Toledo v. Canada (Minister of Citizenship and Immigration) et al., 2012 FC 764

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: February 08, 2012
• Jurisdiction: Canada (Federal)
• Citations: 2012 FC 764;(2012), 413 F.T.R. 222 (FC)

Toledo v. Can. (M.C.I.) (2012), 413 F.T.R. 222 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2012] F.T.R. TBEd. JL.011

Enrique Andres Tobar Toledo (demandeur) v. Le Ministre de la Citoyenneté et de l'Immigration et Le Ministre de la Sécurité Publique et de la Protection Civile (défendeurs)

(IMM-6395-11; 2012 CF 764; 2012 FC 764)

Indexed As: Toledo v. Canada (Minister of Citizenship and Immigration) et al.

Federal Court

de Montigny, J.

June 15, 2012.

Summary:

The applicant was born in Chile. In 1995, when the applicant was 11 years old, his father made a claim for refugee protection in Canada. The applicant, his mother and his two brothers were included in the claim as accompanying family members. In 1997, the Refugee Protection Division of the Immigration and Refugee Protection Board rejected that claim. In 2011, the applicant and his wife made a claim for refugee protection in Canada. The wife's refugee claim was found eligible. However, the applicant's claim was found ineligible under s. 101(1)(b) of the Immigration and Refugee Protection Act (IRPA) on the ground that he had already made a claim in 1995 and it was rejected. The applicant applied for judicial review.

The Federal Court allowed the application. The court certified the following question: "Does the rejection of a refugee claim submitted by parents accompanied by minor children necessarily render ineligible a later claim submitted by one of those children, having now reached the age of majority, on their own behalf, pursuant to paragraph 101(1)(b) of the IRPA, regardless of whether the facts on which the second claim is based are different from those on which the original claim submitted by the parents was based?"

Aliens - Topic 1326.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Ineligibility for determination by - The applicant was born in Chile - In 1995, when the applicant was 11 years old, his father made a claim for refugee protection in Canada - The applicant, his mother and his two brothers were included in the claim as accompanying family members - In 1997, the Refugee Protection Division of the Immigration and Refugee Protection Board (RPD) rejected that claim - In 2011, the applicant and his wife made a claim for refugee protection in Canada - The wife's refugee claim was found eligible - However, the applicant's claim was found ineligible under s. 101(1)(b) of the Immigration and Refugee Protection Act on the ground that he had already made a claim in 1995 and it was rejected - The applicant applied for judicial review - The Federal Court allowed the application - The interpretation of s. 101(1)(b) was reviewable on a correctness standard - The court held that "the immigration officer erred in determining that the applicant's claim for refugee protection was ineligible simply because his father's claim for refugee protection, in which he was included, was rejected in 1997. Neither the wording of paragraph 101(1)(b) nor the intention of Parliament in adopting it make it possible to give such a scope to said provision. The situation would undoubtedly be otherwise if the applicant's claim was essentially based on the same facts as those in his father's claim; in that case, the letter and spirit of paragraph 101(1)(b) would justify rejecting his claim and determining it to be ineligible. However, before such a finding may be made, at a minimum the applicant's claim must be examined on its face; if the claim does not appear to be based on the same circumstances as those in his father's claim, it will have to be referred to the RPD for the purposes of determining whether refugee status can be granted to him."

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See Aliens - Topic 1326.2 ].

Cases Noticed:

Gaspard v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 23; 2010 FC 29, refd to. [para. 12].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Wangden v. Canada (Minister of Citizenship and Immigration) et al., [2009] 4 F.C.R. 46; 336 F.T.R. 242 (F.C.), affd. (2009), 398 N.R. 265; 2009 FCA 344, refd to. [para. 13].

Charalampis v. Canada (Minister of Citizenship and Immigration) (2009), 353 F.T.R. 24; 2009 FC 1002, dist. [para. 13].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 23].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 29].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4; 51 A.C.W.S.(3d) 910 (F.C.A.), refd to. [para. 29].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 101(1)(b) [para. 1].

Counsel:

Claudia Andrea Molina, for the applicant;

Michel Pépin, for the respondent.

Solicitors of Record:

Cabinet Molina Inc., Montreal, Quebec, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on February 8, 2012, at Montreal, Quebec, before de Montigny, J., of the Federal Court, who delivered the following decision on June 15, 2012.