Focus On

Immigration Law - REFUGEE PROTECTION - Persecution - Credible basis for claim - Grounds for disqualification - Serious non-political crime

Thursday, December 22, 2016 @ 7:00 PM  

Appeal by the Minister of Citizenship and Immigration from a judicial review judgment in favour of the respondent, Singh. The respondent, a citizen of India, entered Canada in 2014 and claimed refugee status. The Minister subsequently learned the respondent had resided illegally in the United States, was convicted of a sexual offence, and deported in 2007. The respondent changed his first name and date of birth in order to facilitate his travel to Canada. The Refugee Protection Division (RPD) determined that the respondent was excluded from refugee protection status on the basis of criminality. In addition, the RPD found no credible basis for the respondent’s claim. On judicial review, the Federal Court determined that the RPD was precluded from making a no credible basis finding once it had determined a claimant was excluded from protection. The RPD’s decision was set aside and remitted to the RPD to dismiss the respondent’s claim solely on the basis of the criminality exclusion. The Minister appealed.

HELD: Appeal dismissed. The Federal Court erred in adopting a standard of review of correctness rather than reasonableness. Although the issue before the RPD was one of statutory interpretation, the RPD considered refugee protection provisions closely connected to its function, with which it had particular familiarity. However, even on the proper standard of review, the RPD’s decision was unreasonable for the reasons given by the Federal Court. Considering the authority of the RPD under ss. 107(2) and 107.1 of the Immigration and Refugee Protection Act to determine that a claim had no credible basis, it was precluded from making such a determination after it had found that the claimant was excluded on the basis of criminality.