DONNA CYNTHILIA GEORGE Applicant v. THE MINISTER OF, 2016 FC 884

Date: 20160728 Docket: IMM-150-16 Citation: 2016 FC 884 Ottawa, Ontario, July 28, 2016 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN:DONNA CYNTHILIA GEORGEApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] Ms. George is a citizen of Saint Vincent and the Grenadines who claimed refugee protection in Canada due to her fear ofharm on the basis of her sexual orientation and because she alleges she is a victim of domestic violence perpetrated by her husband. [2] Ms.

George’s claim was rejected by the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB], afinding that was upheld by the Refugee Appeal Division [RAD] of the IRB. Ms. George brought an application seeking leave from thisCourt to judicially review the RAD decision. That application was dismissed in January, 2015 for lack of perfection. [3] In October, 2015, Ms. George submitted an application to the RAD to reopen the RAD decision. She alleged inadequaterepresentation before both the RPD and the RAD resulting in a breach of natural justice. [4] In December, 2015, the RAD dismissed Ms.

George’s application to reopen the appeal. The RAD concluded, relying onsection 171.1 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and Sub-Rule 49(1) of the Refugee Appeal DivisionRules, SOR/2012-257 [RAD Rules] that it did not have jurisdiction to reopen an appeal on any ground where this Court has made a finaldetermination. [5] Ms. George asks that I quash the decision of the RAD dismissing her application to reopen her appeal. She argues becausethis Court dismissed her application for leave on the basis of a lack of perfection, there has been no final determination of the matter.

Shesubmits that the purpose of

section 171.1 of the IRPA and sub-Rule 49(1) of the RAD Rules is to prevent re-litigation of the same issue.She argues this Court did not consider the reasonableness or correctness of the original RAD decision or the merits of her application. Assuch the dismissal for lack of perfection does not constitute a final determination. [6] To determine this application I need to address the following issues: A. What is the standard of review? B.

Did the RAD err in concluding that dismissal by this Court for lack of perfection constitutes a final determination pursuant to section171.1 of the IRPA and Sub-Rule 49(1) of the RAD Rules? [7] I am not persuaded by Ms. George’s arguments and dismiss the application for the reasons that follow. II. Analysis A. What is the standard of review? [8] The parties agree that the correctness standard of review applies to true questions of jurisdiction (Dunsmuir v NewBrunswick, 2008 SCC 9 , [2008] 1 SCR 190 at para 59; Smith v Alliance Pipeline Ltd, 2011 SCC 7 , [2011] 1 SCR 160at para 26). Ms.

George submits that the issue raised is one of jurisdiction and a correctness standard of review applies. I disagree. [9] The category of true questions of jurisdiction is narrow (Alberta (Information and Privacy Commissioner) v AlbertaTeachers’ Association, 2011 SCC 61 at para 39). The RAD is granted sole and exclusive jurisdiction to determine “all questions of lawand fact, including questions of jurisdiction” in matters brought before it (IRPA ss 162(1)). The issue raised in this application is not atrue question of jurisdiction but rather a question of the

interpretation of

section 171.1 of the IRPA, the RAD’s home statue. The RAD isentitled to deference and I will apply a reasonableness standard of review. B. Did the RAD err in concluding that dismissal by this Court for lack ofperfection constitutes a final determination pursuant to

section 171.1 of the IRPA and

Sub-Rule 49(1) of the RAD Rules? [10] It was both reasonable and correct for the RAD to conclude that a decision of this Court dismissing an application for leaveand judicial review due to a lack of perfection constitutes a final determination within the meaning of

section 171.1 of the IRPA andRAD Rule 49(1). [11]

Section 171.1 of the IRPA states: 171.1 The Refugee Appeal Division does not have jurisdiction toreopen on any ground — including a failure to observe a principle ofnatural justice — an appeal in respect of which the Federal Courthas made a final determination. 171.1 La

Section d’appel des réfugiés n’a pas compétence pourrouvrir, pour quelque motif que ce soit, y compris le manquement àun principe de justice naturelle, les appels à l’égard desquels la Courfédérale a rendu une décision en dernier ressort. [12] The issue raised is one of statutory

interpretation (NO v Canada (Minister of Citizenship and Immigration), 2015 FC 1186[NO]). Statutes are to be “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd Re, (SCC), [1998] 1 SCR 27 atpara 21). [13] In NO Justice Heneghan considers the meaning of “final” as that term is used in

section 170.2 of the IRPA, a

section thataddresses the reopening of a matter by the RPD. The wording is identical to

section 171.1. In interpreting the meaning of “final” JusticeHeneghan refers to paragraph 50 of Blackmore v British Columbia (Attorney General) (2009), 2009 BCSC 1299 at para 50 which states: The grammatical and ordinary meaning of the word "final" is "ultimate ... not to be undone, altered or revoked ... [and] conclusive":Simpson and Weiner, The Oxford English Dictionary, 2nd ed., Volume V (Oxford: Clarendon Press, 1989) at pp. 191 to 192. [14] In this case the decision of the Court to dismiss the application for lack of perfection was a “final” decision. It was not to beundone or revoked. However, Ms.

George argues that “decision” must be interpreted differently than “determination”, the term used insection 171.1. While the decision of the Court might have been a “final decision” it was not a “final determination” because the merits ofthe matter had not been considered. Again I am unable to agree. [15] In this case the “Final Decision” of the Court was to dismiss the application for lack of perfection.

This decision ultimatelydetermined the matter; it was not simply a procedural step but a final determination (Frenkel v Canada (Minister of Citizenship andImmigration), (FC), [1998] FCJ No 96 at paras 12-13, 148 FTR 8 (TD)). While a decision to dismiss for lack ofperfection can be set aside in very narrow circumstances, the jurisprudence of this Court consistently holds: (1) the decision is final; (2)the decision is not subject to appeal within the meaning of paragraph 72(2)(

e) of the IRPA; and (3) the Court has no jurisdiction toconsider the same matter again (Nkangura Twagirayezu v Canada (Minister of Citizenship and Immigration), 2006 FC 1384 at paras 10,11; Jalil v Canada (Minister of Citizenship and Immigration), 2002 FCT 321 at para 8; Bergman v Canada (Minister of Citizenship andImmigration), 2006 FC 1082 at para 6; Shokri v Canada (Minister of Citizenship and Immigration), 2002 FCT 785 at para 12). [16] While the merits of the matter have not been considered where an application is dismissed for lack of perfection, the disputeas between the parties has been resolved. The matter is settled. It is final. An ordinary, contextual reading of

section 171.1 does notimport a requirement for a consideration of the merits but rather a requirement that the matter be finally determined by this Court. III. Certified Question [17] Ms. George has proposed the following question for certification: Does the RAD pursuant to

section 171.1 of IRPA and Rule 49 of the RAD Rules have jurisdiction to reopen an appeal where the FederalCourt dismisses an application for leave to commence judicial review for lack of perfection? [18] Ms. George’s counsel argues that the question posed transcends the issues raised in this particular case and differs from thequestion certified in NO. [19] The respondent relies on Lai v Canada (Minister of Citizenship and Immigration), 2015 FCA 21 at para 4 in submitting thatthe Court should only certify questions of general importance which are dipositive of the appeal.

The respondent notes that the applicantargued that the facts of this case are unique and as such not a question of general importance. [20] I have found, as set out above, the jurisprudence unambiguously establishes that a proceeding dismissed for lack of perfectionis a final decision or determination of the matter. As such I am not satisfied that the question proposed raises an issue of generalimportance. I will not certify the question. IV.

Conclusion [21] It was both reasonable and correct for the RAD to conclude that this Court had “made a final determination” in respect of theappeal when it dismissed the application for lack of perfection. Having reasonably concluded this to be the case, the RAD correctlyconcluded it did not have jurisdiction to reopen the appeal. JUDGMENT

THIS COURT’S JUDGMENT is that the application is dismissed. No question is certified. "Patrick Gleeson" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-150-16 STYLE OF CAUSE: DONNA CYNTHILIA GEORGE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: jUNE 21, 2016 JUDGMENT AND REASONS: GLEESON J. DATED: JULY 28, 2016 APPEARANCES : Ashley Fisch For The Applicant David Cranton For The Respondent SOLICITORS OF RECORD : Kaminker Weinstock Associates Barristers and Solicitors Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent