thereof, S.C. 1992, c. 49, section 36(1) repealed the previous version of subsection 46.01(2) of the Immigration Act, whichhad permitted those with Convention refugee status elsewhere to make Convention refugee claims against their countries of asylum. TheCourt concluded that this indicated Parliament had chosen to exclude persons recognized as Convention refugees by another countryfrom claiming a well-founded fear of persecution by their country of asylum. [16] Mr. Farah also notes that this analysis was followed in Jekula v.

Canada (Minister of Citizenship and Immigration), (FC), [1999] 1 F.C. 266 (T.D.) (Jekula) (affirmed by the Federal Court of Appeal, without reasons, at (2000), 266 N.R. 355, [2000]F.C.J. No. 1956 (QL)). Again relying on the repeal of the previous subsection 46.01(2) of the Immigration Act, the Court in Jekula heldat paragraph 44 that the words “can be returned” in subsection 46.01(1) did not require an immigration officer to determine whether theclaimant had a well-founded fear of persecution in the country that has already granted asylum. [17] However, Mr. Farah argues that this

interpretation is outdated and that the meaning of the language “can be sent or returned”,employed in paragraph 101(1)(

d) of IRPA, has not yet been considered by the courts. He submits that this language is ambiguous andmust be interpreted so as to comply with the purpose of IRPA, Charter rights, and Canada’s international human rights obligations. Mr.Farah relies on Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2S.C.R. 292; Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267, at paragraph 444;and Health Services and Support – Facilities Subsector Bargaining Ass. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 forthese interpretive principles, which authorities he notes post-date the decisions in Kaberuka and Jekula. He refers in particular toWangden, in which the Court, in interpreting paragraph 101(1)(d), relied on paragraph 3(2)(

a) of IRPA, which provides that one of thestatute’s main objectives with respect to refugees is “to recognize that the refugee program is in the first instance about saving lives andoffering protection to the displaced and persecuted”. Mr. Farah also notes Wangden’s approval of the argument that the RefugeeConvention and IRPA should be interpreted to prevent asylum shopping, but he argues that this concern does not arise in the present casewhere he asserts a genuine fear of return to his country of asylum. [18] Having considered Mr. Farah’s written and oral submissions, I find no basis for a conclusion that CIC erred in adopting theinterpretation of paragraph 101(1)(

d) which conforms with the past jurisprudence and pursuant to which Mr. Farah was determinedineligible to have his claim referred to the RPD due to his refugee status in Uganda. [19] I find no difference of substance in the language of paragraph 101(1)(

d) of IRPA, “can be sent or returned to that country”, whencompared with the relevant language in the predecessor paragraph 46.01(1)(

a) of Immigration Act, “a country to which the person can bereturned”, which would justify departure from the analysis and

interpretation provided in Kaberuka and Jekula. Moreover, regardless ofwhether one might consider the word “can” to be ambiguous and capable of the two different

interpretations identified by Mr. Farah,there is no more ambiguity in the use of that word in paragraph 101(1)(

d) of IRPA than there was in paragraph 46.01(1)(a). [20] I also disagree that current principles of statutory

interpretation, applied to paragraph 101(1)(d), justify a departure from theinterpretation provided in Kaberuka and Jekula. I accept Mr. Farah’s position that both Canada’s obligations under the Refugee

Convention and Charter values can have a role in the

interpretation of IRPA, and that the

interpretation exercise must take into accountthe purpose of the legalisation as a whole. However, following consideration of the applicable jurisprudence, I do not find theseprinciples to support the

interpretation that Mr. Farah advocates. [21] First, I note that Justice Heald’s decision in Kaberuka demonstrates that, at least to some extent, these principles were taken intoaccount in the course of the analysis in that case. In Kaberuka, the decision under judicial review was a determination by an immigrationofficer that the applicant’s removal from Canada was not prohibited under subsection 53(1) of the Immigration Act, because theapplicant would not face a threat to his life or freedom if he were removed from Canada.

That decision followed a determination,pursuant to paragraph 46.01(1)(a), that the applicant was ineligible to make a Convention refugee claim. The operative language insubsection 53(1) is reproduced at paragraph 8 of the decision as follows: 53.

(1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Conventionrefugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by theRefugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a countrywhere the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social groupor political opinion unless.… [22] The Court’s

interpretation of paragraph 46.01(1)(a), as excluding persons recognized as Convention refugees by another countryfrom claiming fear of persecution by their country of asylum, formed part of a broader analysis as to whether paragraph 46.01(1)(

a) andsubsection 53(1), individually or in combination, were consistent with sections 7, 12 and 15 of the Charter. As such, Charter values weretaken into account in the analysis of the operation of this legislative scheme. [23] The Court’s analysis also considered, at paragraphs 18 to 19, Canada’s obligations under

Article 33 of the Refugee Convention,which prohibits refoulement. Justice Heald noted that

section 3 of the Immigration Act provided for Canadian immigration policy, rulesand regulations to be designed and administered in recognition of the need to fulfil Canada’s international legal obligations with respectto refugees. The Court then concluded that Canada’s obligation under

Article 33 is preserved by the operation of subsection 53(1),constraining the removal of those who have been barred from having a Convention refugee claim determined where there is a threat to anindividual’s life or freedom on the basis of one or more of the grounds therein. [24] I also cannot conclude that the Court’s analysis in Wangden supports Mr. Farah’s argument that current principles of statutoryinterpretation, including consideration of the Refugee Convention, warrant an

interpretation of paragraph 101(1)(

d) different than thatderived from Kaberuka and Jekula. In Wangden, the issue under consideration was whether the legal status of “withholding of removal”in the United States was equivalent to being recognized as a Convention refugee for purposes of paragraph 101(1)(d).

While taking intoaccount the fact that one of the main objectives of IRPA is to recognize that the refugee program is about saving lives and offeringprotection to the displaced and persecuted, Justice Mosley held that what was of concern in achieving Parliament’s intention was notwhether individuals have the full panoply of rights provided under the Convention, but rather whether they are protected from risk. [25] In Wangden, IRPA’s objective of protection against risk was achieved though the “withholding of removal” status conferred inthe United States.

This focus upon protection from risk, as opposed to Convention refugee status, is also evident in the Charter analysisin the more recent decision of the Federal Court of Appeal in J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA262, [2014] 4 F.C.R. 371 (J.P.), which considered the protection afforded by IRPA’s processes surrounding removal from Canada. Thatcase considered the

interpretation of paragraph 37(1)(

b) of IRPA, which makes a foreign national inadmissible to Canada for engaging inactivities of transnational crime such as people smuggling. At paragraphs 123 to 125, the Court relied on Jekula as support for itsconclusion that it is not a finding of inadmissibility, but rather a subsequent stage in the immigration process at which removal is underconsideration, which engages

section 7 of the Charter: More than two decades ago, this Court determined in Berrahma v. Minister of Employment and Immigration) (1991), 132 N.R. 202(F.C.A.) (leave to appeal to the S.C.C. dismissed: [1991] 3 S.C.R. vi) that an inadmissibility finding under the IRPA does not engagesection 7 of the Charter since such a finding is not the equivalent of removal or refoulement. This principle has been consistentlyreiterated by this Court: Rudolph v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 653(C.A.); Nguyen v.

Canada (Minister of Employment and Immigration), (FCA), [1993] 1 F.C. 696 (C.A.); Jekula v.Canada (Minister of Citizenship and Immigration), (FC), [1999] 1 F.C. 266 (T.D.), affd , 266N.R. 355 (F.C.A.); Sandhu v. Canada (Minister of Citizenship and Immigration), , 258 N.R. 100 (F.C.A.); Poshteh v.Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487. The state of the law on this issue was aptly set out by Evans J. (as he then was) in Jekula v.

Canada (Minister of Citizenship andImmigration), above, at paragraphs 31–33, and I can do no better than he in describing the applicable principles: However, before the content of the principles of fundamental justice is considered in this context, the administrative action under reviewmust deprive the applicant of the right to life, liberty and security of the person. The question is, therefore, whether a decision underparagraph 46.01(1)(

a) has this effect. In my opinion it does not. First, while it is true that a finding of ineligibility deprives the claimantof access to an important right, namely the right to have a claim determined by the Refugee Division, this right is not included in “theright to life, liberty and security of the person”: Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.), atpage 213; Nguyen v. Canada (Minister of Employment and Immigration), (FCA), [1993] 1 F.C. 696 (C.A.). Second, it may well be a breach of the rights protected by

section 7 for the government to return a non-citizen to a country where shefears that she is likely to be subjected to physical violence or imprisoned. However, a determination that a refugee claimant is not eligibleto have access to the Refugee Division is merely one step in the administrative process that may lead eventually to removal from Canada.The procedure followed at the risk assessment to which the applicant will be entitled under

section 53 before she is removed can besubject to constitutional scrutiny to ensure that it complies with the principles of fundamental justice, even though the procedure is notprescribed in the Act or regulations: Kaberuka v. Canada (Minister of Employment and Immigration), (FCA), [1995]3 F.C. 252 (T.D.), at page 271. Moreover, while holding that it was not inconsistent with

section 7 for the Immigration Act to limit accessto the Refugee Division, Marceau J.A. also said in Nguyen v. Canada (Minister of Employment and Immigration),

(FCA) , [1993] 1 F.C. 696 (C.A.), at pages 708-709: It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me … at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under

section 7 of the Charter. In

summary,

section 7 rights are not engaged at the eligibility determination and exclusion order stages of the process. However, the applicant cannot be lawfully removed from Canada without an assessment of the risks that she may face if returned to Sierra Leone. And the manner in which that assessment is conducted must comply with the principles of fundamental justice. As a result, paragraph 37(1) (

b) does not engage

section 7 of the Charter . The issue of whether or not any of the respondents in these cases will be deported to a jurisdiction which could subject them personally to a danger of torture or to a risk to their life or to a risk of cruel and unusual punishment will, if necessary, be determined at a stage in the process under the IRPA which is subsequent to the inadmissibility finding. It is only at this subsequent stage that

section 7 of the Charter may be engaged. [ 26 ] While J.P. was overturned on other grounds on appeal ( B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 , [2015] 3 S.C.R. 704 ( B010 )), the Supreme Court of Canada confirmed at paragraph 75 of B010 that the inadmissibility provision did not engage

section 7 of the Charter because, even if excluded, the applicant could apply for a stay of removal. It is at the pre-removal risk assessment stage of IRPA ’s refugee protection process that

section 7 is typically engaged. [ 27 ] Like paragraph 46.01(1)(

a) of the Immigration Act , the former subsection 53(1) has been replaced in IRPA . Subsection 115(1) now provides: Protection 115

(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. [ 28 ] I note that the parties’ submissions at the hearing of this application raised questions surrounding the interaction of subsection 115(1) with subsection 112(1) of IRPA .

Subsection 112(1) entitles a person in Canada, other than a person referred to in subsection 115(1), to apply for protection if subject to a removal order. The negative PRRA decision which Mr. Farah has recently received is expressed as a determination that he is not a person described in subsection 115(1), and the respondent’s position is that it was under subsection 115(1) that Mr. Farah’s risk of return to Uganda was assessed. Mr.

Farah argued at the hearing that only subsection 112(1) prescribes a process for applying for protection and that subsection 115(1) sets out a principle but not a process, based on which he submits that his fear of returning to Uganda should be assessed as a refugee claimant, not under subsection 115(1). [ 29 ] Neither of the parties was in a position to provide detailed submissions on the interaction of subsection 115(1) and subsection 112(1) , as this subject did not arise prior to the hearing. However, both sections 112 and 115 are within

Part 2, Division 3 of IRPA , relating to pre-removal risk assessment, which is clearly intended to address protection against the risk that may be occasioned by removal and which was the subject of analysis in J.P. and B010 . For purposes of addressing the issue in the present application for judicial review, it is unnecessary for the Court to perform any detailed analysis of this Division of IRPA’s statutory regime.

It is sufficient to observe that it is the protection against risk of removal considered in this Division, not the determination of ineligibility to claim refugee status such as is the subject of the impugned decision in the present case, which attracts scrutiny under the Charter . [ 30 ] I note that at the hearing of this application, the applicant provided the Court with a copy of a publication of the United Nations High Commission for Refugees (UNHCR), entitled UNHCR Note on the

Interpretation of

Article 1E of the 1951 Convention relating to the Status of Refugees , dated March 2009 (UNHCR Note). The text of

Article 1E is as follows: E This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [ 31 ] In the copy of the UNHCR Note provided to the Court, the applicant highlighted the following paragraph 17: C. NON-REFOULEMENT CONSIDERATIONS ARISING FOR PERSONS EXCLUDED ON THE BASIS OF

ARTICLE 1E IN A THIRD COUNTRY 17. Although the competent authorities of the country in which the individual has taken residence may consider that he or she has the rights and obligations attached to the possession of the nationality of that country, this does not exclude the possibility that when outside that country the individual may nevertheless have a well-founded fear of being persecuted if returned there. To apply

Article 1E to such an individual, especially when a national of that country who is in the same circumstances, would not be excluded from being recognized as a refugee, would undermine the object and purpose of the 1951 Convention. Thus, before applying

Article 1E to such an individual, if he or she claims a fear of persecution or of other serious harm in the country of residence, such claim should be assessed vis-à-vis that country. [Footnote omitted.] [ 32 ] UNHCR publications of this sort can be useful guidance for interpreting Convention provisions, but they are not law and are not determinative of such

interpretation (see Fernandopulle v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 91 , 253 D.L.R. (4th) 425, at paragraph 17 ; Hernandez Febles v. Canada (Citizenship and Immigration) , 2012 FCA 324 , [2014] 2 F.C.R. 224 , at paragraph 50 ). Moreover, other than the applicant highlighting the above paragraph 17, neither party made any submissions related to the UNHCR Note. While this paragraph may support the

interpretation of paragraph 101(1)(

d) that Mr. Farah advocates, it may also be consistent with the considerations identified in this paragraph for Canada to address risk associated with removal to a person’s country of asylum through IRPA ’s pre-removal risk assessment process. Therefore, particularly in the absence of specific submissions on the UNHCR Note, I do not consider it a basis to adopt Mr. Farah’s proposed

interpretation of paragraph 101(1)(d).

[ 33 ] Finally, I have considered Mr. Farah’s argument that concern about asylum shopping does not arise in the present case, where he asserts a genuine fear of return to his country of asylum. I accept the logic of this argument and agree it could support the

interpretation of paragraph 101(1)(

d) that Mr. Farah advocates. However, like the courts in Kaberuka and Jekula , I consider the legislative history of paragraph 101(1)(

d) nevertheless to significantly favour the same

interpretation as was adopted in the consideration of paragraph 46.01(1)(

a) of the Immigration Act in those decisions. The respondent has noted not only the repeal of the former subsection 46.01(2), thereby eliminating the express entitlement of those with Convention refugee status elsewhere to make refugee claims against their countries of asylum, but has also referred the Court to the Official Report of the House of Commons Debates , Volume XI, 1992, at pages 13806 to 13814. This Report demonstrates two initiatives (Motions 25 and 31) to reintroduce provisions similar in effect to subsection 46.01(2) being defeated in the House in the course of the debate on the 1992 amendments. [ 34 ] For these reasons, whether considering the reasonableness of the

interpretation of paragraph 101(1)(

d) adopted in the impugned decision, or whether such

interpretation is indeed correct, I find no basis to interfere with the decision. VII. Certified Question [ 35 ] Mr. Farah proposes the following question for certification for appeal: As a matter of statutory

interpretation, does ineligibility under s. 101(1) (

d) of IRPA include those who are making a refugee claim against the country that has recognized them as refugees? [ 36 ] Mr. Farah argues that this is a serious question of general importance, submitting that it satisfies the applicable test of being determinative of an appeal in this matter and having broad application beyond this particular matter. The respondent opposes certification, arguing that there is no ambiguity in paragraph 101(1)(

d) and that the issue surrounding the

interpretation of the

section therefore need not be taken any further. [ 37 ] I agree that this question should be certified. A decision on this question would be determinative of an appeal in this matter, and such a decision would be of broad significance or general application extending beyond this particular matter. While there is existing authority on the question, and while I have found no basis to depart from that authority, I acknowledge the applicant’s argument that the authority is somewhat dated and involved consideration of predecessor legislation.

I therefore do not consider the existence of this authority to detract from the conclusion that the applicant’s proposed question qualifies as a serious question of general importance. [ 38 ] Following the hearing in this matter, I issued a Direction to the parties, informing them that the Court was considering the application of paragraph 20(1) (

a) of the Official Languages Act , R.S.C., 1985 (4th Supp;), c. 31 (the Act) to the issuance of the decision in this matter. I directed that each of the parties serve and file any submissions the party may wish to make on the potential application of paragraph 20(2) (

b) of the Act. The respondent did not make any such submissions. The applicant did make submissions, which are addressed below. [ 39 ] Paragraph 20(1) (

a) of the Act provides that any final decision, order or judgment, including any reasons given therefor, issued by any federal court shall be made available simultaneously in both official languages where the decision, order or judgment determines a question of law of general public interest or importance. However, pursuant to paragraph 20(2) (

b) of the Act, where the court is of the opinion that to make the decision, order or judgment, including any reasons given therefor, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance, it shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective. [ 40 ] While I consider the question certified in this matter to be a question of law of general public interest or importance, I am persuaded by the applicant’s submissions that he would suffer hardship or injustice if the issuance of this decision was delayed to allow for translation.

Mr. Farah explains that he is now in the process of meeting with the Canada Border Services Agency to prepare for removal, that he is preparing his application record in an application for leave and judicial review of the negative PRRA decision, and that he may imminently be moving for a stay of his removal. He refers to stress and psychological hardship due to the uncertainty of his situation, which would be relieved somewhat by knowing the outcome of this matter. I find that it would represent an injustice and hardship to require Mr.

Farah to pursue the remedies to which he refers, without knowing the result of the present application for judicial review, when the Court has made its decision in this matter. Therefore, this decision is being released in English, with the French translation to follow, in accordance with paragraph 20(2) (

b) of the Act . JUDGMENT THIS COURT’S JUDGMENT is that: 1. This application for judicial review is dismissed. 2. The following question is certified for appeal: As a matter of statutory

interpretation, does ineligibility under paragraph 101(1) (

d) of IRPA include those who are making a refugee claim against the country that has recognized them as refugees?