Ruling explores interplay between Refugee Convention and Immigration and Refugee Protection Act
The Federal Court has set aside a decision of the Immigration and Refugee Board of Canada’s Refugee Appeal Division (RAD) based on errors in interpreting and applying ss. 97 and 98 of the Immigration and Refugee Protection Act, 2001.
The applicant in this case was a citizen of the Democratic Republic of Congo and a permanent resident of South Africa. She sought refugee protection in Canada and cited a fear of persecution in her country of residence.
The Refugee Protection Division (RPD) decided to exclude the applicant from refugee protection under art. 1E of the United Nations Convention Relating to the Status of Refugees. This provision excluded individuals who had the rights and obligations of nationals in another country.
In January 2023, the RAD upheld the RPD’s decision. As a permanent resident of South Africa, the applicant had the same rights as a South African citizen and was thus ineligible for refugee protection, the RAD found.
The applicant requested judicial review based on two alleged errors by the RAD: first, it analyzed her fear of persecution in South Africa after concluding that she was excluded under art. 1E; and second, it erred in its analysis of her fear of persecution in South Africa.
Opposing the judicial review, the Minister of Citizenship and Immigration argued that the RAD had reasonably applied the law and had assessed the applicant’s fear of persecution in line with the Refugee Convention’s objectives.
In Tshimuangi v. Canada (Citizenship and Immigration), 2024 FC 1354, the Federal Court allowed the application for judicial review, set aside the RAD’s decision as unreasonable, and sent the case back for reconsideration by a differently constituted panel.
This case involved the interpretation of s. 98, which implemented art. 1E by excluding individuals recognized by another country’s authorities as having rights equivalent to those of nationals from claiming refugee protection in Canada.
The court reiterated that s. 98 did not permit an analysis of a claimant's fear of persecution in their country of residence once it has been determined that the claimant should be excluded under art. 1E. An examination of their fear of persecution at that point would be outside the scope of the law, the court said.
In this case, the RAD went against the IRPA’s clear wording when it reviewed the applicant’s alleged fear of persecution in South Africa after excluding her under art. 1E, the court explained.
Since the text of s. 98 was unambiguous, courts and tribunals should adhere to the language of the law and should not attempt to read new terms into it, the court said. While the Refugee Convention’s objectives were important, judicial or administrative bodies could not use them to overstep their roles in interpreting clear statutory language, the court added.
Lastly, the court held that the RAD’s consideration of the applicant’s fear of persecution under s. 97 was legally flawed. This section only applied to a claimant’s country of nationality, not their country of residence, the court highlighted. South Africa was not the applicant’s country of nationality, the court noted.
