JUDGMENT AND REASONS

I. Background

[1] The Applicant, a citizen of Pakistan, seeks judicial review of an Immigration, Refugees and Citizenship Canada [IRCC] decision, finding that she was not eligible to make a refugee claim in Canada. In 2024, she made a claim for refugee protection in Canada. However, through an Information Sharing Agreement between Canada and the United States of America (US), it was confirmed that she had previously made a claim for refugee protection in the US in 2015.

[2] IRCC determined that the Applicant’s refugee claim was, by operation of paragraph 101(1)(c.1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], ineligible for consideration by the Refugee Protection Division [RPD]. Paragraph 101(1)(c.1) states that a refugee claim is ineligible if the claimant previously made a refugee claim in another country that Canada has an agreement with “for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws.” Paragraph 101(1)(c.1) of IRPA was enacted in 2019 through section 309 of the Budget Implementation Act 2019, No 1, SC 2019, c 29 [BIA].

[3] On this judicial review, the Applicant does not deny having made a claim for protection in 2015 in the US. She argues that because her claim in the US was filed prior to the 2019 changes to IRPA, she should not be impacted by the changes. She also argues that she was denied procedural fairness, as she should have been afforded a hearing before the RPD. At the hearing, her legal counsel confirmed that the procedural fairness issue is tied to the issue of the applicability of paragraph 101(1)(c.1) to her circumstances.

II. Issue

[4] The only issue is the reasonableness of the finding that paragraph 101(1)(c.1) of IRPA applies to the Applicant’s circumstances.

III. Relevant legislative provisions

[5] The following are the relevant legislative provisions:

IV. Analysis

[6] The Applicant argues that her refugee claim in Canada is outside the scope of paragraph 101(1)(c.1) because she made a US refugee claim in 2015, prior to the introduction of section 309 of BIA that enacted paragraph 101(1)(c.1) of IRPA. She relies on subsection 309(a) of BIA, which states that the amendment to paragraph 101(1)(c.1) of IRPA “does not apply to a claim… made before the day on which the Bill is introduced.” She argues that her 2015 US claim was made before the Bill was introduced.

[7] Accepting the Applicant’s interpretation of subsection 309(a) would require the Court to accept that Parliament intended two different meanings for the word “claim” within section 309 – namely that subsection 309(a) applied to claims made outside of Canada and subsection 309(b) applies to claims within Canada. In that regard, I note that subsection 309(b) refers to the RPD hearing or allowing the claim, thus the word “claim” in subsection 309(b) clearly refers to a claim made in Canada.

[8] The problem with the Applicant’s interpretation is that there is no surrounding text to support her assertion that refugee claims made outside of Canada are the focus of subsection 309(a). Additionally, such an interpretation would be contrary to the modern approach to statutory interpretation, which directs that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 at para 23).

[9] In my view, Parliament intended to give the word “claim” the same meaning throughout section 309 of BIA and the phrase “claim for refugee protection,” as used in subsection 309(a), refers to the Canadian refugee claim.

[10] Turning to paragraph 101(1)(c.1) of IRPA, the only limitation on the application of that paragraph is the date of the refugee claim made in Canada, and not the date of a refugee claim made in another country.

[11] The decision of Justice Roussel (then of the Federal Court) in Hamami v Canada (Citizenship and Immigration), 2022 FC 222 at paragraphs 41-45 [Hamami] is directly on point:

[41] On a principled reading of section 309 of the BIA, it is clear that paragraph 101(1)(c.1) of the IRPA was intended to apply to refugee claims presented in Canada after April 8, 2019, regardless of when the prior refugee claim was made.

[42] Section 309 of the BIA states the following: [Citation omitted.]

[43] The Applicant’s interpretation unduly focuses on subsection 309(a) of the BIA and fails to consider the subsections together. When the section is read as a whole, it is apparent that it is not reasonable nor possible that the words “a claim for refugee protection” in subsection 309(a) of the BIA refer to a claim made outside Canada. Subsection 309(b) of the BIA uses the same words – a claim for refugee protection – and in the last part, states that “substantive evidence has been heard by the Refugee Protection Division in respect of the claim or that the Division has allowed the claim without a hearing”. The words “the claim” in subsection 309(b) of the BIA refer to “a claim for refugee protection”, previously stated in the section, and to claims before the RPD. Since the RPD can only hear refugee claims made in Canada, the words “a claim for refugee protection” in both subsections can only refer to claims made in Canada.

[44] One cannot draw an interpretation from only one subsection without regard to the other. If Parliament had intended for the words “a claim for refugee protection” to have different meanings in the two (2) subsections – subsection 309(a) of the BIA referring to a refugee claim made outside of Canada – it would have clearly spelled out the difference. It did so in paragraph 101(1)(c.1) of the IRPA, where the provision distinguishes between “a claim for refugee protection in Canada” and “a claim for refugee protection to a country other than Canada”. There is no such differentiation in section 309 of the BIA.

[45] In my view, section 309 of the BIA is sufficiently clear that paragraph 101(1)(c.1) of the IRPA applies to refugee claims made in other countries, regardless of how far back they were made.

[12] In my view, the reasoning in Hamami equally applies to this case.

[13] The IRCC decision that the Applicant’s claim was ineligible for consideration is therefore reasonable. In light of this finding, there is no merit to the Applicant’s procedural fairness argument.

V. Certified question

[14] At this hearing, counsel for the Minister sought to certify the same question that was certified in Hamami at paragraph 74 on the same grounds.

[15] The test for certification of a question under IRPA subsection 74(d) is that the proposed question: (i) be a “serious question” that is dispositive of the appeal, (ii) be a question that has been raised and dealt with in this Court’s decision; (iii) transcends the interests of the parties and (iv) raises an issue of broad significance or general importance (Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 36 [Lewis]; Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 46; Canada (Public Safety and Emergency Preparedness) v XY, 2022 FCA 113 at para 7).

[16] Under the issue of broad significance or general importance component of the test, if the proposed question is already answered in the caselaw, then the question need not be certified. A question of general importance must be a question that has not been previously settled, as all properly certified questions lack decided binding authority (Lewis at paras 36, 39; Ogunfowora v Canada (Citizenship and Immigration), 1997 CanLII 5493 (FC); Krishan v Canada (Citizenship and Immigration), 2018 FC 1203 at para 98).

[17] In my view, the certified question raised by the Respondent was answered in Hamami. I further note that I have not been directed to other decisions applying a different interpretation to this provision. I am satisfied that the proposed question raised by the Respondent is sufficiently settled and thus cannot be characterized as an issue of broad significance or general importance.

[18] I therefore decline to certify the question posed by the Respondent.

VI. Conclusion

[19] This application for judicial review is dismissed. There is no question for certification.

JUDGMENT IN IMM-3875-25

THIS COURT’S JUDGMENT is that :

1. This judicial review is dismissed; and

2. I decline to certify a question.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES :

SOLICITORS OF RECORD: