IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 15 (Cited 15 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 15 (Cited 15 Imm. L.R. (4th))

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DIGESTS OF CASES Immigration and citizenship Admission — Appeals and judicial review — Judicial review — Evi- dence –––– Immigration officer at High Commission of Canada in Singapore determined that applicant did not meet requirements for permanent resident visa as member of family class pursuant to paragraph 117(9)(d) of Immigra- tion and Refugee Protection Regulations and that applicant had not provided sufficient evidence of humanitarian and compassionate (“H&C”) grounds to overcome exclusion pursuant to subsection 25(1) of Immigration and Refu- gee Protection Act (“Act”) — Applicant brought application for judicial review of decision — Application granted — Application for exemption from inadmissibility pursuant to s. 25 of Act should be re-determined by another immigration officer — Officer’s assessment of best interests of children was unreasonable — Officer took status quo as starting point and determined that status quo was sufficient without considering other options, including life in Canada with both parents — In addition, officer focused on fact that the children were not suffering undue hardship due to exclusion. Kobita v. Canada (Minister of Citizenship and Immigration), 2012 Car- swellNat 4952 ...... F.C. 205 Immigration and citizenship Admission — Appeals and judicial review — Judicial review — Jurisdic- tion –––– Case Processing Centre (“CPC”) of Citizenship and Immigration Canada (“CIC”) refused to process parental sponsorship application — Ap- plicant brought application for judicial review — Application dismissed — CIC did not err in concluding that it had received application on or after November 5, 2011 — Moreover, Minister did not act beyond authority, in bad faith or in an arbitrary manner in issuing Ministerial Instructions — In addition, issuance of Ministerial Instructions on very short notice did not breach any duty of fairness owed to applicant. Lukaj v. Canada (Minister of Citizenship and Immigration), 2013 Car- swellNat 5 ...... F.C. 294 Immigration and citizenship Admission — Application for temporary resident or immigrant visa — In- land applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Applicant and her son were citizens of Gre- nada — Applicant and her son arrived in Canada on temporary resident permit — Applicant’s application for permanent residence was refused — Officer determined that there were insufficient humanitarian and compassionate grounds to warrant exception — Applicant brought application for ivIMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

judicial review — Application granted — Decision was set aside, and matter was remitted back for redetermination — Officer’s assessment of evidence was result of application of incorrect legal test — Officer completely omitted mention of proper test, that of best interests of child — There was no indication in reasons that officer balanced best interests of child against other factors. Thomas v. Canada (Minister of Citizenship and Immigration), 2012 Car- swellNat 5120 ...... F.C. 243 Immigration and citizenship Admission — Application for temporary resident or immigrant visa — In- land applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Filipino applicant nurse came to Canada under live-in caregiver program and, after his employer died, had to begin difficult search for new employers — Applicant applied for permanent residence and began working without permit to pay for costs of father’s terminal illness before finding new caregiver position that allowed him to secure temporary residence and work permits — Prospective employer had died by time applicant returned from father’s funeral, and he worked without permission again before finally landing another caregiver job for elderly person and obtaining work permit — Applicant’s application for permanent residence was refused on basis that he was inadmissible for undertaking additional work without authorization and exemption on humanitarian and compassionate (H&C) grounds was refused — Applicant applied for judicial review — Application granted — Applicant’s new permit was valid when immigration officer made decision on permanent residence, and issuance of that permit cured his previous breach and made him admissible — Officer made unreasonable H&C decision, as he made no attempt to appreciate difficulties applicant faced and drew unreasonable inferences about options that were open to applicant — Applicant, after completing all requirements of caregiver program, only turned to manual labour to pay unexpected and substantial expenses of father’s illness when he was unsuccessful in continuous search for caregiver jobs — Officer’s speculation that applicant could have drawn on unlimited funding from presumed friends and relatives and failure to understand that father’s death did not eliminate debts from his illness were unreasonable — Officer’s conclusions did not represent possible, acceptable outcome. Tiangha v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 483 ...... F.C. 271 15 Imm. L.R. (4th)DIGESTS OF CASES v

Immigration and citizenship Admission — Immigrants — Family class — Dependent family member — Dependent child –––– Immigration officer at High Commission of Canada in Singapore determined that applicant did not meet requirements for permanent resident visa as member of family class pursuant to paragraph 117(9)(d) of Immigration and Refugee Protection Regulations and that applicant had not provided sufficient evidence of humanitarian and compassionate (“H&C”) grounds to overcome exclusion pursuant to subsection 25(1) of Im- migration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review of decision — Application granted — Application for exemption from inadmissibility pursuant to s. 25 of Act should be re- determined by another immigration officer — Officer’s assessment of best interests of children was unreasonable — Officer took status quo as starting point and determined that status quo was sufficient without considering other options, including life in Canada with both parents — In addition, officer focused on fact that the children were not suffering undue hardship due to exclusion. Kobita v. Canada (Minister of Citizenship and Immigration), 2012 Car- swellNat 4952 ...... F.C. 205 Immigration and citizenship Admission — Immigrants — Live-in caregivers –––– Filipino applicant nurse came to Canada under live-in caregiver program and, after his employer died, had to begin difficult search for new employers — Applicant applied for permanent residence and began working without permit to pay for costs of father’s terminal illness before finding new caregiver position that allowed him to secure temporary residence and work permits — Pro- spective employer had died by time applicant returned from father’s funeral, and he worked without permission again before finally landing another caregiver job for elderly person and obtaining work permit — Applicant’s application for permanent residence was refused on basis that he was inadmissible for undertaking additional work without authorization and exemption on humanitarian and compassionate (H&C) grounds was refused — Ap- plicant applied for judicial review — Application granted — Applicant’s new permit was valid when immigration officer made decision on permanent residence, and issuance of that permit cured his previous breach and made him admissible — Officer could have used previous unauthorized work to found conclusions about credibility but could not use it to find applicant inadmissible — Officer made unreasonable H&C decision, as he made no attempt to appreciate difficulties applicant faced and drew unreasonable in- viIMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

ferences about options that were open to applicant — Applicant, after completing all requirements of caregiver program, only turned to manual labour to pay unexpected and substantial expenses of father’s illness when he was unsuccessful in continuous search for caregiver jobs — Officer’s conclusions did not represent possible, acceptable outcome. Tiangha v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 483 ...... F.C. 271 Immigration and citizenship Admission — Immigrants — Skilled workers — Categories (point system) — Specific vocational preparation –––– Principal applicant was 45- year-old citizen of India and resident of Kuwait — Secondary applicants were principal applicant’s wife and daughter — Applicant submitted his application under National Occupation Classification code (NOC) 1111, Finan- cial Auditors and Accountants — Officer refused applicant’s application for permanent residence in Canada as member of Federal Skilled Worker class on basis that applicant had not provided sufficient evidence of having one year of experience — Applicant’s application was determined to be ineligible for processing — Applicant brought application for judicial review under subsection 72(1) of Immigration and Refugee Protection Act — Application dismissed — Decision was made in accordance with relevant Ministerial In- structions in Canada Gazette and with Operational Bulletin 120 — Applicant provided incomplete and deficient application even though he was fully aware, or reasonably ought to have been, of what was required — Officer gave full reasons, there was no indication that officer ignored evidence, and there was no denial of procedural fairness. Chadha v. Canada (Minister of Citizenship and Immigration), 2013 Car- swellNat 139 ...... F.C. 316 Immigration and citizenship Admission — Temporary entry (visitors) — Students –––– Applicant was Sri Lankan citizen — Applicant brought application for study permit for Bachelor of Science degree in computer science at York — Application was dismissed — Visa officer found that applicant had not shown she had sufficient funds to pay for her expenses and return to Sri Lanka and had failed to show she had sufficient ties to Sri Lanka to ensure departure at end of visa — Applicant brought application for judicial review — Application granted; matter remitted for re-determination — Appropriate standard of review was reasonableness — Officer erred in refusing application as his findings were unreasonable — Officer’s finding that funds for applicant’s education belonged to her uncles was not transparent — Officer failed to give 15 Imm. L.R. (4th)DIGESTS OF CASES vii

reasons for his finding or for doubting evidence provided by applicant — Officer’s finding that applicant would not return to Sri Lanka due to weak family bonds was opaque as he gave no reasons for making it — Finding was central to decision as it was main reason for finding that applicant would not leave at end of visa. Thiruguanasambandamurthy v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 5119 ...... F.C. 251 Immigration and citizenship Citizenship — Application for grant of or retention of citizenship — Pow- ers and duties of citizenship judge –––– Applicant brought application for citizenship — Application was granted — Minister appealed — Appeal allowed — Citizenship judge erred in finding that applicant met residency requirements in s. 5(1)(c) of Citizenship Act — Citizenship judge’s reasons were inadequate — Citizenship judge failed to adequately express his reasons for finding applicant met criteria for citizenship — Reasons were not clear and failed to show how judge arrived at his decision. Canada (Minister of Citizenship and Immigration) v. Ayatizadeh, 2012 CarswellNat 5109 ...... F.C. 236 Immigration and citizenship Citizenship — Grant of citizenship — Requirements for grant of citizenship — Residence in Canada — Substantial connection test –––– Applicant brought application for citizenship — Application was granted — Minister appealed — Appeal allowed — Citizenship judge erred in finding that applicant met residency requirements in s. 5(1)(c) of Citizenship Act — Citizen- ship judge’s reasons were inadequate — Citizenship judge failed to adequately express his reasons for finding applicant met criteria for citizenship — Reasons were not clear and failed to show how judge arrived at his decision. Canada (Minister of Citizenship and Immigration) v. Ayatizadeh, 2012 CarswellNat 5109 ...... F.C. 236 Immigration and citizenship Constitutional issues — Charter of Rights and Freedoms — Citizen- ship –––– Officer of Citizenship and Immigration Canada (“Officer”) refused applicants’ applications for Certificates of Citizenship under Citizenship Act — Applicants brought application for judicial review of decision — Ap- plication dismissed — Applicants lack standing to bring Charter challenge because they were not primary targets of alleged violation of s. 15 of Cana- dian Charter of Rights and Freedoms and because they were not Canadian viiiIMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

citizens or residents — It was not necessary to consider merits of Charter challenge. Kinsel v. Canada (Minister of Citizenship and Immigration), 2012 Car- swellNat 5167 ...... F.C. 220 Immigration and citizenship Exclusion and removal — Inadmissible classes — Health –––– In Septem- ber 2011 visa officer in Singapore found applicant not to be admissible because his daughter, who had severe visual impairment, might reasonably be expected to cause excessive demand on health or social services — Appli- cant brought application for judicial review of decision of visa officer — Application granted — Applicant was denied procedural fairness — When officer decided to give applicant opportunity to address excessive demands concerns at interview, applicant would not necessarily have known that interview was intended to be continuation of issues raised in prior fairness letter — Applicant’s counsel had tried to find out purpose of interview but had been unable. Chowdhury v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 4945 ...... F.C. 188 Immigration and citizenship Exclusion and removal — Inadmissible classes — Health –––– When permanent residence applicant and his family underwent mandatory medical exams, physician noted that applicant’s 15-year-old son had developmental delay and moderate learning difficulties — Medical officer gave opinion that son was medically inadmissible — Applicant gave visa officer his response, which did not contest diagnosis but had plan to mitigate costs on social system — Visa officer assessed response herself and found it inadequate, rather than sending it to medical officer — Applicant’s application for permanent residence under skilled worker program was dismissed — Applicant brought application for judicial review — Application granted; matter remitted for reconsideration by different visa officer — Visa officer erred in law by failing to submit applicant’s mitigation plan to medical officer for evaluation — Visa officer’s belief that anything non-medical related to social services did not need to go to medical officer was error of law — Medical officer was intended to be expert on how social services operated and would have known certain information that was not contained in response. Lawrence v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 4 ...... F.C. 310 15 Imm. L.R. (4th)DIGESTS OF CASES ix

Immigration and citizenship Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Miscellane- ous –––– Applicant was citizen of Guyana — Applicant claimed Convention refugee status in Canada based on fear of her abusive ex-husband killing her — Claim was dismissed — Board found that applicant had failed to re- but presumption of availability of state protection — Applicant brought application for judicial review — Application granted; matter remitted for redetermination by different panel — Board erred by finding that test for adequate state protection was whether state made serious efforts to provide protection — Actual test is whether state protection is adequate in its effect — Board’s consideration of evidence would not have lead to finding of adequate protection even if they had properly stated test — Board’s analysis of state protection included improper evidence. Harinarain v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 5114 ...... F.C. 261 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibility –––– Applicant was citizen of Uz- bekistan — Applicant came to Canada and filed for refugee protection on basis that she had well-founded fear of persecution because she was Jew- ish — Refugee Protection Division (“RPD”) of Immigration and Refugee Board rejected applicant’s claim because it was not supported by documentary evidence and there were credibility issues — Applicant sought judicial review of decision by Pre-Risk Removal Assessment (“PRRA”) officer pursuant to section 112 of Immigration and Refugee Protection Act — Applica- tion granted — According to applicant’s narrative statement, applicant was in similar (though not identical) situation as doctors in Andijan morgue and witnesses of actual Andijan massacre — It was unreasonable for PRRA officer to find otherwise — Applicant witnessed massacre differently than person who actually heard gunshots — Since viewing body led to her becoming target of documented state efforts to suppress memory of massacre, applicant’s witness of massacre was materially the same as that of direct witness. Terenteva v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 4794 ...... F.C. 175 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibility –––– Immigration and Refugee Pro- tection Board — Refugee Protection Division (“Board”) dismissed appli- xIMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

cant’s claim for protection pursuant to ss. 96 and 97 of Immigration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review — Application granted — Decision was quashed and matter was returned for reconsideration by differently constituted panel of Immigration and Refugee Board — Although board did not err in credibility finding with respect to how applicant came to possess autopsy report, this one finding was not sufficient to support otherwise unreasonable findings — Similarly, board’s assessment of documentary evidence may, in different circumstances, have been justified — However, its conclusion in case was based to some extent on fact that evidence had been adduced by applicant, who board found not to be credible — Credibility finding was in turn based primarily on board’s conclusion that applicant’s account was implausible — Given that those implausibility findings were not reasonable, board’s conclusions regarding documentary evidence cannot salvage unreasonable decision. Martinez Giron v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 6 ...... F.C. 280 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evidence –––– Applicant was citizen of Uzbeki- stan — Applicant came to Canada and filed for refugee protection on basis that she had well-founded fear of persecution because she was Jewish — Refugee Protection Division (“RPD”) of Immigration and Refugee Board rejected applicant’s claim because it was not supported by documentary evidence and there were credibility issues — Applicant sought judicial review of decision by Pre-Risk Removal Assessment (“PRRA”) officer pursuant to section 112 of Immigration and Refugee Protection Act — Application granted — According to applicant’s narrative statement, applicant was in similar (though not identical) situation as doctors in Andijan morgue and witnesses of actual Andijan massacre — It was unreasonable for PRRA officer to find otherwise — Applicant witnessed massacre differently than person who actually heard gunshots — Since viewing body led to her becoming target of documented state efforts to suppress memory of massacre, applicant’s witness of massacre was materially the same as that of direct witness. Terenteva v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 4794 ...... F.C. 175 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evidence –––– Applicants were citizens of Co- lumbia — Refugee Protection Division of Immigration and Refugee Board 15 Imm. L.R. (4th)DIGESTS OF CASES xi

determined that they were neither Convention refugees nor persons in need of protection — Applicants brought application for judicial review — Appli- cation dismissed — It was to be expected that panel would consider availability of internal flight alternative (“IFA”) elsewhere in Colombia — Appli- cant did not present clear and convincing evidence that Fuerzas Armadas Revolucionarias de Colombia (“FARC”) had presence in Cartagena and that he would be targeted in that city — His claim that FARC had infiltrated government agencies everywhere was not consistent with country documentation — Panel’s IFA finding was reasonable. Cruz Vergara v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 213 ...... F.C. 337 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evidence –––– Refugee Protection Division of Immigration and Refugee Board (“Board”) dismissed claims for protection both under ss. 96 and 97 of Immigration and Refugee Protection Act (“Act”) — Applicants brought application for judicial review — Application granted — Board’s determination that applicants were not persons in need of protection was unreasonable and must be set aside — Matter was remitted to Board for redetermination by another member of the Board — After La Familia became involved, physical violence endured by family was personalized — Applicants stated that there were five or six other businesses of similar nature nearby and they did not face same issues or problems that he and family faced — Clearly situation of applicants, and level of threats and harm that befell them, can be distinguished from nature and degree of risks faced by other business owners in area. Castaneda Malvaez v. Canada (Minister of Citizenship and Immigra- tion), 2012 CarswellNat 4946 ...... F.C. 193 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Post- determination options — Humanitarian and compassionate review — Best interests of children –––– Immigration officer at High Commission of Can- ada in Singapore determined that applicant did not meet requirements for permanent resident visa as member of family class pursuant to paragraph 117(9)(d) of Immigration and Refugee Protection Regulations and that applicant had not provided sufficient evidence of humanitarian and compassionate (“H&C”) grounds to overcome exclusion pursuant to subsection 25(1) of Immigration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review of decision — Application granted — Applica- xiiIMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tion for exemption from inadmissibility pursuant to s. 25 of Act should be re-determined by another immigration officer — Officer’s assessment of best interests of children was unreasonable — Officer took status quo as starting point and determined that status quo was sufficient without considering other options, including life in Canada with both parents — In addition, officer focused on fact that the children were not suffering undue hardship due to exclusion. Kobita v. Canada (Minister of Citizenship and Immigration), 2012 Car- swellNat 4952 ...... F.C. 205 Terenteva v. Canada (MCI) 175

[Indexed as: Terenteva v. Canada (Minister of Citizenship and Immigration)] Lyubov Terenteva, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2764-12 2012 FC 1431 Michel M.J. Shore J. Heard: December 5, 2012 Judgment: December 6, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibil- ity –––– Applicant was citizen of Uzbekistan — Applicant came to Canada and filed for refugee protection on basis that she had well-founded fear of persecution because she was Jewish — Refugee Protection Division (“RPD”) of Immi- gration and Refugee Board rejected applicant’s claim because it was not supported by documentary evidence and there were credibility issues — Applicant sought judicial review of decision by Pre-Risk Removal Assessment (“PRRA”) officer pursuant to section 112 of Immigration and Refugee Protection Act — Application granted — According to applicant’s narrative statement, applicant was in similar (though not identical) situation as doctors in Andijan morgue and witnesses of actual Andijan massacre — It was unreasonable for PRRA officer to find otherwise — Applicant witnessed massacre differently than person who actually heard gunshots — Since viewing body led to her becoming target of documented state efforts to suppress memory of massacre, applicant’s witness of massacre was materially the same as that of direct witness. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Applicant was citizen of Uzbekistan — Applicant came to Canada and filed for refugee protection on basis that she had well-founded fear of persecution because she was Jewish — Refugee Protection Division (“RPD”) of Im- migration and Refugee Board rejected applicant’s claim because it was not supported by documentary evidence and there were credibility issues — Applicant sought judicial review of decision by Pre-Risk Removal Assessment (“PRRA”) officer pursuant to section 112 of Immigration and Refugee Protection Act — Application granted — According to applicant’s narrative statement, applicant was in similar (though not identical) situation as doctors in Andijan morgue and witnesses of actual Andijan massacre — It was unreasonable for PRRA officer to find otherwise — Applicant witnessed massacre differently than person who 176 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

actually heard gunshots — Since viewing body led to her becoming target of documented state efforts to suppress memory of massacre, applicant’s witness of massacre was materially the same as that of direct witness. Cases considered by Michel M.J. Shore J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Ferguson v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 3353, 2008 FC 1067, 74 Imm. L.R. (3d) 306, 2008 CF 1067, 2008 CarswellNat 6397, [2008] F.C.J. No. 1308 (F.C.) — considered Khodabakhsh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1340, 2010 CarswellNat 5013, 95 Imm. L.R. (3d) 211, 2010 CarswellNat 5406, 382 F.T.R. 105 (Eng.), 2010 FC 1340 (F.C.) — considered Lakhani v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 656, 2008 CarswellNat 1574, 2008 CF 656, 2008 CarswellNat 4544 (F.C.) — referred to Mansuri v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 5479, 85 Imm. L.R. (3d) 152, 2009 CF 745, 2009 CarswellNat 3527, 2009 FC 745 (F.C.) — considered Morales v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 49, 2012 CarswellNat 65, 2012 CarswellNat 331, 2012 CF 49, 7 Imm. L.R. (4th) 137 (F.C.) — considered Nagaratnam v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 1402, 2010 CF 204, 2010 CarswellNat 406, 2010 FC 204 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Strachn v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CF 984, 2012 FC 984, 2012 CarswellNat 2995, 2012 CarswellNat 3569 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered Terenteva v. Canada (MCI) Michel M.J. Shore J. 177

s. 97 — considered s. 112 — considered

APPLICATION by applicant for judicial review of decision by Pre-Risk Re- moval Assessment officer which rejected applicant’s claim because it was not supported by documentary evidence and there were credibility issues.

Daragh S. Karkairan, for Applicant Mark E.W. East, for Respondent

Michel M.J. Shore J.: I. Introduction 1 The Applicant is a citizen of Uzbekistan who seeks judicial review of a decision by a Pre-Risk Removal Assessment [PRRA] Officer pursuant to section 112 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant submits that the PRRA Officer unreasonably assessed the evidence in finding that she did not have a well-founded fear of persecution under section 96 of the IRPA and that she was not a person in need of protection under section 97 of the IRPA. The Applicant further submits that the PRRA Officer applied the incorrect test in determining if the documentary evidence demonstrated that similarly-situated individuals in Uzbekistan fell within the scope of sections 96 or 97 of the IRPA.

II. Judicial Procedure 2 This is an application under subsection 72(1) of the IRPA for judicial review of a PRRA Officer’s decision, dated February 6, 2012.

III. Background 3 The Applicant, Ms. Lyubov Terenteva, is a 77-year-old citizen of Uzbekistan. 4 The Applicant alleges that she is in very frail health because she has broken both hips and must walk with a cane, has high blood pressure, and has angina. 5 She states that her entire immediate family is in Canada. Her daughter is a Canadian citizen and her son applied for refugee protection in Can- ada on January 5, 2012. 6 She also claims that she has no pension, savings, or home in Uzbeki- stan and cannot work due to her age and poor health. 178 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

7 On May 15, 2005, the Applicant alleges that Uzbek authorities asked her to sign a friend’s death certificate stating that the friend died of a heart attack, even though her friend died in a massacre in Andijan. She claims that she refused to sign the certificate and the authorities threatened, persecuted, detained, and starved her and that her neighbours, at the direction of the authorities, beat her. 8 On August 14, 2009, the Applicant’s husband died in a hospital in Uzbekistan. The Applicant alleges that a nurse told her that her husband did not die of natural causes but was instead killed by needle injection. 9 The Applicant alleges that she subsequently received telephone calls from the authorities, who admitted to killing her husband and threatened to kill her. 10 On November 5, 2009, the Applicant came to Canada and on Novem- ber 30, 2009, filed for refugee protection on the basis that she had a well- founded fear of persecution because she is Jewish. 11 On February 23, 2011, the Refugee Protection Division [RPD] of the Immigration and Refugee Board rejected the Applicant’s claim because it was not supported by the documentary evidence and there were credibility issues. 12 On May 18, 2011 the Applicant submitted her PRRA application which was rejected on February 6, 2012. 13 On March 9, 2012, the Applicant was admitted to a hospital with chest pains. 14 On March 12, 2012, the Canada Border Services Agency granted the Applicant a temporary deferral of removal until June 11, 2012, which would allow her daughter to accompany her back to Uzbekistan. 15 On March 21, 2012, the Applicant filed an application for judicial review of the PRRA Officer’s decision.

IV. Decision under Review 16 The PRRA Officer found that the Applicant did not have a well- founded fear of persecution pursuant to section 96 of the IRPA because there was not a reasonable chance that she would be at risk of persecution in Uzbekistan. According to the PRRA Officer, the Applicant also was not a person in need of protection under section 97 of the IRPA because, on a balance of probabilities, she would not be personally subject to a risk to her life or to a risk of cruel and unusual treatment or punishment. Terenteva v. Canada (MCI) Michel M.J. Shore J. 179

17 The PRRA Officer accepted that the documentary evidence had established that government corruption and torture in prison exists in Uz- bekistan. The PRRA Officer also gave weight to documentary evidence in regard to the Andijan massacre and government efforts to suppress public knowledge of the massacre. 18 The PRRA Officer was prepared to give the Applicant’s narrative the “benefit of the doubt” but did not accept that the documentary evidence was related to her alleged risk of persecution (PRRA Decision at p 5). The PRRA Officer reasoned that the documentary evidence did not demonstrate that individuals in a situation similar to the Applicant were persecuted. Although there was evidence that direct witnesses and victims of the Andijan massacre were targeted, it did not demonstrate that friends of victims of the Andijan massacre were persecuted or that authorities routinely asked friends and family to identify the victims of the massacre. 19 On general country conditions in Uzbekistan, the PRRA Officer accepted documentary evidence that: (i) law enforcement and security officers routinely beat and mistreated detainees to secure confessions or information and that government measures to curb these activities were not successful; (ii) the Uzbek government had increased the presence of security forces in response to the Arab Spring movements; (iii) members of minority religious and Islamic groups and human rights advocates were imprisoned after unfair trials; (iv) the Uzbek authorities rejected international calls for an independent investigation of the mass killings of protestors; (v) bribes are commonly paid for individuals seeking to relo- cate in a new city; and (vi) many Uzbeks (primarily men of working age) seek employment abroad. 20 In rejecting the PRRA Application, the PRRA Officer determined that the Applicant had not established that she was persecuted by the Uz- bek state due to her political beliefs or for any other reason. The PRRA Officer reasoned that there is little supporting evidence that the Applicant traveled to Andijan City, that her friend was killed in the Andijan massacre or even exists, or that the Uzbek authorities had persecuted her in the past. Nor was there any medical evidence or testimony from a friend or confidante to support her allegation that she was detained in a basement by Uzbek authorities after refusing to sign the fraudulent death certificate or that her husband was poisoned. The PRRA Officer supported this finding by observing that the documentary evidence did not show that 180 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

individuals in similar circumstances to those of the Applicant faced a risk of harm, persecution, or to life in Uzbekistan. 21 The PRRA Officer also drew a negative inference from the Appli- cant’s failure to seek international assistance or flee Uzbekistan in 2005 after her alleged detention. According to the PRRA Officer, her failure to explain this delay did little to establish a well-founded fear of persecution under section 96 of the IRPA or that she was a person in need of protection under section 97 of the IRPA.

V. Issues 22 (1) Was the PRRA Officer’s assessment of the evidence reasonable? (2) Did the PRRA Officer reasonably require the Applicant to adduce documentary evidence that exactly replicated her own situation?

VI. Relevant Legislative Provisions 23 The following legislative provisions of the IRPA are relevant: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, Terenteva v. Canada (MCI) Michel M.J. Shore J. 181

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, 182 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquel- les est reconnu par règlement le besoin de protection.

VII. Position of the Parties 24 The Applicant submits that the PRRA Officer was unreasonable in finding that the documentary evidence did not show that individuals in similar-situations were at risk in Uzbekistan. Citing Morales v. Canada (Minister of Citizenship & Immigration), 2012 FC 49 (F.C.), the Appli- cant argues that the PRRA Officer had an obligation to consider the risks faced by individuals in similar circumstances. 25 The Applicant notes one report stating that doctors in the Andijan morgue assisted in concealing the Andijan massacre by falsifying death records. According to the Applicant, this is analogous to how authorities attempted to coerce her to sign her friend’s death certificate. Another report also describes how Uzbek authorities compelled family members of a person who died under arrest (in an incident unrelated to the Andijan massacre) to sign a document promising not to complain. 26 The Applicant claims that a broader view of the documentary evidence supports her claim that she was at risk. Such a view, she contends, shows that Uzbek authorities undertook a campaign to eliminate witnesses of the Andijan massacre and persons challenging the official account of it. The Applicant submits that the documentary evidence was clear that these classes of persons are at risk in Uzbekistan. The Appli- cant also argues that she belongs to both classes by objecting to attempts to sanitize the death of her friend in the massacre. The documentary evidence also demonstrates that individuals advocating transparency generally in Uzbekistan have been persecuted (especially those who give evidence of human rights violations in Uzbekistan) and that relatives of former Andijan residents are under constant observation by security forces. Terenteva v. Canada (MCI) Michel M.J. Shore J. 183

27 The Applicant argues that the PRRA Officer was unreasonable in concluding that she did not identify with any of the risk groups in the general country conditions research on Uzbekistan. According to the Ap- plicant, refusing to sign the death certificate at the compulsion of authorities qualifies her as a political dissident, a group that is identified as at risk of persecution. The Applicant asks this Court to apply Mansuri v. Canada (Minister of Citizenship & Immigration), 2009 FC 745 (F.C.), which held that a PRRA Officer was unreasonable in determining that an applicant was not a member of a group at-risk despite evidence that he was in fact a member of such a group. 28 In the Applicant’s view, the PRRA Officer took an unreasonably nar- row approach to the evidence by distinguishing her situation from that of direct witnesses of the Andijan massacre. Documentary evidence demonstrated that authorities seeking to suppress memory of the massacre, persecuted, tortured, and killed its witnesses. The Applicant argues that she need not witness the massacre itself to qualify as a witness and that she became a witness when asked to identify her friend’s body. 29 The Applicant also submits that the PRRA Officer’s decision was unreasonable because it focused on the absence of documentary evidence on the persecution of family and friends of Andijan massacre victims and on whether the authorities routinely invited family or friends to identify those victims at the expense of the Applicant’s specific and core evidence that she had been persecuted. Citing Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.), the Applicant argues that the PRRA Officer had a high burden of explanation for disregarding her evidence in light of its relevance to her claim that she had been persecuted by authorities. The Applicant also cites Nagaratnam v. Canada (Minister of Citizenship & Immigration), 2010 FC 204 (F.C.), wherein this Court held that a PRRA decision was unreasonable because it had not assessed the documentary evidence against the specific risks stated by an applicant. 30 Finally, the Applicant contends that the PRRA Officer applied the incorrect test by requiring her to adduce documentary evidence exactly replicating her own circumstances. She cites Khodabakhsh v. Canada (Minister of Citizenship & Immigration), 2010 FC 1340, 382 F.T.R. 105 (Eng.) (F.C.), wherein this Court held that the RPD was unreasonable in requiring an applicant to adduce documentary evidence on circumstances identical to his or her own. The Applicant submits that this problem emerges in her case because the PRRA Officer insisted on evidence dem- 184 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

onstrating that friends of victims of the Andijan massacre had been persecuted and were routinely asked to identify bodies. 31 The Respondent, relying on Ferguson v. Canada (Minister of Citizenship & Immigration), 2008 FC 1067 (F.C.), asserts that the Appli- cant has the burden of proof in establishing that she has a wellfounded fear of persecution or is a person in need of protection. Whether the Ap- plicant’s evidence meets the evidentiary burden depends on the weight that the decision-maker gives to the evidence. The Respondent argues that this Court must give deference as to how PRRA officers assign weight. 32 The Respondent submits that the PRRA Officer’s assessment of the evidence was reasonable because the Applicant did not provide specific evidence that she was personally persecuted by Uzbek authorities or neighbours and neither the general country conditions evidence nor the documentary evidence with regard to the Andijan massacre revealed that individuals in similar circumstances as the Applicant were at risk in Uzbekistan. 33 The Respondent submits that the Applicant’s situation was not analogous to that of doctors in the Andijan morgue. Although the Applicant stated that she was asked to identify a victim of the Andijan massacre, there was documentary evidence that it was “very rare” that relatives would come to the morgue to claim bodies of victims (Applicant’s Re- cord at p 61). 34 The Respondent also argues that the PRRA Officer was reasonable in finding that the Applicant was not a political dissident on the basis of her refusal to sign her friend’s falsified death certificate. The Respondent submits that there was insufficient evidence to link her narrative statement with the risks of such persons or groups. 35 The Respondent is of the view that the PRRA Officer did not apply the incorrect test by requiring that the Applicant adduce documentary evidence identical to her own circumstances. The Respondent submits that the PRRA Officer reviewed the country conditions evidence and reasonably concluded that the Applicant’s situation could not be reasonably compared to the situations of persons or groups who had a well-founded fear of persecution or were persons in need of protection. Terenteva v. Canada (MCI) Michel M.J. Shore J. 185

VIII. Analysis Standard of Review 36 The PRRA Officer’s assessment of the evidence is reviewable on the standard of reasonableness (Lakhani v. Canada (Minister of Citizenship & Immigration), 2008 FC 656 (F.C.)). Whether the PRRA Officer required evidence from the Applicant that was too specific is also reviewable on this standard (Khodabakhsh, above). 37 Since the standard of reasonableness applies, the Court may only intervene if the Board’s reasons are not “justified, transparent or intelligible”. To satisfy this standard, the decision must also fall in the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47).

(1) Was the PRRA Officer’s assessment of the evidence reasonable? 38 In proceedings under section 112 of the IRPA, the Applicant has the burden of proving on a balance of probabilities that she has a well- founded fear of persecution or is a person in need of protection (Fergu- son, above, at para 21 and 22). 39 The Respondent argues that “[t]he determination of whether the evidence presented meets the legal burden will depend very much on the weight given to the evidence that has been presented” and that this Court must give deference as to how a PRRA officer weighed the evidence (Ferguson, above, at para 24). In the present case, the problems alleged by the Applicant do not relate merely to the weight that the PRRA Of- ficer assigned to the evidence, rather the problems arise from the very reasoning that guided how the PRRA Officer assigned the weight. 40 According to her narrative statement, the Applicant was in a similar (though not identical) situation as doctors in the Andijan morgue and witnesses of the actual Andijan massacre. It was unreasonable for the PRRA Officer to find otherwise. The Applicant witnessed the massacre differently than a person who actually heard gunshots. Since viewing the body led to her becoming a target of documented state efforts to suppress the memory of the massacre, her witness (for the purposes of establishing risk) of the massacre was materially the same as that of a direct witness. 41 The PRRA Officer elected to give the Applicant’s narrative “the benefit of the doubt” (TR, above at p 7); that is, the PRRA Officer accepted the Applicant’s narrative statement that she refused to sign the falsified 186 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

death certificate on seeing her friend’s body, that she was detained and beaten for refusing, and that her husband died in suspicious circumstances. Since the PRRA Officer accepted that the Applicant had gone to the Andijan morgue, it was irrelevant that the documentary evidence showed it was rare for family members to go to the morgue after the massacre. If, as the PRRA Officer accepted, the Applicant had attended at the morgue and was under compulsion to sign a falsified death certificate, it would be unreasonable to find that her position was not comparable to that of the doctors in the same morgue under instruction to falsify the death records of victims of the Andijan massacre. 42 It was also unreasonable for the PRRA Officer, after accepting the Applicant’s account, to find that she was not in a similar situation as the witnesses of the Andijan massacre, who were at risk in Uzbekistan. The PRRA Officer accepted the Applicant’s claim that she saw the body of her friend who died at the Andijan massacre. This was sufficient to make her a witness, even if she had not been present at the massacre itself. Given the documentary evidence that witnesses of the massacre were at risk in Uzbekistan and the Applicant’s own testimony regarding her treatment by the authorities, it falls outside the range of possible and acceptable outcomes to find that she was not a person in need of protection.

(2) Did the PRRA Officer reasonably require the Applicant to adduce documentary evidence that exactly replicated her own situation? 43 Khodabkhsh, above, holds that a decision-maker who insists that an applicant adduce documentary evidence on identical circumstances is unreasonable (at para 23). In Khodabkhsh, the RPD required documentary evidence regarding lifelong Muslims who had been threatened because their daughter had lived outside Iran for two decades and had converted to the Baha’i faith. In the present case, the PRRA Officer required evidence of comparable specificity by finding that the Applicant needed to provide evidence on the risk of friends of victims of the Andijan massacre and evidence that such people were routinely asked to identify bodies of the victims of that massacre. 44 This Court observes in obiter that much of the PRRA Officer’s conclusions appear to be animated by an implicit adverse credibility finding. This point was not argued by the parties and this Court will not dispose of the PRRA Officer’s decision on that basis. Terenteva v. Canada (MCI) Michel M.J. Shore J. 187

45 Even though the PRRA Officer ostensibly accepted the Applicant’s narrative statement, parts of the decision can lead to the inference that the PRRA Officer did not believe her. In particular, the PRRA Officer appears to seek out corroborative documentary evidence regarding friends of victims of the Andijan massacre for the purpose of testing the Applicant’s credibility. This Court has held, in Strachn v. Canada (Minister of Citizenship and Immigration), 2012 FC 984 (F.C.), that notwithstanding the distinction between an adverse credibility finding and a finding of insufficient evidence, it is possible for a decision-maker to have “improperly framed true credibility findings and findings regarding sufficiency of evidence” (at para 34). Indeed, the PRRA Officer’s insis- tence on evidence demonstrating that friends and relatives were routinely invited to the Andijan morgue to identify victims’ bodies strongly suggests that the PRRA Officer doubted the Applicant’s narrative statement. If the PRRA Officer had believed that the Applicant attended the Andi- jan morgue, such evidence would not be necessary. 46 This aspect of the PRRA Officer’s decision comes into greater relief in the PRRA Officer’s comments that the Applicant’s account is “[c]ontrary to her statements of risk put before the RPD” and that “credibility issues were at hand” in her proceedings before the RPD (PRRA Decision at p 4).

IX. Conclusion 47 For all of the above reasons, the Applicant’s application for judicial review is granted and the matter is remitted for determination anew (de novo) by a different Immigration Officer.

Judgment THIS COURT ORDERS that the Applicant’s application for judicial review be granted and the matter be remitted for determination anew (de novo) by a different Immigration Officer. No question for certification. Application granted. 188 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Chowdhury v. Canada (Minister of Citizenship and Immigration)] Mohammed Hanif Shoeb Chowdhury, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7340-11 2012 FC 1472 Russel W. Zinn J. Heard: October 29, 2012 Judgment: December 13, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– In September 2011 visa officer in Singapore found applicant not to be admissible because his daughter, who had severe visual impairment, might reasonably be expected to cause excessive demand on health or social services — Applicant brought application for judicial review of decision of visa officer — Application granted — Applicant was denied procedural fairness — When officer decided to give applicant opportunity to address excessive demands concerns at interview, applicant would not necessarily have known that interview was intended to be continuation of issues raised in prior fairness letter — Applicant’s counsel had tried to find out purpose of interview but had been unable. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 38(1)(c) — considered

APPLICATION for judicial review of decision of visa officer that applicant’s daughter would pose excessive demand on health or social services.

Cecil L. Rotenberg, Q.C., for Applicant Michael Butterfield, for Respondent

Russel W. Zinn J.:

1 Mr. Chowdhury seeks to set aside a decision of a visa officer of the High Commission of Canada in Singapore dated September 14, 2011, refusing his application for permanent residence in Canada. In the officer’s opinion, Mr. Chowdhury’s daughter Suraiya, who has a severe Chowdhury v. Canada (MCI) Russel W. Zinn J. 189

visual impairment, was inadmissible because she “might reasonably be expected to cause excessive demand on health or social services:” Immi- gration and Refugee Protection Act, SC 2001, c 27, paragraph 38(1)(c). 2 In October 2008, Mr. Chowdhury applied for permanent residence in Canada in the Investor class. On July 23, 2009, the Officer sent Mr. Chowdhury a fairness letter outlining the following: • his understanding of Suraiya’s medical condition and that it was expected to exist throughout her life; • that Suraiya would need special education and would benefit from an integrated program under the supervision of a team of special- ists to optimize her development and potential; • that he and his wife would be eligible for respite services, which are in high demand; • that, based on information from the Quebec Ministry of Educa- tion, the costs of the above-mentioned services would total at least $126,139 over the next ten years; • that these costs might reasonably be expected to exceed the average Canadian per capita costs over five to ten years; and • that, as a result, Suraiya “might reasonably be expected to cause excessive demand on social services in Canada.” 3 The fairness letter also invited Mr. Chowdhury to: [S]ubmit additional information that addresses any or all of the following: • The medical condition identified; • Social services required in Canada for the period indicated above; and • [The] individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and your signed Declaration of Ability and Intent. 4 The fairness letter finally noted that “in order to demonstrate that your family member will not place an excessive demand on social services [...] you must establish to the satisfaction of the assessing officer that you have a reasonable and workable plan, along with the financial means and intent to implement this plan, in order to offset the excessive demand [...].” 190 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

5 By letter dated October 8, 2009, Mr. Chowdhury responded to the fairness letter, saying: • that Suraiya has been and will continue to be cared for, as long as is required, by Dr. Trese in Michigan, USA, at his sole expense; • regarding “Early Intervention/Occupational Therapy,” that he had found “several options” for private health care providers to supplement his wife’s full-time care costing around $5,000 to $10,000 per year, and would seek a reference from a medical specialist upon arrival to Canada; • because Suraiya’s education was his highest priority, she would be placed in a low teacher-student classroom at a private school, and that he had “looked at several schools in the Montreal area and St. George’s School of Montreal seems to be the best choice.” • that St. George’s offers individual learning plans and special needs services like those that will be required for Suraiya, will cost $13,500 - $15,000 per year in tuition, and that educational assistance, respite care, and psychological assessment (for which he would use a private health care provider) would cost an additional $40,000 - $60,000 “during this time period;” • that he was “fully able and willing to pay all costs and fees associated with any service that is provided to [his] daughter (please see signed Declaration of Ability and Intent),” understanding that as per the Officer’s letter, that amount may exceed $127,000; • that his net worth was in excess of $1,170,000 CAD, the majority of which was in the form of property and stock that he planned to liquidate in order to settle his family in Canada; and • that all of his family’s living expenses, including those relating to Suraiya, will continue to be paid for by his successful trading company. 6 In a June 7, 2011, CAIPS entry the Officer briefly outlined the history of Mr. Chowdhury’s application, including the fairness letter and the response thereto, and outlined several outstanding concerns as to the application. 7 First, in his response to the fairness letter, Mr. Chowdhury said that Suraiya was, and would thereafter be in the care of Dr. Trese in Michi- gan. The information received by the officer indicated that Suraiya’s next appointment was in November 2009, but Mr. Chowdhury had not pro- Chowdhury v. Canada (MCI) Russel W. Zinn J. 191

vided additional information to show that she was returned to the doctor at this time or thereafter. 8 Second, while Mr. Chowdhury said his wife had been caring, and would care for Suraiya on a full-time basis, he also previously said she was a director in his company since 2003. From this, it was unclear to the Officer whether his wife could or would provide full time support to the child in Canada. 9 Third, although Mr. Chowdhury stated he would use the services of private health care providers, it was “not clear how and where he would source for such services,” and it he had “not demonstrated [...] that such private services are available in Quebec and such services are not subsi- dized and funded by the government.” 10 Fourth, although Mr. Chowdhury stated he had looked at several schools in Montreal and found St. George’s to be best, he did not provide any evidence that he contacted St. George’s to enquire if they would accept his daughter and on what conditions. The Officer also noted that St. George’s was also “NOT equipped to receive students with a handicap (there are stairs and no elevator, no special equipment),” and could not confirm having spoken with Mr. Chowdhury concerning his child. 11 On the basis of these concerns, the Officer found that Mr. Chowdhury’s plan was “speculative at best and [...] entirely insufficient:” it was not detailed or individualized, and there is no evidence that Mr. Chowdhury has done proper research on what social services Suraiya would be entitled to and if those could be repaid by him. However, the Officer also said in these notes that “an interview is required to give [Mr. Chowdhury] another opportunity to address these concerns in person.” 12 A June 26, 2011, CAIPS’ entry shows that Mr. Chowdhury was phoned and asked to come for an interview on July 11, 2011. There is no evidence that the caller relayed the above concerns to Mr. Chowdhury prior to the interview. 13 On July 11, 2011, the interview was held and on September 14, 2011, the officer sent Mr. Chowdhury a letter refusing his application for permanent residence on the basis of his daughter’s inadmissibility. 14 Mr. Chowdhury raises three issues: Whether the decision is reasonable; whether the officer breached the duty of procedural fairness by not informing Mr. Chowdhury of his concerns prior to, or during the interview; and whether the officer was biased, having concluded that Mr. Chowdhury was inadmissible before the interview. 192 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

15 In my view, the only issue with merit is the procedural fairness issue. Based on the information provided by Mr. Chowdhury in his response to the fairness letter and in the interview, the officer’s decision was reasonable and there is no evidence of bias. 16 However, the officer decided that Mr. Chowdhury was to be given “another opportunity to address [the concerns of excessive demand] in person” and decided to hold an interview. The respondent submits that the interview was merely a continuation of the first fairness letter and therefore the applicant had been alerted to the issues to be addressed at the interview. It is only with the advantage of hindsight that we can see that the interview arose from the same issues as the first fairness letter. Would the applicant, not having been informed of the purpose of the interview, have reasonably known that? I find, on the balance of probabilities, that the applicant would not have known that. There was no reason for him to assume that the interview arose from the previous letter or his response to it. He does say that his counsel tried to find out what the interview would be about in advance, and I take it that he was unable to do so. This supports a finding that the applicant was not aware of the purpose of the interview. Accordingly, I fin that he was denied procedural fairness and the officer’s decision must be set aside. 17 Neither party proposed a question for certification.

Judgment THIS COURT’S JUDGMENT is that the application is allowed, the officer’s decision is set aside, and the applicant’s application for permanent residence in Canada is to be redetermined by a different officer. Application granted. Castaneda Malvaez v. Canada (MCI) 193

[Indexed as: Castaneda Malvaez v. Canada (Minister of Citizenship and Immigration)] Angel Castaneda Malvaez Maria Elizabeth Mendoza Luna Luis Angel Castaneda Mendoza Alejandro Castaneda Mendoza, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2803-12 2012 FC 1476 Luc Martineau J. Heard: December 5, 2012 Judgment: December 14, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Refugee Protection Division of Immigration and Refugee Board (“Board”) dismissed claims for protection both under ss. 96 and 97 of Immigra- tion and Refugee Protection Act (“Act”) — Applicants brought application for judicial review — Application granted — Board’s determination that applicants were not persons in need of protection was unreasonable and must be set aside — Matter was remitted to Board for redetermination by another member of the Board — After La Familia became involved, physical violence endured by family was personalized — Applicants stated that there were five or six other businesses of similar nature nearby and they did not face same issues or problems that he and family faced — Clearly situation of applicants, and level of threats and harm that befell them, can be distinguished from nature and degree of risks faced by other business owners in area. Cases considered by Luc Martineau J.: Acosta v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 506, 2009 FC 213, 2009 CF 213, 2009 CarswellNat 6740, [2009] F.C.J. No. 270 (F.C.) — referred to Corado Guerrero v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1210, 2011 CarswellNat 4291, 2011 CF 1210, 2011 CarswellNat 5327, 5 Imm. L.R. (4th) 74, [2011] F.C.J. No. 1477 (F.C.) — considered Garcia Vasquez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 477, 99 Imm. L.R. (3d) 166, 2011 CarswellNat 1232, 2011 CF 477, 2011 CarswellNat 2632, [2011] F.C.J. No. 595 (F.C.) — referred to 194 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Lovato v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 143, 2012 CarswellNat 242, 2012 CF 143, 2012 CarswellNat 373, [2012] F.C.J. No. 149 (F.C.) — considered Munoz v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2891, 2010 CF 238, 2010 CarswellNat 480, 2010 FC 238, [2010] F.C.J. No. 268, [2010] A.C.F. No. 268 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Olvera v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1048, 2012 CarswellNat 3396, 2012 CF 1048, 2012 CarswellNat 4094, [2012] F.C.J. No. 1128, [2012] A.C.F. No. 1128 (F.C.) — referred to Paz Guifarro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 182, 2011 CarswellNat 356, 2011 CF 182, 2011 CarswellNat 1350, [2011] A.C.F. No. 222, [2011] F.C.J. No. 222 (F.C.) — referred to Ponce Uribe v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1164, 2011 CarswellNat 4152, 2011 CarswellNat 5168, 2011 FC 1164, 4 Imm. L.R. (4th) 342, (sub nom. Uribe v. Canada (Minister of Citizenship and Immigration)) 398 F.T.R. 165 (Eng.), [2011] A.C.F. No. 1431, [2011] F.C.J. No. 1431 (F.C.) — referred to Portillo v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 3344, 2012 CF 678, 43 Admin. L.R. (5th) 183, 9 Imm. L.R. (4th) 260, 2012 CarswellNat 1742, 2012 FC 678, [2012] F.C.J. No. 670 (F.C.) — considered Samuel v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 973, 2012 CarswellNat 3519, 2012 CarswellNat 2896, 2012 FC 973 (F.C.) — referred to Surajnarain v. Canada (Minister of Citizenship & Immigration) (2008), 336 F.T.R. 161 (Eng.), 2008 CF 1165, 2008 CarswellNat 4572, 2008 Car- swellNat 3782, 2008 FC 1165, 75 Imm. L.R. (3d) 200, [2008] F.C.J. No. 1451 (F.C.) — considered Tobias Gomez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1093, 2011 CarswellNat 4756, 2011 CarswellNat 5232, 2011 CF 1093, 4 Imm. L.R. (4th) 285, (sub nom. Gomez v. Canada (Minister of Citizenship and Immigration)) 397 F.T.R. 170 (Eng.), [2011] F.C.J. No. 1601 (F.C.) — considered Castaneda Malvaez v. Canada (MCI) Luc Martineau J. 195

Tomlinson v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 822, 2012 CarswellNat 2493, 2012 CF 822, 2012 CarswellNat 3135, [2012] F.C.J. No. 955, [2012] A.C.F. No. 955 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97 — considered s. 97(1)(b)(ii) — considered

APPLICATION by applicants for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board which dismissed claims for protection both under ss. 96 and 97 of Immigration and Refugee Protection Act.

Meera Budovitch, for Applicants Brad Gotkin, for Respondent

Luc Martineau J.:

1 The applicants challenge the legality of a decision rendered by the Refugee Protection Division of the Immigration and Refugee Board [Board], made on February 8th, 2012, dismissing their claims for protection both under sections 96 and 97 of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 [Act]. 2 Today, the applicants do not question the legality of the determination made by the Board that they are not Convention refugees because there is no nexus with any of the grounds listed in section 96 of the Act. This only leaves the issue whether the Board’s finding that the risk faced by the applicants is a risk faced by the general population in their country - and for this reason, they are not “persons in need of protection” under subparagraph 97(1)(b)(ii) of the Act - falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]). 3 The principal applicant, Angel Castaneda Malvaez, his spouse, and their two sons [together the applicants] are citizens of Mexico who lived in Tultitlan in the state of Mexico. On January 24, 2011, they fled to Canada to escape a well-known criminal and drug cartel. The applicants have been personally targeted by La Familia Michoacana [La Familia]. They say they have endured extortion fees, the hijacking of their store, death threats, physical assault, and forced participation in drug distribu- 196 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tion at the hands of La Familia. The applicants claimed refugee protection on January 26th 2011, shortly after their arrival in Canada. Despite some doubts expressed by the Board, the applicants’ overall account of the facts has not been seriously questioned. 4 The applicants’ story begins with the opening of their hardware store, Ferreteria ABC San Angel, in 2000. The store was well-located in the town of Tultitlan, Mexico, and was across the street from a sizeable high school. The store became, according to the principal applicant, one of the most successful businesses on the street. Since the opening of the store, the principal applicant faced extortion by “regular criminals, and also small time thieves”, as well as weekly police requests for protection money. As the applicants indicate, for many business owners in Mexico, these ongoing requests were sadly “just part of ‘the cost of doing business’ and is not the reason for their refugee claim.” 5 In June of 2009, the principal applicant received an anonymous phone call threatening him, his business, and his children if he did not give the caller money. The caller referred to himself as “Commander of Zetas”. The Zetas is a well-known criminal organization in Mexico. After contacting the police and having them trace the call, the police assured the principal applicant that the call had been made at random from Mexico City, far away from the applicants’ town, and that there was no grave cause for concern. Then, in April 2010, armed members of La Familia entered the applicants’ business and declared that it now belonged to them. They proceeded to threaten the principal applicant with the de- struction of his store, warned him against contacting the police, and took 4000 pesos from him. According to the applicant, this event marks the beginning of where he saw his situation turn from one of generalized risk to that of personalized risk. 6 One week after their first visit by La Familia members, three men arrived at the store and told the principal applicant that they were there to collect their money. The applicant responded that there was no money in the place, to which the intruders became verbally abusive and warned of impending trouble. The applicant recognized these individuals as judicial police officers. A few days later, on the 23rd of April 2010, the principal applicant’s son was kidnapped and beaten as a warning to the principal applicant that he must continue to pay La Familia. On that day, a car pulled up with his son and three or four armed men inside. The son was dragged out of the car and cut with a bottle. The attackers also warned against contacting the police and stated that they would cut the son up Castaneda Malvaez v. Canada (MCI) Luc Martineau J. 197

and throw his head at the door if the principal applicant did not comply with their demands. The principal applicant contacted the police about the incident and made a formal denunciation, although he did not retain a copy; the police did nothing. 7 The visits from La Familia persisted, and each time the principal applicant gave them at least 10,000 pesos. At one point, the principal applicant decided to close his store in an effort to end the threats. But this was to no avail as members La Familia came to the applicants’ house, se- verely assaulted the principal applicant by pistol whipping him, and forced him to reopen the store. The principal applicant again contacted the police and filed a report after his store was robbed and merchandise was stolen one night. The identity of those responsible for the break-in was unknown. The police were ineffective each time the principal applicant sought their protection, only offered to protect him upon payment of a bribe, and warned him that his family might end up dead if the complaints he lodged were pursued. The extortion fee requests continued and the principal applicant kept paying them to La Familia until, one day, members of La Familia brought two packets wrapped in tape and forced the principal applicant to keep them in his store until they were picked up by someone. While he did not open the packets, he inferred that they contained drugs. The principal applicant also recognized some of those who picked up the packages as police officers, or former police officers. He did not tell his family about the packages, but it was at that point that he decided to flee Mexico. 8 On January 20th, 2011, La Familia demanded that 50,000 pesos be paid by the applicant by January 29th, 2011, but by that point, the family had already applied for temporary resident visas to Canada, which were issued on January 11th, 2011. The family left Mexico on January 24th, 2011, leaving before the most recent debt came due. Subsequent to the departure of the applicants, they were informed by a nephew that their home had been broken into. Neighbours confirmed that armed men had broken in but that nothing was taken - leading the applicants to conclude that theft was not the motive behind the break-in and that the perpetrators were instead searching for the applicants. 9 The Board identified the determinative issue to be that of generalized risk and that the applicants were not personally at risk, since they faced a risk that is faced by the general population in Mexico - that of criminal activity. The applicants contest the reasonableness of this conclusion on three grounds: (1) the Board misinterpreted and misapplied the law on 198 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

generalized risk; (2) it failed to conduct an individualized inquiry; and (3) it interpreted generalized risk in an erroneous manner that is contrary to the purpose of the statute. The respondent replies that, when read as a whole, the decision of the Board is reasonable in the circumstances. 10 Decisions determining whether an applicant faces a generalized risk are usually based on questions of mixed fact and law, such that they are usually subject to the standard of reasonableness upon review (see Acosta v. Canada (Minister of Citizenship & Immigration), 2009 FC 213 (F.C.) at paras 9-11 [Acosta]; Portillo v. Canada (Minister of Citizenship & Immigration), 2012 FC 678 (F.C.) at para 18, [2012] F.C.J. No. 670 (F.C.) [Portillo]). And where the particular question is one determining whether an applicant is a member of a particular social group (business owners, in this case), it is also a question of mixed fact and law that is reviewable on the basis of reasonableness (Olvera v. Canada (Minister of Citizenship and Immigration), 2012 FC 1048 (F.C.) at para 28, [2012] F.C.J. No. 1128 (F.C.) [Olvera]; Samuel v. Canada (Minister of Citizenship & Immigration), 2012 FC 973 (F.C.)). With the application of the reasonableness standard, the Court will intervene where the reasons given in the impugned decision are not “justified, transparent or intelligible” [Dunsmuir]. 11 In light of the facts and the law, I find the Board’s decision to be unreasonable. In particular, I agree with the applicants that the Board misapplied and misinterpreted the concept “generalized risk” under section 97 of the Act, without view to the purpose of a generalized risk determination, and that this was intimately linked to a dearth of individualized assessment: “There must be some particularization of the risk of the person claiming protection as opposed to an indiscriminate or random risk faced by the claimant or others” (Surajnarain v. Canada (Minister of Citizenship & Immigration), 2008 FC 1165 (F.C.) at para 20, (2008), 336 F.T.R. 161 (Eng.) (F.C.) [Surajnarain]. 12 Despite the fact that the Board mentions at paragraph 21 of its decision, that the principal applicant is “personally subject to a risk of harm under [s]ection 97 involving extortion and gang violence,” it nevertheless finds that the applicant’s risk on return is a “generalized one” which, in my humble opinion, is a capricious and arbitrary finding, a conclusion which is not otherwise supported by the evidence on record and is contrary to the intent of the exclusionary clause (see Surajnarain at paras 17- 21). Castaneda Malvaez v. Canada (MCI) Luc Martineau J. 199

13 The Board also writes, at paragraph 28 of their decision, that it is settled law that claims based on targeting because a claimant is a member of a group that is perceived to be wealthy, where that group is large enough to make the risk widespread, will not meet the requirement of subparagraph 97(1)(b)(ii). Though a group may be a small portion of the population of the country of reference, what matters is that the risk is widespread or prevalent. The RPD finds that a business owner being targeted for extortion and/or to serve the drug cartels’ purpose is a risk that is widespread in Mexico. However, recent case law demonstrates that the Board’s analysis of the case law is somewhat incomplete. Important caveats must be made in light of the particular facts of this case. This has prompted the Court to intervene in similar situations, especially where the decision under review “completely negates an admitted situation of individualized risk simply because the actions giving rise to that risk are also criminal” (Lovato v. Canada (Minister of Citizenship & Immigration), 2012 FC 143 (F.C.) at para 9, [2012] F.C.J. No. 149 (F.C.) [Lovato]. 14 Indeed, it is apparent that the Board has chosen to refer only to those decisions of the Court that hold generally that claimants who have been specifically targeted, nonetheless face a generalized risk if the majority of the citizens of the country, or the subgroup to which the claimant belongs, also generally experience that same risk (see e.g. Acosta; Paz Guifarro v. Canada (Minister of Citizenship & Immigration), 2011 FC 182 (F.C.)). However, this is only a partial view of the jurisprudence ((Olvera v. Canada (Minister of Citizenship and Immigration), 2012 FC 1048 (F.C.) at para 37, [2012] F.C.J. No. 1128 (F.C.)). Interpreting section 97 of the Act in such an overly broad manner defeats its original purpose since it becomes nearly impossible to categorize a risk as “personalized” when the risk in question is related to criminal activity against the claimant. 15 In Portillo at para 36, Justice Gleason ruled that it was unreasonable for the Board to find that the applicant faced only a generalized risk - even though he had been personally threatened by the Mara Salvatrucha criminal gang in El Salvador - due only to the rampant nature of criminal gang violence in El Salvador. Justice Gleason states that “[i]f the Board’s reasoning is correct, it is unlikely that there would ever be a situation in which this section would provide for crime-related risks” (Portillo at para 36). Similarly, in Lovato at para 14: “[S]ection 97 must not be interpreted in a manner that strips it of any content or meaning. If any risk created by ‘criminal activity’ is always considered a general risk, it is 200 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

hard to fathom a scenario in which the requirements of section 97 would ever be met.” 16 Recent case law suggests that it is unreasonable to decide that a claimant was specifically targeted, yet then go on to conclude that there is a lack of personalized risk due to the widespread nature of that same risk in the claimant’s country (see e.g. Lovato at para 7; Corado Guerrero v. Canada (Minister of Citizenship & Immigration), 2011 FC 1210, [2011] F.C.J. No. 1477 (F.C.) [Guerrero]; Garcia Vasquez v. Canada (Minister of Citizenship & Immigration), 2011 FC 477, [2011] F.C.J. No. 595 (F.C.); Ponce Uribe v. Canada (Minister of Citizenship & Immigration), 2011 FC 1164, [2011] F.C.J. No. 1431 (F.C.); Munoz v. Canada (Minister of Citizenship & Immigration), 2010 FC 238, [2010] F.C.J. No. 268 (F.C.)). Again, along this vein of reasoning, in Portillo, Justice Gleason succinctly states that “if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.” Justice Shore, referencing the Por- tillo decision, further clarifies that “even if [the risk] is widespread in his or her country of origin ... individual targeting cannot be said to be general or impersonal” (Olvera at para 1). 17 In Guerrero, Justice Zinn observes at paras 28, 29, 33, and 34: My second observation is that too many decision-makers inaccu- rately describe the risk the applicant faces and too many decision- makers fail to actually state the risk altogether. Subparagraph 97(1)(b)(ii) of the Act is quite specific: The personal risk a claimant must face is “a risk to their life or to a risk of cruel and unusual treatment or punishment.” Before determining whether the risk faced by the claimant is one generally faced by others in the country, the decision-maker must (1) make an express determination of what the claimant’s risk is, (2) determine whether that risk is a risk to life or a risk of cruel and unusual treatment or punishment, and (3) clearly express the basis for that risk. An example of the sort of decision I am addressing is that under review. The closest the decision-maker in this case comes to actually stating the risk she finds this applicant faces is the following: “[T]he harm feared by the claimant; that is criminality (recruitment to deliver drugs)....” But this is not the risk faced by the applicant, and even if it were, the decision fails to state how this meets the test of risk set out in subparagraph 97(1)(b)(ii) of the Act. At best, the risk as described forms part of the reason for the risk to the applicant’s life. When one conflates the reason for the risk with the risk itself, Castaneda Malvaez v. Canada (MCI) Luc Martineau J. 201

one fails to properly conduct the individualized inquiry of the claim that is essential to a proper s. 97 analysis and determination. ... During the course of oral submissions, I asked the respondent, given his interpretation of Baires Sanchez, if he could provide an example of a situation where a person targeted for death from a gang in one of these gang-infested countries could obtain s. 97 protection. The example provided in response was the situation where a gang had been hired to kill a claimant. In that circumstance, it was submitted that the risk to the claimant was personal and was not one faced generally by the population. I note that the scenario provided is exactly that which this applicant faced. He faced death at the hand of a gang hired by a criminal organization to kill him. I do not accept that protection under the Act is limited in the manner submitted by the respondent. This is not to say that persons who face the same or even a heightened risk as others face of random or indiscriminate violence from gangs are eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not, then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met. 18 Consolidating the line of reasoning that has been developing within this strand of interpreting section 97 of the Act, in Portillo (at paras 40- 41) Justice Gleason goes on to propose a test for the analysis of generalized risk under section 97 of the Act. (1) The nature of the risk faced by the claimant must first be appropriately determined. This is done by assessing the ongoing or future nature of the risk the claimant faces in terms of whether the risk will continue to be personalized in nature; what the risk is; whether the risk can be classified as either cruel and unusual treatment or punishment; and the basis of the risk faced. (2) With the nature of the risk having been appropriately determined, the next step is to compare the “risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree” (Portillo at para 41). If the risk faced by the claimant can be differentiated under this second step, then the claimant will be entitled to protection under section 97 of the Act. 19 I note at this point that the respondent has made no attempt to adequately deal with these jurisprudential developments. At the hearing before me, counsel for the Minister continued to hold the position that there has been an individualized assessment by the Board, that the dis- 202 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tinction between “generalized” versus “personalized” risk is often “blurred”, and that on the particular facts of this case, the outcome is an acceptable one in light of the facts and the law. It appears to me that the Board in this case erred in the same matter as the Board did in the cases cited above where the Court intervened. 20 As noted previously, the Board found that the principal applicant was “personally subject to a risk of harm under [s]ection 97 involving extortion and gang violence,” but then went on to find that the applicant’s risk on return was a “generalized one” (see para 21 of the Board’s decision). The principal applicant began to be targeted personally when La Familia first declared “ownership” of his store in April 2010. Once the applicants were targeted by La Familia, the family faced death threats and the principal applicant and one of his sons were seriously physically beaten and injured, the applicant was forced to allow drugs to be kept at and picked up from his store, and even when he tried to close his store in the hopes that La Familia would stop terrorizing his family, they simply forced him to reopen the store. At no point does the Board acknowledge the forced reopening of the store. It also bears mentioning that the location and success of the principal applicant’s store are unique elements to his individual situation. As the applicant has expressed, the success of his business leads to high traffic, which increases the attractiveness of his store as a target for La Familia both in terms of their drug operations but also in terms of revenue garnishing extortion fees. The location across from a sizeable high school is notable for the access it gave La Familia to potential clientele in terms of the drug wing of their operations, and also potentially in the expansion of other illegal activities. 21 In comparing the situation faced by the applicants to that faced by a significant group in the country in order to determine whether the risks faced by the applicants are of the same nature and degree, I note that the applicants are the first to acknowledge that prior to April 2010, when La Familia began to target them, they faced no risk that was different in nature and degree to that faced by other business-owners in the area. The applicants themselves consider the extortion by street-level criminals and required payment of police protection to be a generalized risk. Nonethe- less, after La Familia became involved, the physical violence endured by the family was personalized. The applicant states that there were five or six other businesses of a similar nature nearby and they did not face these same issues or problems that he and his family faced. Clearly the situation of the applicants, and the level of threats and harm that befell them, can be distinguished from the nature and degree of the risks faced by Castaneda Malvaez v. Canada (MCI) Luc Martineau J. 203

other business owners in the area. At least, the Board should have addressed this issue in its reasons and come to some conclusion: “The risks of those standing in the same vicinity as the gunman cannot be considered the same as the risks of those standing directly in front of him” (Olvera at para 41). 22 The Board failed to conduct an individualized assessment in light of the particular circumstances of the case. With similar facts to the present case and also referred to in Portillo at para 44, in Tobias Gomez v. Canada (Minister of Citizenship & Immigration), 2011 FC 1093 (F.C.) at para 38, [2011] F.C.J. No. 1601 (F.C.), Justice O’Reilly overturned the Board’s decision where the claimants also faced extortion, threats of kid- napping, and assault that did not begin on a personalized level but subsequently escalated to become personalized in nature: The applicants were originally subjected to threats that are widespread and prevalent in El Salvador. However, subsequent events showed that the applicants were specifically targeted after they de- fied the gang. The gang threatened to kidnap [the applicant’s] wife and daughter, and appear determined to collect the applicants’ outstanding ‘debt’ of $40,000. The risk to the applicants has gone beyond general threats and assaults. The gang has targeted them personally. 23 Additionally, in a recent decision rendered by Justice Mactavish regarding a store owner in Jamaica, and again following the Portillo line of reasoning (Tomlinson v. Canada (Minister of Citizenship & Immigra- tion), 2012 FC 822, [2012] F.C.J. No. 955 (F.C.)), Justice Mactavish writes that the applicant “does not just fear a criminal gang in Jamaica because he lives there or because he works as a shopkeeper in that country. That would be a generalized risk faced by a substantial portion of the population.” Instead, like the principal applicant in the case at bar, the situation escalated where, prior to the change in circumstances, the applicant “may have been at risk of extortion or violence like many other shopkeepers in Jamaica. However, unlike the general population, [the applicant] is now at a significantly heightened risk as a result of having been, to quote the Board, ‘specifically and personally targeted by the gang”’ (at para 19). 24 For the above reasons, the Board’s determination that the applicants are not persons in need of protection under section 97 of the Act is unreasonable and shall be set aside. The matter shall be remitted to the Board for redetermination by another member. No question of general impor- 204 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th) tance has been proposed by counsel representing the parties and none shall be certified by the Court.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review be granted as the Board’s determination that the applicants are not persons in need of protection is unreasonable and must be set aside. The matter is remitted to the Board for redetermination by another member of the Board. No question is certified. Application granted. Kobita v. Canada (MCI) 205

[Indexed as: Kobita v. Canada (Minister of Citizenship and Immigration)] Kobita, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1833-12 2012 FC 1479 Catherine M. Kane J. Heard: December 5, 2012 Judgment: December 14, 2012 Immigration and citizenship –––– Admission — Immigrants — Family class — Dependent family member — Dependent child –––– Immigration officer at High Commission of Canada in Singapore determined that applicant did not meet requirements for permanent resident visa as member of family class pursuant to paragraph 117(9)(d) of Immigration and Refugee Protection Regula- tions and that applicant had not provided sufficient evidence of humanitarian and compassionate (“H&C”) grounds to overcome exclusion pursuant to subsection 25(1) of Immigration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review of decision — Application granted — Application for exemption from inadmissibility pursuant to s. 25 of Act should be re-determined by another immigration officer — Officer’s assessment of best interests of children was unreasonable — Officer took status quo as starting point and determined that status quo was sufficient without considering other options, including life in Canada with both parents — In addition, officer focused on fact that the children were not suffering undue hardship due to exclusion. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Evidence –––– Immigration officer at High Com- mission of Canada in Singapore determined that applicant did not meet requirements for permanent resident visa as member of family class pursuant to paragraph 117(9)(d) of Immigration and Refugee Protection Regulations and that applicant had not provided sufficient evidence of humanitarian and compassionate (“H&C”) grounds to overcome exclusion pursuant to subsection 25(1) of Immigration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review of decision — Application granted — Application for exemption from inadmissibility pursuant to s. 25 of Act should be re-determined by another immigration officer — Officer’s assessment of best interests of children was unreasonable — Officer took status quo as starting point and deter- 206 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

mined that status quo was sufficient without considering other options, including life in Canada with both parents — In addition, officer focused on fact that the children were not suffering undue hardship due to exclusion. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review — Best interests of children –––– Immigration officer at High Commission of Canada in Singapore determined that applicant did not meet requirements for permanent resident visa as member of family class pursuant to paragraph 117(9)(d) of Immigration and Refugee Protection Regulations and that applicant had not provided sufficient evidence of humanitarian and compassionate (“H&C”) grounds to overcome exclusion pursuant to subsection 25(1) of Immigration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review of decision — Application granted — Applica- tion for exemption from inadmissibility pursuant to s. 25 of Act should be re- determined by another immigration officer — Officer’s assessment of best interests of children was unreasonable — Officer took status quo as starting point and determined that status quo was sufficient without considering other options, including life in Canada with both parents — In addition, officer focused on fact that the children were not suffering undue hardship due to exclusion. Cases considered by Catherine M. Kane J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Cordeiro v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1231, 2004 CarswellNat 3116, 2004 CF 1231, 2004 CarswellNat 3963, [2004] F.C.J. No. 1479, [2004] A.C.F. No. 1479 (F.C.) — considered Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — considered Huot c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 97 Imm. L.R. (3d) 36, 2011 FC 180, 2011 CF 180, 2011 CarswellNat 507, 2011 CarswellNat 508, [2011] F.C.J. No. 242 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- Kobita v. Canada (MCI) 207

swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — considered Legault v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 747, 212 D.L.R. (4th) 139, 288 N.R. 174, 20 Imm. L.R. (3d) 119, 223 F.T.R. 159 (note), [2002] 4 F.C. 358, 2002 CAF 125, 2002 CarswellNat 746, 2002 FCA 125, [2002] F.C.J. No. 457 (Fed. C.A.) — considered Li v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1292, 2006 CarswellNat 3474, 2006 CF 1292, 2006 CarswellNat 6510, [2006] F.C.J. No. 1613, [2006] A.C.F. No. 1613 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Pascual v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 993, 2008 CarswellNat 3086, 2008 FC 993, 2008 CarswellNat 4229, [2008] F.C.J. No. 1233 (F.C.) — considered Phung v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 1558, 2012 FC 585, 2012 CarswellNat 4456, 2012 CF 585, [2012] A.C.F. No. 599, [2012] F.C.J. No. 599 (F.C.) — referred to Sultana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 533, 2009 CarswellNat 4024, 80 Imm. L.R. (3d) 214, 346 F.T.R. 1 (Eng.), [2010] 1 F.C.R. 175, 2009 FC 533, 2009 CarswellNat 1418, [2009] F.C.J. No. 653 (F.C.) — considered Terigho v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 835, 2006 CarswellNat 1901, 2006 CarswellNat 3402, 2006 CF 835, [2006] F.C.J. No. 1061 (F.C.) — considered Webb v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1060, 2012 CarswellNat 3387, 2012 CF 1060, 2012 CarswellNat 4142, [2012] F.C.J. No. 1147, [2012] A.C.F. No. 1147 (F.C.) — referred to Williams v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 382, 2012 FC 166, 2012 CF 166, 2012 CarswellNat 1330, [2012] F.C.J. No. 184 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — considered s. 25(1) — considered s. 63(1) — considered s. 65 — considered 208 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

s. 72 — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 117(9)(d) — considered

APPLICATION by applicant for judicial review of decision of Immigration officer at High Commission of Canada in Singapore which determined that applicant did not meet requirements for permanent resident visa as member of family class.

Hart A. Kaminker, for Applicant John Loncar, for Respondent

Catherine M. Kane J.:

1 This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], of a decision rendered by an immigration officer at the High Commission of Canada in Singapore (Immigration Section), dated January 3, 2012. The officer determined that the applicant did not meet the requirements for a permanent resident visa as a member of the family class pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations] and that the applicant had not provided sufficient evidence of humanitarian and compassionate [H&C] grounds to overcome the exclusion pursuant to subsection 25(1) of the Act.

Background 2 The applicant, Ms Kobita, and her two sons, are citizens of Ban- gladesh. Her husband, Mr Maruf Ahmed, is a Bangladeshi citizen and a permanent resident of Canada. Ms Kobita and her sons sought to join him here. The immigration officer concluded that Ms Kobita and her children were not members of the family class pursuant to paragraph 117(9)(d) of the Regulations because Mr Ahmed had failed to declare them as dependants upon his arrival in Canada in 2005 and in his application for permanent residence, which was made in 1999. 3 The officer also found that there was insufficient evidence of H&C grounds under subsection 25(1) of the Act to overcome the exclusion. 4 Mr Ahmed first sought permanent resident status in Canada in 1999, prior to meeting the applicant. There is some confusing information Kobita v. Canada (MCI) Catherine M. Kane J. 209

about the history of the relationship between Mr Ahmed and Ms Kobita. Both were interviewed separately and indicated that they were married in 1999 in a religious ceremony but that the marriage was not registered. The couple had two sons, born in 2001 and 2004. In 2006 they were again married and the marriage was registered. There was some discrep- ancy in their description of the reasons for the two marriages, which the officer pursued extensively in questioning. 5 Upon his arrival in Canada in 2005, Mr Ahmed declared that he was not married and did not have children. At the interview with the immigration officer in 2011, he explained that he indicated that he was not married because the marriage was not registered at the time. He also noted that he had advised his immigration consultant of his change in status since his original application in 1999 and the consultant advised him to say that he was not married. The consultant allegedly told Mr Ahmed that he could sponsor his family later, as his marriage was not registered at that time. There appears to be no satisfactory explanation for the failure to disclose the fact that he had two children, apart from the advice of the consultant. 6 Since being granted permanent resident status, Mr Ahmed has returned to Bangladesh annually to visit his family. He supports them fi- nancially and is in frequent contact with them. Ms Kobita and the two boys live with her sister in Bangladesh. Despite the challenges to the family relationship given the distance apart, they are a family. 7 Since Mr Ahmed did not declare his dependents upon arrival and they did not accompany him at that time, they are excluded as members of the family class pursuant to paragraph 117(9)(d) of the Regulations, which states: 117. [...] Excluded relationships (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if [...] (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accom- panying family member of the sponsor and was not examined. 117. [...] 210 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Restrictions 9) Ne sont pas considérées comme appartenant a` la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes: [...] d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent a` la suite d’une demande a` cet effet, l’étranger qui, a` l’époque où cette demande a et´´ e faite, etait´ un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle. 8 The applicant does not dispute this exclusion finding. 9 The immigration officer also found that there was a lack of sufficient evidence of H&C grounds to justify overcoming the exclusion and a lack of compelling evidence that the applicant and children were suffering undue hardship as a result of this exclusion.

Preliminary Issue 10 As a preliminary issue, the respondent, in his written submissions, argued that the applicant was precluded from seeking judicial review because her sponsor had not exhausted the right to appeal the decision determining that the applicant and her sons were not members of the family class. 11 Subsection 63(1) of the Act provides a right of appeal to the Immigra- tion Appeal Division (IAD) against a decision not to issue a permanent resident visa. However, section 65 makes it clear that in such an appeal, the IAD is precluded from considering H&C grounds unless the applicant is a member of the family class. 12 In the present case, there is no dispute that the applicant and her children are excluded from the family class. As such, an appeal to the IAD could not address the issues to be decided, i.e. whether sufficient H&C grounds exist to overcome the exclusion. This Court has determined that in such cases, a judicial review should proceed: Phung v. Canada (Minister of Citizenship & Immigration), 2012 FC 585, [2012] F.C.J. No. 599 (F.C.); Huot c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2011 FC 180, [2011] F.C.J. No. 242 (F.C.). 13 It should be noted that the respondent did not pursue this issue in his oral submissions. Kobita v. Canada (MCI) Catherine M. Kane J. 211

Issues and Standard of Review 14 The issue in this judicial review is whether the immigration officer’s decision that there were insufficient H&C grounds was reasonable and whether the officer’s analysis of the best interests of the children in its consideration of these grounds was reasonable. 15 The parties agree that the applicable standard of review is reasonableness. 16 In Terigho v. Canada (Minister of Citizenship & Immigration), 2006 FC 835, [2006] F.C.J. No. 1061 (F.C.) at paras 6-7, Justice Mosley sum- marised the standard of review for decisions made on H&C grounds: [6] The appropriate standard of review for decisions made under section 25 is reasonableness. Considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role in the statutory scheme as an exception, the fact the decisionmaker is the Min- ister, and the wide discretion evidenced by the statutory language: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. [7] Reasonableness is not about whether the decision maker came to the right result. As stated by Justice Iacobucci in Canada(Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56, an unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. See also Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras 55-56. 17 The jurisprudence continues to remind the Court of its role on judicial review. The Court should show deference as long as the decision “falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law”: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paras 47, 53, 55; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 89. 18 In considering whether the decision is reasonable, in accordance with the guiding principles, I have considered the extensive notes made by the officer, including those relating to the interviews with the applicant and her sponsor. 212 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

19 The applicant submitted that the decision was unreasonable and raised three issues: that the officer fettered her discretion by excluding from the H&C grounds the family’s desire to better themselves economically; that the officer misconstrued the evidence of the sponsor, Mr Ah- med, regarding his failure to disclose his wife and sons in the process of his application for permanent residence in Canada; and that the officer failed to consider the best interests of the children.

Did the officer fetter her discretion by excluding economic factors from the H&C considerations? 20 The applicant notes that section 25 of the Act provides wide discretion to the officer to consider H&C grounds. The applicant submits that the officer erred in determining that economic factors, particularly the applicant’s and sponsor’s evidence that they would have better economic opportunities in Canada, could not be considered as H&C grounds. 21 The respondent submits that there was significant discussion about the better economic situation for the family in Canada, and that the officer considered this. However, the officer found that the economic pros- pects in Canada did not constitute an H&C consideration sufficient to overcome their exclusion. 22 The record supports the respondent’s position. The officer noted the evidence of the applicant and sponsor that their economic situation would be better. She also noted the applicant’s evidence that she had a stable home in Bangladesh and concluded that they were not experienc- ing undue hardship. This finding was open to the officer to make based on the weight she attached to the economic factors and the overall assessment of undue hardship. I do not find that the officer fettered her discretion or that her finding falls outside the range of possible, acceptable outcomes.

Misrepresentations or Non-Disclosure of the Marriage and Children 23 With respect to the sponsor’s evidence concerning his failure to disclose his wife and sons, the applicant notes that Citizenship and Immi- gration Canada conducted an investigation of these misrepresentations and decided not to take any action against the applicant. Therefore, the immigration officer’s focus on the misrepresentations is not justified. While it is a factor to be considered, the applicant offered an explanation: when he first applied, he did not have a wife or children, and when he arrived in Canada in 2005 he did not disclose that he was married be- Kobita v. Canada (MCI) Catherine M. Kane J. 213

cause the marriage was not registered and because the immigration consultant had advised him not to do so, apparently for the same reason (that the marriage was not registered). The consultant also told Mr Ahmed that he could seek to sponsor his family later. The applicant submits that his explanations about his failure to disclose he was married were not inconsistent. 24 The respondent submits that a misrepresentation on an application for permanent residence is a relevant public policy consideration in an H&C assessment: Li v. Canada (Minister of Citizenship & Immigration), 2006 FC 1292, [2006] F.C.J. No. 1613 (F.C.) at paras 32-33 [Li]; Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189, [2009] F.C.J. No. 713 (F.C.A.) [Kisana]. 25 The respondent also noted that in Pascual v. Canada (Minister of Citizenship & Immigration), 2008 FC 993, [2008] F.C.J. No. 1233 (F.C.), Justice Zinn addressed a similar issue and noted that officers are guided by operational guidelines (OP2 - Processing Members of the Family Class). These guidelines provide that where there are compelling reasons for not having disclosed the existence of a family member, it may be appropriate to take into account H&C considerations. Examples of such compelling reasons include where the sponsor believed the person was dead or his whereabouts were unknown or where disclosure would put the family member at risk. An inadvertent omission to declare a family member did not constitute a compelling reason in that case. 26 The respondent submits that the misrepresentations in this case were not inadvertent, but deliberate. This is, therefore, not a compelling case to justify reliance on H&C grounds. 27 The respondent also submits that in Kisana, the Federal Court of Ap- peal noted that factors favouring family reunification will not always outweigh the public policy concerns arising out of misrepresentation. 28 It is important to consider the purpose of section 25 of the Act which is to permit applicants who would otherwise be inadmissible to become admissible based on H&C grounds. 29 On the one hand, it appears to defeat the purpose of that section to dwell on the fact that the applicant is inadmissible as part of the H&C considerations. It is not disputed that the applicant is not a member of the family class and is inadmissible. The only way to permit admissibility is to overcome the exclusion on H&C grounds. Therefore, the immigration officer’s reliance on the misrepresentations that resulted in the inadmissi- 214 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

bility as a factor in the H&C considerations appears to defeat the purpose of section 25 of the Act. 30 On the other hand, the jurisprudence has established that such misrepresentations should be considered. 31 As noted above, the role of the Court is not to reweigh the evidence the officer considered. However, it is appropriate to explore whether this factor was determinative to the exclusion of other factors. 32 As noted by Justice de Montigny in Sultana v. Canada (Minister of Citizenship & Immigration), 2009 FC 533, [2009] F.C.J. No. 653 (F.C.) at para 25: 25 That being said, one must not forget that the presence of s.25 in the IRPA has been found to guard against IRPA non-compliance with the international human rights instruments to which Canada is signa- tory due to s.117(9)(d): de Guzman v. Canada (Minister of Citizen- ship & Immigration), 2005 FCA 436 (F.C.A.), at paras. 102-109. If that provision is to be meaningful, Immigration officers must do more than pay lip service to the H&C factors brought forward by an applicant, and must truly assess them with a view to deciding whether they are sufficient to counterbalance the harsh provision of s.117(9)(d). As my colleague Justice Kelen noted in Hurtado v. Can- ada (Minister of Citizenship & Immigration), 2007 FC 552 (F.C.), at para. 14,”...if the applicant’s misrepresentation were the only factor to be considered, there would be no room for discretion left to the Minister under section 25 of the Act.” This is indeed recognized in the OP 4 Manual on Overseas Processing, Appendix F, where officers are reminded that they should ensure “that their H&C assessments go beyond an explanation as to why applicants are described by R117 (9) (d) to consider the positive factors an applicant has raised in support of his/her request for an exemption from R117 (9) (d)”. 33 The officer’s decision and CAIPS notes include a brief reference to the sponsor’s explanation for his misrepresentation: that he received bad advice from an immigration consultant and that he derived no benefit from failing to declare his dependents. The officer then made extensive notes about the factors that countered the claim on H&C grounds, all of which related to the same misrepresentations and inconsistencies in the answers of the sponsor and the applicant about the registration of their marriage. 34 After turning to the best interests of the children, which the officer determined would be best addressed by remaining in Bangladesh, the of- Kobita v. Canada (MCI) Catherine M. Kane J. 215

ficer concluded that there were insufficient H&C grounds to overcome the applicant’s exclusion. Despite the reference to the insufficient H&C grounds, it appears that the officer did not consider any other H&C grounds except the best interests of the children and the misrepresentation, which, as noted above, works against H&C considerations. The officer appears to dwell on the misrepresentation, which is the reason for the exclusion and which was investigated - and not pursued further- by Citizenship and Immigration Canada. The sponsor’s conduct in not de- claring his dependents, whether due to the bad advice of the immigration consultant or to his view that an unregistered marriage was not a marriage, seems to haunt him, to a disproportionate extent. 35 While the misrepresentation is a relevant factor to be considered, it should not be the only or the primary factor, as this would defeat the purpose of section 25 of the Act. 36 As a result, the officer’s decision with respect to the assessment of the H&C grounds is not reasonable.

Best Interests of the Children 37 The applicant submits that the officer failed to adequately consider the best interests of the children and focussed only on the status quo, i.e. the children’s life in Bangladesh, without considering the alternative of their life in Canada in a reunited family. The applicant submits that the officer relied on the fact that the children were doing well in school, had family connections in Bangladesh, that their father visited them there annually, and that they have limited knowledge of English, to conclude that it would be in their best interests to remain with their mother in Ban- gladesh. The officer failed to consider whether the best interests of the children would be served by coming to Canada and being together. 38 The applicant noted the decision of Justice Mactavish in Cordeiro v. Canada (Minister of Citizenship & Immigration), 2004 FC 1231, [2004] F.C.J. No. 1479 (F.C.) at paras 21-24 [Cordeiro], where she reiterated the principles set out in Baker v. Canada (Minister of Citizenship & Im- migration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.) [Baker], Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475, [2003] 2 F.C. 555 (Fed. C.A.) [Hawthorne] and Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (Fed. C.A.). These cases establish that it is incumbent on immigration officers to be alert, alive and sensitive to the interests of the children in question. To do so, the officer must ensure that the child’s 216 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

interests are identified and defined. The officer must determine how much weight should be given to the needs of the child in the circumstances of the case. 39 In Cordeiro, Justice Mactavish found that the officer focussed on one part or one option and ignored the impact of leaving Canada on the child’s close relationship with his sister. The officer was entitled to weigh the factors along with others, but it was an error to ignore the other option or factor. 40 The applicant submits that, just as in Cordeiro, the officer only considered how the children’s best interests could be met in Bangladesh and did not consider how the children’s best interests would be met in Can- ada with both parents together and with the opportunities for better education, better economic stability and a more typical family life. 41 The respondent submits that the officer was alert, alive and sensitive to the best interests of the children and did consider the pros and cons of remaining in Bangladesh with their mother, which is the situation they were accustomed to, and moving to Canada to live together as a family. 42 The record shows that the officer reviewed the applicant’s evidence that indicated the children had lived all their lives in Bangladesh, had a close relationship with family members there, were doing well in school and were happy. The officer noted the applicant’s statement that the children missed their father, as did the applicant. The officer also noted the applicant’s statement that she had no fear in Bangladesh, despite some generalized violence, and that she had no problems with the government. 43 The officer appears to focus only on the situation in Bangladesh and made only one observation or finding with respect to the option of moving to Canada. The officer noted, in the context of summarising her considerations of the best interests of the children, that the applicant had indicated that the family would be better off economically in Canada. Nothing more was noted about how the best interests of the children would be met in Canada. 44 I am mindful of the jurisprudence establishing that the officer is presumed to know that living in Canada would offer the child opportunities that they would not otherwise have (Hawthorne, above, at para 5) and that to compare a better life in Canada to life in the home country cannot be determinative of best interests as the outcome would almost always favour Canada (Li, above). Kobita v. Canada (MCI) Catherine M. Kane J. 217

45 The Supreme Court of Canada’s decision in Baker set out the basic principles regarding a decision-maker’s obligation to consider the best interests of the children when making H&C decisions: [F]or the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. Baker, above, at para 75. 46 The Federal Court of Appeal has also held that a mere statement that the best interests of the child have been considered is insufficient: [A]n officer cannot demonstrate that she has been “alert, alive and sensitive” to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at paragraph 12). Rather, the interests of the child must be “well identified and defined” (Legault, at paragraph 12) and “examined ... with a great deal of attention” (Legault, at paragraph 31). Hawthorne, above, at para 32. 47 The Federal Court of Appeal also noted that determining the best interests of the child should be the decision-maker’s starting point, as opposed to examining different scenarios and working backwards to compare their impact on the child: Hawthorne, above, at paras 41, 43. 48 This Court recently held in Williams v. Canada (Minister of Citizenship & Immigration), 2012 FC 166, [2012] F.C.J. No. 184 (F.C.) [Williams], at para 64, that there is no ‘hardship threshold’ that must be ‘met’, but rather that the best interests of the child is truly the starting point of the analysis: There is no basic needs minimum which if “met” satisfies the best interest test. Furthermore, there is no hardship threshold, such that if the circumstances of the child reach a certain point on that hardship scale only then will a child’s best interests be so significantly “nega- tively impacted” as to warrant positive consideration. The question is not: “is the child suffering enough that his “best interests” are not being “met”? The question at the initial stage of the assessment is: “what is in the child’s best interests?” 218 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

49 The Court in Williams also set out a three-step approach that decision-makers are to follow when assessing the best interests of the child: When assessing a child’s best interests an Officer must establish first what is in the child’s best interest, second the degree to which the child’s interests are compromised by one potential decision over another, and then finally, in light of the foregoing assessment determine the weight that this factor should play in the ultimate balancing of positive and negative factors assessed in the application. Williams, above, at para 63. 50 This Court has more recently cautioned that not all cases will conform to the Williams framework, but that it is a “useful guideline” for decision-makers. However, it does not have the mandatory effect that a decision of the Supreme Court of Canada or Federal Court of Appeal would have: Webb v. Canada (Minister of Citizenship and Immigration), 2012 FC 1060, [2012] F.C.J. No. 1147 (F.C.) at para 13. 51 In the present case, the officer concluded that the best interests of the children would be to continue to reside with their mother in Bangladesh as they do not appear to be suffering undue hardship as a result of their exclusion. 52 Taking into consideration the record of the decision and the principles noted above, I find the officer’s assessment of the best interests of the children to be unreasonable. The officer took the status quo as her starting point and determined that the status quo was sufficient without considering other options, including life in Canada with both parents. In addition, the officer focussed on the fact that the children were not suffering “undue hardship” due to their exclusion. For similar reasons as noted in Williams, there is no need to find that the children are suffering undue hardship before considering if their best interests could be met by moving to Canada. 53 Finally, as noted in Cordeiro, the officer may weigh the pros and cons or the impacts of different scenarios, but the officer should not ignore or fail to consider one of those scenarios, i.e. how the best interests of the children could also be addressed by reuniting the family in Can- ada. Given that the family’s goal in pursuing the application was to be together in Canada, that scenario should have been considered to determine if the best interests of the children could be met and then weighed or balanced against other scenarios. Based on the record before the Court, the officer failed to consider the alternatives in her assessment of the children’s best interests. Kobita v. Canada (MCI) Catherine M. Kane J. 219

Conclusion 54 For the reasons noted above, the judicial review is allowed and the application for an exemption from inadmissibility pursuant to section 25 of Act should be re-determined by another immigration officer. 55 No certified question was proposed.

Judgment THIS COURT’S JUDGMENT is that: 1. The judicial review is allowed and the application for an exemption from inadmissibility pursuant to section 25 of Act should be re-determined by another immigration officer. 2. No certified question was proposed. Application granted. 220 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Kinsel v. Canada (Minister of Citizenship and Immigration)] Helen Jean Kinsel and Barbara Elizabeth Kinsel, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1958-11 2012 FC 1515 Sandra J. Simpson J. Heard: June 28, 2012 Judgment: December 19, 2012 Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — Citizenship –––– Officer of Citizenship and Immigration Canada (“Officer”) refused applicants’ applications for Certificates of Citizen- ship under Citizenship Act — Applicants brought application for judicial review of decision — Application dismissed — Applicants lack standing to bring Char- ter challenge because they were not primary targets of alleged violation of s. 15 of Canadian Charter of Rights and Freedoms and because they were not Cana- dian citizens or residents — It was not necessary to consider merits of Charter challenge. Cases considered by Sandra J. Simpson J.: Benner v. Canada (Secretary of State) (1997), 208 N.R. 81, 37 Imm. L.R. (2d) 195, 1997 CarswellNat 190, 1997 CarswellNat 191, 143 D.L.R. (4th) 577, [1997] 1 S.C.R. 358, 42 C.R.R. (2d) 1, 125 F.T.R. 240 (note), [1997] S.C.J. No. 26, REJB 1997-00227 (S.C.C.) — considered Jabour v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 98, 2012 CarswellNat 155, 2012 CarswellNat 423, 2012 CF 98, 347 D.L.R. (4th) 176, 404 F.T.R. 149 (F.C.) — considered Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services) (2009), 2009 CarswellOnt 4494, 2009 CarswellOnt 4495, 2009 SCC 39, (sub nom. Nolan v. Ontario (Superintendent of Financial Services)) 253 O.A.C. 256, 49 E.T.R. (3d) 159, 76 C.C.E.L. (3d) 55, 76 C.C.P.B. 1, (sub nom. Kerry (Canada) Inc. v. DCA Employees Pension Committee) 102 O.R. (3d) 319, (sub nom. Nolan v. Kerry (Canada) Inc.) [2009] 2 S.C.R. 678, (sub nom. Nolan v. Ontario (Superintendent of Financial Services)) 391 N.R. 234, 92 Admin. L.R. (4th) 203, (sub nom. DCA Employees Pension Committee v. Ontario (Superintendent of Financial Services)) 309 D.L.R. (4th) 513, [2009] S.C.J. No. 39 (S.C.C.) — referred to Kinsel v. Canada (MCI) 221

Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Ochapowace Indian Band v. Canada (Attorney General) (2007), 2007 FC 920, 2007 CarswellNat 2937, 316 F.T.R. 19 (Eng.), 73 Admin. L.R. (4th) 182, 2007 CarswellNat 5532, 2007 CF 920, [2008] 3 F.C.R. 571, [2007] F.C.J. No. 1195 (F.C.) — referred to R. v. Hape (2007), 363 N.R. 1, 227 O.A.C. 191, 160 C.R.R. (2d) 1, [2007] 2 S.C.R. 292, 2007 SCC 26, 2007 CarswellOnt 3563, 2007 CarswellOnt 3564, 47 C.R. (6th) 96, 220 C.C.C. (3d) 161, 280 D.L.R. (4th) 385, [2007] S.C.J. No. 26 (S.C.C.) — referred to Rabin v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5111, 2010 CF 1094, 2010 FC 1094, 2010 CarswellNat 4208 (F.C.) — considered Slahi v. Canada (Minister of Justice) (2009), 2009 CarswellNat 2748, 2009 FCA 259, 394 N.R. 352, 2009 CarswellNat 5845, 2009 CAF 259 (F.C.A.) — considered Slahi v. Canada (Minister of Justice) (2010), 2010 CarswellNat 297, 2010 Car- swellNat 298, 405 N.R. 390 (note) (S.C.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — referred to s. 15 — considered Canadian Citizenship Act, S.C. 1946, c. 15 Generally — referred to Citizenship Act, S.C. 1974-75-76, c. 108 Generally — referred to Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 3(1)(a) — referred to 222 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

s. 3(1)(b) — considered s. 3(1)(g) — considered s. 3(3)(a) — considered s. 3(4) — considered s. 3(7)(e) — considered Citizenship Act, Act to amend the, S.C. 2008, c. 14 Generally — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 121 — referred to

APPLICATION by applicants for judicial review of Officer of Citizenship and Immigration Canada’s decision to refuse applicants’ applications for Certificates of Citizenship under Citizenship Act.

William Kinsel, for Applicant Helen Park, for Respondent

Sandra J. Simpson J.:

1 Helen and Barbara Kinsel [the Applicants], bring this Application for judicial review [the Application] of a decision made by an Officer [the Officer] of Citizenship and Immigration Canada dated October 3, 2011, in which the Officer refused the Applicants’ applications for Certificates of Citizenship under the Citizenship Act, RSC, 1985, c C-29 [the Act].

The Earlier Proceedings 2 By Order of Prothonotary Tabib dated May 30, 2012, Mr. William Kinsel was appointed litigation guardian for Barbara Kinsel (age 17) and was authorized to represent her pursuant to Rule 121 of the Federal Court Rules, SOR/98-106. Mr. Kinsel is a lawyer in the USA, and is the Applicants’ father. He will be described as the Father or the Applicants’ Father. 3 Regarding Helen Kinsel (age 20), Protonotary Tabib noted that she was not a person under disability and was therefore capable of representing herself. She therefore refused to appoint William Kinsel as Helen’s litigation guardian. However, the Prothonotary noted that it would be open to the judge hearing the merits of the Application to allow William Kinsel to make oral representations on behalf of both his daughters. Ac- Kinsel v. Canada (MCI) Sandra J. Simpson J. 223

cordingly, at the hearing, Mr. Kinsel was permitted to represent both Applicants.

The Background 4 Joan Winifred Napier, the Applicants’ grandmother, was born in Can- ada on May 15, 1928. She was considered a British subject because Can- ada did not have citizenship legislation at that time. Joan Napier was deemed to be a natural-born Canadian citizen when the Canadian Citi- zenship Act, SC 1946, c. 15 [the 1947 Act] came into force. 5 Joan Winifred Napier married William Keith Kinsel in California on August 27, 1949. She became a naturalized citizen of the United States of America [USA] on March 30, 1955 and, on that date, she ceased to be a Canadian citizen by operation of the 1947 Act. 6 William Kinsel was born to Joan Winifred Napier and William Keith Kinsel on December 29, 1959, in the USA. As noted above, both his parents were US citizens and neither were Canadian citizens at his date of birth. 7 Helen Kinsel was born to William Kinsel and his wife on June 20, 1992 in Seattle, Washington, USA. Her sister, Barbara Kinsel, was born on May 23, 1995, also in Seattle. When the Applicants were born, neither of their parents were Canadian citizens. 8 On April 17, 2009 the Act was amended when Bill C-37 [the Bill], Act to Amend the Citizenship Act, SC 2008, c 14 came into force. Under the Bill, Joan Winifred Napier’s Canadian citizenship was restored retroactive to March 30, 1955. That was the date on which she had lost her citizenship under the 1947 Act. 9 At the same time, William Kinsel also became a Canadian citizen by virtue of paragraph 3(1)(g) of the Act. His citizenship was deemed retroactive to his date of birth by virtue of paragraph 3(7)(e) of the Act [the Provision]. It reads as follows: 3.(7) Despite any provision of this Act or any Act respecting naturali- zation or citizenship that was in force in Canada at any time before the day on which this subsection comes into force (e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born; 224 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

3.(7) Malgré les autres dispositions de la présente loi et l’ensemble des lois concernant la naturalisation ou la citoyenneté en vigueur au Canada avant l’entrée en vigueur du présent paragraphe: e) la personne visée aux alinéas (1)g) ou h) est réputée etreˆ citoyen a` partir du moment de sa naissance; 10 On December 21, 2010, the Applicants’ Father and the Applicants applied to Citizenship and Immigration Canada [CIC] for Certificates of Canadian Citizenship [Certificates].

The Decision 11 On October 3, 2011 the Officer approved the Applicants’ Father’s application for a Certificate pursuant to paragraphs 3(1)(g) and 3(1)(e) of the Act. This approval meant that William Kinsel was given proof of his Canadian citizenship as of his date of birth. However, the Officer refused to issue Certificates to the Applicants. 12 In her decision, the Officer noted that paragraph 3(1)(b) of the Act provides that certain persons born outside Canada after February 14, 1977, are Canadian citizens. It appears to apply to the Applicants because their Father was deemed to be a citizen at the time of their birth by operation of the Provision. The section reads as follows: 3.(1) Subject to this Act, a person is a citizen if (b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen; 3.(1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne: b) née a` l’étranger après le 14 février 1977 d’un père ou d’une mère ayant qualité de citoyen au moment de la naissance; 13 However, the Officer concluded that section 3(3)(a) of the Act precludes the application of paragraph 3(1)(b) to the Applicants because the Applicants’ Father is a Canadian who was born outside Canada and who acquired citizenship under paragraph 3(1)(g) of the Act. Paragraph 3(3)(a) states: 3.(3) Subsection (1) does not apply to a person born outside Canada (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or Kinsel v. Canada (MCI) Sandra J. Simpson J. 225

3. (3) Le paragraphe (1) ne s’applique pas a` la personne née a` l’étranger dont, selon le cas: a) au moment de la naissance ou de l’adoption, seul le père ou la mère a qualité de citoyen, et ce, au titre de l’un des alinéas (1)b), c.1), e), g) et h), ou les deux parents ont cette qualité au titre de l’un de ces alinéas; 14 The Officer noted that section 3(3)(a) “limits citizenship by descent to the first generation born outside Canada.” The Officer therefore concluded that the Applicants do not meet the statutory requirements for citizenship found in paragraph 3(1)(b) of the Act [the Decision]. 15 In reaching this Decision the Officer did not consider i) the relevance of section 3(4) of the Act, ii) the relevance of the United Nations Con- vention on the Reduction of Statelessness (the Convention) and iii) whether section 15 of the Canadian Charter of Rights and Freedom (the Charter) had a bearing on her Decision.

The Issues 16 I have characterized the issues as follows: 1. What is the appropriate standard of review? 2. Did the Officer err in her interpretation of sections 3(1)(b) and 3(3)(a) and 3(4) of the Act? 3. Did the Officer err when she disregarded the Convention? 4. Do the Applicants have standing to bring a Charter challenge and if so, do the Officer’s interpretation of the Act and her Decision violate the Applicants’ equality rights under section 15 of the Charter. Lastly, if there is a violation, is the Decision saved under section 1 of the Charter?

1. The Standard of Review 17 The Applicants submit that the standard of review on the second issue is correctness, and they cite New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.), at paragraph 55. They submit that no special expertise is required to read the simple documents submitted with their applications for Certificates and they note that Citizenship is an issue of fundamental importance to Canadians. 18 The Respondent submits that the second issue is a question of law and statutory interpretation and that the applicable standard is reasonableness. The Respondent also refers to Dunsmuir, at paragraphs 51 and 226 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

54, saying that the Supreme Court recognized that some questions of law may be subject to a more deferential standard when the decision-maker is interpreting its home statute and has developed a special expertise in a discrete and special administrative regime (see also Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.), at para 44; and Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39 (S.C.C.), at paras 29-31). 19 The Respondent also relies on Rabin v. Canada (Minister of Citizenship & Immigration), 2010 FC 1094 (F.C.), at paras 16-17, 19 and 29, Jabour v. Canada (Minister of Citizenship & Immigration), 2012 FC 98 (F.C.), at paras 23 and 28 to show that this Court has twice applied the reasonableness standard when reviewing CIC decisions such as the one in this case. 20 I have not found the Applicants’ submissions persuasive on this issue because, in my view, paragraph 55 of Dunsmuir is not applicable. Al- though citizenship is important to Canadians it is not of central importance to the legal system. Further, in my view, the question of who is and who is not a Canadian citizen falls squarely within CIC’s expertise in dealing with the Act. 21 For these reasons I am satisfied, as were my colleagues in Rabin and Jabour, that reasonableness is the applicable standard of review on issue number two. For reasons given below it is not necessary to consider the standard of review for issues three and four.

2. The Officer’s Interpretation of the Act 22 The Applicants say that the Officer erred in that she failed to consider section 3(4) of the Act. It provides that: 3(4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen. 3(4) Le paragraphe (3) ne s’applique pas a` la personne qui, a` la date d’entr´ee en vigueur de ce paragraphe, a qualit´e de citoyen. 23 The Respondent says that this provision applies only to those who were citizens “before” the Bill came into force and that it was intended to ensure that such citizens would not be affected by the Bill even if they were members of the second or subsequent generations born abroad. 24 The Applicants deny that section 3(4) applies only to those who were citizens “before” Bill C-37 came into force. Instead they say that this provision provides them with citizenship because when Bill C-37 came into force their father became a Canadian citizen as of his date of birth. Kinsel v. Canada (MCI) Sandra J. Simpson J. 227

They say that because of that retroactivity they are deemed to have been born to a Canadian parent after February 15, 1977 and were therefore citizens under section 3(1)(a) of the Act on the coming into force of Bill C-37. Accordingly, in their view, section 3(4) forecloses the operation of section 3(3)(a). 25 There are two difficulties with this interpretation. The first is that it contradicts the purpose of Bill C-37 which was to preclude citizenship by descent after the first generation born abroad [the Purpose]. Applied in this case, the Purpose would mean that the Applicants’ Father would be the last citizen born outside Canada in his family. 26 The Purpose is described in a document dealing with Bill C-37 prepared by the Library of Parliament Information and Research Service dated January 9, 2008 [the Report] which the Applicants acknowledge provides authoritative legislative history of the Bill. The Report indicates at page 7 that Bill C-37 amends the Citizenship Act in four main ways. Among other things, “it precludes Canadians from passing down Cana- dian citizenship to their offspring born abroad after one generation.” 27 The Report returns to the issue at page 13 and there makes the following statement about the Purpose: A second contentious issue raised by the bill relates to citizenship by descent. Under Bill C-37, the child born abroad to a parent who derived his or her citizenship from a Canadian parent who was also born abroad will not automatically become a Canadian citizen. In other words, Bill C-37 cuts off citizenship by descent after the first generation born abroad. The benefits of this approach include clarity and certainty; the opportunity to repeal retention and registration requirements that the Government has no way of communicating to those at risk of losing their citizenship; and an end to possibility of Canadian citizenship being passed down indefinitely to people who have little or no connection with Canada. ... 28 The second difficulty with the Applicants’ interpretation of section 3(4) is that it suggests that their Father’s retroactive citizenship under section 3(7)(e) of the Act was conferred earlier in time than their loss of citizenship under section 3(3)(a). However, in my view, the following events happened simultaneously when Bill C-37 came into force: • The Father became a citizen retroactive to his birth; • The Applicants became entitled to citizenship; and • The Applicants’ entitlement was foreclosed by section 3(3)(a). 228 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

29 The fact that section 3(4) of the Act applies only to those born before Bill C-37 came into force, is confirmed by the following evidence: i) The Clause by Clause Analysis of Bill C-37 [the Analysis] which says: Subsection 3(4) clarifies that, despite subsection 3(3) no one will lose their Canadian citizenship on the coming into force of the bill even if they are already the second or subsequent generation born abroad. Le paragraphe 3(4) précise que, malgré ce que prévoit le paragraphe 3(3), personne ne perdra la citoyenneté canadienne lors de l’entrée en vigueur du projet de loi, même quelqu’un qui fait déjà partie de la deuxième génération, ou d’une génération subséquente, née a` l’étranger. This analysis was prepared by CIC for the assistance of the House of Commons Standing Committee on Citizenship and Immigra- tion. The Committee initially met on December 10, 2007 and issued its report on February 14, 2008. The Applicants say that the Analysis should not be treated as reliable legislative history because it was drafted by CIC. However, since the Passage spent more than one year before the Committee and was not corrected, I have concluded that it can be said to accurately reflect the Com- mittee’s view of the meaning of section 3(4) of the Act. ii) A CIC News Release issued on December 10, 2007 when Bill C- 37 was tabled which said, inter alia, Anyone born abroad to a Canadian on or after January 1, 1947, if not already a citizen, would be recognized as a Cana- dian citizen from birth, but only if they are the first generation born abroad. The exceptions would be those who renounced their citizenship. No one who is a citizen today would lose their citizenship as a result of these amendments. Bill C-37 came into force 16 months after it was tabled. In my view, if the passage quoted above had been incorrect, it would have been corrected before the Bill became law. iii) CIC’s Operational Bulletin 102 dated February 26, 2009 and entitled “Implementation of Bill C-37 and Act to amend the Citizen- ship Act.” In addition to setting out the Purpose the bulletin says that it is important to note that Bill C-37 will not take citizenship away from any person who is a citizen when the Bill comes into Kinsel v. Canada (MCI) Sandra J. Simpson J. 229

force. This bulletin was issued approximately two months before Bill C-37 came into force. iv) Minutes of proceedings before the Standing Senate Committee on Social Affairs, Science and Technology dealing with, inter alia, Bill C-37 show that the Minister of Citizenship and Immigration appeared in 2008 and testified in part that: Those who have Canadian citizenship when the amendments come into force would remain Canadian citizens. Les personnes qui auront le status de citoyen Canadian au moment de l’entr´ee en vigueur des modifications conserver- ont leur status. In my view, this testimony refers to section 3(4) and confirms that it applies to those who had citizenship prior to the coming into force of Bill C-37. v) The Report also deals with section 3(4) of the Act and says: “Peo- ple born before the rule comes into effect and who are second — or subsequent generation Canadians born abroad retain their ex- isting Canadian citizenship (new section 3(4)).” [my emphasis]. 30 Finally, the Applicants rely on a statement in the Report which, in my view, is not accurate. It is found at page 10 and the relevant portion [the Passage] reads as follows: This new rule cutting off citizenship after one generation born abroad is only applicable to people born after the rule comes into effect. 31 Since the Applicants were born in 1992 and 1995, before the Act came into effect on April 17, 2009, they submit that the Passage shows that section 3(3)(a) of the Act does not apply to them. However, there is no basis in the Act for the Passage and, in my view, it is simply inaccu- rate. It cannot be the case that legislation which the evidence clearly shows was designed to limit the acquisition of Canadian citizenship by descent to the first generation abroad includes a provision which negates the Purpose. 32 For all these reasons, I am satisfied that the Officer’s Decision to refuse the Applicants’ application for Certificates based on section 3(3)(a) of the Act was reasonable.

3. The U.N. Convention 33 The United Nations Convention was not mentioned in William Kin- sel’s letter/brief of December 15, 2010. Accordingly, this issue was not 230 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

before the Officer. On judicial review the Court’s role is to determine whether the Officer’s decision was reasonable based on the record before her. See: Ochapowace Indian Band v. Canada (Attorney General) (2007), [2008] 3 F.C.R. 571 (F.C.). 34 For this reason, I will not consider whether the Officer’s interpretation of the Act is unreasonable because it allegedly permits a breach of Canada’s obligations under the Convention.

4. The Charter 35 The Charter was first raised as an issue when the Applicants filed their Memorandum of Fact and Law for this judicial review on March 27, 2012 [the Memorandum]. An affidavit of service sworn by William Kinsel on April 3, 2012 shows that Canada’s Attorneys General were served with a Notice of Constitutional Question. 36 The Charter challenge is predicated on a construct developed by the Applicants. They say that the Officer has erroneously interpreted the Act and that CIC has created three classes of second generation Canadians born abroad. These groups are described as follows in paragraph 2 of the Applicants’ Memorandum: (a) The First Class consists of those Second Generation Canadi- ans born abroad on or before April 17, 2009, who are descended from “never lost” Canadian grandparents and parents. The First Class Second Generation Canadian (“First Class SGCs”) routinely receive their citizenship certificates form CIC. (b) The Second Class consists of those Second Generation Canadians born abroad on or before April 17, 2009, who are descended from “lost-butnow-found” Canadian grandparents and parents. Applicants Helen and Barbara Kinsel find themselves in this disfavoured class. Based on the record and evidence available to the Applicants, these Second Class Second Generation Canadians (“Second Class SGCs”) are routinely denied their citizenship certificates by CIC, even though they are now Canadian citizens under the correct interpretation of the Act. See, e.g., Jabour v Canada (Minister of Citizenship and Immigration), 2012 FC 98 (example of denials of requests from Second Class SGCs). (c) The Third Class consists of those Second Generation Canadi- ans who were born abroad after the April 17, 2009 effective date of Bill C-37 (“Third Class SGCs”). No distinction is Kinsel v. Canada (MCI) Sandra J. Simpson J. 231

drawn in this class based on whether the individual is descended from a Canadian grandparent or parent who was previously lost or not. All of these Third Class SGCs are now, under the Act, not Canadian citizens, unless some other provisions of the Act grants that right. 37 In my view, these descriptions show that the fundamental discrimination the Applicants seek to address is that faced by their Father who, as a lost Canadian whose citizenship was created retroactively under Bill C- 37, does not have a full compliment of citizenship rights because, unlike citizens of his day who were never lost, he is not entitled to pass his citizenship to his daughters. 38 The fact that the Applicants’ constitutional challenge is based on CIC’s interpretation of the Act primarily as it relates to the Applicants’ Father is illustrated by the following passages from their Memorandum. At paragraph 5: The CIC’s error springs from its failure to understand the impact of, and to properly apply the Act with respect to, the retroactive restoration of Canadian citizenship to lost Canadians, and to lost First Generation Canadians born abroad. ... And at paragraph 9: Alternatively, if this Court ultimately determines that CIC accurately interpreted Bill C-37 when it created its de facto three-class system, then the Applicants submit that the Act itself is unconstitutional, and that it must be re- written in a manner similar to that in Augier, 2004 FC 613 at ¶27, to make clear that all Second Generation Canadi- ans born before or on April 17, 2009 are subject to the same requirements for citizenship, and not differing ones based on whether their Canadian grandparents and parents were ever lost or not. And at paragraph 45: ... Most simply and obviously stated, Parliament made the restoration of citizenship to formerly-lost Canadians retroactive precisely because Parliament intended William A. Kinsel to be able to pass on citizenship to his Second Generation Canadian daughters Helen and Barbara Kin- sel, both of whom were born before April 17, 2009. This result is necessary to place formerly-lost citizens and their descendants on a completely equal footing with their fel- low Canadian citizens who were never lost. By contrast, 232 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

CIC’s three-tier class scheme perpetuates forever yet another form of second class citizenship for formerly-lost Canadians, and for formerly-lost First Generation Canadi- ans, because CIC discriminates against them and the Ap- plicants by refusing to acknowledge that Bill C-37 granted citizenship to Second Class SGCs born on or before April 17, 2009. At paragraph 46: As the Benner Court held, a retroactive statute operates backwards and changes the law from what it was, here for the purpose of allowing William Kinsel to pass citizenship to Helen and Barbara Kinsel on the dates of their re- spective births. It is a form of a legal-time machine that changes the legal facts as they once existed into some- thing else entirely, with the corresponding, logical changes in other legal rights and conditions that flow from that underlying retroactive change. To deny that conclusion is to render the retroactive provisions of the Act a nullity, for then there is no purpose to the retroactive restoration of citizenship to William Kinsel, or to all of the other formerly-lost First Generation Canadians. To put it differently, Mr. Kinsel’s status as a Canadian citizen would be no different under the CIC’s scheme if the Act had simply granted him citizenship prospectively from April 17, 2009 onward. ... At paragraph 50: We begin with the easy example, specifically with the situation related to all Second Generation Canadians born after April 17, 2009. With respect to that group of descendents born abroad, all Canadian citizens lost the “stick” that allowed them to pass on citizenship to grandchildren, great grandchildren, and so on, that had previously existed before the Act’s effective date. (See AR 162; AR 333.) By contrast, when Parliament retroactively restored citizenship to formerly lost Canadians and formerly-lost First Generation Canadians, Parliament restored to them all rights of citizenship that are held by similarly-situated Canadian citizens of the same status, including the right to pass on citizenship to Second Genera- tion Canadians born on or before April 17, 2009. Kinsel v. Canada (MCI) Sandra J. Simpson J. 233

At paragraph 51: ... There is absolutely nothing in the Act that re-defines the bundle of rights that is granted to “a citizen” under those subparagraphs, as compared to other Canadian citizens with descendants born abroad who were never lost. Yet, CIC has imposed such a distinction by creating its three-tier class system for Second Generation Canadians. And, by doing so, CIC has also created a form of second- class, inferior citizenship for formerly-lost Canadian citizens, and for formerly-lost First Generation Canadians, with absolutely no statutory authority to do so. At paragraph 52: ... CIC’s system is substantially more complex than the one actually created by Parliament, and it perpetuates the discrimination against formerly-lost Canadians that was based on the unfounded and unwarranted belief that they were somehow less worthy of respect, less trustworthy, and simply less valuable to Canadian society because they found themselves in situations where, e.g., dual citizenship was needed but unavailable. With the removal of the prohibition against dual citizenship, however, there is no rational basis for such discrimination. At paragraph 65: ... Yet, under the Second Class SGC classification, Mr. Kinsel is prevented from passing on to his daughters their citizenship. ... [the emphasis is mine throughout] 39 In my view, the Applicants’ Father is the proper party to bring a Charter challenge. He is the citizen who says that he has been denied full citizenship rights. While the alleged discriminatory conduct certainly has an impact on the Applicants they are not, notwithstanding their submissions, the primary targets of the alleged discriminatory treatment. The Charter challenge is, in reality, about the alleged discriminatory treatment of “lost citizens” as compared to “not lost citizens”. 40 The Applicants rely on the Supreme Court of Canada’s decision in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 (S.C.C.). Benner dealt with the 1976 Citizenship Act which came into effect on February 14, 1977 and provided that, with respect to children born abroad before that date, those born with Canadian fathers became citizens automatically while those born of Canadian mothers had to make an 234 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

application for citizenship, undergo a security check and take an oath of citizenship. 41 Mr. Benner was born in the USA in 1962 of an American father and Canadian mother. At age 24 he came to Canada and applied for citizenship. When it was discovered that he had been charged with murder in Canada his application was refused. 42 The Supreme Court of Canada concluded that Mr. Benner was the primary target of the sex-based discrimination mandated by the 1976 Cit- izenship Act and that he therefore had standing to raise a section 15 Charter issue. The Court concluded that Mr. Benner was not alleging an infringement of his mother’s section 15 rights as the basis for his challenge. In other words, the 1977 citizenship did not impact her citizenship rights in the sense that she was permitted to pass on her citizenship by descent regardless of the gender of her child. The impact was only felt by Mr. Benner because he had to make an application to take up his citizenship. 43 However, in the present case the situation is different. The Applicants are relying on an alleged denial of their Father’s right to one of the indi- cia of citizenship i.e. the ability to pass his citizenship by descent. Put another way, the Applicants’ rights cannot be determined without a determination of their Father’s rights and it is settled law that a party cannot generally rely on the violation of a third party’s rights. See Benner at para 78. Accordingly, although the Applicants’ Father may be entitled to assert a section 15 right, he is not a party to this Application and the Applicants have no standing to make the challenge. 44 There is another problem with the Applicants’ standing. They are not Canadian citizens and are not present in Canada. The question of whether such individuals can benefit from the rights and freedoms granted by the Charter was most recently dealt with in Slahi v. Canada (Minister of Jus- tice), 2009 FCA 259 (F.C.A.) [Slahi] (leave to appeal to the Supreme Court of Canada dismissed without reasons on February 18, 2010, (2010), 405 N.R. 390 (note) (S.C.C.)). 45 In Slahi, the Federal Court of Appeal upheld Mr. Justice Blanchard’s conclusion that, but for one limited exception, the Charter does not apply to non-Canadians outside Canada. The exception is that the Charter applies extraterritorially when Canadian officials are involved in a foreign process that violates Canada’s international law obligations. See R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 (S.C.C.). Kinsel v. Canada (MCI) Sandra J. Simpson J. 235

46 A summary of Mr. Justice Blanchard’s findings is found at paragraph 47. There he said: In summary, the jurisprudence of the Supreme Court teaches that section 7 Charter protections may be available to non-Canadians when they are physically present in Canada [See Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177] or subject to a criminal trial in Canada [See R. v. Cook, [1998] 2 S.C.R. 597], and that Canadian citizens, in certain circumstances, may assert their section 7 Charter rights when they are outside Canada [See Hape and Khadr]. In the latter case, it is generally recognized that this will happen only in exceptional circumstances. What emerges from the noted jurisprudence is that, in the three cases of Canadian nationals claiming abroad, non-Canadians claiming within Canada, and non-Canadi- ans claiming abroad, for section 7 Charter rights to apply, the circumstances must connect the claimant with Canada, whether it be by virtue of their presence in Canada, a criminal trial in Canada, or Ca- nadian citizenship. 47 The Applicants lack standing to bring a Charter challenge because they are not the primary targets of the alleged violation of section 15 and because they are not Canadian citizens or residents. For these reasons it is not necessary to consider the merits of their Charter challenge.

Conclusion 48 For all the above reasons, the application will be dismissed.

Order THIS COURT ORDERS that: this application is dismissed. Application dismissed. 236 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship and Immigration) v. Ayatizadeh] The Minister of Citizenship and Immigration, Applicant and Reza Ayatizadeh, Respondent Federal Court Docket: T-2111-11 2012 FC 1516 Danièle Tremblay-Lamer J. Heard: December 18, 2012 Judgment: December 19, 2012 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — Substantial connection test –––– Applicant brought application for citizenship — Applica- tion was granted — Minister appealed — Appeal allowed — Citizenship judge erred in finding that applicant met residency requirements in s. 5(1)(c) of Citi- zenship Act — Citizenship judge’s reasons were inadequate — Citizenship judge failed to adequately express his reasons for finding applicant met criteria for citizenship — Reasons were not clear and failed to show how judge arrived at his decision. Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Powers and duties of citizenship judge –––– Appli- cant brought application for citizenship — Application was granted — Minister appealed — Appeal allowed — Citizenship judge erred in finding that applicant met residency requirements in s. 5(1)(c) of Citizenship Act — Citizenship judge’s reasons were inadequate — Citizenship judge failed to adequately express his reasons for finding applicant met criteria for citizenship — Reasons were not clear and failed to show how judge arrived at his decision. Cases considered by Danièle Tremblay-Lamer J.: Al Khoury c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2012), 2012 CarswellNat 1320, 2012 CF 536 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Al-Showaiter (2012), 6 Imm. L.R. (4th) 214, 2012 FC 12, 2012 CarswellNat 16, 2012 CarswellNat 362, 2012 CF 12 (F.C.) — considered Canada (Ministre de la Citoyenneté & de l’Immigration) c. Saad (2011), 2011 CarswellNat 5887, 2011 FC 1508, 2011 CF 1508, 2011 CarswellNat 5429, 404 F.T.R. 9, [2011] A.C.F. No. 1801, [2011] F.C.J. No. 1801 (F.C.) — referred to Canada (MCI) v. Ayatizadeh 237

Canada (Ministre de la Citoyenneté et de l’Immigration) c. Abdallah (2012), 2012 FC 985, 2012 CF 985, 2012 CarswellNat 2989, 2012 CarswellNat 3559 (F.C.) — considered Canada (Ministre de la Citoyenneté et de l’Immigration) c. Raphaël (2012), 2012 CF 1039, 2012 CarswellNat 3383, 2012 FC 1039, 2012 CarswellNat 4093 (F.C.) — referred to Dedaj v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3105, 2010 CF 777, 90 Imm. L.R. (3d) 138, 2010 FC 777, 2010 CarswellNat 2485, 372 F.T.R. 61 (Eng.), [2010] F.C.J. No. 945 (F.C.) — referred to El-Khader v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 780, 2011 CF 328, 2011 CarswellNat 1704, 386 F.T.R. 142 (Eng.), 2011 FC 328 (F.C.) — referred to El Ocla v. Canada (Minister of Citizenship & Immigration) (2011), 99 Imm. L.R. (3d) 253, 2011 FC 533, 2011 CarswellNat 1547, 2011 CF 533, 2011 CarswellNat 2568, 389 F.T.R. 241, [2011] F.C.J. No. 667, [2011] A.C.F. No. 667 (F.C.) — referred to Hysa v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1416, 2011 CarswellNat 5292, 2011 CF 1416, 2011 CarswellNat 5672 (F.C.) — referred to Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed Lam v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 489, 164 F.T.R. 177, [1999] F.C.J. No. 410 (Fed. T.D.) — referred to Martinez-Caro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 640, 2011 CarswellNat 3135, 2011 CarswellNat 2281, 2011 FC 640, 98 Imm. L.R. (3d) 288, 391 F.T.R. 138, [2011] F.C.J. No. 881, [2011] A.C.F. No. 881 (F.C.) — referred to Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — considered Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — considered Seiffert v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1072, 2005 CarswellNat 2225, 277 F.T.R. 253 (Eng.), 2005 CarswellNat 4873, 2005 CF 1072, [2005] F.C.J. No. 1326 (F.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 s. 5(1)(c) — considered 238 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

s. 14(5) — referred to

APPEAL by Minister of granting of citizenship.

Thomas Cormie, for Applicant Mahsa Ebrahim Nejad, for Respondent

Dani`ele Tremblay-Lamer J.:

1 This is an appeal by the Minister of Citizenship and Immigration [the Minister] pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, C-29 [the Act] from the decision of a citizenship judge, dated November 4, 2011, granting the respondent citizenship, on the basis that the citizenship judge erred in finding that the respondent had met the residency requirement under paragraph 5(1)(c) of the Act. 2 The respondent is a citizen of Iran. On July 4, 2003 he entered Can- ada and was landed as a permanent resident. He applied for citizenship on May 10, 2008. The relevant period for calculating his residence in Canada is therefore May 10, 2004 to May 10, 2008. 3 On April 28, 2009 a citizenship agent met with the respondent and asked him to complete a residence questionnaire. The agent considered the documents the respondent had submitted, including photocopies of his passports, pay stubs and bills, and proceeded to send a memorandum to the citizenship judge outlining her concern that the respondent had provided insufficient proof of his residency in Canada during the relevant period. 4 The respondent appeared before the citizenship judge on October 11, 2011. After the hearing the respondent submitted additional evidence relevant to the period at issue, including pay stubs, college transcripts and an attestation of participation in a language training program. 5 The entire decision of the citizenship judge reads as follows: The applicant has (20) twenty days to provide us with additional evidence to sustain his declaration made during the hearing. I’ve attached the list of requested documents. AA [initials of Judge Ayache]. No RQ [Residence Questionnaire] given to applicant. No need! Applicant submitted part of the requested documents. They are satisfactory. On balance and according to the criteria as defined by Justice Reed in Re: Koo, I approve the application. Canada (MCI) v. Ayatizadeh Dani`ele Tremblay-Lamer J. 239

6 The issue in the present application is whether the citizenship judge erred in finding that the respondent met the residence requirement set out in paragraph 5(1)(c) of the Citizenship Act. 7 A citizenship judge’s decision that a person meets the residency requirement, which is a question of mixed fact and law, is reviewable on the reasonableness standard (El-Khader v. Canada (Minister of Citizenship & Immigration), 2011 FC 328 (F.C.) at para 7; Canada (Ministre de la Citoyenneté & de l’Immigration) c. Saad, 2011 FC 1508 (F.C.) at para 9). 8 Paragraph 5(1)(c) of the Act requires an applicant to have accumulated at least three years of residence in Canada during the four years immediately preceding the date of his or her application: 5. (1) The Minister shall grant citizenship to any person who [...] (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one- half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; 5. (1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: [...] c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission a` titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission a` titre de résident permanent; 240 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

9 The jurisprudence has recognized three possible approaches to the meaning of the word “residence” in paragraph 5(1)(c) of the Act: physical presence in Canada (Pourghasemi, Re, [1993] F.C.J. No. 232, 62 F.T.R. 122 (Fed. T.D.)), centralized mode of living in Canada (Papadogiorgakis, Re, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (Fed. T.D.)), or whether the person “regularly, normally or customarily lives” in Canada (Koo, Re, [1992] F.C.J. No. 1107, 59 F.T.R. 27 (Fed. T.D.) [Koo]). 10 This Court has held that any of these approaches are reasonable and it is open to the citizenship judge to adopt any one of these schools of thought as long as the chosen test is applied properly (Lam v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 410 (Fed. T.D.) at para 14). However, some members of the Court have found that only one of the tests is the correct one (see for example El Ocla v. Canada (Minister of Citizenship & Immigration), 2011 FC 533 (F.C.); Dedaj v. Canada (Minister of Citizenship & Immigration), 2010 FC 777, 90 Imm. L.R. (3d) 138 (F.C.); Martinez-Caro v. Canada (Minister of Citizenship & Immigration), 2011 FC 640 (F.C.); Hysa v. Canada (Minister of Citizenship & Immigration), 2011 FC 1416 (F.C.); Al Khoury c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2012 CF 536 (F.C.)). In the case at bar, the Minister did not argue that the citizenship judge applied the wrong test to determine residence for the purpose of paragraph 5(1)(c) of the Act. It is therefore not necessary for me to address this issue on the present appeal. 11 The applicant submits that a citizenship judge who chooses to apply the reasoning in Koo, Re must make it clear that all relevant factors were addressed in reaching the decision (Seiffert v. Canada (Minister of Citizenship & Immigration), 2005 FC 1072 (F.C.) at para 9 [Seiffert]). The applicant claims that the citizenship judge in the case at bar erred by not mentioning which factors of the Koo test were relevant to his decision. The applicant further argues that three of the Koo factors require the citizenship judge to determine when the respondent was physically present in Canada during the relevant period and that the citizenship judge erred by not doing so. 12 According to the respondent, the citizenship judge must leave no doubt that he or she addresses the important and relevant factors (Seiffert at para 9). The decision in the case at bar is reasonable because it clearly mentions the Koo factors were addressed and that the required docu- Canada (MCI) v. Ayatizadeh Dani`ele Tremblay-Lamer J. 241

ments were satisfactory. With respect, I disagree for the following reasons. 13 Inadequacy of reasons is a significant flaw that contributes to the un- reasonableness of a citizenship judge’s decision (see, for example, Canada (Minister of Citizenship & Immigration) v. Al-Showaiter, 2012 FC 12 (F.C.) [Al-Showaiter]; Canada (Ministre de la Citoyenneté et de l’Immigration) c. Abdallah, 2012 FC 985 (F.C.) [Abdallah]; Canada (Ministre de la Citoyenneté et de l’Immigration) c. Raphaël, 2012 FC 1039 (F.C.)). On this question, I endorse the following comments made by my colleague Justice Near in Al-Showaiter, which were also supported by Justice de Montigny in Abdallah: 30. Given the ongoing discussion concerning citizenship cases, it would be of great assistance to the Court if citizenship judges state clearly in one or two sentences which test they are using and explain their reasons for arriving at a particular conclusion. The detail required in these reasons will vary given the test employed and the sur- rounding context. However, even where it can be inferred that the physical presence in Canada test (which generally, in my view, is the test most in line with the legislation) is being used, citizenship judges must state that this is the case. Citizenship judges should also proceed to explain in more or less detail depending on the facts of the case why they either accepted or rejected the evidence placed before them. [Emphasis added.] 14 The reasons in the case at bar are only one paragraph long and reproduced above in their entirety. The decision states that the application was approved on the basis of the Koo criteria and that the parts of the requested documentation submitted by the respondent after the hearing were satisfactory. There is no explanation as to which documents satisfied the citizenship judge or why the documents he received subsequent to the hearing responded to his concerns. All six factors from Koo, Re did not need to be explicitly reviewed and analyzed by the citizenship judge, but at the very least he had to address the Koo factors which were relevant to his decision, depending on the facts of the case, as required by this Court in Seiffert and Al-Showaiter, above. 15 In the case at bar, with the lack of adequate reasons I have identified, it is far from clear how the citizenship judge arrived at his decision to approve the respondent’s citizenship application based on the evidence before him. I will therefore not attempt to undertake an analysis of what elements in the evidence, if any, could have resulted in a reasonable deci- 242 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

sion (Justice Near took a similar approach in Al-Showaiter at paragraphs 24-28). 16 For these reasons, the decision of the citizenship judge is unreasonable. Therefore, the appeal is allowed and the matter is sent back to a different citizenship judge for redetermination.

Judgment THIS COURT’S JUDGMENT is that: The appeal is allowed. The matter is referred back to another citizenship judge for redetermination. Appeal allowed. Thomas v. Canada (MCI) 243

[Indexed as: Thomas v. Canada (Minister of Citizenship and Immigration)] Merissa Roxanne Thomas, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1497-12 2012 FC 1517 John A. O’Keefe J. Heard: December 4, 2012 Judgment: December 20, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Applicant and her son were citizens of Grenada — Applicant and her son arrived in Can- ada on temporary resident permit — Applicant’s application for permanent residence was refused — Officer determined that there were insufficient humanitarian and compassionate grounds to warrant exception — Applicant brought application for judicial review — Application granted — Decision was set aside, and matter was remitted back for redetermination — Officer’s assessment of evidence was result of application of incorrect legal test — Officer completely omitted mention of proper test, that of best interests of child — There was no indication in reasons that officer balanced best interests of child against other factors. Cases considered by John A. O’Keefe J.: Adams v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3811, 2009 FC 1193, [2009] F.C.J. No. 1489 (F.C.) — referred to Beharry v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 110, 2011 CarswellNat 1005, 2011 CarswellNat 227, 2011 FC 110, 96 Imm. L.R. (3d) 66, 383 F.T.R. 157 (Eng.), [2011] A.C.F. No. 134, [2011] F.C.J. No. 134 (F.C.) — referred to De Leiva v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 717, 2010 CarswellNat 2940, 2010 FC 717, 2010 CarswellNat 1996, [2010] F.C.J. No. 868, [2010] A.C.F. No. 868 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered 244 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25(1) — referred to s. 72(1) — referred to

APPLICATION by applicant for judicial review of decision by officer refusing applicant’s application for permanent residence.

Daniel Kingwell, for Applicant Ildiko Erdei, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision by a Citizenship and Immigration Canada officer (the officer) dated January 23, 2012, wherein the applicant’s permanent residence application was refused. This conclusion was based on the officer’s finding that there were insufficient humanitarian and compassionate (H&C) grounds to warrant an exception allowing the applicant’s permanent residence application to be made from within Canada. 2 The applicant requests that the officer’s decision be set aside and the application be referred back to Citizenship and Immigration Canada (CIC) for redetermination by a different officer. Thomas v. Canada (MCI) John A. O’Keefe J. 245

Background 3 The applicant and her son are citizens of Grenada and have lived in Canada since April 2006, when they came to Canada on a temporary resident permit. They consider Canada to be their home. The applicant’s son has lived in Canada since he was three years old. He is in school and the applicant is gainfully employed to support them. 4 The applicant argues that leaving Canada would be very difficult for her son given the different school system and lifestyle in Grenada and would create undue psychological and emotional pain. 5 The applicant filed her H&C application on July 8, 2011.

Officer’s Decision 6 In a letter dated January 23, 2012, the officer informed the applicant her H&C application had been rejected. Several pages of information were attached to serve as reasons for the decision. 7 In the attached form, the officer noted the applicant’s immigration details and family members. The officer briefly summarized the application. The officer went on to note the establishment factors offered by the applicant and her submissions on the best interests of the child. 8 The officer described the exemption sought by the applicant, an exemption from the requirement of having to apply for permanent residence from outside Canada. The officer considered the hardship factors cited by the applicant, including poverty and unemployment in Grenada. The officer found that the applicant had not sufficiently indicated how her removal from Canada would amount to unusual and undeserved or disproportionate hardship, as she had not demonstrated that the poverty in Grenada meant she would be unable to get a job there or that her skills obtained in Canada would not be of use there in her search for employment. She had also not submitted sufficient information to demonstrate the severing of social ties would cause her sufficient hardship. She lived in Grenada prior to coming to Canada and has four siblings there. 9 The officer then turned to the applicant’s son. The officer acknowledged he had been in Canada for five years and has a grandmother here who cares for him, who submitted a letter indicating her attachment to both her daughter and grandson. The officer acknowledged the applicant’s son might have a hard time adjusting to life in Grenada and might miss his grandmother. However, the officer found that it had not been demonstrated that this would be at a level which would cause the appli- 246 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

cant unusual and undeserved or disproportionate hardship. Therefore, the officer rejected the application.

Issues 10 The applicant submits the following points at issue: 1. Did the officer fail to be alive, alert and sensitive to the best interests of the child? 2. Did the officer make his conclusion unreasonably and without regard to the evidence? 3. Did the officer fail to assess the establishment in Canada of the applicant and her son? 11 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer err in denying the application?

Applicant’s Written Submissions 12 The applicant submits that reasonableness is the appropriate standard of review. 13 The applicant argues the primary basis for the H&C application was the best interests of the child and that the officer was required to be alert, alive and sensitive to those interests. Those best interests must be clearly identified and defined, examined with a great deal of attention and given substantial weight. 14 The applicant argues the officer’s dismissive reasons demonstrated that the officer was not alert, alive or sensitive to the best interest of the child. In form, the officer improperly applied the “unusual and undeserved or disproportionate hardship” test to the best interest of the child analysis. This is an error. The officer also made no mention of the best interests of the child. In substance, the officer also disregarded those interests by not acknowledging it would be in the child’s best interest to avoid living in poverty. The officer also mistakenly claimed that the applicant had two siblings in Grenada, when it fact her application indicated she had four siblings there. 15 The applicant further argues the officer applied the wrong standard of proof to her hardship claim, requiring her to demonstrate with certainty she could not find work in Grenada. It was unreasonable for the officer to find that the applicant could find suitable employment given the uncon- tradicted submissions on the poverty in Grenada. The officer made no Thomas v. Canada (MCI) John A. O’Keefe J. 247

real assessment of the hardship due to the severance of the applicant’s relationship with her mother, simply dismissing it on the basis of insufficient evidence. 16 Finally, the applicant argues the officer failed to properly assess the applicant’s establishment evidence. The applicant’s H&C application set out how she met criteria enumerated in the IP5 Manual. The officer made no assessment of the level of establishment and therefore could not give positive consideration to it. This is an error that renders the decision unreasonable.

Respondent’s Written Submissions 17 The respondent agrees that reasonableness is the appropriate standard of review. The denial of an H&C exemption is not the denial of any legal rights, but simply the lack of being exempt from the normal requirements of applying for permanent residence. The onus is on an H&C applicant to establish that she would suffer undue, unusual or disproportionate hardship by having to apply from outside Canada. 18 The respondent agrees that the best interests of the child should be considered an important factor, but they will not always outweigh other considerations. The officer reasonably considered all the factors raised by the applicant, including that the child had a close relationship with his grandmother. The officer was not obliged to point to each document and is presumed to consider all evidence. All the factors raised by the applicant on judicial review were considered by the officer. 19 The respondent argues that the fact that Canada is a more desirable place to live and raise a child is not determinative of an H&C application. Otherwise, anyone living illegally in Canada with children would have to be granted permanent status for H&C reasons. The officer properly considered all the factors relating to the applicant’s son. 20 The respondent submits that the officer did not require the applicant to demonstrate that she would not be able to find employment in Gre- nada. Rather, the officer stated that the existence of poverty in Grenada did not mean she would not be able to secure employment. 21 The respondent characterizes the applicant’s establishment argument as simply disagreeing with the weight the officer assigned to the evidence. The degree of establishment is not itself a determinative factor and is not sufficient in establishing hardship. 248 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Analysis and Decision Issue 1 What is the appropriate standard of review? 22 Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9 (S.C.C.) at paragraph 57, [2008] 1 S.C.R. 190 (S.C.C.)). A` 23 It is well established that assessments of an officer’s decision on H&C applications for permanent residence from within Canada is reviewable on a standard of reasonableness (see Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.) at paragraph 18, [2009] F.C.J. No. 713 (F.C.A.); Adams v. Canada (Minister of Citizenship & Immigration), 2009 FC 1193 (F.C.) at paragraph 14, [2009] F.C.J. No. 1489 (F.C.); and De Leiva v. Canada (Minister of Citizenship & Immigration), 2010 FC 717 (F.C.) at paragraph 13, [2010] F.C.J. No. 868 (F.C.)). 24 In reviewing the officer’s decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47 and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59, [2009] 1 S.C.R. 339 (S.C.C.)). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraph 59).

Issue 2 Did the officer err in rejecting the applicant’s claim? 25 This Court has held that the unusual, undeserved or disproportionate hardship test has no place in the best interests of the child analysis (see Beharry v. Canada (Minister of Citizenship & Immigration), 2011 FC 110, [2011] F.C.J. No. 134 (F.C.) at paragraph 11). 26 The mere use of the words unusual, undeserved or disproportionate hardship does not automatically render an H&C decision unreasonable (see Beharry above, at paragraph 12). On a judicial review, the Court must determine whether the officer assessed the degree of hardship likely to result from the removal of the child from Canada and then balance that Thomas v. Canada (MCI) John A. O’Keefe J. 249

hardship against other factors that might mitigate the consequences of removal (see Beharry above, at paragraph 14). 27 In this case, not only did the officer appear to apply the wrong test, but also completely omitted mention of the proper test, that of the best interests of the child. 28 Furthermore, the officer’s finding was that “it is not demonstrated that this would be at a level where it would cause the applicant unusual and undeserved or disproportionate hardship” (emphasis added). Given that the officer had used the term “the applicant’s son” elsewhere in the same paragraph, the language in this sentence could give the impression that the officer was actually considering the hardship that the applicant herself would endure as a result of her son’s difficulties. However, I cannot determine from the reasons what the officer meant. If the officer was looking at the applicant’s hardship, then there is no assessment or analysis of the best interests of the child. 29 While the officer did catalogue the issues raised by the applicant on the point of the best interests of the child (his connection with the grandmother, his establishment and the poverty in Grenada), it is very difficult to interpret the reasons as being alert, alive and sensitive to those interests as they pertained to the child. 30 Furthermore, there is no indication in the reasons that the officer balanced the best interests of the child against other factors, as required (see Beharry above, at paragraph 14). Rather, they were simply rejected as insufficient. 31 It is not a reviewing court’s role to reweigh evidence. In this case, however, it is quite clear to me that the officer’s assessment of the evidence was the result of the application of the incorrect legal test and even considering the decision with all due deference, it cannot be saved from that error. 32 Given my finding on this issue, I need not address the applicant’s arguments with respect to the officer’s other findings. 33 Consequently, I would grant the application for judicial review and remit the application to a different officer for redetermination. 34 Neither party wished to submit a proposed serious question of general importance for my consideration for certification. 250 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed and the matter is referred to a different officer for redetermination. Application granted.

[Indexed as: Thiruguanasambandamurthy v. Canada (Minister of Citizenship and Immigration)] Tharsini Thiruguanasambandamurthy, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1738-12 2012 FC 1518 John A. O’Keefe J. Heard: December 5, 2012 Judgment: December 20, 2012 Immigration and citizenship –––– Admission — Temporary entry (visitors) — Students –––– Applicant was Sri Lankan citizen — Applicant brought application for study permit for Bachelor of Science degree in computer science at York — Application was dismissed — Visa officer found that applicant had not shown she had sufficient funds to pay for her expenses and return to Sri Lanka and had failed to show she had sufficient ties to Sri Lanka to ensure departure at end of visa — Applicant brought application for judicial review — Application granted; matter remitted for re-determination — Appropriate standard of review was reasonableness — Officer erred in refusing application as his findings were unreasonable — Officer’s finding that funds for applicant’s education belonged to her uncles was not transparent — Officer failed to give reasons for his finding or for doubting evidence provided by applicant — Officer’s finding that applicant would not return to Sri Lanka due to weak family bonds was opaque as he gave no reasons for making it — Finding was central to decision as it was main reason for finding that applicant would not leave at end of visa. Cases considered by John A. O’Keefe J.: Guo v. Canada (Minister of Citizenship & Immigration) (2001), 2001 FCT 1353, 2001 CFPI 1353, 2001 CarswellNat 2856, 17 Imm. L.R. (3d) 313, 2001 CarswellNat 3472, [2001] F.C.J. No. 1851 (Fed. T.D.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New 252 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Patel v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 602, 2009 CarswellNat 1786, 2009 CF 602, 2009 CarswellNat 4049, 82 Imm. L.R. (3d) 186, 344 F.T.R. 313 (Eng.), [2009] A.C.F. No. 787, [2009] F.C.J. No. 787 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25(1) — referred to s. 72(1) — pursuant to s. 96 — referred to s. 96 “r´efugi´e” — referred to s. 97(1) — referred to

APPLICATION for judicial review of refusal of student visa.

Ian Sonshine, for Applicant Charles J. Jubenville, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision by a visa officer at the High Commission of Canada in Colombo (the officer) dated December 20, 2011, wherein the applicant’s study permit application was refused. 2 The applicant requests that the officer’s decision be set aside and the application be referred back to the High Commission for redetermination.

Background 3 The applicant is a citizen of Sri Lanka. She applied for a study permit to study in Canada at York University for a Bachelor of Science degree in computer science, a program she had been previously accepted to. Her only family is her mother, who lives in Sri Lanka and who the applicant intended to rely on for financial support during her studies. She wishes to obtain this credential in order to pursue technology jobs in Sri Lanka. Thiruguanasambandamurthy v. Canada (MCI) John A. O’Keefe J. 253

4 The applicant made her visa application on December 1, 2011.

Officer’s Decision 5 In a letter dated December 20, 2011, the officer informed the applicant her visa application had been rejected. The officer had checked boxes on the form letter indicating two reasons for the refusal: failure to satisfy the officer of the existence of adequate funds to pay for tuition, living expenses and return to country of residence and failure to satisfy the officer of sufficient ties to Sri Lanka to ensure departure from Canada at the end of the visa. 6 The Global Case Management System records (the GCMS notes) served as reasons for the officer’s decision. 7 The notes first replicate GCMS notes from the applicant’s four previous visa applications, which were rejected. The notes entered on Decem- ber 16, 2011, summarize the facts of the current visa application, indicating that the applicant was 21 years old and single, had an aunt and grandmother in Canada, had not been employed or studied since August 2009 and had previously studied at the American National College in Colombo so sought to gain credits for those studies in Canada. The applicant would require two years and one semester of study to complete her degree at York University. The applicant’s mother received the equivalent of $160 Canadian per month from the rental of land in Jaffna and had the equivalent of $123,000 Canadian in fixed assets. 8 The notes then summarize the officer’s interview with the applicant. The applicant indicated her purpose in selecting Canada for her studies was due to the wide recognition of diplomas and the low cost. She indicated her credits could only be transferred to an American or Canadian university and tuition was more expensive in the United States. She said she would have many job opportunities in the Sri Lankan tech sector if she obtained a Canadian degree. When asked why she would apply to Canada again after being refused a visa four times, she indicated this was due to being accepted by York University and the recognition of her credits. 9 When the officer inquired why she did not apply to India given its large technology sector, the applicant stated that computer science in Canada was more advanced. The officer noted that the applicant gave inconsistent answers as to her employment efforts, first saying she had not applied for any jobs but then saying she had applied to her old school, which did not have any positions available. The applicant listed 254 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

the types of courses she wished to take and planned to get a job in the Sri Lankan technology sector. She said it would cost $30,000 Canadian per year to obtain this education. The officer asked how long it would take to recoup those costs and the applicant did not have a reply. She indicated the source of her mother’s funds was revenue from land purchased via funds from her mother’s brothers in Australia and the United Kingdom. 10 The officer expressed his concerns to the applicant that she appeared focused on Canada despite her British and American based studies, as shown by her lack of applications to other countries and her failure to advance herself in Sri Lanka in the previous two years. The officer noted she gave vague answers and did not seem to have considered the financial benefit from the studies or how long it might take to recoup the costs. The officer noted the funds for her studies were not the applicant’s or her mother’s, but from third parties in other countries. The officer was not satisfied once she was in Canada the funds would be used to pay for her studies or that her uncles could afford to pay for her studies. The applicant said her mother’s loan of two million Sri Lankan rupees had been paid back to her and the original money for the loan had come from her brothers. 11 The officer indicated the applicant had not allayed these concerns. The applicant had not demonstrated good establishment in Sri Lanka and shown weak economic and family ties. The officer was not satisfied that the main purpose of the application was not to gain entrance to Canada. The officer was not satisfied the funds owned by the uncles would be used to pay for the applicant’s studies. The officer was not satisfied the applicant would depart Canada once granted entry. The officer refused the application.

Issues 12 The applicant submits the following points at issue: 1. Did the officer commit a reviewable error by determining without sufficient evidence that the applicant would not leave Canada on the completion of her studies? 2. Did the officer commit a reviewable error by failing to assess the evidence before determining that: (a) the applicant did not have adequate funds to pay for her studies and return to her country of residence; (b) the source of the applicant’s funds was not her mother; and Thiruguanasambandamurthy v. Canada (MCI) John A. O’Keefe J. 255

(c) the funds listed in her application would not be used to pay for her studies in Canada? 13 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer err in refusing the application?

Applicant’s Written Submissions 14 The applicant submits that the appropriate standard of review is reasonableness, given the issues are questions of fact. 15 The applicant argues the officer failed to consider the totality of the evidence in determining she was not likely to return to Sri Lanka. The officer had a duty to verify the strength of an applicant’s family ties in assessing her establishment in Sri Lanka. This Court has held that a child’s close relationship to her parents is an important and relevant factor which an officer must consider and that the mere fact that an applicant was single without dependants was not sufficient to justify a finding of non-establishment. 16 The applicant further argues oversimplified generalizations should not supplant an individualized assessment and that it has been recognized that a person may have the dual intent of immigrating to Canada and of abiding by immigration law respecting temporary entry. 17 The applicant argues the officer’s finding of weak social and economic ties to Sri Lanka was unreasonable. The officer failed to consider her personal circumstances and it was unreasonable to expect a person at her stage of life to have substantial family or economic ties. The officer also erred by focusing on the quantity of the applicant’s familial ties instead of the strength of her relationship to her mother, who had no other support in Sri Lanka. That relationship represented a strong incentive for the applicant to leave Canada at the end of her authorized stay. 18 The fact that the applicant has not completely considered how to recoup the costs of her education was irrelevant to whether she was a bona fide student who would return to Sri Lanka. Focusing on this issue exclusively ignored the reasons given by the applicant for her desire to study in Canada. 19 The applicant offers statistics on the Sri Lankan economy showing it has improved since the end of the civil war in 2009, meaning the officer’s assumptions about recouping the cost of education were wrong. 256 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

The applicant argues it was not open to the officer to speculate about what the future may hold for the applicant. 20 The applicant argues she gave valid reasons for wanting to study in Canada, including the cost of tuition and the quality of education at York University. The applicant submits that even if the officer believed the applicant would later apply to immigrate to Canada, this is not a proper basis on which to reject a study permit. 21 On the issue of sufficient funds, the applicant argues the officer failed to consider the evidence of the applicant’s mother’s finances. There was no reason to believe the funds belonged to her uncles, rather, she had stated that they had provided her mother with funds to buy land in 2009, but her mother had sold that land in 2011. The officer disregarded abun- dant evidence of the mother’s personal financial resources. 22 In her further memorandum, the applicant repeats these arguments and notes that the inconsistent responses relating to her job application are simply attributable to the difference between a formal job application and an informal inquiry.

Respondent’s Written Submissions 23 The respondent argues the appropriate standard of review is reasonableness, given that the officer’s decision is discretionary and for the most part a question of fact. 24 The respondent recites the factors the officer considered in refusing the application and argues the officer is entitled to rely on common sense and rationality in determining a visa applicant’s intentions. The respondent characterizes the applicant’s arguments as pertaining only to the weighing of evidence. The officer’s reasons were clear and the law is well established that only very minimal reasons are required for this type of temporary resident visa application. 25 The officer was not required to extensively refer to every piece of evidence. The onus was on the applicant to demonstrate that she would leave Canada as required and has the financial resources to support herself. The officer was under no legal duty to ask for clarification or additional information. Thiruguanasambandamurthy v. Canada (MCI) John A. O’Keefe J. 257

Analysis and Decision Issue 1 What is the appropriate standard of review? 26 Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9 (S.C.C.) at paragraph 57, [2008] 1 S.C.R. 190 (S.C.C.)). 27 I agree with the parties that a visa officer’s decision on a study permit application should be reviewed on a reasonableness standard (see Patel v. Canada (Minister of Citizenship & Immigration), 2009 FC 602 (F.C.) at paragraph 28, [2009] F.C.J. No. 787 (F.C.)). 28 In reviewing the officer’s decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47). As the Supreme Court held in Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraph 59).

Issue 2 Did the officer err in refusing the application? 29 The reasonableness standard brings with it the Dunsmuir above, value of justification. In this matter, the applicant contends that the two findings made by the officer were not reasonably justified given the evidence presented. I would also add that the value of transparency is engaged, as the basis for several factual findings was far from clear in the officer’s own notes. 30 The officer’s finding that the funds for the applicant’s studies belong to her uncles is not transparent. The officer does not give a reason for this finding and it conflicts with the officer’s note elsewhere that the financial records reflect the mother having a fixed deposit of the equivalent of $123,000 Canadian. The only mention of the uncles is the officer’s note that the uncles had given the applicant’s mother the money to pay for land that was ultimately sold and that they had provided her with money for a loan that had been paid back. How the officer infers that the fixed deposit funds do not now belong to the mother is impossible to tell from the reasons. There is simply no indication anywhere in 258 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

the record why the officer would doubt the ownership of the deposit. Transfers of wealth from immigrants in rich countries to their family members in less developed parts of the world are a common feature of globalization and hardly an obvious indicator of deception. 31 It is not this Court’s role to reweigh evidence and the officer did raise valid concerns about the visa application. The finding on this point, however, is unreasonable, given that the applicant had provided proof of access to funds for the cost of her education and it is impossible to discern from this record why the officer doubted that evidence. 32 On the issue of the applicant’s intention to return to Sri Lanka, I find the officer’s reasoning to be similarly opaque. The officer concluded the applicant had only weak family ties to Sri Lanka. As there is no elaboration on this finding, one can only assume the officer concluded the ties are weak due to only a single family member being in that country. How- ever, to judge family ties solely based on the quantity of family members is to ignore the relevant factor of the strength of the child-parent bond (see Guo v. Canada (Minister of Citizenship & Immigration), 2001 FCT 1353 (Fed. T.D.) at paragraph 15, [2001] F.C.J. No. 1851 (Fed. T.D.)). The officer may have had legitimate reasons for doubting the strength of that bond in this case. The record is silent, making it very difficult for this Court to see this finding as reasonable. 33 While the family tie was only one part of the evidence considered by the officer on the issue of intention to leave Canada, it clearly was central to that determination and I cannot discern how the officer would have decided absent that finding. 34 The two reasons identified by the officer for rejecting the visa application were both based on unreasonable findings. Therefore, I would grant the application and remit the matter to a different officer for redetermination. 35 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the officer is set aside and the matter is referred to a different officer for redetermination. Application granted. Thiruguanasambandamurthy v. Canada (MCI) John A. O’Keefe J. 259

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, 260 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Harinarain v. Canada (Minister of Citizenship and Immigration)] Harinarain, Kumati, Applicant and The Minister of Citizenship & Immigration, Respondent Federal Court Docket: IMM-2900-12 2012 FC 1519 John A. O’Keefe J. Heard: December 3, 2012 Judgment: December 20, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Miscellaneous –––– Applicant was citizen of Guyana — Applicant claimed Convention refugee status in Canada based on fear of her abusive ex-husband killing her — Claim was dismissed — Board found that applicant had failed to rebut presumption of availability of state protection — Ap- plicant brought application for judicial review — Application granted; matter remitted for re-determination by different panel — Board erred by finding that test for adequate state protection was whether state made serious efforts to provide protection — Actual test is whether state protection is adequate in its effect — Board’s consideration of evidence would not have lead to finding of adequate protection even if they had properly stated test — Board’s analysis of state protection included improper evidence. Cases considered by John A. O’Keefe J.: Bautista v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 126, 2010 CarswellNat 1440, 2010 CarswellNat 260, 2010 FC 126, [2010] F.C.J. No. 153 (F.C.) — considered Ferko v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1284, 2012 CarswellNat 4232, 2012 CF 1284, 2012 CarswellNat 4926 (F.C.) — followed Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada 262 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Ocampo Lopez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1176, 2010 CF 1176, 2010 CarswellNat 4912, 2010 CarswellNat 4913, [2010] A.C.F. No. 1589, [2010] F.C.J. No. 1589 (F.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — referred to s. 96 “r´efugi´e” — referred to s. 97(1) — referred to Words and phrases considered: adequate state protection . . . “[A]adequate protection” and “serious efforts at protection” are not the same thing. The former is concerned with whether the actual outcome of protection exists in a given country, while the latter merely indicates whether the state has taken steps to provide that protection.

APPLICATION for judicial review of refusal of Convention refugee claim.

Loftus Cuddy, for Applicant Catherine Vasilaros, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the Board), dated February 28, 2012, wherein the applicant Harinarain v. Canada (MCI) John A. O’Keefe J. 263

was determined to be neither a Convention refugee within the meaning of section 96 of the Act nor a person in need of protection as defined in subsection 97(1) of the Act. 2 The applicant requests that the Board’s decision be set aside and the application be referred back to the Board for redetermination by a different panel.

Background 3 The applicant was born in Guyana in 1958. She married her husband in 1980. The marriage began well and the couple had two children. Even- tually, however, her husband joined a criminal gang and began drinking heavily. 4 The applicant’s husband became physically violent, punching and kicking her and using weapons. He beat her in front of their children. She became a slave in her own house. Once her children left home, she was left alone with her alcoholic abuser. 5 The applicant repeatedly reported the abuse to the Guyanese police, but they only warned the husband and refused to get involved in domestic matters. The abuse continued, including strangling and death threats. Her husband was kicked out of the gang and this led to more drinking and bitterness. 6 As the abuse increased, the applicant decided to file for divorce. Once her husband learned of this plan, he continued to threaten her and he said he kept a loaded gun in order to murder her. 7 The applicant went into hiding. In June 2007, she was granted a visi- tor’s visa for Canada in order to attend her niece’s wedding. 8 The applicant arrived in Canada on June 28, 2007 and claimed protection on September 9, 2011. She fears if she returns to Guyana, her ex- husband will kill her.

Board’s Decision 9 The Board made its decision on February 28, 2012. After summariz- ing the basis of the applicant’s fear and accepting her identity, the Board turned to the issue of state protection. 10 The Board stated that Guyana was presumed capable of protecting its citizens and it was up to the applicant to rebut that presumption with clear and convincing evidence that the Guyanese authorities would not be forthcoming with serious efforts to protect her. 264 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

11 The Board found that the applicant had not rebutted the presumption. In considering the country conditions documents, the Board found that they were mixed and inconclusive, since some of the text indicated Guyana’s domestic violence protection mechanisms were inadequate, while other parts indicated reasonably functional protection was available for women fearing domestic violence. 12 The Board excerpted the full text of a 2008 response to information request on domestic violence in Guyana (the RIR), as well as the relevant portion of the 2008 United States Department of State human rights report (the DOS report). 13 The Board also noted that the state had made efforts to protect the applicant on five occasions, although they were inadequate. The Board indicated it had accepted all the documentary evidence, which pointed to a mixed picture. The Board also noted that the applicant had not made any effort to seek protection in the past several years and that local police failures in themselves do not amount to a general lack of state protection. 14 The Board stated that home states are not required to provide effective or guaranteed protection, but only need to make serious efforts at protection. Therefore, the Board found that the applicant had not established a clear and convincing case that the state would not be reasonably forthcoming with such efforts. The Board rejected the applicant’s claim.

Issues 15 The applicant submits the following points at issue: 1. Was the decision made pursuant to legislation inconsistent with section 7 of the Canadian Charter of Rights and Freedoms? 2. Did the Board apply the wrong test for Convention refugee status? 3. Did the Board violate the principles of natural justice? 4. Did the Board fail to consider all of the evidence? 16 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the Board err in rejecting the applicant’s claim?

Applicant’s Written Submissions 17 The applicant argues that sworn testimony is presumed to be true and that her testimony has not been impugned in any way. The documentary evidence indicates there is a well-founded fear of persecution given the Harinarain v. Canada (MCI) John A. O’Keefe J. 265

backdrop of country conditions in Guyana. The applicant argues she was not given police protection. 18 The applicant argues the Board overlooked evidence showing the lack of police protection. Any evidence that indicates it is safe for a woman to be in Guyana when a gang member has threatened to kill her is due to media bias. It was unfair for the Board to focus on documents showing Guyana is safe as opposed to the documents of the applicant. The Board also ignored letters from the applicant’s daughter indicating that Guyana was unsafe for her.

Respondent’s Written Submissions 19 The respondent argues that the appropriate standard of review is reasonableness. 20 The respondent argues that it is an accepted principle that the test is not absolute state protection and that even the most effective, well- resourced and highly motivated police forces will have difficulty providing effective protection. The test is whether state protection is adequate. It was up to the Board to weigh the evidence and determine whether there was sufficient clear and convincing evidence that state protection was unavailable. 21 The respondent argues the Board considered both the negative and positive evidence. The respondent characterizes the applicant’s arguments as only pertaining to the weighing of evidence.

acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; Khosa v. Canada (Minister of Citizenship & Im- migration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraph 59).

Issue 2 Did the Board err in rejecting the applicant’s claim? 25 The respondent’s position in this proceeding is that the proper test for state protection is whether such protection was adequate. 26 The Board’s decision, however, frequently invokes the “serious efforts” of a state to provide protection. This concept is invoked at least ten times in its decision, including in its stating of the test for refugee status: According to refugee protection law, home states only need to provide adequate protection and do not have to provide perfect protection: in other words, home states only need to make serious efforts at protection and do not have to provide de facto effective or de facto guaranteed protection. 27 The use of the phrase “in other words” in the passage is incorrect: “adequate protection” and “serious efforts at protection” are not the same thing. The former is concerned with whether the actual outcome of protection exists in a given country, while the latter merely indicates whether the state has taken steps to provide that protection. 28 It is of little comfort to a person fearing persecution that a state has made an effort to provide protection if that effort has little effect. For that reason, the Board is tasked with evaluating the empirical reality of the adequacy of state protection. 29 This Court has affirmed this interpretation of state protection repeatedly. In Ocampo Lopez v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 1176, [2010] F.C.J. No. 1589 (F.C.), Mr. Justice Roger Hughes made this clear (at paragraph 8): Another error of law is with respect to what is the nature of state protection that is to be considered. Here the Member found that Mex- ico “is making serious and genuine efforts” to address the problem. That is not the test. What must be considered is the actual effectiveness of the protection. Harinarain v. Canada (MCI) John A. O’Keefe J. 267

30 In Bautista v. Canada (Minister of Citizenship & Immigration), 2010 FC 126, [2010] F.C.J. No. 153 (F.C.), Mr. Justice Michel Beaudry indicated the same principle (at paragraph 10): First of all, it weighed the evidence of criticisms of the effectiveness of the legislation against evidence on the efforts made to address the problems of domestic violence. This is not enough to ground a finding of state protection; regard must be given to what is actually hap- pening and not what the state is endeavoring to put in place (A.T.V. v. Canada (Minister of Citizenship and Immigration), 2008 FC 1229, 75 Imm. L.R. (3d) 215 at paragraph 14). 31 Most recently, Madam Justice Catherine Kane confirmed the same principle in Ferko v. Canada (Minister of Citizenship and Immigration), 2012 FC 1284 (F.C.) at paragraph 44: The test is not ‘perfect’ state protection, but adequate state protection. Still, mere willingness to protect is insufficient; state protection must be effective to a certain degree: Bledy v Canada (Minister of Citizenship and Immigration), 2011 FC 210, 97 Imm LR (3d) 243 at para. 47. 32 On this point, therefore, the Board clearly misstated the law. I will still, however, consider whether the Board’s consideration of the evidence would have reasonably led to a finding of adequate protection had the Board properly stated the test. 33 The Board repeatedly described the country conditions documents as “mixed” in their conclusions on state protection, since “some of the text in the most recent documents indicates that Guyana’s domestic violence state protection mechanisms are inadequate” but “other text in the same recent documents tells a different story and indicates Guyana has reasonably functional state protection mechanisms”. 34 With all due deference to the Board in its consideration of evidence, I believe that the Board’s error in stating the proper legal test for state protection is also reflected in its finding that the evidence is “mixed”. That is, the country conditions evidence is really a mix of (1) clear statements that state protection is inadequate and (2) descriptions of various efforts made by the Guyanese state. 35 For example, the RIR includes these statements: • domestic violence in Guyana is widespread; • at least one out of every three women in Guyana has reportedly been a victim of domestic violence; and 268 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

• some victims are still unaware of their rights and may be too afraid to file a report; when victims do file a complaint, police sometimes offer little support. 36 It also includes these “serious efforts”: • there are NGOs providing services to victims of domestic violence; • there is legislation prohibiting domestic violence; • the police receive training on protecting victims; and • the government launched a national policy on domestic violence. 37 The DOS report included these statements: • rape is a problem and pervasive in Guyanese society; • ineffective police and prosecutors resulted in few charges and fewer convictions; • domestic violence and violence against women, including spousal abuse, is widespread and crossed racial and socioeconomic lines; • anti-rape legislation was frequently not enforced because of a lack of willingness of victims to press charges. 38 It also included these “serious efforts”: • spousal rape has been criminalized by a new law; • domestic violence is illegal and subject to criminal and civil penalties; • the national police force has established domestic violence units; • there is a shelter for victims of domestic violence; and • sexual harassment is illegal. 39 When state protection analysis is properly applied, it is clear that the “serious efforts” listed above are not proper evidence of the adequacy of state protection. A law on the books or a training session for police may not lead to the outcome of adequate protection. Evidence of adequacy is that which indicates whether or not a given law actually functions to protect citizens or whether police training has resulted in a real difference in police behaviour. 40 The Board justified its decision on the basis that the evidence on state protection was mixed, but at no point in its decision did the Board identify any document or statement indicating that the evidence on the adequacy of state protection was mixed. Rather, the Board saw the mixed result being due to evidence of inadequate state protection being counter- Harinarain v. Canada (MCI) John A. O’Keefe J. 269

balanced by evidence of serious efforts. As I have described above, the latter category of evidence does not speak to the proper test for state protection. Therefore, even with the best attempt to supplement the Board’s reasons, I cannot find them reasonable. 41 It is also puzzling why the Board referred multiple times to the applicant’s failure to seek protection “in the past several years”, given that the applicant has been in Canada since July 2007. 42 It is not this Court’s role to reweigh evidence and my comments should not be taken as speaking to the weight of any particular piece of evidence. Rather, the issue here is that the Board misunderstood the proper test for state protection and its evidentiary findings were sufficiently tainted by that misunderstanding that I cannot disentangle them. 43 This decision is unreasonable because it conflicts with the Dunsmuir above, value of justification, as its state protection finding is neither reasonably justified by reference to the proper legal test nor by reference to properly considered evidence. 44 In my view, on the facts of this case, the applicant has rebutted the presumption of state protection. 45 I would therefore grant the application for judicial review and return the matter to a different panel of the Board for redetermination. 46 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination. Application granted.

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. 270 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Tiangha v. Canada (MCI) 271

[Indexed as: Tiangha v. Canada (Minister of Citizenship and Immigration)] Ephraim Tiangha, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4106-12 2013 FC 211 Richard G. Mosley J. Heard: February 13, 2013 Judgment: February 28, 2013 Immigration and citizenship –––– Admission — Immigrants — Live-in caregivers –––– Filipino applicant nurse came to Canada under live-in caregiver program and, after his employer died, had to begin difficult search for new employers — Applicant applied for permanent residence and began working without permit to pay for costs of father’s terminal illness before finding new caregiver position that allowed him to secure temporary residence and work permits — Prospective employer had died by time applicant returned from father’s funeral, and he worked without permission again before finally landing another caregiver job for elderly person and obtaining work permit — Applicant’s application for permanent residence was refused on basis that he was inadmissible for undertaking additional work without authorization and exemption on humanitarian and compassionate (H&C) grounds was refused — Applicant applied for judicial review — Application granted — Applicant’s new permit was valid when immigration officer made decision on permanent residence, and issuance of that permit cured his previous breach and made him admissible — Officer could have used previous unauthorized work to found conclusions about credibility but could not use it to find applicant inadmissible — Officer made unreasonable H&C decision, as he made no attempt to appreciate difficulties applicant faced and drew unreasonable inferences about options that were open to applicant — Applicant, after completing all requirements of caregiver program, only turned to manual labour to pay unexpected and substantial expenses of father’s illness when he was unsuccessful in continuous search for caregiver jobs — Of- ficer’s conclusions did not represent possible, acceptable outcome. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Filipino applicant nurse came to Canada under live-in caregiver program and, after his employer died, had to begin difficult search for new employers — Applicant 272 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th) applied for permanent residence and began working without permit to pay for costs of father’s terminal illness before finding new caregiver position that allowed him to secure temporary residence and work permits — Prospective employer had died by time applicant returned from father’s funeral, and he worked without permission again before finally landing another caregiver job for elderly person and obtaining work permit — Applicant’s application for permanent residence was refused on basis that he was inadmissible for undertaking additional work without authorization and exemption on humanitarian and compassionate (H&C) grounds was refused — Applicant applied for judicial review — Appli- cation granted — Applicant’s new permit was valid when immigration officer made decision on permanent residence, and issuance of that permit cured his previous breach and made him admissible — Officer made unreasonable H&C decision, as he made no attempt to appreciate difficulties applicant faced and drew unreasonable inferences about options that were open to applicant — Ap- plicant, after completing all requirements of caregiver program, only turned to manual labour to pay unexpected and substantial expenses of father’s illness when he was unsuccessful in continuous search for caregiver jobs — Officer’s speculation that applicant could have drawn on unlimited funding from presumed friends and relatives and failure to understand that father’s death did not eliminate debts from his illness were unreasonable — Officer’s conclusions did not represent possible, acceptable outcome. Cases considered by Richard G. Mosley J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — referred to Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — referred to Damte v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1212, 2011 CarswellNat 4293, 2011 CarswellNat 5029, 2011 CF 1212, 5 Imm. L.R. (4th) 175 (F.C.) — distinguished New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, Tiangha v. Canada (MCI) Richard G. Mosley J. 273

(sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Ozawa v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 1108, 2010 FC 444, 2010 CarswellNat 2076, 2010 CF 444 (F.C.) — considered Russom v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 4416, 2012 FC 1311, 2012 CarswellNat 5148, 2012 CF 1311 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25(1) — considered s. 30 — referred to s. 41 — referred to s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 185(a) — referred to s. 185(b) — considered s. 185(c) — referred to s. 200(3)(e) — referred to s. 200(3)(e)(i) — considered s. 200(3)(e)(ii) — considered

APPLICATION for judicial review of decision refusing applicant’s application for permanent residence under live-in caregiver class.

Rekha P. McNutt, for Applicant Camille Audain, for Respondent

Richard G. Mosley J.:

1 This is an application for judicial review pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], s 72(1), of a decision by an Immigration Officer to refuse the applicant’s request for permanent residence under the Live-In Caregiver Class. While Mr. Tiangha had met 274 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

the eligibility requirements, he had also undertaken additional work without authorization and did not satisfy the officer that an exemption on humanitarian and compassionate grounds should be granted. 2 For the reasons that follow, the application is granted

Background: 3 Mr. Tiangha came to Canada from the Philippines on September 30, 2006 under the live-in caregiver program. He is a registered nurse. Upon arrival, he discovered that his employer in Toronto was no longer able to hire him. His agency found him an alternate employer in Calgary, for whom he worked for the next 22 months. After his employer passed away at the age of one hundred in November 2008, Mr. Tiangha spent a further two months in Calgary assisting to wrap up the estate, time which Citizenship and Immigration Canada (CIC) agreed to count towards his required work experience hours. 4 Mr. Tiangha then applied for permanent residence and began searching for another employer. This was difficult as most employers prefer to hire a female caregiver. From February 2009 to January 2010, Mr. Tiangha drew unemployment insurance. He briefly found a new employer in January 2010 but the job fell through after a month. Mr. Tiangha was then unemployed again from February 2010 to October 2010. 5 In early February 2010 Mr. Tiangha learned that his father was gravely ill. To help defray the $10,000 cost of hospitalization and sur- geries in the Philippines, Mr. Tiangha began working without a permit, first caring for a client and then working as a farm labourer. His father died on October 11, 2010 and he returned to the Philippines for two months. Before departing, he had found a new position as a caregiver, so he was able to leave Canada having secured a temporary residence permit and a work permit. Unfortunately, when he got back to Canada in December 2010, his prospective employer had passed away. 6 Mr. Tiangha was then without work again in December 2010. He started working without permission again, taking jobs as a gardener and house cleaner to support himself and to continue paying for his father’s final illness and funeral. In August 2011, he finally landed another caregiver job for an elderly person. A work permit was granted on No- vember 22, 2011. Tiangha v. Canada (MCI) Richard G. Mosley J. 275

Decision under Review: 7 On April 19, 2012, CIC Calgary refused Mr. Tiangha’s application for permanent residence. The decision letter explains that Mr. Tiangha had met the eligibility requirements for permanent residence as a member of the caregiver class, having worked 4,162 eligible hours by Sep- tember 2010, the conclusion of the four-year period during which he had to accumulate 3,900 hours. However, he was found to be inadmissible to Canada under s 41 of the IRPA for having violated s 30 of the IRPA and para 185(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] by working without authorization on multiple occasions. The immigration officer also found that he had not provided sufficient evidence to justify an H&C exemption under s 25(1) of the IRPA. The circumstances leading to his inadmissibility had not been unusual and undeserved, and refusing to grant the exemption would not result in disproportionate hardship. 8 The officer assessed that Mr. Tiangha could have found authorized work if he had tried harder and could have lived off friends and family in Canada while searching for jobs. The officer also noted that he had not provided enough evidence of establishment in Canada despite a lengthy stay in the country, that no children were affected, and that he had provided insufficient evidence of disproportionate hardship if he had to leave. In addition, he had demonstrated that he wanted to work in other fields than caregiving.

Issues: 9 The issues raised by this application are: 1. Did the Immigration Officer err in law in finding that the applicant was inadmissible to Canada for having engaged in unauthorized work? 2. Did the Immigration Officer make an unreasonable H&C decision given the evidence?

Analysis: Standard of Review; 10 The standard of review for the issues noted above has been satisfacto- rily established by the jurisprudence: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] at para 57. An administrative decision-maker’s interpretation of its own statute is 276 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

owed significant deference (Dunsmuir at para 54; Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at para 28; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.) at para 30). Further- more, an immigration officer’s decision with respect to an H&C application involves questions of mixed fact and law: Russom v. Canada (Minister of Citizenship and Immigration), 2012 FC 1311 (F.C.) at paras 11-13. Both issues are therefore reviewable on the reasonableness standard. Reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and law: Dunsmuir at para 47.

Did the Immigration Officer err in law in finding that the applicant was inadmissible to Canada for having engaged in unauthorized work? 11 The applicant argued that when he received a new work permit in November 2011, this cured his previous inadmissibility pursuant to s 200 (3) (e) of the IRPR. Paragraph 200 (3) (e) (ii) of the IRPR states that a foreign national can obtain another work permit if the work was only unauthorized because it did not comply with conditions imposed under 185 (a), (b), or (c). The applicant had breached 185 (b) by engaging in the wrong type of work, for the wrong type of employer, but this did not create a permanent bar, and in fact he did subsequently obtain another work permit. The moment at which the inadmissibility had to be determined, the applicant submitted, was when the decision was made on permanent residence, in April 2012, and that by that point he was no longer inadmissible. 12 The respondent contended that when the applicant was given a temporary residence permit (TRP) on December 6, 2010, there is no evidence that he advised officials that he had contravened the conditions of his initial work permit by engaging in unauthorized work. The TRP was thus not issued to overcome the fact that he had engaged in unauthorized work and could not cure the applicant’s previous inadmissibility. By extension, the new work permit could not cure his previous inadmissibility either. No authority was cited in support of this proposition. 13 There is little jurisprudence on s 200 (3) (e) (ii) of the IRPR. Neither party was able to assist the Court with decisions which address the question of whether a new work permit may, or may not, cure a previous breach as of the time the application is considered. The fact that s 200 (3) Tiangha v. Canada (MCI) Richard G. Mosley J. 277

(e) (i) prevents a foreign national who has engaged in unauthorized work from getting a new work permit until six months have elapsed indicates that the bar is not indefinite and that a new permit may be obtained after that time period. Further, the fact that s 200 (3) (e) (ii) provides that a new permit can be issued if the work was only unauthorized under s 185 (b) due to being the wrong type of work and/or for the wrong employer suggests that such breaches are curable. 14 Mr. Tiangha did get a new permit, which was valid at the moment when the officer made the decision on his application for permanent residence. 15 In Ozawa v. Canada (Minister of Citizenship & Immigration), 2010 FC 444 (F.C.) at para 15, this Court dealt with the legal effect of a restoration of temporary resident status, explaining that “The Regulations provide that a restoration of one’s temporary resident status has the legal effect of curing any breach of the length of stay requirement inherent in the original temporary resident visa.” I find that the issuance of a new work permit similarly cured the previous breach and that Mr. Tiangha was admissible to Canada by the date when the immigration officer assessed his application. The officer could therefore have used his previous unauthorized work to found conclusions about credibility, but could not use it to find him inadmissible.

Did the Immigration Officer make an unreasonable H&C decision given the evidence before her? 16 The applicant submits that the Immigration Officer made numerous errors of fact in her reasons for decision, repeatedly misinterpreted the evidence, lacked empathy, and failed entirely to appreciate the reality of the applicant’s situation. Her assessment of the H&C factors was therefore unreasonable. In Damte v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 1212 (F.C.) [Damte] at para 34 this Court commented that “the decision-maker’s heart, as well as analytical mind, must be engaged.” 17 The respondent argues that a section 25(1) H&C exemption is not designed to be used as an alternate method of immigration into Canada. It is an exceptional and discretionary remedy. The person applying for it has the onus of satisfying the officer that his personal circumstances are such that the hardship of obtaining a visa from outside Canada would be unusual and undeserved or disproportionate. The Court’s comments at para 34 of Damte were obiter and did not form part of the reasons for 278 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

that decision; furthermore, the facts in Damte are distinguishable from the present case. The IRPA and IRPR do not oblige an officer to express a requisite level of empathy in response to the facts of H&C applications. The obligation is to properly weigh and assess the evidence and make a reasonable decision. 18 The respondent proposed that the immigration officer properly considered the applicant’s stated reasons for engaging in unauthorized work and found that they were self-serving, conflicting, and unsubstantiated. The officer also properly found that either the applicant’s brother, friends or other family members would have been able to support him at no cost while he sought authorized employment. It was up to him to maintain his status until processing of his permanent residence application was complete. 19 I find that the officer made no attempt to appreciate the difficulties Mr. Tiangha was faced with and drew unreasonable inferences about the options that were open to him. The record shows that after completing all the requirements of the caregiver program and submitting his application for permanent residence, he continually sought more jobs as a nurse- caregiver and only turned to manual labour to pay the unexpected and substantial expenses incurred by his father’s illness and funeral when he was unsuccessful in this search. He worked hard at a series of low-wage unskilled jobs which did not call for his nursing qualifications. It was not reasonable of the officer to have speculated that the applicant could draw on unlimited funding and free accommodation from presumed friends and relatives in Canada instead of working, or to fail to understand that the debts resulting from his father’s final illness did not cease to exist upon his father’s death. 20 Despite the deference which is due, I find that the officer’s conclusions in this case do not represent a possible, acceptable outcome. 21 The parties were given time to propose questions for certification on the question of mixed fact and law which arose in this matter. 22 The applicant has proposed the following question: By virtue of s 200 (3) (e) (i) and (ii) of the Immigration and Refugee Protection Regulations, is a foreign national who is no longer inadmissible for obtaining a work permit because of past unauthorized work also no longer inadmissible for purposes of a permanent residence application based on the same provisions? Tiangha v. Canada (MCI) Richard G. Mosley J. 279

23 The respondent suggests that the Court certify this question: Is an applicant’s inadmissibility arising from his unauthorized work in Canada cured due to the fact that, subsequent to the unauthorized work but prior to the determination of the applicant’s application for permanent residence, a previous officer has issued a work permit to the applicant pursuant to s 200 (3) (e) IRPR? 24 As I have found that the applicant succeeds on both grounds, an answer to either of the proposed questions would not be dispositive of an appeal. I, therefore, decline to certify a question.

Judgment THIS COURT’S JUDGMENT is that 1. the application for judicial review is allowed; 2. the April 19, 2012 decision by Citizenship and Immigration Can- ada determining that the applicant was inadmissible to Canada is set aside and the matter is returned for redetermination by a different officer in accordance with these reasons; and 3. no question is certified. Application granted. 280 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Martinez Giron v. Canada (Minister of Citizenship and Immigration)] Carlos Alfredo Martinez Giron, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3227-12 2013 FC 7 Catherine M. Kane J. Heard: November 28, 2012 Judgment: January 4, 2013 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibil- ity –––– Immigration and Refugee Protection Board — Refugee Protection Divi- sion (“Board”) dismissed applicant’s claim for protection pursuant to ss. 96 and 97 of Immigration and Refugee Protection Act (“Act”) — Applicant brought application for judicial review — Application granted — Decision was quashed and matter was returned for reconsideration by differently constituted panel of Immigration and Refugee Board — Although board did not err in credibility finding with respect to how applicant came to possess autopsy report, this one finding was not sufficient to support otherwise unreasonable findings — Simi- larly, board’s assessment of documentary evidence may, in different circumstances, have been justified — However, its conclusion in case was based to some extent on fact that evidence had been adduced by applicant, who board found not to be credible — Credibility finding was in turn based primarily on board’s conclusion that applicant’s account was implausible — Given that those implausibility findings were not reasonable, board’s conclusions regarding documentary evidence cannot salvage unreasonable decision. Cases considered by Catherine M. Kane J.: Aguilar Zacarias v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1155, 2012 CarswellNat 3804, 2012 CarswellNat 4301, 2012 CF 1155, [2012] F.C.J. No. 1252 (F.C.) — considered Ansar v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4243, 2011 CarswellNat 5027, 2011 CF 1152, 2011 FC 1152, 5 Imm. L.R. (4th) 31, [2011] F.C.J. No. 1438 (F.C.) — considered Beltran v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1475, 2011 FC 1475, 2011 CarswellNat 5585, 2011 CarswellNat 5881, [2011] F.C.J. No. 1778 (F.C.) — considered Martinez Giron v. Canada (MCI) 281

Cao v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 2276, 2007 FC 819, 2007 CF 819, 2007 CarswellNat 4923, [2007] F.C.J. No. 1077 (F.C.) — considered Divsalar v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 1351, 2002 FCT 653, 2002 CFPI 653, 2002 CarswellNat 3606, [2002] F.C.J. No. 875 (Fed. T.D.) — considered Dzey v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 167, 2004 CarswellNat 228, 2004 CF 167, 2004 CarswellNat 1039, [2004] F.C.J. No. 181 (F.C.) — considered Fatih v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 2283, 2012 FC 857, 2012 CF 857, 2012 CarswellNat 3787, 10 Imm. L.R. (4th) 222, [2012] F.C.J. No. 924, [2012] A.C.F. No. 924 (F.C.) — referred to Imafidon v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 970, 2011 CarswellNat 3012, 2011 CF 970, 2011 CarswellNat 3730, [2011] F.C.J. No. 1192 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Lin v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 84, 2006 CarswellNat 111, 2006 CarswellNat 6885, 2006 CF 84, [2006] F.C.J. No. 104 (F.C.) — considered Lin v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 5450, 2008 CF 1052, 2008 CarswellNat 3380, 2008 FC 1052, [2008] F.C.J. No. 1329 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Njeri v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 665, 2009 FC 291, 2009 CF 291, 2009 CarswellNat 6742, [2009] F.C.J. No. 350 (F.C.) — considered Sellan v. Canada (Minister of Citizenship & Immigration) (2008), 76 Imm. L.R. (3d) 6, 2008 CAF 381, 2008 CarswellNat 6029, 2008 FCA 381, 2008 Car- swellNat 4497, 384 N.R. 163, [2008] F.C.J. No. 1685 (F.C.A.) — considered 282 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Wang v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 969, 2011 CarswellNat 3011, 2011 CF 969, 100 Imm. L.R. (3d) 316, 2011 Car- swellNat 3729, [2011] F.C.J. No. 1191 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72 — pursuant to s. 96 — referred to s. 97 — referred to

APPLICATION by applicant for judicial review of decision of Immigration and Refugee Protection Board Refugee Protection Division which dismissed applicant’s claim for protection pursuant to ss. 96 and 97 of Immigration and Refugee Protection Act.

Rehka McNutt, for Applicant W. Brad Hardstaff, for Respondent

Catherine M. Kane J.:

1 This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], of the March 13, 2012 decision of the Immigration and Refugee Protection Board — Refugee Protection Division [the Board] denying the applicant’s claim for protection pursuant to sections 96 and 97 of the Act. 2 The Board found that the determinative issue was the applicant’s credibility and concluded that there was insufficient credible evidence to make a positive protection finding under sections 96 or 97. As a result, the Board found that the applicant was not a Convention refugee because he did not have a well-founded fear of persecution on a Convention ground in El Salvador. The Board also found that the applicant was not a person in need of protection as his removal to El Salvador would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment or to a risk of torture. 3 Interestingly, the Board did not address the issue of whether the section 96 claim should fail because the applicant’s fear was not based on a Convention ground, as it has in other cases where the fear is from organized crime. 4 For the reasons that follow, this application for judicial review is allowed. Martinez Giron v. Canada (MCI) Catherine M. Kane J. 283

Background 5 Mr Giron, a citizen of El Salvador, arrived in Canada in July 2008 with a temporary work permit to work in the construction industry. He subsequently claimed refugee protection based on events which occurred while he was in El Salvador and following his departure. 6 Mr Giron claimed refugee protection due to the risk he and his family faced from organized criminals in El Salvador. Mr Giron recounted that he began working for the Judicial Centre of Metapan, El Salvador, in 2001. He initially worked as a cleaning and gardening attendant and, after studying computer science, worked in the court’s Information and Technology [IT] services and had access to confidential court records. Mr Giron was approached by members of the Mara Salvatrucha gang and offered payment for access to confidential court files. He refused to comply and soon began receiving threats. 7 In 2007, Mr Giron was seriously injured in a car accident which he believes was orchestrated by the gang as a reprisal. In April 2008, the colleague who replaced Mr Giron at work while he recovered from his injuries was killed in another car accident. Mr Giron believes that this was also orchestrated by the gang. 8 Mr Giron’s wife, who operated a small store, was extorted by the same gang. This extortion was soon understood to be linked to the applicant’s refusal to cooperate with the gang. Mrs Giron moved twice to other cities in El Salvador, with their daughters, but the gang tracked her down and threatened her against relocating again. 9 After Mr Giron came to Canada to work in July 2008, his wife continued to be extorted. In July 2009, the gang left notes indicating that they knew where the applicant was and that he had “an account pending”. The applicant’s wife reported this to the police and was advised that she would have to testify against the gang if arrests were made. She was fearful of doing so. 10 In June 2011, a year after the applicant sought refugee protection, the applicant’s father was abducted and murdered. The abductors allegedly indicated that this was related to their “account pending” against the applicant. Soon after the murder, the applicant’s wife and daughters fled to Guatemala where they remain without status. 284 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Issues and Standard of Review 11 The applicant submits that the decision is not reasonable and that the Board erred with respect to four issues: the implausibility findings; the credibility findings; the rejection of the applicant’s documentary evidence; and, in failing to conduct a forward-looking assessment of the risk of persecution or need for protection upon Mr Giron’s return to El Salvador. 12 The respondent submits that the decision was reasonable: the Board stated its implausibility and credibility findings clearly, and based on the decision as a whole, there were numerous inconsistencies coupled with a lack of credible supporting evidence. 13 The applicable standard of review for the determinative issues is that of reasonableness. I have considered the relevant jurisprudence which emphasises that the role of the court on judicial review where the standard of reasonableness applies is not to substitute any decision it would have made but, rather, to determine whether the Board’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47. Al- though there may be more than one reasonable outcome, “as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome”: Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 59. 14 With respect to the Board’s analysis of credibility and plausibility, given its role as trier of fact, the Board’s findings warrant significant deference: Lin v. Canada (Minister of Citizenship & Immigration), 2008 FC 1052, [2008] F.C.J. No. 1329 (F.C.) at para 13; Fatih v. Canada (Minister of Citizenship & Immigration), 2012 FC 857, [2012] F.C.J. No. 924 (F.C.) at para 65. 15 This does not mean, however, that the Board’s decisions are immune from review where intervention is warranted. In Njeri v. Canada (Minister of Citizenship & Immigration), 2009 FC 291, [2009] F.C.J. No. 350 (F.C.) Justice Phelan stated: [11] On credibility findings, I have noted the reluctance that this Court has, and should have, to overturn such findings except in the clearest case of error (Revolorio v. Canada (Minister of Citizenship and Immigration), 2008 FC 1404). The deference owed acknowl- Martinez Giron v. Canada (MCI) Catherine M. Kane J. 285

edges both the contextual circumstances and legislative intent, as well as the unique position that a trier of fact has to assess testimo- nial evidence. That deference is influenced by the basis upon which credibility is found. The standard is reasonableness subject to a significant measure of deference to the Immigration and Refugee Board. [12] However, deference is not a blank cheque. There must be reasoned reasons leading to a justifiable finding. With considerable reluctance, I have concluded that this decision does not meet this standard of review. 16 Given that this decision is based to a significant extent on the Board’s implausibility findings, the jurisprudence governing implausibility has been considered and applied along with the principles noted above. 17 Justice No¨el made a clear distinction between credibility and plausibility findings in Ansar v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 1152, [2011] F.C.J. No. 1438 (F.C.): 17 Initially, an important distinction must be made between the RPD’s credibility findings and its conclusion that the threat posed by Mr. Choudhry was “implausible”. The panel must be mindful of the use of this term and its implications. Implausibility findings must only be made “in the clearest of cases” (Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7, [2001] FCJ 1131). The panel’s inferences must be reasonable and its reasons set out in clear and unmistakable terms (R.K.L. v Can- ada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 9, [2003] FCJ 162). As Justice Richard Mosley explains in Santos v. Canada (Minister of Citizenship & Immigration), 2004 FC 937 (F.C.) at para 15, [2004] F.C.J. No. 1149 (F.C.): [P]lausibility findings involve a distinct reasoning process from findings of credibility and can be influenced by cul- tural assumptions or misunderstandings. Therefore, implausibility determinations must be based on clear evidence, as well as a clear rationalization process supporting the Board’s inferences, and should refer to relevant evidence which could potentially refute such conclusions [underlining in original, bold added] 18 In Divsalar v. Canada (Minister of Citizenship & Immigration), 2002 FCT 653, [2002] F.C.J. No. 875 (Fed. T.D.) [Divsalar], Justice Blanchard stated: [22] The jurisprudence of this Court has clearly established that the CRDD [the Refugee Protection Division’s predecessor] has complete 286 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

jurisdiction to determine the plausibility of testimony, so long as the inferences drawn are not so unreasonable as to warrant intervention, its findings are not open to judicial review. [See Aguebor v. Minister of Employment and Immigration] (1993), 160 N.R. 315, pp. 316-217 at para. 4.] [23] There is also authority that would see a Court intervene and set aside a plausibility finding where the reasons that are stated are not supported by the evidence before the panel. In Yada et al. v. Canada (Minister of Employment and Immigration) (1998), 140 F.T.R. 264, Mr. Justice MacKay, at page 270 para. 25 wrote: Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense. 19 In Cao v. Canada (Minister of Citizenship & Immigration), 2007 FC 819, [2007] F.C.J. No. 1077 (F.C.), Justice O’Reilly cited Divsalar and noted, at para 7: With respect to a finding of implausibility, the Court is often just as capable as the Board at deciding whether a particular scenario or series of events described by the claimant might reasonably have occurred.

Plausibility 20 In the present case, the Board made three findings which it clearly identified as implausibility findings. 21 First, the Board found it implausible that the gang would be able to identify the applicant as “someone with information to sell”. 22 Second, the Board found that “[a]nother apparent implausibility is the claimant’s very presence in Canada”. It noted that “the criminals seem to have had ample opportunity to kill the claimant, if that is what they actually wanted to do” given the violent nature of the gang, the two allegedly targeted car accidents, and the fact that the applicant was living openly while in El Salvador. In other words, it was implausible that the applicant would have escaped this fate if his account were true. 23 Third, the Board found it implausible that the applicant’s wife had sent to him, in Canada, the original version of the written threats that she Martinez Giron v. Canada (MCI) Catherine M. Kane J. 287

had received. The Board questioned why these notes were not provided to the police after the murder of the applicant’s father by the same gang in June 2011, and noted that this fact “creates a concern that they are not genuine evidence”. 24 These implausibility findings are unreasonable as they are not based on the evidence that was before the Board. Rather, these findings are based on speculation and on misunderstanding of the evidence. 25 The Board’s suggestion that the applicant should have known how the gang became aware that he worked at the court ignores his testimony that he did not know the gang member who approached him and had no previous interaction with the gang. Mr Giron indicated that it was his position at the court that initially made him a target, and not him personally. The fact that court personnel are targeted by gangs was also described in the country condition documents. 26 This is not a ‘clear case’ where the applicant’s testimony was implausible. There was relevant evidence to refute this implausibility finding and it is, therefore, not reasonable. 27 The Board’s suggestion that the gang would have killed Mr Giron had they “actually wanted to”, and that his mere presence in Canada makes his story implausible, is based on speculation as to how this gang operates. It also unreasonably suggests that the only way Mr Giron’s story would have been plausible is if he had actually been killed. 28 This Court has cautioned against speculative reasoning in several recent cases. In Beltran v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 1475, [2011] F.C.J. No. 1778 (F.C.) [Beltran], Justice Rennie stated: 8 Here, the Board speculated that a reasonable extortionist would have specified the sum of money demanded together with the means of payment, in the first phone call. The Board also found as implausible that the extortionists would make a call warning the applicant that he would be killed for having reported the threats to the police. This presumes much as to the modus operandi of the extortionist. The characterization of the events as described as implausible does not withstand the test of reasonableness. 29 In Imafidon v. Canada (Minister of Citizenship & Immigration), 2011 FC 970, [2011] F.C.J. No. 1192 (F.C.) [Imafidon], Justice de Montigny also found speculation on the part of the Board to be unreasonable: 11 The Board stated “If the claimant was truly forced into service as a prostitute, the panel finds it reasonable to believe that Mr. Efe 288 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

would have taken swift action to protect his investment, but he did not.” This is speculative. The Board does not have enough knowledge of the circumstances to be able to assume that just because Mr. Efe did not ultimately force the applicant to have an abortion, her entire story is necessarily a fabrication. To make such an assumption is a leap of logic. 30 In Aguilar Zacarias v. Canada (Minister of Citizenship and Immigra- tion), 2012 FC 1155, [2012] F.C.J. No. 1252 (F.C.) [Zacarias], Justice Gleason reviewed the jurisprudence on plausibility and related credibility findings, and noted: 11 An allegation may thus be found to be implausible when it does not make sense in light of the evidence before the Board or when (to borrow the language of Justice Muldoon in Vatchev) it is “outside the realm of what reasonably could be expected”. In addition, this Court has held that the Board should provide “a reliable and verifiable evidentiary base against which the plausibility of the Applicants’ evidence might be judged”, otherwise a plausibility determination may be nothing more than “unfounded speculation” (Gjelaj v Canada (Minister of Citizenship and Immigration), 2010 FC 37 at para 4, [2010] FCJ No 31; see also Cao v Canada (Minister of Citizenship and Immigration), 2012 FC 694 at para 20, [2012] FCJ No 885 [Cao]). 31 In Zacarias, Justice Gleason allowed the judicial review because the Board’s decision was based on “impermissible speculation”. The Board had concluded that if the applicant’s story were true, he would have been a victim of extortion earlier than he claimed, and that if his life had truly been at risk, the gang members would have succeeded in killing him. 32 The Board’s reasoning in this case is very similar to the reasoning which this Court found to be unreasonable in Beltran, Imafidon, and Bel- tran. The Board clearly indicated that the applicant would have had to be killed in order for his story to be plausible. Obviously, if he had been killed, he would not be seeking protection. The Board’s suggestion is inappropriate and unreasonable. 33 With respect to the Board’s implausibility finding regarding the original written threats which were received by the applicant’s wife and forwarded to him in Canada, the Board appears to have misunderstood the evidence provided by the applicant and the sequence of events as reflected in the record. The record established that the applicant’s wife forwarded the original notes to him in October 2009. The applicant testified that there was no police investigation into these threats. The Board ques- Martinez Giron v. Canada (MCI) Catherine M. Kane J. 289

tioned why these notes were not provided to the police for their investigation into the murder of the applicant’s father. However, this murder occurred in 2011, over a year after the notes were received by the applicant’s wife and forwarded to the applicant. They were, therefore, not at hand at the time of the murder. The implausibility finding is based on the Board’s misunderstanding of when the notes were sent, when the applicant’s father was murdered, and which of these events the police had investigated.

Credibility 34 Although the Board’s credibility determination was based largely on the implausibility findings, it made additional adverse credibility findings related to two issues: the applicant’s inconsistent answers about how he came to have a copy of his colleague’s autopsy report, and whether the gang was merely extorting him and his wife or, rather, meting out reprisals for his failure to cooperate with them. 35 The applicant first indicated that he obtained the autopsy report simply because the death of his friend had a significant impact on him. Later in his testimony he indicated that he had used his computer to obtain the report because his friend’s wife needed it for insurance purposes. The Board drew a negative credibility finding from the inconsistent answers given that this event was relevant to the attempt on his own life and to his refugee claim and he should have remembered the details. I find this to be a reasonable finding. However, neither the existence of the autopsy report nor its authenticity were in dispute, and how the applicant came to have it was not central to his claim for protection as it did not reveal who was responsible for the death. 36 The Board also found that the applicant provided inconsistent answers about whether he was simply being extorted, or whether the extortion constituted reprisal from the gang due to his failure to cooperate. In his initial claim for refugee protection, the applicant indicated he and his family had been victims of extortion by the Mara Salvatrucha gang and had received death threats warning them to continue to pay the “renta”. In his personal information form [PIF], submitted shortly afterward, the applicant elaborated and indicated that, initially, he did not think that the extortion was related to his refusal to cooperate with the gang by providing them with access to court documents. However, he realized that the extortion was connected when his wife received threats referring to his “pending account”. 290 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

37 The applicant also explained, and the respondent acknowledged, that he was instructed to be brief in his initial claim for refugee protection, but to provide more details in his PIF, which he did. The applicant submits that these are not inconsistencies, but further details about the reason for the extortion. 38 While deference is owed to the Board’s credibility findings and the Court’s role is not to reweigh the evidence, and it appears that the Board placed some weight on what it perceived to be the difference between extortion and reprisals, the Board unreasonably rejected the applicant’s explanation. The Board’s finding that the applicant was inconsistent ignores the evidence that the applicant was instructed to be brief in the initial claim and that he was instructed to provide a detailed account in his PIF. In addition, it is arguable whether there is any real distinction between describing what occurred more generally as extortion or more specifically as threats of reprisal for failure to provide the gang with access to court documents. 39 The respondent argues that the inconsistencies between the applicant’s PIF and his testimony were significant and went to the heart of his claim. 40 As noted above, I agree that the finding with respect to the autopsy report was reasonable, but do not agree that the autopsy report is central to the applicant’s claim. I do not agree that the Board’s finding with respect to the description of the extortion is reasonable.

Documentary evidence 41 The respondent noted that the Federal Court of Appeal has held that an adverse credibility finding is dispositive of the claim, unless the record contains reliable and independent documentary evidence to rebut it: Sellan v. Canada (Minister of Citizenship & Immigration), 2008 FCA 381, [2008] F.C.J. No. 1685 (F.C.A.) at paras 2-3 [Sellan]. 42 In Sellan, the Court of Appeal answered a certified question as follows: 3 ...[W]here the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim. The claimant bears the onus of demonstrating there was such evidence. Martinez Giron v. Canada (MCI) Catherine M. Kane J. 291

43 In this case, after finding the applicant’s claim to be implausible and the applicant not to be credible, the Board found that there was “insufficient credible evidence in this claim upon which [it could] make a positive protection finding for the claimant”. 44 The Board noted that it gave little weight to the documents provided by the applicant. These documents included the police reports and the threatening notes sent to the applicant’s wife. The Board found that these documents, unlike passports, have no security features or “barriers to concoction” and assigned them little intrinsic reliability. The Board also commented that they were submitted by the applicant, who was found to lack credibility. 45 Mr Giron submits that a requirement to provide supporting documentary evidence with security features places an impossible burden on applicants. The applicant also submits that the Board erred in failing to in- dependently assess the documentary evidence regardless of its assessment of the applicant’s credibility. The applicant cited Lin v. Canada (Minister of Citizenship & Immigration), 2006 FC 84, [2006] F.C.J. No. 104 (F.C.) at paras 10-14 and Wang v. Canada (Minister of Citizenship & Immigration), 2011 FC 969, [2011] F.C.J. No. 1191 (F.C.) at para 49, in support of the principle that the Board has an obligation to make “some effort” to assess the authenticity of the documents. 46 The cases cited both dealt with documents adduced to establish the identity of the applicant. In the present case, identity is not at issue. Rather, the Board questioned the authenticity of the police reports, threat notes and other declarations and memoranda submitted by the applicant. 47 The facts in Dzey v. Canada (Minister of Citizenship & Immigration), 2004 FC 167, [2004] F.C.J. No. 181 (F.C.) are more similar to the present case. The Board found the claimant not to be credible and gave little weight to hospital and police reports, as well as divorce papers, which lacked security features. In rejecting the applicant’s argument that the Board unreasonably failed to consider her evidence, Justice Mactavish stated: 19 The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board’s jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant’s story, based on implausibilities, common sense, and rationality... 292 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

22 ...in the present case, the Board clearly questioned the authenticity of the documents, and gave explicit reasons for its concerns in this regard... 24 I am of the view that the Board’s decision to give the hospital certificate little weight ought not to be disturbed. The Board considered the document, and explained why it chose to accord little weight to the document. I cannot conclude that the Board’s treatment of this evidence was patently unreasonable. 48 In the present case, it cannot be said that the Board ignored the potentially corroborative documentary evidence. The Board examined it, indicated that it gave it little weight and explained why. However, the Board’s assessment of the documentary evidence was influenced by its adverse credibility and plausibility findings against the applicant.

Forward-looking assessment 49 The applicant submitted that the Board erred in applying the test to determine if the applicant was a Convention refugee or person in need of protection. According to the applicant, the Board assessed only past events rather than conducting a forward-looking assessment and considering the risk the applicant would face upon his return to El Salvador. The applicant had provided evidence of threats received after he fled to Canada along with evidence of his father’s murder. The applicant submits that the Board failed to consider this in its determination of whether the applicant would face a risk upon his return. 50 It is trite law that the test for persecution and protection is forward- looking. Had the Board applied the test incorrectly, the decision would be reviewable for correctness. However, the Board’s decision was based on the implausibility and credibility findings concerning that applicant’s claim as a whole. The Board did not ignore the fact that the applicant’s father had been killed, although it may not have believed that this was related to the extortion of the applicant. Since the Board disbelieved the applicant’s claim to begin with, it did not ‘misapply’ the test per se. Stated otherwise, the Board’s analysis did not extend to assessing the risk of future persecution since it did not believe that the applicant had been persecuted to begin with.

Conclusion 51 The Board’s implausibility findings were based on speculation and a misunderstanding of the evidence that was before the tribunal. As such, its implausibility findings are not reasonable. The events which the Martinez Giron v. Canada (MCI) Catherine M. Kane J. 293

Board found to be implausible were essential to the applicant’s claim as they described the risk he faced and would face if he returned to El Sal- vador. The implausibility findings were central to the Board’s negative decision and its other findings were influenced by or bound up with the implausibility findings. 52 Although the Board did not err in its credibility finding with respect to how the applicant came to possess the autopsy report, this one finding is not sufficient to support the otherwise unreasonable findings. Simi- larly, the Board’s assessment of the documentary evidence may, in different circumstances, have been justified. However, its conclusion in this case was based to some extent on the fact that the evidence had been adduced by the applicant, who the Board found not to be credible. This credibility finding was in turn based primarily on the Board’s conclusion that the applicant’s account was implausible. Given that those implausibility findings were not reasonable, the Board’s conclusions regarding the documentary evidence cannot salvage an unreasonable decision. 53 For these reasons, the application for judicial review is allowed. No question was proposed for certification.

Judgment THIS COURT’S JUDGMENT is that: 1. The application is allowed. The decision is quashed and the matter is returned for reconsideration by a differently constituted panel of the Immigration and Refugee Board. 2. There is no question for certification. Application granted. 294 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Lukaj v. Canada (Minister of Citizenship and Immigration)] Valerian Lukaj, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-456-12 2013 FC 8 Paul S. Crampton C.J. Heard: August 29, 2012 Judgment: January 4, 2013 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Jurisdiction –––– Case Processing Centre (“CPC”) of Citizenship and Immigration Canada (“CIC”) refused to process parental sponsorship application — Applicant brought application for judicial review — Application dismissed — CIC did not err in concluding that it had received application on or after November 5, 2011 — Moreover, Minister did not act beyond authority, in bad faith or in an arbitrary manner in issuing Ministerial In- structions — In addition, issuance of Ministerial Instructions on very short notice did not breach any duty of fairness owed to applicant. Cases considered by Paul S. Crampton J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — considered Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — referred to Lukaj v. Canada (MCI) 295

Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T- 708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53 (S.C.C.) — referred to Castro v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 659, 2005 CarswellNat 1218, 2005 CF 659, 2005 CarswellNat 4731, [2005] F.C.J. No. 811 (F.C.) — referred to Celgene Corp. v. Canada (Attorney General) (2011), 2011 CarswellNat 34, 2011 CarswellNat 35, 2011 SCC 1, 327 D.L.R. (4th) 513, 410 N.R. 127, 14 Admin. L.R. (5th) 1, [2011] 1 S.C.R. 3, 89 C.P.R. (4th) 1, [2011] S.C.J. No. 1 (S.C.C.) — referred to Chiau v. Canada (Minister of Citizenship & Immigration) (2000), 195 D.L.R. (4th) 422, 193 F.T.R. 159 (note), 2000 CarswellNat 2930, 265 N.R. 121, 2000 CarswellNat 3494, [2001] 2 F.C. 297, [2000] F.C.J. No. 2043 (Fed. C.A.) — referred to dela Fuente v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 2749, 53 Imm. L.R. (3d) 171, 2006 CAF 186, 350 N.R. 362, 2006 FCA 186, 2006 CarswellNat 1334, 270 D.L.R. (4th) 681, [2007] 1 F.C.R. 387, [2006] F.C.J. No. 774 (F.C.A.) — referred to Esensoy v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1343, 2012 CarswellNat 5406 (F.C.) — followed Gill v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1522, 2012 CarswellNat 5162 (F.C.) — referred to Hamid v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 217, 2006 CarswellNat 1592, 2006 CarswellNat 3253, 2006 CAF 217, 54 Imm. L.R. (3d) 163, [2007] 2 F.C.R. 152, 270 D.L.R. (4th) 383, 352 N.R. 85, [2006] F.C.J. No. 896 (F.C.A.) — referred to Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 50 Imm. L.R. (3d) 40, 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 340 N.R. 102, 259 D.L.R. (4th) 244, 33 Admin. L.R. (4th) 1, [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58 (S.C.C.) — referred to Khan v. Canada (Minister of Citizenship & Immigration) (2001), 213 F.T.R. 56 (note), 2001 FCA 345, 2001 CarswellNat 2524, 2001 CarswellNat 3528, [2002] 2 F.C. 413, 283 N.R. 173, 208 D.L.R. (4th) 265, [2001] F.C.J. No. 1699 (Fed. C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to 296 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Liang v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 758, 2012 CarswellNat 2108, 2012 CF 758, 2012 CarswellNat 3584, 8 Imm. L.R. (4th) 315 (F.C.) — referred to Lim v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 657, 2005 CarswellNat 1209, 45 Imm. L.R. (3d) 271, 272 F.T.R. 293 (Eng.), 2005 CarswellNat 4792, 2005 CF 657, [2005] F.C.J. No. 810 (F.C.) — referred to M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. (2011), D.T.E. 2011T- 803, 2011 CarswellMan 606, 2011 CarswellMan 607, 2011 SCC 59, (sub nom. Nor-Man Regional Health Authority Inc. v. M.A.H.C.P.) 2012 C.L.L.C. 220-004, 96 C.C.E.L. (3d) 1, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 212 L.A.C. (4th) 93, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor- Man Regional Health Authority Inc.) 340 D.L.R. (4th) 1, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 423 N.R. 95, [2012] 2 W.W.R. 619, 29 Admin. L.R. (5th) 1, (sub nom. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals) [2011] 3 S.C.R. 616, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 275 Man. R. (2d) 16, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 538 W.A.C. 16, [2011] A.C.S. No. 59, [2011] S.C.J. No. 59 (S.C.C.) — referred to Mavi v. Canada (Attorney General) (2011), 2011 CarswellOnt 4429, 2011 Cars- wellOnt 4430, 2011 SCC 30, 332 D.L.R. (4th) 577, 417 N.R. 126, 97 Imm. L.R. (3d) 173, (sub nom. Canada (Attorney General) v. Mavi) [2011] 2 S.C.R. 504, 19 Admin. L.R. (5th) 1, 279 O.A.C. 63, 108 O.R. (3d) 240 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Patel v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 1290, 288 N.R. 48, 2002 CAF 55, 2002 FCA 55, 2002 CarswellNat 301, 23 Imm. L.R. (3d) 161, [2002] F.C.J. No. 178 (Fed. C.A.) — referred to Petrosyan v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1319, 2012 CarswellNat 4446, 2012 CarswellNat 4933, 2012 CF 1319 (F.C.) — referred to Lukaj v. Canada (MCI) Paul S. Crampton J. 297

Salahova v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3281, 2010 CF 352, 2010 FC 352, 2010 CarswellNat 1293 (F.C.) — referred to Toussaint v. Canada (Attorney General) (2011), 2011 CarswellNat 3685, 2011 CAF 213, 420 N.R. 364, 100 Imm. L.R. (3d) 175, 2011 CarswellNat 6061, 420 N.R. 213, 2011 FCA 213, 240 C.R.R. (2d) 234, 343 D.L.R. (4th) 677 (F.C.A.) — considered Varela v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 145, 2009 CarswellNat 2726, 2009 CAF 145, 80 Imm. L.R. (3d) 1, [2010] 1 F.C.R. 129, 2009 CarswellNat 1228, 391 N.R. 366, [2009] F.C.J. No. 549 (F.C.A.) — referred to Statutes considered: Budget Implementation Act, 2008, S.C. 2008, c. 28 s. 120 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12 — referred to s. 12(1) — considered s. 13 — referred to s. 13(1) — considered s. 74(d) — considered s. 87.3(2) [en. 2008, c. 28, s. 118] — considered s. 87.3(3) [en. 2008, c. 28, s. 118] — referred to s. 87.3(4) [en. 2008, c. 28, s. 118] — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to ss. 130-137 — referred to

APPLICATION by applicant for judicial review of decision of Case Processing Centre of Citizenship and Immigration Canada which refused to process parental sponsorship application.

Craig Costantino, for Applicant Caroline Christiaens, for Respondent

Paul S. Crampton J.:

1 The Applicant, Valerian Lukaj, brought this application for judicial review of a refusal of an unidentified person at the Case Processing Cen- 298 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tre [CPC] of Citizenship and Immigration Canada [CIC] to process his parental sponsorship application. Mr. Lukaj claims that: (a) CIC erred by concluding that his sponsorship application, which he sent by registered mail on November 4, 2011, was received after that date, and therefore beyond the deadline set forth in Min- isterial Instructions issued earlier that day; and (b) The Minister of Citizenship and Immigration acted beyond, or abused, his authority in issuing those Ministerial Instructions, and refused to act in accordance with sections 12 and 13 of the Immi- gration and Refugee Protection Act, SC 2001, c 27 [IRPA] and Immigration And Refugee Protection Regulations, SOR/2002-227 [Regulations]. 2 I disagree. For the reasons that follow, this application is dismissed.

I. Background and Decision under Review 3 On November 4, 2011, CIC issued Operational Bulletin 350, entitled Fourth Set of Ministerial Instructions: Temporary Pause on Family Class Sponsorship Applications for Parents and Grandparents [Ministe- rial Instructions], announcing that CIC would be instituting a “temporary pause of up to 24 months on the acceptance of new sponsorship applications for parents and grandparents.” The Ministerial Instructions also announced that this pause would be coming into effect the following day, November 5, 2011. 4 After learning of this announcement, Mr. Lukaj met with his counsel that afternoon to finalize and submit his sponsorship application to CIC by registered mail, in accordance with a Document Checklist previously issued by CIC. 5 On December 20, 2011, the sponsorship application package was returned to the office of Mr. Lukaj’s counsel with an unsigned and undated form letter stating that the date stamp on the application showed that it was received at the CPC’s processing center on or after November 5, 2011. The letter proceeded to explain that CIC had temporarily stopped accepting new applications for the sponsorship of parents and grandparents, effective November 5, 2011. It explained that only applications received before that date would be processed by the CPC. It added that this temporary pause in accepting new applications would continue until further notice, and that as a result of that pause, his application and supporting documentation were being returned to him, together with any fees that he may have paid. The letter ended by stating that effective Decem- Lukaj v. Canada (MCI) Paul S. Crampton J. 299

ber 1, 2011, a Parent and Grandparent Super Visa would be available to those who qualify. Mr. Lukaj was directed to CIC’s website for additional information.

II. Standard of Review 6 The issue of when Mr. Lukaj’s application was “received” by the CPC concerns CIC’s interpretation of the Ministerial Instructions, which were issued pursuant to section 87.3(3) of the IRPA. 7 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at para 54, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir], a majority of the Supreme Court stated: “Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (emphasis added). In subsequently discussing, at paragraph 55, the standard applicable to questions of law in general, it couched the test in terms of whether the question “is of ‘central importance to the legal system ... and outside the ... specialized area of expertise’ of the administrative decision maker” (emphasis added). It added that the review of questions of law not meeting this test might be compatible with a reasonableness standard, where certain other factors so indicated. It also identified three particular types of questions of law that will generally be subject to review on a standard of correctness. None of those particular types of question are at issue in this proceeding. 8 Later in the majority decision, it was observed that the first step in the process of judicial review involves ascertaining “whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question” (Dunsmuir, above, at para 62). 9 Prior to Dunsmuir, it appears that the jurisprudence may have determined that a visa officer’s interpretation of the IRPA and the Regulations was reviewable on a correctness standard of review (Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57 (S.C.C.), at para 71, [2005] 2 S.C.R. 706 (S.C.C.); dela Fuente v. Canada (Minister of Citizenship & Immigration), 2006 FCA 186 (F.C.A.), at paras 39-51, (2006), [2007] 1 F.C.R. 387 (F.C.A.) [dela Fuente]). 10 However, since Dunsmuir, the Supreme Court has repeated on numerous occasions that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (A.T.A. v. Alberta 300 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.), at para 30, [2011] 3 S.C.R. 654 (S.C.C.) [Alberta Teachers]; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1 (S.C.C.), at para 34; Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.), at paras 26-28); M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59 (S.C.C.), at para 36; Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.), at para 16, [2011] 3 S.C.R. 471 (S.C.C.)). It has also recently stated: This principle applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, ... ‘[q]uestions regarding jurisdictional lines between two or more competing tribu- nals’ [and] true questions of jurisdiction or vires” (Alberta Teachers, above, at para 30). 11 Indeed, the Court has now gone so far as to say that “unless the situation is exceptional, and we have not seen such a situation since Dun- smuir, the interpretation by the tribunal of its ‘own statute or statutes closely connected to its function, which with it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review” (Alberta Teachers, above, at para 34). 12 Given the foregoing, I am of the view that the pre-Dunsmuir jurisprudence cannot be said to have already determined “in a satisfactory manner,” as contemplated by Dunsmuir, above, at para 62, the degree of deference to be accorded to an administrative tribunal’s interpretation of the IRPA, the Regulations, or, by extension, ministerial guidelines issued pursuant to those legislative enactments. 13 The situation is less clear with respect to other types of administrative decision-makers, particularly ministerial delegates, such as visa officers. In Toussaint v. Canada (Attorney General), 2011 FCA 213 (F.C.A.), at para 19, the Federal Court of Appeal observed that it was uncertain whether the reasonableness or correctness standard of review applied to the interpretation and application of an administrative policy issued under an Order in Council by a ministerial delegate employed at CIC. Given that nothing turned on whether the standard of review was reasonableness or correctness, the Court determined that it did not need to make a determination on this issue. Lukaj v. Canada (MCI) Paul S. Crampton J. 301

14 I will adopt a similar approach in this case, as the conclusion that I have reached below would be the same, regardless of whether the CIC’s interpretation of the Ministerial Guidelines is reviewed on a standard of reasonableness or correctness. 15 The issue of whether the Minister acted beyond, or abused, his authority in issuing the Ministerial Instructions is reviewable on a correctness standard (Dunsmuir, above, at paras 59-60; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.), at para 42, [2009] 1 S.C.R. 339 (S.C.C.) [Khosa]).

IV. Analysis A. Did CIC err in concluding that it had “received” Mr. Lukaj’s application on or after November 5, 2011? 16 Mr. Lukaj submits that the scheme established under the IRPA and the Regulations for the sponsorship of specified individuals, including parents of permanent residents and citizens, constitutes a contractual offer to potential sponsors which furthers the objective of family reunification. He asserts that, by filing an application, which includes a sponsorship undertaking, an applicant effectively accepts the offered terms and communicates that he or she is willing to enter into a binding agreement with CIC to undertake corresponding obligations to enable the sponsored person(s) to be accepted for permanent residence in Canada. He initially added that, having offered the contractual terms set forth in the above- mentioned statutory scheme, the Minister was bound by the “postal acceptance rule” to accept his application on the day it was mailed. How- ever, during the hearing of this application, his counsel acknowledged that the postal acceptance rule does not apply in the context of a sponsorship application. He therefore grounded Mr. Lukaj’s position regarding the contractual nature of his application in his view that he had a legitimate expectation that his application would be processed once he sent it by registered mail on November 4, 2011. 17 I do not accept Mr. Lukaj’s submissions on this point. 18 The sponsorship scheme established by the IRPA and the Regulations is statutory, rather than contractual, in nature (Mavi v. Canada (Attorney General), 2011 SCC 30 (S.C.C.), at paras 47-50, [2011] 2 S.C.R. 504 (S.C.C.)). 302 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

19 Eligibility to be sponsored as a member of the family class is established by subsection 12(1) of the IRPA, which states: Selection of Permanent Residents Family reunification 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Cana- dian citizen or permanent resident. Sélection des résidents permanents Regroupement familial 12. (1) La sélection des etrangers´ de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, a` titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou a` titre d’autre membre de la famille prévu par règlement. 20 The corresponding eligibility of permanent residents and Canadian Citizens to sponsor a family member is established by subsection 13(1) of the IRPA, which states: Sponsorship of Foreign Nationals Right to sponsor family member 13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class. Régime de parrainage Droit au parrainage: individus 13. (1) Tout citoyen canadien et tout résident permanent peuvent, sous réserve des règlements, parrainer l’étranger de la catégorie « regroupement familial ». 21 The regulatory framework applicable to sponsorship applications is set forth in Division 3 of the Regulations, specifically, sections 130 — 137. 22 In this statutory scheme, the right to sponsor a family member does not vest, accrue or begin to accrue until an affirmative decision is made in respect of the application (Gill v. Canada (Minister of Citizenship and Immigration), 2012 FC 1522 (F.C.), at para 40. Until that time, an applicant simply has a hope that his or her application will be accepted. Lukaj v. Canada (MCI) Paul S. Crampton J. 303

23 Indeed, until that time, an applicant may not even have a right to have his or her application processed (Liang v. Canada (Minister of Citizenship & Immigration), 2012 FC 758 (F.C.), at paras 5 — 11 and 43). This is clearly contemplated by the plain language in subsection 87.3(4), which applies to applications and requests made on or after Feb- ruary 27, 2008 (Budget Implementation Act, 2008, SC 2008, s. 120). 24 Mr. Lukaj submits that he had a legitimate expectation that the Min- ister would accept his sponsorship application based on its contractual nature and the fact that the CIC’s Document Checklist indicates that mail is the preferred mode of communication. 25 I disagree. In the same breath, Mr. Lukaj acknowledges that he “knew when we sent the application on November 4, 2011 that it would not physically arrive at the Case Processing Centre.” In fact, the uncontested evidence is that his application was physically received by the CPC on November 9, 2011. He was also clearly informed by the Ministerial In- structions that his application would not be accepted for processing if it did not receive before November 5, 2011. Specifically, under the heading “Processing Instructions,” he was informed that: “[e]ffective November 5, 2011, no new family class sponsorship applications for a sponsor’s parents (R117(1)(c)) or grandparents (R117(1)(d)) will be accepted for processing.” In addition, under the heading “Applications Received on or after November 5, 2011,” it was stated: New FC4 Sponsorship Applications for parents or grandparents received by [the CPC] on or after November 5, 2011, will be returned to the sponsor with a letter ... advising them of the temporary pause. Applications which are postmarked before November 5, 2011, but are received at [the CPC] on or after November 5, 2011 will also be returned to the sponsor. In both cases, processing fees shall be returned. (Emphasis added) 26 Given the foregoing, I disagree with Mr. Lukaj’s assertions that the scheme established by the IRPA and the Regulations constitute an “offer” which he accepted, and that he had a legitimate expectation that his application would be processed even though he knew it would not physically arrive until after November 5, 2011. I note that Justice Zinn dealt with a similar situation recently and concluded, as I have concluded, that “the applicant’s sponsorship application was required to have been mailed and received by CIC before November 5, 2011” (Esensoy v. 304 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Canada (Minister of Citizenship and Immigration), 2012 FC 1343 (F.C.), at para 8 [Esensoy]). 27 I would simply add that it is settled law that sponsorship applications under the family class are considered to be “received” only when they are physically received, not when they are mailed (Hamid v. Canada (Minister of Citizenship & Immigration), 2006 FCA 217 (F.C.A.), at paras 45-47; Salahova v. Canada (Minister of Citizenship & Immigration), 2010 FC 352 (F.C.), at paras 15-10; Lim v. Canada (Minister of Citizenship & Immigration), 2005 FC 657 (F.C.), at para 28; Castro v. Canada (Minister of Citizenship & Immigration), 2005 FC 659 (F.C.), at para 10). I note that the affidavit of Glen Bornais, Senior Analyst at CIC, dated July 1, 2012 [Bornais Affidavit], states, at paragraph 27, that this is also the CIC’s standard approach. This further undermines Mr. Lukaj’s position regarding his legitimate expectations (Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), at para 26 [Baker]). This evidence was not contradicted by Mr. Lukaj.

B. Are the Ministerial Instructions ultra vires or do they constitute an abuse of the Minister’s authority? 28 Mr. Lukaj submits that the Minister acted beyond his authority in issuing the Ministerial Instructions, because those instructions contravene the legislative scheme established in sections 12 and 13 of the IRPA and in Part 7, Division 3 of the Regulations (ss. 130 — 137), including the sponsorship rights created therein. 29 I disagree. This argument was recently addressed and rejected by Jus- tice Zinn in Esensoy, above, at paras 8 — 21. I concur with the reasons given by Justice Zinn and see no need to repeat them here. 30 Further, and in the alternative, Mr. Lukaj submits that the issuance of the Ministerial Instructions was arbitrary, unfair, done in bad faith and therefore constituted an abuse of the Minister’s authority. 31 I disagree. In Esensoy, above, at para 18, Justice Zinn found that the Minister appears to have had a legitimate and bona fide rational for issuing the Ministerial Instructions: The record shows that there was a 165,000 application backlog when the Ministerial Instructions were announced. As of January 2012, the anticipated processing time for applications for permanent residence arising out of Turkey could take up to 81 months. This was arguably an issue that required administrative intervention and the Minister’s Lukaj v. Canada (MCI) Paul S. Crampton J. 305

actions appear to have been bona fide and directed to that backlog issue. 32 The evidence adduced in the present proceeding confirms that there was a backlog of approximately 165,000 applications at the time the Ministerial Instructions were issued. According to the Bornais Affidavit, at paragraph 10, this backlog stood at 103,000 at the beginning of 2008. Among other things, paragraph 10 of that affidavit provided the following additional helpful information: Growing backlogs compromise Canada’s ability to deliver the most efficient immigration system possible. There are mounting costs associated with maintaining the backlogs. Rather than processing applications resources are spent managing applications and responding to complaints and requests for information. A corollary of backlogs is lengthening wait times, since as backlogs grow clients must wait longer and longer for their applications to be processed. Not only do wait times represent poor client service and force applicants to put life decisions on hold, but they also reduce public confidence in the immigration system. Finally, lengthening wait times expose the government to the risk of legal challenge (i.e., mandamus litigation). 33 The Bornais Affidavit further noted that the temporary pause was part of a broad Action Plan for Faster Family Reunification. Among other things, Phase I of that plan includes three other principal components. The first of those components committed the federal government to in- creasing the number of sponsored parents and grandparents that it will admit from nearly 15,500 in 2010 to 25,000 in 2012 — an increase of approximately 60%. The second of those components was the establishment of a Parent and Grandparent Super Visa, which can be valid for up to 10 years and allow multiple entries for up to 24 months at a time without the renewal of status. This came into effect on December 1, 2011. The third component was a commitment to consult with Canadians regarding the redesign of the parents and grandparents sponsorship program to ensure that it is sustainable into the future. Paragraph 22 of the Bornais Affidavit states that this consultation was launched on March 23, 2012. 34 These features of the Minister’s action plan were all explained in the press release issued by CIC on November 4, 2011. That press release also explained that Phase II of the action plan would be initiated “in about two years, following our consultations.” At that time, the plan con- templates that the temporary pause will be lifted, future applications will be processed quickly, and that the program for sponsoring parents and 306 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

grandparents will operate on a more efficient and sustainable basis than in the past. 35 In the meantime, according to the Bornais Affidavit, at paragraph 22, CIC is continuing “to process, on a priority basis, all sponsorship applications for spouses, partners and dependent children, regardless of levels plan targets.” 36 The rationale for implementing the Ministerial Instructions on very short notice is briefly explained in the Speaking notes for The Honourable Jason Kenney, PC, MP Minister of Citizenship, Immigration and Multiculturalism, which were released at the news conference held on November 4, 2011, to announce the temporary pause and the other prong’s of the Minister’s action plan. ... [A]s we redesign the program to make it sustainable, here’s the challenge we have: if we leave the program open for applications during that period of consultation and redesign, we know what will happen - we will get absolutely flooded with a huge increase in applications. Because people will say “if the criteria might change, we need to get our application in right away.” And we’re very concerned about this possibility. This has happened before. Immigration consul- tants and lawyers will go to their clients and say “we’re going to send your application in right now.” And then we’ll go from 40,000 applications to 50 or 60 or 70,000, and we’ll never be able to deal with the backlog. 37 According to an affidavit sworn by Sharon Ferreira, who is an Opera- tions Coordinator at the CPC, on July 10, 2012, the processing time for parents and grandparents sponsorship applications was approximately 31 to 55 months at that time. At the visa office in Rome, Italy, where Mr. Lukaj’s application likely would have been sent for processing, the processing time was approximately 40 months. Had Mr. Lukaj submitted his application prior to November 5, 2011, that processing time likely would not have begun until “after 2013.” 38 Considering all of the foregoing, I agree with Justice Zinn’s finding in Esensoy, above, at para 18, that issuance of the Ministerial Instructions appears to have been part of a bona fide course of action designed to address the above-described backlog. I am satisfied that the Minister’s actions in this regard were not arbitrary or taken in bad faith. 39 Mr. Lukaj also submitted that the principles of procedural fairness required that he be given some notice of the change in the Minister’s Lukaj v. Canada (MCI) Paul S. Crampton J. 307

policy, given that the Ministerial Instruction affected his substantive right to sponsor his parents. 40 I disagree. 41 It is well established that the content of the duty of fairness owed to visa applicants is at the low end of the spectrum (Petrosyan v. Canada (Minister of Citizenship and Immigration), 2012 FC 1319 (F.C.), at para 19; Chiau v. Canada (Minister of Citizenship & Immigration) (2000), [2001] 2 F.C. 297 (Fed. C.A.), at para 41; Khan v. Canada (Minister of Citizenship & Immigration), 2001 FCA 345 (Fed. C.A.), at paras 30-32, (2001), [2002] 2 F.C. 413 (Fed. C.A.); Patel v. Canada (Minister of Citizenship & Immigration), 2002 FCA 55 (Fed. C.A.), at para 10, (2002), 23 Imm. L.R. (3d) 161 (Fed. C.A.)). 42 As discussed above, Mr. Lukaj had no vested, accrued or accruing right to sponsor his parents. Nor did he have a right to have his application processed. In addition, he did not have a legitimate expectation that his application, which he knew would not be received by CIC until after the deadline established in the Ministerial Instruction, would be processed. 43 Pursuant to subsection 87.3(2) of the IRPA, the Minister has, and had under the version of the IRPA that was in force at the time of the decision in 2011 that is the subject of this proceeding, broad statutory authority regarding the processing of sponsorship applications, including those referred to in subsection 13(1) (Esensoy, above, at paras 10-12). 44 As explained above, the Minister appears to have had legitimate and bona fide reasons for issuing the Ministerial Instructions and for doing so on very short notice. 45 Considering all of the foregoing, the duty of fairness owed to Mr. Lukaj did not include a right to more advance notice of the “temporary pause” in the processing of applications that was brought about by the issuance of the Ministerial Instructions(dela Fuente, above, at para 20l; Salahova v. Canada (Minister of Citizenship & Immigration), 2010 FC 352 (F.C.), at para 21; Baker, above, at paras 26-27).

V. Conclusion 46 For the reasons set forth above, the CIC did not err in concluding that it had “received” Mr. Lukaj’s application on or after November 5, 2011. Moreover, the Minister did not act beyond his authority, in bad faith or in an arbitrary manner in issuing the Ministerial Instructions. In addition, 308 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

the issuance of the Ministerial Instructions on very short notice did not breach any duty of fairness owed to Mr. Lukaj. 47 Accordingly, this application is dismissed. 48 At the end of the hearing of this application, the Respondent proposed the following question for certification: Given the Minister’s responsibility to administer the Immigration and Refugee Protection Act [IRPA] in a manner that achieves the various objectives set out at subsection 3(1), and to manage these objectives within the Government’s annual plan for total admissions, does section 13 of the IRPA preclude the Minister from implementing Instructions under section 87.3 of the IRPA that temporarily pause the acceptance of sponsorship applications to reduce the application backlog and associated wait times for sponsored parents and grandparents? 49 In the alternative, in the event that the Court preferred a more open question, the respondent proposed the following question for certification: In issuing and enforcing a temporary pause on the receipt of new sponsorship applications for parents and grandparents as set out in the Ministerial Instructions of November 5, 2011, did the Minister exceed his discretionary authority and were his actions ultra vires the IRPA? 50 In my view, neither of these proposed questions raises “a serious question of general importance,” as contemplated by paragraph 74(d) of the IRPA. For the reasons explained by Justice Zinn in Esensoy, above, it is clear that it was within the Minister’s statutory authority to issue the Ministerial Instructions, including the aspect of those instructions which effected a temporary pause in the acceptance of applications to sponsor a parent or a grandparent. 51 I would simply add that neither of the proposed questions set forth above would be dispositive of this application, if answered in the negative (Varela v. Canada (Minister of Citizenship & Immigration), 2009 FCA 145 (F.C.A.), at para 28). 52 In my view, no other serious question of general importance arises from this application. 53 Accordingly, there is no issue for certification.

Judgment THIS COURT ORDERS AND ADJUDGES that: Lukaj v. Canada (MCI) Paul S. Crampton J. 309

1. This application is dismissed. 2. There is no question for certification. Application dismissed. 310 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Lawrence v. Canada (Minister of Citizenship and Immigration)] James Joseph Lawrence, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8494-11 2012 FC 1523 Richard G. Mosley J. Heard: October 11, 2012 Judgment: January 8, 2013 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– When permanent residence applicant and his family underwent mandatory medical exams, physician noted that applicant’s 15-year-old son had developmental delay and moderate learning difficulties — Medical officer gave opinion that son was medically inadmissible — Applicant gave visa officer his response, which did not contest diagnosis but had plan to mitigate costs on social system — Visa officer assessed response herself and found it inadequate, rather than sending it to medical officer — Applicant’s application for permanent residence under skilled worker program was dismissed — Applicant brought application for judicial review — Application granted; matter remitted for reconsideration by different visa officer — Visa officer erred in law by failing to submit applicant’s mitigation plan to medical officer for evaluation — Visa officer’s belief that anything non-medical related to social services did not need to go to medical officer was error of law — Medical officer was intended to be expert on how social services operated and would have known certain information that was not contained in response. Cases considered by Richard G. Mosley J.: Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 50 Imm. L.R. (3d) 40, 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 340 N.R. 102, 259 D.L.R. (4th) 244, 33 Admin. L.R. (4th) 1, [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58 (S.C.C.) — followed Sapru v. Canada (Minister of Citizenship & Immigration) (2010), (sub nom. Sapru v. Canada) [2011] 2 F.C.R. 501, 2010 CF 240, 2010 CarswellNat 2131, 2010 FC 240, 2010 CarswellNat 455, 364 F.T.R. 273 (Eng.), [2010] F.C.J. No. 270 (F.C.) — considered Sapru v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1930, 2011 CAF 35, 413 N.R. 70, 330 D.L.R. (4th) 670, 2011 Car- Lawrence v. Canada (MCI) Richard G. Mosley J. 311

swellNat 229, 2011 FCA 35, 93 Imm. L.R. (3d) 167, [2011] F.C.J. No. 148 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to

APPLICATION by permanent residence applicant for judicial review of decision denying him permanent residence.

Mario Bellissimo, for Applicant Marie Louise Wcislo, for Respondent

Richard G. Mosley J.:

1 The applicant was denied permanent residence in Canada under the Federal Skilled Worker program due to his son’s medical condition. He seeks judicial review of that decision under section 72(1) of the Immigra- tion and Refugee Protection Act, SC 2001, c 27 [IRPA]. 2 When the applicant and his family underwent their mandatory medical exams, the physician noted that the applicant’s son had developmental delay and moderate learning difficulties. When this was noticed in the applicant’s file, the Medical Assessment Unit at the Canadian High Commission in London requested further details. These were provided, and on April 26, 2010 Dr. Sylvain Bertrand, the Medical Officer in London, recorded his opinion that the boy, aged 15 at the time, was medically inadmissible. 3 The average cost threshold for social services for an average Cana- dian child at that time was $5,143 per year. Dr. Bertrand assessed that the boy would require services amounting to between $98,500 and $126,500 over five years rather than the $25,715 average cost over five years. This was communicated to the applicant in a letter from the Visa Officer in London, Ms. Valerie Feldman, dated April 29, 2010. 4 In response, the applicant provided a mitigation plan including personal financial information, letters of support promising financial or equivalent assistance, and evidence of contact with two Toronto area private schools. He did not dispute the medical diagnosis or the assessed cost of the required services. 5 The Visa Officer did not send the applicant’s plan to the Medical Of- ficer for evaluation but assessed it herself. The Officer stated in her rea- 312 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

sons that “The information in the submission is not medical (they do not contest the medical diagnosis) therefore this submission does not need to be reviewed by the medical officer.” On September 14, 2011, the application was refused. 6 On May 31, 2012, the Medical Officer signed an affidavit stating that: “Having now read the Applicant’s response to Ms Feldman’s “fairness letter”, I confirm that my medical opinion remains unchanged.” 7 The applicant raised several issues with respect to the Visa Officer’s decision including whether the officer’s assessment of the adequacy of the applicant’s plan was reasonable. An argument that there were special reasons for awarding costs in this matter was abandoned at the hearing. Having concluded that the officer erred in law by failing to submit the applicant’s response to the fairness letter to the medical officer for evaluation, I do not consider it necessary to address the question of the reasonableness of the officer’s decision with respect to the applicant’s plan to address his child’s needs. 8 In Sapru v. Canada (Minister of Citizenship & Immigration), 2010 FC 240 (F.C.) [Sapru] aff’d by 2011 FCA 35 (F.C.A.) [Sapru FCA] at paras 12-17, the Federal Court applied a standard of correctness to decisions by Visa Officers which turned on clear questions of law, relying on the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 (S.C.C.) [Hilewitz]. In the present case, the question of whether the Visa Officer was obliged to refer the file to the Medical Officer is an issue of law which should be reviewed on a standard of correctness. 9 The Supreme Court in Hilewitz had given guidance on the processing of visa applications for immigrants with health conditions which could create excessive demand on Canada’s social services. Medical officers must assess the likely demands, taking into account both medical and non-medical factors. In response to Hilewitz, the Minister issued two operational bulletins to set out the policy on the matter 10 In Operational Bulletin 63 (“Assessing Excessive Demand on Social Services”, September 24, 2008) [OB 63] it is provided that officers must consider the specific ability and intent of applicants who propose to reduce or eliminate the anticipated excessive demand. OB 63 requires applicants to demonstrate that the private purchase of the necessary services is actually possible in their province of intended residence and that they possess the resources to purchase them. OB 63 does not suggest that Lawrence v. Canada (MCI) Richard G. Mosley J. 313

the Visa Officer has any discretion whether or not to consult the Medical Officer. 11 A revised version of the bulletin issued on July 29, 2009 [OB 63B], states that the Visa Officer “should request the opinion of the medical officer if the applicant challenges the diagnosis or the required treatment; and, if warranted, seek the opinion of the medical officer on the nature of the plan and whether the services proposed are acceptable, within the Canadian context, considering the medical condition.” This language was clearly intended to give the Visa Officer the discretion whether to seek the opinion of the medical officer on aspects of the applicant’s plan that are non-medical in nature. Whether it can have that effect in light of the jurisprudence is at the heart of the controversy between the parties. 12 In Sapru, above, at paragraph 23, I noted that the Supreme Court had addressed the issue by expressly stating at paragraph 70 of Hilewitz that the medical officers were obliged to consider all relevant factors, both medical and non-medical, such as the availability of the services and the anticipated need for them. The Federal Court of Appeal upheld that conclusion in paragraph 36 of Sapru FCA while setting aside the decision on another ground. 13 The respondent argues that Sapru FCA does not create a universal obligation for the Visa Officer to send the Fairness Letter and any response to the Medical Officer in cases where the response does not concern medical matters. The Visa Officer, it submits, can consider non- medical submissions and determine the credibility or sufficiency of an applicant’s mitigation plan, financial ability, and intent to pay privately for required social services. 14 The requirements of procedural fairness should not be extended to the point where they serve no practical benefit, the respondent contends. Plans to mitigate the cost of excessive demands on Canadian social systems should be more than scant, incomplete or inchoate statements of what is intended. Here, the bulk of the applicant’s response to the fairness letter consisted of information concerning his assets and the additional resources available to the family. Neither the diagnosis nor the es- timated costs of the required services were contested. 15 The Visa Officer considered that the applicant’s plan was inadequate, in part because there was no indication of the nature of the schools in question nor whether either or both had agreed to accept the child. Medi- cal officers are, as the Supreme Court found in Hilewitz at paras 54-55 and 70, intended to be the experts on how social services operate in the 314 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

provinces. The Medical Officer in this case would have known that the named schools were fully private and that the child would have to be assessed by the schools in Canada before he could be admitted. The responsibility for providing an opinion on such matters was assigned by OB 63 to the Medical Officer. The Visa Officer acknowledges this in her affidavit but asserts that she did not think it was necessary in this case to consult the Medical Officer based on the wording of OB 63B. 16 Officers’ affidavits may be helpful to the Court in understanding the background and context in which a decision is made. But they cannot be used to bolster an officer’s reasons for the decision, as was stated in Sapru FCA at paragraph 53. Here it is clear from the Visa Officer’s notes to file which constitute her reasons along with the decision letter that she believed that anything non-medical relating to social services need not go to the Medical Officer. This was, in my view, an error of law that could not be cured by the subsequent review and declaration by the Medical Officer that he stood by his earlier opinion. 17 The applicant opposed certification of a question on the ground that the law in this area was clear but suggested the following language if a question was to be certified: When a principal applicant in a response to a fairness letter does not dispute the medical diagnosis or medical prognosis or the cost estimates to provide social services is there an obligation on the immigration officer to refer the response to the medical officer for consideration and decision? 18 The respondent took the position that this question does not appear to have been directly addressed thus far in the authorities. On that basis and with the understanding that it would be dispositive of an appeal in this matter, I will certify the question.

Judgment THIS COURT’S JUDGMENT is that: 1. the application for judicial review is granted and the matter is remitted for reconsideration by a different Visa Officer; 2. there is no award of costs; and 3. the following question is certified as a serious question of general importance: When a principal applicant in a response to a fairness letter does not dispute the medical diagnosis or medical prognosis or the cost estimates to provide social services is there an ob- Lawrence v. Canada (MCI) Richard G. Mosley J. 315

ligation on the immigration officer to refer the response to the medical officer for consideration and decision? Application granted. 316 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Chadha v. Canada (Minister of Citizenship and Immigration)] Rashpal Singh Chadha Manpinder Kaur Ishika Kaur Chadha, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3727-12 2013 FC 105 James Russell J. Heard: January 9, 2013 Judgment: January 31, 2013* Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Specific vocational preparation –––– Principal applicant was 45-year-old citizen of India and resident of Kuwait — Secondary applicants were principal applicant’s wife and daughter — Applicant submitted his application under National Occupation Classification code (NOC) 1111, Financial Auditors and Accountants — Officer refused applicant’s application for permanent residence in Canada as member of Federal Skilled Worker class on basis that applicant had not provided sufficient evidence of having one year of experience — Applicant’s application was determined to be ineligible for processing — Applicant brought application for judicial review under subsection 72(1) of Immigration and Refugee Protection Act — Applica- tion dismissed — Decision was made in accordance with relevant Ministerial In- structions in Canada Gazette and with Operational Bulletin 120 — Applicant provided incomplete and deficient application even though he was fully aware, or reasonably ought to have been, of what was required — Officer gave full reasons, there was no indication that officer ignored evidence, and there was no denial of procedural fairness. Cases considered by James Russell J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — referred to

*A corrigendum issued by the Court on February 8, 2013 has been incorporated herein. Chadha v. Canada (MCI) 317

C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — considered Canada (Minister of Citizenship & Immigration) v. Jeizan (2010), 2010 Car- swellNat 2159, 2010 CF 323, 386 F.T.R. 1 (Eng.), 2010 FC 323, 2010 Car- swellNat 633, [2010] F.C.J. No. 373 (F.C.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1279, 2011 CarswellNat 4730, 2011 CF 1279, 2011 CarswellNat 5364 (F.C.) — referred to Elisha v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 520, 2012 CarswellNat 1943, 2012 CF 520, 2012 CarswellNat 3025 (F.C.) — followed Gedeon v. Canada (Minister of Citizenship & Immigration) (2004), 41 Imm. L.R. (3d) 206, 2004 CarswellNat 4097, 2004 FC 1245, 2004 CF 1245, 2004 CarswellNat 7495, [2004] F.C.J. No. 1504 (F.C.) — considered Hassani v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1283, 2006 CarswellNat 5123, [2007] 3 F.C.R. 501, 2006 CarswellNat 3387, 2006 FC 1283, 302 F.T.R. 39 (Eng.), [2006] F.C.J. No. 1597 (F.C.) — considered Kamchibekov v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1411, 2011 CarswellNat 5285, 2011 FC 1411, 2011 CarswellNat 5837, [2011] A.C.F. No. 1782, [2011] F.C.J. No. 1782 (F.C.) — considered Kaur v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2241, 2010 CF 442, 2010 FC 442, 2010 CarswellNat 1305, [2010] F.C.J. No. 587, [2010] A.C.F. No. 587 (F.C.) — referred to Khan v. Canada (Minister of Citizenship & Immigration) (2001), 213 F.T.R. 56 (note), 2001 FCA 345, 2001 CarswellNat 2524, 2001 CarswellNat 3528, [2002] 2 F.C. 413, 283 N.R. 173, 208 D.L.R. (4th) 265, [2001] F.C.J. No. 1699 (Fed. C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Kuhathasan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 2637, 2008 CF 457, 2008 CarswellNat 1029, 2008 FC 457, 72 Imm. L.R. (3d) 57, [2008] F.C.J. No. 587 (F.C.) — referred to 318 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Lam v. Canada (Minister of Citizenship & Immigration) (1998), 1998 Car- swellNat 1699, 152 F.T.R. 316, [1998] F.C.J. No. 1239 (Fed. T.D.) — referred to Liao v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 2884, [2000] F.C.J. No. 1926 (Fed. T.D.) — considered Malik v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1283, 2009 CarswellNat 5826, 2009 FC 1283, 2009 CarswellNat 4345, [2009] F.C.J. No. 1643 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered Nabin v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 359, 2008 FC 200, 2008 CarswellNat 1214, 2008 CF 200, [2008] F.C.J. No. 250 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Patel v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 1290, 288 N.R. 48, 2002 CAF 55, 2002 FCA 55, 2002 CarswellNat 301, 23 Imm. L.R. (3d) 161, [2002] F.C.J. No. 178 (Fed. C.A.) — referred to Prasad v. Canada (Minister of Citizenship & Immigration) (1996), 34 Imm. L.R. (2d) 91, 1996 CarswellNat 467, [1996] F.C.J. No. 453 (Fed. T.D.) — referred to Rodrigues v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 864, 2009 CF 111, 2009 CarswellNat 240, 2009 FC 111 (F.C.) — considered Chadha v. Canada (MCI) 319

Rukmangathan v. Canada (Minister of Citizenship & Immigration) (2004), 247 F.T.R. 147, 2004 CarswellNat 488, 2004 FC 284, 2004 CF 284, 2004 Car- swellNat 1673, [2004] A.C.F. No. 317, [2004] F.C.J. No. 317 (F.C.) — considered Sekhon v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 700, 2012 CarswellNat 1929, 2012 CarswellNat 2752, 2012 CF 700, 10 Imm. L.R. (4th) 16 (F.C.) — considered Thandal v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 489, 2008 CarswellNat 1085, 2008 FC 489, 2008 CarswellNat 1958, [2008] F.C.J. No. 623 (F.C.) — referred to Zhong v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 3181, 2011 FC 980, 100 Imm. L.R. (3d) 41, 2011 CF 980, 2011 CarswellNat 3932 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 72(1) — pursuant to s. 87.3 [en. 2008, c. 28, s. 118] — considered s. 87.3(1) [en. 2008, c. 28, s. 118] — considered s. 87.3(2) [en. 2008, c. 28, s. 118] — considered s. 87.3(3) [en. 2008, c. 28, s. 118] — considered s. 87.3(3.1) [en. 2012, c. 19, s. 706(5)] — considered s. 87.3(3.2) [en. 2012, c. 19, s. 706(5)] — considered s. 87.3(4) [en. 2008, c. 28, s. 118] — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 80(1) — considered s. 80(3) — considered

APPLICATION by applicant for judicial review of officer’s decision refusing applicant’s application for permanent residence as member of Federal Skilled Worker class.

Sherif R. Ashamalla, for Applicants Margherita Braccio, for Respondent 320 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

James Russell J.:

1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision of a Visa Officer (Officer) of the High Commission of Canada in London, United Kingdom, dated 16 March 2012 (Decision), which refused the Applicant’s application for permanent residence in Canada as a member of the Federal Skilled Worker class.

Background 2 The Principle Applicant (Applicant) is a 45-year-old citizen of India and a resident of Kuwait. The Secondary Applicants are his wife and daughter. The Applicant submitted an application for Permanent Resi- dence as a Federal Skilled Worker on 21 April 2010 based on his professional qualifications as an Accountant. The Centralized Intake Office (CIO) conducted an initial assessment of his application, and then transferred it to the Officer for final determination. The Applicant received notice of this transfer by way of letter dated 16 July 2010. 3 The Applicant submitted his application under the National Occupa- tion Classification code (NOC) 1111 — Financial Auditors and Account- ants. NOC 1111 states that Accountants perform some or all of the following main duties: a. Plan, set up and administer accounting systems and prepare financial information for an individual, department, company or other establishment; b. Examine accounting records and prepare financial statements and reports; c. Develop and maintain cost finding, reporting and internal control procedures; d. Examine financial accounts and records and prepare income tax returns from accounting records; e. Analyze financial statements and reports and provide financial, business and tax advice; f. May act as a trustee in bankruptcy proceedings; g. May supervise and train articling students, other accountants or administrative technicians. 4 Along with his application, the Applicant submitted a Schedule 3 list- ing duties he performed during his work experience: Chadha v. Canada (MCI) James Russell J. 321

a. Reconciling and maintaining balance sheet accounts; b. Auditing data sheets of raw material used to manufacture oil into finished product; c. Preparing monthly payroll and daily wage reports; d. Maintaining and following up on maintenance contracts with clients; e. Handling accounts receivable; f. Preparing collection analysis reports; g. Handling cash flow and bank reconciliations; h. Supervising annual stock audits. 5 The Applicant also submitted letters from his previous employers: Kuwait National Lube Oil Co., Al-Sundus Gen. Trading & Cont. Est., Kuwait Oxygen & Acetylene Company, and the United Fisheries of Ku- wait. These letters all spoke highly of the Applicant and confirmed his employment, but none of them discussed the duties that he performed as an employee. 6 After receiving the 16 July 2010 letter, the Applicant heard nothing until he received a letter dated 16 March 2012 informing him that his application was not eligible for further processing.

Decision Under Review 7 The Decision in this case consists of the letter dated 16 March 2012 (Refusal Letter), as well as the Computer Assisted Immigration Process- ing System (CAIPS) Notes made by the Officer. 8 The Officer completed an assessment of the application and found that it was not eligible because the “information submitted to support this application is insufficient to substantiate that [the] applicant meets the occupational description and/or a substantial number of the main duties of the NOC Code.” 9 The Officer found that the main duties listed by the Applicant in Schedule 3 did not reflect the main duties of NOC 1111, and the employment letters did not actually describe his past jobs. Therefore, the Officer was not satisfied that the Applicant had one year of job experience in this occupation, and found that the application was not eligible for further processing. 322 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Issues 10 The Applicant raises the following issue in this application: a. Whether the Officer erred by concluding that the Applicant did not meet the requirements of NOC 1111, when it is clear the Ap- plicant did; b. Whether the Officer breached the duty of fairness owed to the Ap- plicant by failing to give him an opportunity to respond to the Of- ficer’s concerns.

Standard of Review 11 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 12 The first issue involves an evaluation of the Officer’s conclusion that the Applicant was ineligible under the Federal Skilled Worker category. The case law has established that this is reviewable on a reasonableness standard (Zhong v. Canada (Minister of Citizenship & Immigration), 2011 FC 980 (F.C.) at paragraph 11; Malik v. Canada (Minister of Citizenship & Immigration), 2009 FC 1283 (F.C.) at paragraph 22). 13 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 14 In his arguments, the Applicant also takes issue with the adequacy of the Officer’s reasons. He submits that this is a matter of procedural fairness. However, in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) [Newfoundland Nurses], the Supreme Chadha v. Canada (MCI) James Russell J. 323

Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” Thus, the adequacy of the reasons will be analysed along with the reasonableness of the Decision as a whole. 15 The second issue is a matter of procedural fairness (Kuhathasan v. Canada (Minister of Citizenship & Immigration), 2008 FC 457 (F.C.) [Kuhathasan] at paragraph 18). As stated by the Supreme Court of Can- ada in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 (S.C.C.) at paragraph 100, “it is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Accordingly, the standard of review applicable to the second issue is correctness.

Statutory Provisions 16 The following provisions of the Act are applicable in these proceedings: Application before entering Canada 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. [...] 87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), to sponsorship applications made by persons referred to in subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Can- ada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. (2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. (3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions 324 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(a) establishing categories of applications or requests to which the instructions apply; (a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request; (b) establishing an order, by category or otherwise, for the processing of applications or requests; (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. (3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect. (3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero. (4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister. Visa et documents 11. (1) L’étranger doit, préalablement a` son entrée au Canada, de- mander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. [...] 87.3 (1) Le présent article s’applique aux demandes de visa et autres documents visées au paragraphe 11(1) — sauf a` celle faite par la personne visée au paragraphe 99(2) — , aux demandes de parrainage faites par une personne visée au paragraphe 13(1), aux demandes de statut de résident permanent visées au paragraphe 21(1) ou de rési- dent temporaire visées au paragraphe 22(1) faites par un etranger´ se trouvant au Canada, aux demandes de permis de travail ou d’études ainsi qu’aux demandes prévues au paragraphe 25(1) faites par un etranger´ se trouvant hors du Canada. Chadha v. Canada (MCI) James Russell J. 325

(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration par le gouvernement fédéral. (3) Pour l’application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment des instructions: a) prévoyant les groupes de demandes a` l’égard desquels s’appliquent les instructions; a.1) prévoyant des conditions, notamment par groupe, a` remplir en vue du traitement des demandes ou lors de celuici; b) prévoyant l’ordre de traitement des demandes, notamment par groupe; c) précisant le nombre de demandes a` traiter par an, notamment par groupe; d) régissant la disposition des demandes dont celles faites de nouveau. (3.1) Les instructions peuvent, lorsqu’elles le prévoient, s’appliquer a` l’égard des demandes pendantes faites avant la date où elles prennent effet. (3.2) Il est entendu que les instructions données en vertu de l’alinéa (3)c) peuvent préciser que le nombre de demandes a` traiter par an, notamment par groupe, est de zéro. (4) L’agent — ou la personne habilitée a` exercer les pouvoirs du ministre prévus a` l’article 25 — est tenu de se conformer aux instructions avant et pendant le traitement de la demande; s’il ne procède pas au traitement de la demande, il peut, conformément aux instructions du ministre, la retenir, la retourner ou en disposer. 17 The following provisions of the Regulations are applicable in this proceeding: Experience (21 points) 80. (1) Up to a maximum of 21 points shall be awarded to a skilled worker for full-time work experience, or the full-time equivalent for part-time work experience, within the 10 years preceding the date of their application, as follows: [...] Occupational experience (3) For the purposes of subsection (1), a skilled worker is considered to have experience in an occupation, regardless of whether they meet 326 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

the employment requirements of the occupation as set out in the occupational descriptions of the National Occupational Classification, if they performed (a) the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Oc- cupational Classification; and (b) at least a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all the essential duties. Expérience (21 points) 80. (1) Un maximum de 21 points d’appréciation sont attribués au travailleur qualifié en fonction du nombre d’années d’expérience de travail a` temps plein, ou l’équivalent temps plein du nombre d’années d’expérience de travail a` temps partiel, au cours des dix an- nées qui ont précédé la date de présentation de la demande, selon la grille suivante: [...] Expérience professionnelle (3) Pour l’application du paragraphe (1), le travailleur qualifié, in- dépendamment du fait qu’il satisfait ou non aux conditions d’accès etablies´ a` l’égard d’une profession ou d’un métier figurant dans les description des professions de la Classification nationale des professions, est considéré comme ayant acquis de l’expérience dans la profession ou le métier: a) s’il a accompli l’ensemble des tâches figurant dans l’énoncé principal etabli´ pour la profession ou le métier dans les descriptions des professions de cette classification; b) s’il a exercé une partie appréciable des fonctions principales de la profession ou du métier figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. 18 On 15 June 2009, Citizenship and Immigration Canada issued the publicly available Operational Bulletin (OB 120). OB 120 is meant to provide “visa officers with additional guidance on making final determinations of eligibility for processing of federal skilled workers (FSW) files referred from the Centralized Intake Office in Sydney.” It states: Insufficient evidence of meeting Ministerial Instructions: Visa officers will assess the application on the basis of the information on file. If the applicant’s submission is insufficient to determine that the Chadha v. Canada (MCI) James Russell J. 327

application is eligible for processing, a negative determination of eligibility should be rendered. [...] For SW1 (one of the 38 occupations listed in the MI), review the documents related to work experience. These documents should include those listed in the Appendix A document checklist of the visa office specific forms. They should include sufficient detail to support the claim of one year of continuous work experience or equivalent paid work experience in the occupation in the last 10 years. Docu- ments lacking sufficient information about the employer or, contain- ing only vague descriptions of duties and periods of employment, should be given less weight. Descriptions of duties taken verbatim from the NOC should be regarded as self-serving. Presented with such documents, visa officers may question whether they accurately describe an applicant’s experience. A document that lacks sufficient detail to permit eventual verification and a credible description of the applicant’s experience is unlikely to satisfy an officer of an applicant’s eligibility. 19 The Appendix A Checklist to the Federal Skilled Worker application form is also relevant to this application. Page A-4 of that document says: 7. WORK EXPERIENCE [...] Letters must include all the following information: i. the specific period of your employment with the company ii. the positions you have held during the period of employment and the time spent in each position iii. your main responsibilities and duties in each position iv. your total annual salary plus benefits v. the signature of your immediate supervisor or the personnel officer of the company vi. a business card of the person signing

Arguments The Applicant The Reasonableness of the Decision 20 The Applicant submits that having worked as an accountant for 13 years, it is obvious he would have performed the required duties of the profession. Additionally, the duties he performed were explicitly detailed 328 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

in the Schedule 3 portion of his application. The Applicant also submits that the CIO would not have forwarded his application to the Officer for further review if, on the face of it, it did not appear that the Applicant met the requirements of NOC 1111. 21 The Applicant states that there is no explanation offered in the Deci- sion as to why the Officer did not think he met the requirements of NOC 1111, considering the evidence that was before him or her. There is no factual foundation for the Officer’s conclusions, and the reasons are lacking in analysis or explanation. The Officer’s reasons fail to explain the basis for the conclusions reached in the Decision, and this is a reviewable error (Canada (Minister of Citizenship & Immigration) v. Jeizan, 2010 FC 323 (F.C.)).

Procedural Fairness 22 The Applicant also submits that the Officer did not reach the Decision in accordance with principles of procedural fairness and failed to provide the Applicant with an opportunity to address his or her concerns. As Jus- tice Richard Mosley said at paragraph 22 of Rukmangathan v. Canada (Minister of Citizenship & Immigration), 2004 FC 284 (F.C.): It is well established that in the context of visa officer decisions procedural fairness requires that an applicant be given an opportunity to respond to extrinsic evidence relied upon by the visa officer and to be apprised of the officer’s concerns arising therefrom: Muliadi, supra. In my view, the Federal Court of Appeal’s endorsement in Muliadi, supra, of Lord Parker’s comments in In re H.K. (An Infant), [1967] 2 Q.B. 617, indicates that the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to “disabuse” an officer of such concerns, even where such concerns arise from evidence tendered by the applicant. Other decisions of this court support this interpretation of Muliadi, supra. See, for example, Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise an applicant at an interview of her negative impressions of evidence tendered by the applicant. Chadha v. Canada (MCI) James Russell J. 329

23 In Hassani v. Canada (Minister of Citizenship & Immigration), 2006 FC 1283 (F.C.) at paragraph 24: Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer’s concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan, above. 24 Also, in Gedeon v. Canada (Minister of Citizenship & Immigration), 2004 FC 1245 (F.C.) at paragraphs 101-102: Although the Applicant has the burden of proving that she qualifies to come to Canada, this does not relieve the Visa Officer of the duty to act fairly. This Court has stated on numerous occasions that, while a decision maker is not required to refer explicitly, or to analyse, every item before it in evidence that tends to negate a finding of fact, “much depends upon the relevancy and cogency of the evidence, and upon its importance to the ultimate decision on the fact to which the evidence relates,” to borrow the words of Mr. Justice Rouleau in Toth v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1518 (T.D.). In the present case, the Officer should have dealt clearly in the Deci- sion or the CAIPS notes with his reasons for rejecting the employer’s description of the Applicant’s experience and responsibilities in Leb- anon and should have given the Applicant the opportunity to address the concerns he had in this regard. Not to do so was a reviewable error. 25 The Applicant submits that if the Officer had concerns about the evidence in the application, he or she had a duty to give the Applicant an opportunity to respond. The Applicant was not aware there was a problem with the documentation, and none of the Officer’s concerns were raised with the Applicant. 26 As stated in Liao v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1926 (Fed. T.D.) at paragraph 17, the “duty to inform the applicant will be fulfilled if the visa officer adopts an appropriate line of questioning or makes reasonable inquiries which give the applicant the opportunity to respond to the visa officer’s concerns.” 330 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

27 The Applicant submits that his case is similar to the situation in Kuhathasan, above, where the Court said at paragraphs 39-41: In considering procedural fairness issues in the present case, I think it has to be borne in mind that the Applicants were dealt with under somewhat exceptional circumstances and that normal procedures had to be adjusted. I see no real evidence that the Applicants had access to the information they needed to satisfy all of the requirements under the Act. The Respondent’s web-site instructions were published to tell applicants and those helping them how to apply. Those instructions told the Applicants to use the Federal Skilled Worker application form and also asked for a letter from a family member in Canada offering financial assistance. The fact is that the Applicants did all they were asked to do and com- plied with the instructions that were posted on the web-site. The Of- ficer’s principal concern, as shown in the Decision, was general financial viability, although the documentation suggests that there were also peripheral credibility issues regarding the financial capabil- ities of the Canadian relative. Under the specific facts in this case, I cannot see how the Applicants could have anticipated and addressed either the financial viability issue, the peripheral credibility issues, or possible language problems in advance. They did what they were told to do in accordance with the instructions on the web-site. General financial viability was obviously a crucial issue in the Decision. On these facts, fairness required the Officer to give the Applicants some kind of opportunity to address her concerns. There is no evidence before me to suggest that, had the Applicants been given such an opportunity, they could not have satisfied the Officer’s concerns. The Principal Applicant is an established professional and he has also indicated various other connections and resources he can tap into for financial support. 28 The Applicant also relies upon Sekhon v. Canada (Minister of Citizenship & Immigration), 2012 FC 700 (F.C.) where Justice James O’Reilly had the following to say at paragraphs 12-14: Mr. Sekhon’s submissions were directed to the officer’s concerns about whether the school was carrying on business at the stated address. The parents’ letters and photographs were aimed at meeting those concerns, and further documentation was provided regarding the school’s finances. But Mr. Sekhon could not have met the officer’s other unstated concerns because he was not made aware of them. Chadha v. Canada (MCI) James Russell J. 331

Accordingly, I find that Mr. Sekhon was not given a fair opportunity to meet the officer’s concerns about the shortcomings of his application. The officer did not give Mr. Sekhon a chance to meet her real concerns about his application. Therefore, he was not treated fairly. Ac- cordingly, I must allow this application for judicial review and order a reassessment of Mr. Sekhon’s application by another officer... 29 The Applicant submits that, based on the above, the Officer had a duty to advise the Applicant of the problems with the application and give him an opportunity to respond. As this was not done, the Appli- cant’s rights of procedural fairness were breached.

The Respondent 30 On 29 November 2008, the Government of Canada published in the Canada Gazette instructions issued under subsection 87.3 of the Act that in order to have an application processed, it must first be determined whether an application is eligible for processing. On 15 June 2009, Citi- zenship and Immigration Canada issued the publicly available Opera- tional Bulletin 120 (OB 120) that provides “visa officers with additional guidance on making final determinations of eligibility for processing of federal skilled worker (FSW) files referred from the Centralized Intake Office in Sydney.”

The Reasonableness of the Decision 31 The Court has established that the onus is on the Applicant to submit a clear and complete application, and to satisfy the Officer that he has met all the requirements of his application (Prasad v. Canada (Minister of Citizenship & Immigration), [1996] F.C.J. No. 453 (Fed. T.D.)). There is no general obligation on visa officers to request clarification from an applicant (Lam v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1239 (Fed. T.D.)). 32 In this case, the Applicant provided five reference letters, none of which described the duties actually performed by him. Therefore, the Re- spondent submits it was open to the Officer to find that the Applicant had not demonstrated that he performed the duties described in the lead statement of NOC 1111. 33 The Officer did not ignore evidence. The Applicant’s documentary evidence was specifically considered, including his Schedule 3, and found to be insufficient to establish that he had the requisite experience 332 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

under NOC 1111. The Respondent submits that in light of OB 120, above, and the concerns the Officer had with the letters submitted by the Applicant, this was a reasonable finding. It was open to the Officer to find that there was insufficient evidence to demonstrate the Applicant’s work experience (Elisha v. Canada (Minister of Citizenship & Immigra- tion), 2012 FC 520 (F.C.)). 34 The Court said at paragraphs 9-10 of Rodrigues v. Canada (Minister of Citizenship & Immigration), 2009 FC 111 (F.C.): In the Federal Court of Appeal’s decision in Noman v. Canada (Min- ister of Citizenship and Immigration), [2002] F.C.J. No. 1568, 2002 FCT 1169, while the Court outlined that an applicant was not required to perform all of the main duties in a NOC job category; they did require that an applicant perform a few — meaning more than one. The real function of the visa officer is to determine what is the pith and substance of the work performed by an applicant. Tangential performance of one or more functions under one or more job categories does not convert the job or the functions from one NOC category to another. 35 The Applicant failed to satisfy the Officer that he had the requisite experience under NOC 111, and has not demonstrated any errors in the Officer’s Decision. 36 Further, contrary to the Applicant’s submissions, the Respondent submits that the Officer did provide reasons for the Decision (Newfoundland Nurses, above, at paragraphs 14-23). In the CAIPS notes, the Officer explained that he or she was not satisfied that the Applicant had the requisite work experience.

Procedural Fairness 37 The Respondent points out that procedural fairness in the context of a permanent residence application is at the low end of the spectrum (Patel v. Canada (Minister of Citizenship & Immigration), 2002 FCA 55 (Fed. C.A.) at paragraph 10) and the Officer was not under a duty to provide the Applicant with an opportunity to address his or her concerns with the application. 38 In deciding what the duty of fairness entails, the Court must be careful to balance the requirements of fairness with the need of the administrative immigration process in question (Khan v. Canada (Minister of Citizenship & Immigration), 2001 FCA 345 (Fed. C.A.) at paragraphs Chadha v. Canada (MCI) James Russell J. 333

30-32). This is an administrative decision, and thus the duty of fairness is more limited than one involving a quasijudicial tribunal (Khan). 39 The Officer is under no obligation to provide a running score to the Applicant of the weaknesses in his application (Kamchibekov v. Canada (Minister of Citizenship & Immigration), 2011 FC 1411 (F.C.) at paragraph 25). The question of whether the Applicant has the relevant experience required for the profession in which he claims to be a skilled worker is based directly on the requirements of the Act and its Regulations (Chen v. Canada (Minister of Citizenship & Immigration), 2011 FC 1279 (F.C.) at paragraphs 20-22). Thus, the Respondent submits that the Of- ficer was not required to provide the Applicant with an opportunity to respond to the Officer’s concerns, just as he want not entitled to an interview to remedy his own shortcomings (Kaur v. Canada (Minister of Citizenship & Immigration), 2010 FC 442 (F.C.)).

The Applicant’s Reply 40 The Applicant maintains that the deficiency in the Officer’s reasons constitutes a breach of procedural fairness. The Applicant further maintains that the letters indicate that he held the position of accountant for years, and thus he must have performed the duties listed in NOC 1111 — this was ignored by the Officer. The Applicant says that he could not have maintained his employment as an accountant for 15 years without performing some or all of the duties outlined in the Schedule 3. 41 The Applicant further maintains that the Officer did have a duty to give him an opportunity to address any concerns with his application. This is not a case where the Applicant failed to adduce sufficient evidence; the Applicant adduced the evidence and the Officer had concerns with it. The Applicant submits that the jurisprudence put forward in his arguments supports this position.

Analysis 42 As the CAIPS notes make clear, the reasons why the application was refused was because the Officer was not satisfied that the Applicant had provided sufficient evidence of having one year of experience in NOC 1111. The Officer was not satisfied that the Applicant had performed the actions described in the lead statement as set out in the occupation description for NOC 1111 or that the Applicant had performed all of the essential duties and a substantial number of the main duties as set out in the occupational descriptions for NOC 1111. The Officer was not satis- 334 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

fied that the main duties performed by the Applicant in his employment reflected the main duties set out in NOC 1111. The Officer found that the employment letters submitted by the Applicant in support of his application did not give any descriptions of the duties performed by the Appli- cant in these jobs. In other words, the application was deficient and did not contain the information that the Applicant was instructed to provide. The Applicant’s application was determined to be ineligible for processing. 43 The Decision was made in accordance with the relevant Ministerial Instructions in the Canada Gazette and with Operational Bulletin 120 which are public documents and available to applicants, as well as Regu- lation 80(3). The Applicant appears to think that the deficiencies in his application (i.e. his failure to provide employer’s letters that comply with the mandated requirements and details) can be disregarded and that his application should have been assessed on the basis of what he thinks was sufficient evidence of his past experience. 44 As Justice Yvon Pinard confirmed in Kamchibekov, above, at paragraph 18: The respondent is right to emphasize that we are in the context of an eligibility determination where visa officers are told to assess an applicant’s application as-is and proceed directly to a final determination of eligibility in a timely fashion (see Operational Bulletin 120, above). Therefore, the officer’s decision is consistent with these guidelines. The applicant has not established that the officer erred in considering the evidence before him. 45 In the present case, the Applicant provided an incomplete and deficient application even though he was fully aware, or reasonably ought to have been, of what was required. Justice Richard Mosley’s words in Eli- sha, above, at paragraphs 10-13, are instructive: The applicant was provided with specific instructions as to how to complete her application. These are set out in the Overseas Process- ing Manual OP 6 and the Visa Office Specific Instructions, Buffalo, dated November 2010. The instructions include requirements for the information to be included in the reference letters provided by employers. As the employment letters did not contain the necessary information, the applicant sought to rectify the deficit by providing a written explanation. In such cases, the Buffalo instructions state, the applicant must also provide documentation such as employment contracts, work descriptions and performance appraisals describing job duties to support the claim to relevant employment. Chadha v. Canada (MCI) James Russell J. 335

Here, the applicant did not provide any supporting documentation in relation to her work at the New York Presbyterian Hospital, other than her identity card, and her employment at the Duke University Hospital. The onus was on the applicant to file her application with all relevant supporting documentation and to provide sufficient credible evidence in support: Karanja v Canada (Minister of Citizenship and Immigra- tion), 2006 FC 574 at para 8; and Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 24. She must put her “best case forward”. That was simply not done. In the result, the decision to dismiss the application was well within the range of acceptable outcomes defensible in respect of the facts and law: Dunsmuir v New Brunswick, 2008 SCC 90 at para 47. 46 Given the materials submitted by the Applicant and the relevant assessment instructions, I cannot say it was unreasonable for the Officer to conclude that the Applicant had not demonstrated that he had performed the main duties set out in NOC 1111. The Officer gives full reasons for this conclusion, and there is no indication that the Officer ignored any of the evidence in the Applicant’s submissions. 47 As regards any procedural fairness requirement, I think the Respon- dent correctly states the law on this matter. The Officer was not required to put any concerns to the Applicant in the present case. The Officer found that the documentation submitted by the Applicant was deficient and there was insufficient evidence to demonstrate that the Applicant had the one-year work experience for the NOC code under which he applied. 48 The content of procedural fairness is variable and contextual. In deciding what the duty of fairness entails, with respect to visa applicants, the Courts have been careful to balance the requirements of fairness with the needs of the administrative immigration process in question. See Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), paragraph 21; Patel, above, at paragraph 10; and Khan, above, at paragraphs 22, 30-32. 49 The duty of fairness in this case, involving an administrative decision-maker, is more limited than in one involving a quasi-judicial tribunal where the obligation to confront an applicant with concerns may be more stringent. See Khan, above, paragraphs 31-32. The Federal Court has held that the Officer is under no obligation to provide a running score of weaknesses in an applicant’s application. See Kamchibekov, above, paragraph 25; Thandal v. Canada (Minister of Citizenship & Immigra- 336 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tion), 2008 FC 489 (F.C.), paragraph 9; Nabin v. Canada (Minister of Citizenship & Immigration), 2008 FC 200 (F.C.), paragraphs 7-10. 50 The question of whether the Applicant has the relevant experience required for the profession in which he claims to be a skilled worker is based directly on the requirements of the Act and its Regulations. See Chen, above, at paragraphs 20-22. Thus, the Officer was not required to provide the Applicant with an opportunity to respond to the Officer’s concerns, as he was not entitled to an interview to remedy his own shortcomings. See Kamchibekov, above, at paragraph 26; and Kaur, above. 51 This was not a case about the credibility or accuracy of the Appli- cant’s information, as the Applicant alleges. The Applicant simply failed to provide an application in accordance with the relevant instructions, and the Officer properly followed OB 120. 52 Neither party proposed a serious question of general importance for certification.

Judgment THIS COURT’S JUDGMENT is that 1. The application is dismissed. 2. There is no question for certification. Application dismissed. Cruz Vergara v. Canada (MCI) 337

[Indexed as: Cruz Vergara v. Canada (Minister of Citizenship and Immigration)] Ricardo Cruz Vergara Elsa Luz Diaz Guiza Juanita Alejandra Cruz Diaz (A.K.A. Juanita Alejand Cruz Diaz), Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4333-12 2013 FC 138 Richard G. Mosley J. Heard: January 30, 2013 Judgment: February 8, 2013* Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Applicants were citizens of Columbia — Refugee Protection Divi- sion of Immigration and Refugee Board determined that they were neither Convention refugees nor persons in need of protection — Applicants brought application for judicial review — Application dismissed — It was to be expected that panel would consider availability of internal flight alternative (“IFA”) elsewhere in Colombia — Applicant did not present clear and convincing evidence that Fuerzas Armadas Revolucionarias de Colombia (“FARC”) had presence in Cartagena and that he would be targeted in that city — His claim that FARC had infiltrated government agencies everywhere was not consistent with country documentation — Panel’s IFA finding was reasonable. Cases considered by Richard G. Mosley J.: Andrade v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CF 1490, 2012 CarswellNat 5414, 2012 FC 1490, 2012 CarswellNat 4992 (F.C.) — considered Angulo Lopez v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CarswellNat 3198, 2012 FC 1022, 2012 CF 1022, 2012 CarswellNat 4131 (F.C.) — referred to Jackson v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1098, 2012 CarswellNat 3509, 2012 CF 1098, 2012 CarswellNat 4192, 45 Admin. L.R. (5th) 27 (F.C.) — referred to

*A corrigendum issued by the Court on May 1, 2013 has been incorporated herein. 338 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

APPLICATION by applicants for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board which determined that they were neither Convention refugees nor persons in need of protection.

Alla Kikinova, for Applicants Brad Bechard, for Respondent

Richard G. Mosley J.:

1 The applicants, Ricardo Cruz Vergara, his wife Elsa Luz Diaz Guiza, and their daughter Juanita Alejandra Cruz Diaz, citizens of Columbia, seek judicial review of a decision made by the Refugee Protection Divi- sion of the Immigration and Refugee Board that they are neither Conven- tion refugees nor persons in need of protection. 2 The decision was made on April 11, 2012. This application is brought under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. For the reasons that follow, the application is dismissed.

Background: 3 The principal applicant is a lawyer by training. He practiced in the city of Armenia from 1994 to 2009. In June of 2009, two men approached him and identified themselves as being from the Fuerzas Arma- das Revolucionarias de Colombia (FARC). In his initial personal information form (PIF) Mr. Cruz stated that they told him that he had 20 days to “leave” or face the consequences. He speculates that this was in retali- ation for his successful defence of a lawsuit from which the FARC stood to gain. At the hearing of his claim, he amended the word” leave” to “disappear from the country”. 4 After the threat, Mr. Cruz and his wife took steps to safeguard themselves and their children and proceeded to sell their assets. Following another threat in August, 2009 Mr. Cruz made a declaration to City Hall Cruz Vergara v. Canada (MCI) Richard G. Mosley J. 339

that he was being displaced from the city for reasons beyond his control and the family fled to Bogotá. There Mr. Cruz presented a declaration to the “Personaria” (translated at the hearing as Ombudsman’s office) explaining what had happened and seeking assistance to leave the country. The Ombudsman forwarded it to the Office of Social Action. On August 26, 2009 the family moved to Vélez where they had many relatives and retained counsel to press their case. On September 25, 2009 counsel advised Mr. Cruz that the Office of Social Action had refused to register him and his family as displaced persons because it had no information about FARC activities in Armenia, which was considered to be a secure, government controlled city. 5 An appeal of that decision was submitted on October 2, 2009. On October 13, 2009 Mr. Cruz, his wife, and his minor daughter fled Colom- bia arriving in Canada on October 27, 2009 via Buffalo, New York. Mr. Cruz has a sister, a Canadian citizen, living in Essex, Ontario. An adult daughter was left in Vélez as she did not have a US visa. Mr. Cruz’s two other children from a prior marriage, several siblings and his parents also remain in Colombia along with his wife’s family. 6 In his updated PIF, submitted in January 2012, Mr. Cruz states that in September 2011, two years after their departure, his wife’s sister Esper- anza wrote to tell him that three people she believed to be FARC infor- mants had been inquiring for him and his wife in Vélez, saying that they had an account to settle with the family. He also states that his lawyer informed him that his appeal was successful nine months after they left and that the family had been recognized by the Colombian government as internally displaced persons.

Decision Under Review: 7 The Panel Member found that the issues were whether the claimant’s fear was objectively reasonable (including whether there was adequate state protection in Colombia, whether the claimant had taken all reasonable steps to avail himself of it, and whether he had provided clear and convincing evidence of a failure to protect) and whether there was a via- ble internal flight alternative (IFA) in the city of Cartagena, Colombia. 8 The Member noted that the armed conflict in Colombia had lasted over four decades and despite a decrease in violence, the number of Colombians being displaced both internally and externally remained high. He stated that the UNHCR considered various groups to be at particular risk of persecution, including judges and other persons involved 340 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

in the administration of justice, and that the FARC and other groups had committed many human rights abuses, including intimidation of judges, prosecutors, and witnesses. 9 Next the Panel Member analyzed the viability of an IFA. Citing relevant jurisprudence he explained that an IFA must be realistic, attainable, and accessible, but that as long as it was objectively reasonable for a claimant to live there without fear of persecution, the attractiveness and convenience of this alternative to the claimant was not a factor. The question was whether one should be required to make do in that location before traveling abroad to seek safe haven in another country. He set out the two-pronged test and noted that the claimant always bore the burden of proof. 10 The claimant had testified at the hearing that he could not move to Cartagena for safe haven because the FARC was present throughout the country and, as a lawyer, wherever he moved he would have to register and advertise and this could draw FARC attention. The Panel considered that this was not likely. The FARC had not issued any further threats after the claimant fled Armenia and it had not carried out the initial threat when he did not flee within 20 days. The claimant had not directly answered a question as to why this was so. Counsel had submitted that the state could not protect people from the FARC and that the FARC had a presence in Cartagena; this might be true, the Member recognized, but the claimant had not demonstrated that he was an ongoing target of the FARC. 11 The Member also considered that the applicant had not offered a reasonable explanation for changing “leave” to “disappear off the map” in his narrative, changing the interpretation of the threat. His assertion that the FARC used its own jargon and that he had thought that a literal trans- lation would lead to confusion was thought to be an embellishment. 12 The letter from Mr. Cruz’s sister-in-law alleging that suspicious people were looking for the family in September 2011 was given very little weight. It did not seem likely, on a balance of probabilities, to the Mem- ber that the FARC would try to track down the claimant two years after he had left Armenia, the letter contained no information that could be corroborated, and the FARC as an organization had decreasing resources and was unlikely to spend them on targeting the claimant in another com- munity a great distance away from the city where the original threats were made. Cruz Vergara v. Canada (MCI) Richard G. Mosley J. 341

13 The Panel discussed at length the reach and influence of the FARC based on mixed documentary evidence. It concluded that with significant funding and assistance from the U.S., Colombia had been able to take control of previously ungoverned areas of the country and provide security to a far larger portion of its citizens. 14 The claimant had testified that the FARC had infiltrated government agencies everywhere and that it was very risky to go to the police. The Panel considered that this was not consistent with the documentary evidence. As well, the claimant had not gone to the police at all. Instead he had filed an application with the “Personaria” or Ombudsman to be recognized as an internally displaced person and appealed the initial refusal of this application. Since his appeal had been granted, although nine months after he had fled the country, this was evidence that state protection was adequate. The claimant’s testimony demonstrated that he had not sought protection so as to remain in Colombia; rather, his intent was to flee Colombia to seek refugee protection in Canada. Rather than stay in Colombia to benefit from government programs for displaced persons, he had fled before learning the outcome of his appeal. His object in re- questing support from the state was to facilitate his flight to seek international protection. 15 The Panel Member acknowledged counsel’s submission of evidence indicating corruption and human rights abuses concerns with the Colom- bian police, but held that although it was not perfect, state protection in Colombia was adequate, that Colombia was making serious efforts to address the problem of criminality, and that the police were both willing and able to protect victims. 16 The Panel concluded that the claimant had not rebutted the presumption of state protection, had not demonstrated that he would face persecution, and had not cited objectively reasonable impediments to living in Cartagena.

Issues: 17 The issues raised by the written materials submitted by the parties are as follows: a. Was the Panel’s IFA determination unreasonable? b. Did the Panel unreasonably disregard or reject material evidence demonstrating an objective basis for the claimant’s continuing fear of persecution? 342 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

c. Was the Panel’s determination on state protection unreasonable because it disregarded or rejected material evidence submitted by the applicant? 18 These are all issues which attract the reasonableness standard of review: Angulo Lopez v. Canada (Minister of Citizenship and Immigra- tion), 2012 FC 1022 (F.C.) at paras 21, 24-25; Jackson v. Canada (Minister of Citizenship and Immigration), 2012 FC 1098 (F.C.) at para 26; Andrade v. Canada (Minister of Citizenship and Immigration), 2012 FC 1490 (F.C.) at paras 6-10. 19 At the outset of the hearing of this application, counsel for the respondent acknowledged that the Member in summing up his thoughts on the claim had stated that he had credibility concerns only about the sister’s letter. In rendering his decision, following written submissions, he expressed his concerns about the explanation for the last-minute PIF amendment undermining the credibility of the claim. In failing to mention that at the close of the hearing, the applicants were deprived of an opportunity to address the Member’s concerns in their post-hearing written submissions, the respondent conceded. 20 Where an issue of procedural fairness arises, the Court must determine whether the process followed by the decision-maker satisfied the level of fairness required in all of the circumstances: see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 43. 21 I will address the fairness issue in discussing the IFA finding.

Analysis: a. Was the Panel’s IFA determination unreasonable? 22 The applicants submit that the IFA finding was based on little other than the RPD’s speculation about what the FARC was likely to do. The panel accepted everything in the PIF except the information that the FARC was still looking for the applicant two years after his departure. There was no evidence confirming that the FARC was aware that the applicant had left the country, so the panel should not have made a plausibility finding as to whether it would still be searching for him. The Panel erred in impugning Mr. Cruz’ credibility based on the PIF changes, the applicants submit; the Board rules specifically allow for PIF changes and a plausible explanation was offered. Cruz Vergara v. Canada (MCI) Richard G. Mosley J. 343

23 The applicants submit further that according to the information in the Board’s National Documentation Package, an IFA is generally not available in Colombia by reason of FARC’s country-wide reach. However, the UNHCR document of May 2010 upon which this assertion is based links that conclusion to persecution carried out by state agents or con- doned by state authorities, including through corruption. 24 The Member did not doubt the veracity of the story of persecution in Armenia, although he did question why the FARC did not fulfil the initial threat when the applicant did not flee immediately. The Member analyzed at length the reach and influence of the FARC, which he would not have done if he had rejected the assertion that they had targeted the applicant at the start. 25 The change from “leave” to “disappear off the map” made at the beginning of the hearing was not what was found to be the embellishment: it was the applicant’s explanation during oral testimony that the latter wording was FARC jargon for telling someone to leave Colombia altogether which was questioned. This clarification was not made when the PIF narrative was amended in January 2012 but at the outset of the hearing. When asked for an explanation, Mr. Cruz stated: I didn’t want to be so explicit or...or to use the same words in the written form because maybe they couldn’t be interpreted or translated in an appropriate manner because those are expressions that...which don’t have transl...literal translations. 26 The Member made it clear at that point in the hearing that he did not understand this explanation, and considered that the meaning of the revised words went to a central element of the claim. In his view, it should have been included in either the original narrative or the amended version submitted two months prior to the hearing. He gave Mr. Cruz another opportunity to explain why he had not done so which elicited this response: Locations in...when circumstances like the ones that we...that had happened to us, we...we lost the...the...sense of reaching certain things, and in order to...to try to be more clear you act in the opposite way, and that’s what happened in this case. A lot of the language that these people from FARC, these guerrillas, they use that jargon language, or those expressions that they used, it’s... are used exclusively by them. ... And those literal translations may lead to confusions. 344 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

27 Mr. Cruz is an educated man and while he was testifying with the assistance of a Spanish language interpreter, his answers in the transcript are generally clear and responsive to the questions put to him. In my view, it was open to the Member to find that the explanation provided for the change in the narrative was neither. I am also satisfied that the applicants had a full opportunity to present their claim and explain why the proposed IFA was not suitable. They were represented by experienced counsel. The Member’s error in signaling at the close of the hearing that he was concerned only with the credibility of the sister’s letter had no material effect on the outcome. 28 It was to be expected that the Panel would consider the availability of an IFA elsewhere in Colombia. Mr Cruz did not present clear and convincing evidence that the FARC had a presence in Cartagena and that he would be targeted in that city. His claim that the FARC had infiltrated government agencies everywhere was not consistent with the country documentation. On the record before me, the Panel’s IFA finding was reasonable. While this finding is sufficient to dispose of the application, I will briefly set out my conclusions on the other issues.

2. Did the Panel unreasonably disregard or reject material evidence demonstrating an objective basis for the claimant’s continuing fear of persecution? 29 Having accepted that the first threat occurred, the applicants submit that it was unreasonable for the Panel not to give greater weight to the objective documentary evidence which confirmed that the FARC routinely persecutes people involved in the administration of justice. Fur- ther, they submit, the Panel made a reviewable error when it assigned little weight to the sister-in-law’s declaration about FARC operatives seeking the applicant in September 2011. 30 It is clear from the Member’s reasons that the Panel considered all of the evidence submitted by the applicants including the country documents they relied upon. It explicitly acknowledged the mixed reporting concerning the reach and influence of the FARC. However, it was the Panel’s task to weigh the claims, submissions, and reports. The applicants’ submissions on this issue amount to a plea for a reweighing of the evidence. That is not the Court’s role on judicial review. 31 I agree with the applicants that they could not be expected to explain why the FARC chose not to follow up with an attack on Mr. Cruz when he had not responded to their initial threat within the 20 day deadline. Cruz Vergara v. Canada (MCI) Richard G. Mosley J. 345

However, on all of the evidence including the sister’s letter, it was open to the Panel to find that the FARC did not have a continuing interest in Mr. Cruz. While documents such as the sister’s letter are to be assessed on the basis of what they say and not what they do not say, as the jurisprudence states, a Panel is not obliged to take them at face value when they are not consistent with the evidence as a whole. Here, the Panel carefully assessed all of the evidence and submissions received.

3. Was the Panel’s determination on state protection unreasonable because it disregarded or rejected material evidence submitted by the applicant? 32 On this issue, the applicants’ position was that the Panel made a reviewable error when it relied heavily on evidence from the National Doc- umentation Package and ignored country evidence presented by them. They submit that the Panel unreasonably concluded that since the applicant’s appeal was recognized by the Colombian authorities, there was adequate state protection. To the contrary, they argue, the existence of a large displaced population indicates that Colombia does not have control of its territory. 33 The applicants did not seek protection from the police or other law enforcement authorities in Colombia. Rather they went to the “Per- sonaria” or Ombudsman to receive aid to facilitate their departure from the country. When that was not immediately forthcoming they left any- way, taking advantage of US visas to reach the Canadian border. 34 Colombian government recognition that there are internally displaced persons was, the Panel found, an indicator of the State’s acceptance of the need to provide social welfare to such persons. This was a finding reasonably open to the panel. In addition, as the respondent submits, the Panel considered the current state of the FARC and found that over the course of ten years, Colombia had been able to reverse a decline in state protection and bring security to a far larger portion of its citizens. 35 Recent cases from this Court support the reasonableness of decisions finding there to be adequate state protection in Colombia for those who were in similar circumstances to those of the applicant and who were threatened by the FARC. A list of those cases is set out in Andrade v. Canada (Minister of Citizenship and Immigration), 2012 FC 1490 (F.C.) at para 18. As noted at paragraph 20 of that decision, this Court has overturned RPD decisions on state protection in Colombia only where the RPD was shown to have failed to properly assess the background or 346 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

“profile” of the claimant and the claimant fell into one of the groups that the documentary evidence indicates may be at risk in Colombia such as “judges and other individuals associated with the justice system”. 36 While the principal applicant falls into the category of individuals “associated with the justice system” in that he had practiced as a lawyer, he did not pose a risk to the FARC for that reason. The threat against him was said to be based on FARC’s disappointment at the outcome of a case they had hoped would go in favour of someone close to them. The Panel took that into consideration. Its finding that state protection would proba- bly have been available within Colombia had the applicant sought it fell within the reasonable range. 37 No questions for certification were proposed.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No questions are certified. Application dismissed.