Chapter 5. Application of Article 1E by the Refugee Appeal Division

5.1. What this chapter covers

This chapter covers specific issues in the case law that arise from the application by the Refugee Appeal Division (RAD) of the exclusion ground in Section E of Article 1 (Article 1E) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention).^{Note 1}

For a comprehensive discussion of Article 1E exclusion that applies to both the Refugee Protection Division (RPD) and the RAD, see Chapter 10 - Exclusion clauses - Article 1E of the IRB Legal Services paper Interpretation of Convention Refugee and Person in Need of Protection in the Case Law.

5.2. General principles on Article 1E

According to section 98 of the Immigration and Refugee Protection Act (IRPA),^{Note 2} a person who is excluded under Article 1E of the Refugee Convention is neither a Convention refugee nor a person in need of protection.

Article 1E provides as follows:

This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.^{Note 3}

In Zeng,^{Note 4} the Federal Court of Appeal set out the legal test to be applied in Article 1E determinations:

[28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.

[29] It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances.^{Note 5}

For a further discussion of the legal test, see Chapter 10.2 - Test of the IRB Legal Services paper Interpretation of Convention Refugee and Person in Need of Protection in the Case Law.

For a discussion of the type of status in the country of residence which engages Article 1E, see Chapter 10.4 - Rights and obligations of nationals of the IRB Legal Services paper Interpretation of Convention Refugee and Person in Need of Protection in the Case Law.

5.3. The timing issue: The relevant date for the Refugee Appeal Division in considering Article 1E exclusion

5.3.1. Description of the timing issue

Article 1E involves an inquiry into an individual’s status in a country of residence. In recognition of the fact that an individual’s status in a country of residence may change over time, the Federal Court has acknowledged that the “application of Article 1E must be done at a certain point [in time]”.^{Note 6}

The decision of the Federal Court of Appeal in Zeng^{Note 7} in 2010 settled the issue from the perspective of the RPD. In Zeng, the Federal Court of Appeal resolved the conflict in the lower court jurisprudence^{Note 8} and held that the relevant date which should be applied by the RPD for determining status in the country of residence is the date of the RPD hearing. Accordingly, it answered the following certified question in the affirmative:

Is it permissible for the Refugee Division to consider an individual's status in a third country upon arrival in Canada and thereafter, up until and including the date of the hearing before the Refugee Division in order to determine whether an individual should be excluded under Article 1E of the Refugee Convention?^{Note 9}

However, since coming into force on December 15, 2012, the RAD has faced a similar issue in determining appeals from RPD decisions on the application of the exclusion ground in Article 1E: What is the relevant date for the RAD in considering the application of the exclusion ground to the person who is the subject of the appeal (person)? (the “Timing Issue”).

As set out in Section 5.3.2., the Federal Court of Appeal resolved the Timing Issue in the 2016 decision of Majebi on the terms described below.^{Note 10}

5.3.2. Case law on the timing issue

In Majebi,^{Note 11} the Federal Court of Appeal held that the correctness review conducted by the RAD required it to consider the persons’ status on the same day as considered by the Refugee Protection Division.

In the Majebi case, the persons applied for judicial review from a decision of the RAD to confirm their exclusion from refugee protection under Article 1E.^{Note 12} The RPD had initially found that all the persons had residency status substantially similar to Italian nationals as of the date of the RPD hearing and excluded them under Article 1E. However, as of the date of the RPD decision, all the persons had lost their status in Italy.^{Note 13} On appeal from the RPD’s decision, the persons asked the RAD to consider their loss of status in Italy since the RPD hearing but the RAD refused to do so, relying on Zeng.^{Note 14} The Federal Court found that the RAD’s approach was reasonable and dismissed the judicial review but certified the following question:

In determining whether an individual is excluded from refugee protection under Article 1E of the United Nations Convention Relating to the Status of Refugees, is the assessment of whether the individual has the rights and obligations which are attached to the possession of the nationality of the country in which the person has taken residence to be made at the time of the hearing before the Refugee Protection Division [RPD], at the time of the RPD’s decision, or at the time of any appeal before the Refugee Appeal Division?^{Note 15}

On appeal, the Federal Court of Appeal agreed with the Federal Court that it was reasonable for the RAD to apply the decision in Zeng and consider the persons’ status as of the last day of the RPD hearing.^{Note 16} The Federal Court of Appeal reformulated the question certified by the Federal Court into two questions and answered them as follows:

Question: Should the Refugee Protection Division assess exclusion under Article 1E of the United Nations Convention Relating to the Status of Refugees at the time of the refugee hearing?

Answer: In accordance with this Court’s decision in Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, [2011] 4 F.C.R. 3, an assessment of exclusion under Article 1E is to be made at the time of the hearing before the Refugee Protection Division.

Question: When the Refugee Protection Division correctly concludes that a claimant is or is not excluded under Article 1E of the United Nations Convention Relating to the Status of Refugees, can the Appeal Division reassess the applicability of the exclusion on the basis of facts that arise after the hearing before the Refugee Protection Division?

Answer: Unless the Appeal Division concludes that the decision of the Refugee Protection Division was made in error, the Appeal Division may not reconsider the issue of exclusion pursuant to Article 1E de novo.^{Note 17}

Further, the Federal Court of Appeal made the following comments at paragraph 8 of its reasons:

[8] Finally, we reject the appellants’ submission that the Appeal Division was required to come to its own independent conclusion about whether a claimant was excluded at the time of the appeal. This submission is inconsistent with the decision of this Court in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, 396 D.L.R. (4th) 527 where this Court, at paragraphs 78 and 79, found that “the role of the [Appeal Division] is to intervene when the [Refugee Protection Division] is wrong in law, in fact or in fact and law” and that “an appeal before the [Appeal Division] is not a true de novo proceeding.” Put simply, the Appeal Division could not intervene in circumstances where it found the decision of the Refugee Protection Division excluding the appellants was correct. The correctness review conducted by the Appeal Division required it to consider the appellants’ status on the same day as considered by the Refugee Protection Division. Otherwise, the Appeal Division would be deciding a different question.^{Note 18}

Since its release in 2016, the Federal Court has consistently applied Majebi in upholding RAD decisions as reasonable that have refused to consider the person’s possible loss of status in the country of residence after the RPD hearing. ^{Note 19}

For example, in Jean-Pierre,^{Note 20} a Haitian person challenged the RAD’s decision to confirm his exclusion from refugee protection under Article 1E. As of the date of the RPD hearing, the person had valid permanent resident status in Brazil. However, the person’s status in Brazil had expired more than nine months before the RAD decision. Applying Majebi, the RAD considered the person’s status as of the date of the RPD hearing and confirmed his exclusion from refugee protection. The Court upheld the RAD’s decision as reasonable, noting that the hearing before the RPD was “the relevant time to assess exclusion under Article 1E”.^{Note 21}

In Abel, the Federal Court of Appeal found it difficult to explain why the Federal Court had certified the question giving rise to the appeal. The certified question sought to determine whether the RAD erred in refusing to consider the passage of time since the RPD hearing and the persons’ resultant loss of status. The Court of Appeal held that by the Federal Court’s own admission, Majebi clearly disposed of the question and was binding on the RAD.^{Note 22}

5.4. The role of the Refugee Appeal Division and Article 1E

The Federal Court has held that prior to substituting its own decision and granting refugee status pursuant to paragraph 111(1)(b) of the IRPA, the RAD must conduct its own assessment to determine whether the person is a Convention refugee under section 96 or a person in need of protection under section 97 of the IRPA. Depending upon the facts of the case, the RAD must consider issues such as Article 1E exclusions, internal flight alternatives, and the availability of state protection before granting refugee status.^{Note 23}

On an appeal from the RPD’s decision to not exclude under Article 1E but reject a claim for failure to meet the definition of a Convention refugee or person in need of protection under sections 96 or 97 of the IRPA, the Federal Court has held that the RAD is not limited to considering the grounds of appeal before it. It has a duty to assess the entire record before the RPD and may intervene if it determines that the RPD erred in finding the person not excluded under Article 1E.^{Note 24}

5.5. New issues and Article 1E

In the criminal appeal, Mian, the Supreme Court of Canada defined a “new issue” as follows:

An issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties … and cannot reasonably be said to stem from the issues as framed by the parties. It follows from this definition that a new issue will require notifying the parties in advance so that they are able to address it adequately.^{Note 25}

In Ching, the Federal Court referred to the principles in Mian regarding new issues and determined that they should apply beyond the context of criminal appeals, and with the necessary modifications, to the context of appeals before the RAD.^{Note 26} See Chapter 3: New Issues for a comprehensive discussion of the case law on new issues.

Accordingly, where the RAD raises Article 1E exclusion as a new issue, it is required to first give notice that it is considering Article 1E exclusion and an opportunity to respond before deciding the issue.