CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Judicial review of Refugee Protection Division (RPD) decision determining respondent Convention refugee within meaning of Immigration and Refugee Protection Act, s. 96—Respondent, born in Colombo, Sri Lanka in 1984, moved to Germany with parents in 1985—Remained in Germany until summer 1999, then returned to Colombo with mother—After one month there, both returned to Germany, then, in October 1999, left for United States—In November 1999, mother and respondent came to Canada, made Convention refugee claim—Both had suffered abuse at hands of respondent’s father—Respondent, mother without legal status in Germany as have left that country for more than six months without having applied for returning resident’s permit—Immigration Refugee Board (IRB) heard Convention refugee claim in October 2000, January 2002, April 2002, rendered decision in August 2002—IRB found applicants not excluded by United Nations Convention Relating to the Status of Refugees, Art. 1E as relevant date for determining exclusion issue date of IRB’s decision, then dismissed Convention refugee claim on basis mother had not established well-founded fear of persecution if returned to Sri Lanka—On application for judicial review of IRB’s decision, exclusion issue not raised—Federal Court (Manoharan v. Canada (Minister of Citizenship and Immigration), 2003 FC 871 allowed respondent’s application only on basis IRB had failed to make separate determination about risk to respondent—When matter referred back to RPD, latter refused to consider exclusion issue, allowed respondent’s Convention refugee claim—Applicant mainly pursuing exclusion issue, relevant date for determination thereof; if respondent not excluded, RPD’s determination respondent Convention refugee not seriously at issue—Application dismissed—Issue whether issue estoppel applying herein—Underlying purpose thereof to balance public interest in finality of litigation with public interest in ensuring justice done in particular case; if precondi-tions met, court must still determine whether, as matter of discretion, issue estoppel ought to be applied: Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460—Preconditions met herein—Although RPD entitled to refuse to reconsider exclusion issue on basis of issue estoppel, erred in principle in simply refusing to consider issue of exclusion without examining preconditions to operation of issue estoppel, without determining whether discretion should nonetheless be exercised to hear issue—However, not in public interest to set aside decision under review, send matter back once again to RPD—Whether or not Court estopped from considering exclusion issue by reason of failure of Minister to raise issue on first opportunity, now appropriate that issue be addressed—While Convention, Art. 1E should be read in manner precluding “jurisdiction shopping” (see Mahdi v. Canada (Minister of Citizenship and Immigration) (1995), 191 N.R. 170 (F.C.A.) where relevant date for determination of exclusion under Convention, Art. 1E date of application for admission to Canada), should be read in “more purposive light so as to provide safe haven to those who genuinely need it”: Canada (Minister of Citizenship and Immigration) v. Choovak, 2002 FCT 573—Such reading consistent with objective of Act, stated in s. 3(2) that refugee program about saving lives, offering protection to displaced, persecuted—On facts herein, exclusion decision in favour of respondent, mother correct; Mahdi distinguishable on facts, by reason of newly stated statutory objective—As to RPD’s Convention refugee determi-nation, against standard of review of patent unreasonableness, no reviewable error—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2), 96—United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1E.
Canada (Minister of Citizenship and Immigration) v. Manoharan (IMM-5617-04, 2005 FC 1122, Gibson J., order dated 22/8/05, 14 pp.)