IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 8 (Cited 8 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 8 (Cited 8 Imm. L.R. (4th))

EDITORS-IN-CHIEF/REDACTEURS´ EN CHEF Cecil L. Rotenberg, Q.C. Mario D. Bellissimo, LL.B. Barrister & Solicitor Ormston, Bellissimo, Rotenberg Don Mills, Ontario Toronto, Ontario Certified Specialist Certified Specialist

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DIGESTS OF CASES Civil practice and procedure Practice on appeal — Time to appeal — Extension of time — Grounds for extension –––– Motion for extension of time — Underlying judicial reviews were for review of negative decision in applicant’s humanitarian and compassionate application — Respondents brought motion for order extending time permitted to serve and file further affidavits — Motion dismissed — There had not been reasonable explanation for delay since respondents knew since March 2011 of new criminal charges — It was obvious that for some reason respondents did not provide counsel with information about applicant’s charges — Sole explanation for delay from March 2011 to October 6, 2011 in providing information to counsel was inadvertent oversight — Court had no idea what caused oversight or what was involved in oversight. Muneeswarakumar v. Canada (Minister of Citizenship & Immigration), 2012 CarswellNat 1106 ...... F.C. 1 Immigration and citizenship Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Assessment –––– Appli- cant was citizen of Thailand who applied for work permit in June 2011 — Applicant submitted Labour Market Opinion (LMO) from Human Resources and Skill Development Canada (HRSDC) which listed trade diploma or certificate and oral and written Thai and English as only necessary qualifications — Another untitled document in file listed three years experience in food service industry as job requirement — Applicant submitted several training certificates and licences to show her qualifications — Applicant submitted several letters to show her work experience — Applicant’s application was dismissed — Applicant brought application for judicial review of decision of visa officer — Application was dismissed — There was no procedural unfairness in this case and decision was reasonable — Visa officer found, on evidence before him, that there were reasonable grounds to believe that applicant was not able to perform work required — For this job, in addition to formal certification applicant would require significant amount of actual experience as specialized Thai cook — Applicant told visa officer that she had no employment experience in position of cook — It was reasonable for visa officer to consider applicant’s experience working as cook to be relevant and logical consideration in assessment of whether or not applicant would be able to perform work of cook — It was logical for officer to find that experience as waitress was distinct from experience and duties of cook — there was no evidence before visa officer that required amount of ivIMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

work experience was requirement that could be offset by training and orientation — There was no indication that officer failed to assess applicant’s whole education, her international experience, her English and Thai language skills or any other pertinent fact, all of which was set out in reasons — Applicant was afforded procedural fairness; she was interviewed by visa officer and had every opportunity to convince him she could do job of cook. Grusas v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 1935 ...... F.C. 88 Immigration and citizenship Admission — Temporary entry (visitors) — Foreign workers –––– Applicant was citizen of Thailand who applied for work permit in June 2011 — Appli- cant submitted Labour Market Opinion (LMO) from Human Resources and Skill Development Canada (HRSDC) which listed trade diploma or certificate and oral and written Thai and English as only necessary qualifications — Another untitled document in file listed three years experience in food service industry as job requirement — Applicant submitted several training certificates and licences to show her qualifications — Applicant submitted several letters to show her work experience — Applicant’s application was dismissed — Applicant brought application for judicial review of decision of visa officer — Application was dismissed — There was no procedural unfairness in this case and decision was reasonable — Visa officer found, on evidence before him, that there were reasonable grounds to believe that applicant was not able to perform work required — For this job, in addition to formal certification applicant would require significant amount of actual experience as specialized Thai cook — Applicant told visa officer that she had no employment experience in position of cook — It was reasonable for visa officer to consider applicant’s experience working as cook to be relevant and logical consideration in assessment of whether or not applicant would be able to perform work of cook — It was logical for officer to find that experience as waitress was distinct from experience and duties of cook — there was no evidence before visa officer that required amount of work experience was requirement that could be offset by training and orientation — There was no indication that officer failed to assess applicant’s whole education, her international experience, her English and Thai language skills or any other pertinent fact, all of which was set out in reasons. Grusas v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 1935 ...... F.C. 88 8 Imm. L.R. (4th)DIGESTS OF CASES v

Immigration and citizenship Admission — Temporary entry (visitors) — Students –––– Libyan husband and wife had no debts, owned orchard and well in Libya, and arranged leaves of absence from their jobs while in Canada — Family brought applications to set aside decisions of visa officer refusing their requests for visas to come to Canada so that husband could study, young children attend school, and wife could stay at home or work while in Canada — Applica- tions granted — Decisions of visa officer set aside — Applications returned to different visa officer — Visa officer’s decisions were unreasonable — Visa officer’s conclusion that family’s ties to Libya were weak, and finding of limited future employment in Libya were unreasonable and not supported by evidence — Visa officer unreasonably suggested that entire purpose of visit to Canada was to escape instability in Libya. Hamad v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 868 ...... F.C. 169 Immigration and citizenship Enforcement — Arrest and detention — Release from detention — General principles –––– Judicial review of decision ordering release — Respondent and his family were foreign nationals who arrived in Canada aboard ship — Respondent was detained on ground that he was flight risk — Respondent’s detention was reviewed 19 times over 16-month period and was ordered to continue — Respondent was found to be inadmissible because he had engaged in people-smuggling — Respondent initiated Pre-Removal Risk As- sessment (PRRA) — At respondent’s 19th, 20th and 21st detention review hearings, three different members ordered his release on $20,000 bond and conditions (impugned decisions) — Last of impugned decisions (last decision) was decided by M — Impugned decisions were stayed pending judicial review — Minister of Citizenship and Immigration (Minister) brought applications for judicial review — Applications dismissed — Last decision was amply supported by evidence and fell within range of possible, acceptable outcomes — Relevant issue was whether respondent’s detention should be continued because he was unlikely to appear for hearing or removal — Re- spondent’s apparent involvement in human smuggling and his lack of credibility were relevant factors — However, also relevant were such factors as presence of respondent’s family in Canada, strength of surety and amount of bond, Minister’s inability to accurately estimate time required to complete PRRA, and fact that respondent had been in detention for 19 months — M weighed those factors appropriately — It was not speculative or unreasonable for M to conclude that it was “optimistic” for Minister to estimate that viIMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

PRRA would be completed within six weeks — Minister failed to provide details about status of PRRA, so it was not open to Minister to complain about speculation — M’s finding that respondent was unlikely to report did not make decision to release him unreasonable — It was implicit from M’s reasons that he found inherent risk of flight was outweighed by other factors — There was no inconsistency in M’s finding that respondent was unlikely to be concerned about financial interests of surety and his finding that surety was acceptable bondsperson — Surety was well informed about respondent and his family and had strong motivation to supervise respondent’s behaviour — It was of some significance that impugned decisions were rendered by three different members of Immigration Division, of which two had at earlier points ordered respondent’s continued detention — Minister’s challenges to other two impugned decisions were dismissed as moot. Canada (Minister of Citizenship & Immigration) v. B072, 2012 Car- swellNat 1493 ...... F.C. 65 Immigration and citizenship Exclusion and removal — Removal from Canada — Removal after admission — Deportation –––– Applicant claimed to have filed spousal sponsorship humanitarian and compassionate application in timely manner — Ap- plicant brought motion for stay of deportation order — Motion granted — Deportation would render humanitarian and compassionate application moot, as applicant by virtue of separation imposed by deportation would no longer qualify for spousal sponsorship — Balance of convenience favoured applicant. Thomas v. Canada (Minister of Public Safety & Emergency Prepared- ness), 2012 CarswellNat 1946 ...... F.C. 145 Immigration and citizenship Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Applicant claimed to have filed spousal sponsorship humanitarian and compassionate application in timely manner — Applicant brought motion for stay of deportation order — Motion granted — Deporta- tion would render humanitarian and compassionate application moot, as applicant by virtue of separation imposed by deportation would no longer qualify for spousal sponsorship — Balance of convenience favoured applicant. Thomas v. Canada (Minister of Public Safety & Emergency Prepared- ness), 2012 CarswellNat 1946 ...... F.C. 145 Immigration and citizenship Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Applicant of Kurdish descent and Sahaja Yoga practi- 8 Imm. L.R. (4th)DIGESTS OF CASES vii

tioner was on hunger strike due to imminent removal to Iran — Applicant deemed himself to be under peril due to ideological, religious beliefs and practice — Applicant applied for stay of removal — Application granted — Stay granted until specified legal proceedings were fully determined — In addition to Internet postings of applicant’s beliefs in protest of Iranian regime, applicant fulfilled criteria of tripartite conjunctive test of Supreme Court authority. Siavoosh v. Canada (Minister of Public Safety & Emergency Prepared- ness), 2012 CarswellNat 1270 ...... F.C. 155 Immigration and citizenship Refugee protection — Miscellaneous –––– Six refugees had worked for accused at restaurant without authorized work permits — Some of workers complained about nature of work they were assigned and expressed concern that they may have been forced to return to Korea if work was not satisfactory — On March 26, 2012, accused entered guilty plea to one count under s. 124(1)(c) of the Immigration and Refugee Protection Act (“IRPA”) with respect to multiple incidents involving six refugees — Sentencing hearing was held to determine sentence of accused — Incidents spanned period of June 22, 2008 to May 26, 2009 — Accused sentenced — Appropriate disposition was 18-month conditional discharge — Imposition of discharge was in interest of accused and would not be contrary to public interest — Accused was also ordered to make charitable contribution in sum of $6,000 to Inter- national Centre and $6,000 to Welcome Place within first nine months of order — This was offence in which accused did not exercise due diligence in dealings with individual workers — Secondly, while accused had admitted transgression, it was noteworthy that he employed services of immigration consultant, an individual whose advice on some issues seemed to have been less than satisfactory. R. v. Choi, 2012 CarswellMan 177 ...... Man. Prov. Ct. 40 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous –––– Motion for extension of time — Underlying judicial reviews were for review of negative decision in applicant’s humanitarian and compassionate application — Respondents brought motion for order extending time permitted to serve and file further affidavits — Motion dismissed — There had not been reasonable explanation for delay since respondents knew since March 2011 of new criminal charges — It was obvious that for some reason respondents did not provide counsel with information about applicant’s charges — Sole explanation for delay from March viiiIMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

2011 to October 6, 2011 in providing information to counsel was inadvertent oversight — Court had no idea what caused oversight or what was involved in oversight. Muneeswarakumar v. Canada (Minister of Citizenship & Immigration), 2012 CarswellNat 1106 ...... F.C. 1 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibility –––– Principal applicant applied for refugee protection with co-applicant wife and minor applicant child — In 2005, principal applicant began working for government vehicle registration department in Mexico — His job entailed checking vehicle registrations for stolen vehicles imported into state — He began noticing vehicles on street that had previously been identified as stolen at office — He reported observation to supervisor, who told him to ignore matter — He then made complaint about supervisor to public ministry — During investigation of corruption in office, some men shot and killed commandant who was assigned to investigate matter — These men also shot at but missed principal applicant — One man chased him down and demanded that he give him documents relating to corruption incidents — Principal applicant managed to escape — Supervisor went to home of principal applicant’s mother and demanded documents — Based on fear of supervisor, applicants fled Mexico on June 20, 2009 and claimed refugee protection in Canada — Applicants brought application for judicial review of decision of Immigration and Refu- gee Board, Refugee Protection Division (“Board”), dated February 22, 2011, wherein applicants were determined to be neither Convention refugees within meaning of s. 96 of Immigration and Refugee protection Act (“Act”) nor persons in need of protection as defined in s. 97(1) of Act — Application granted — Board’s decision was unreasonable and was set aside and referred to different panel of board for redetermination — Board should have analyzed evidence to determine whether applicants satisfied test, so as to determine whether applicants had nexus with enumerated ground under s. 96 of Act — Principal applicant was not found to be not credible — Principal applicant’s evidence showed that there was corruption in department in which he worked — In fact, it appeared that former police commandant was murdered while attempting to provide evidence of corruption to governor — Ev- idence also shows that commandant had been fired because he was investigating corruption. Jacobo v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 873 ...... F.C. 108 8 Imm. L.R. (4th)DIGESTS OF CASES ix

Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evidence –––– Principal applicant applied for refugee protection with co-applicant wife and minor applicant child — In 2005, principal applicant began working for government vehicle registration department in Mexico — His job entailed checking vehicle registrations for stolen vehicles imported into state — He began noticing vehicles on street that had previously been identified as stolen at office — He reported observation to supervisor, who told him to ignore matter — He then made complaint about supervisor to public ministry — During investigation of corruption in office, some men shot and killed commandant who was assigned to investigate matter — These men also shot at but missed principal applicant — One man chased him down and demanded that he give him documents relating to corruption incidents — Principal applicant managed to escape — Supervisor went to home of principal applicant’s mother and demanded documents — Based on fear of supervisor, applicants fled Mexico on June 20, 2009 and claimed refugee protection in Canada — Applicants brought application for judicial review of decision of Immigration and Refu- gee Board, Refugee Protection Division (“Board”), dated February 22, 2011, wherein applicants were determined to be neither Convention refugees within meaning of s. 96 of Immigration and Refugee protection Act (“Act”) nor persons in need of protection as defined in s. 97(1) of Act — Application granted — Board’s decision was unreasonable and was set aside and referred to different panel of board for redetermination — Board should have analyzed evidence to determine whether applicants satisfied test, so as to determine whether applicants had nexus with enumerated ground under s. 96 of Act — Principal applicant was not found to be not credible — Principal applicant’s evidence showed that there was corruption in department in which he worked — In fact, it appeared that former police commandant was murdered while attempting to provide evidence of corruption to governor — Ev- idence also shows that commandant had been fired because he was investigating corruption. Jacobo v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 873 ...... F.C. 108 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicant was citizen of El Salvador who lived in Canada with her son — Applicant’s three sons, who owned restaurant in El Salvador, where threatened with death in con- xIMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

nection with extortion demands made on them by either criminal gang or police — Applicant’s three sons came to Canada and were granted Conven- tion refugee status — Applicant was afraid that people who extorted and threatened her sons would come after her and alleged that she had been harassed and threatened — Refugee Protection Division (RPD) found applicant not to be Convention refugee or person in need of protection — Appli- cant brought application for judicial review of decision of RPD — Applica- tion granted — RPD made extremely important negative credibility finding based on fact that applicant did not mention certain allegations when she first reported her claim in Canada, nor did she mention it to authorities in her own country — It was unfair for RPD to rely upon what Applicant said on her original claim form and her later testimony without putting discrepancy to her. Portillo Romero v. Canada (Minister of Citizenship & Immigration), 2011 CarswellNat 6275 ...... F.C. 7 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Post- determination options — Humanitarian and compassionate review — Unu- sual, undeserved, or disproportionate hardship –––– Applicant was citizen of Malaysia — As homosexual and HIV-positive man, applicant alleged that he belonged to social group targeted for persecution in Malaysia — In Decem- ber 1998 applicant came to Canada and remained after his visitor’s visa expired — Applicant was unaware of possibility of making refugee claim based on his HIV status — In April 2009 applicant filed humanitarian and compassionate (H&C) application; because he felt shame, he did not disclose his sexual orientation — In January 2010 applicant was requested to file any other evidence he wished to have considered in his application; however, as he was still struggling with his sexual orientation, he filed no evidence on issue of homosexuality — Applicant’s H&C application was dismissed in September 2010 — Applicant filed for leave and judicial review of decision and respondent agreed to redetermine H&C application — In May 2011 applicant filed additional evidence, including evidence of homophobia in Malaysia — Applicant’s H&C application was denied in October 2011 — Applicant brought application for judicial review — Application granted — Officer’s assessment that although situation was better in Canada, HIV discrimination was world-wide problem and that applicant’s hardship if he returned to Malaysia would not be unusual or disproportionate was problematic — Officer relied predominantly on select evidence of country conditions without considering in detail applicant’s specific situation — Officer erred in 8 Imm. L.R. (4th)DIGESTS OF CASES xi

comparing situation in Malaysia to that in Canada — Officer came to conclusions on availability of HIV medicine in Malaysia and similarities in stigma and discrimination faced by homosexual and HIV-positive people in Canada and Malaysia that were not supported by evidence — Officer failed to properly evaluate hardship that applicant would face in Malaysia as HIV- positive homosexual man. Ng v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 1572 ...... F.C. 53 Immigration and citizenship Refugee protection — Practice and procedure in refugee claims — Refu- gee hearings — Evidence — General principles. Adeoye v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 1744 ...... F.C. 126 Immigration and citizenship Refugee protection — Removal — Pre-Removal Risk Assessment (PRRA) — Factors to be considered — Adequate state protection –––– Ap- plicant was citizen of Iraq and was Christian — Applicant came to Canada at age of eleven and became permanent resident in 1981 — Accused compiled more than sixty-nine convictions in Canada relating to property crimes, weapons, narcotics, failure to comply and violence — In 1996, applicant was found inadmissible due to serious criminality — Applicant’s application for Pre-Removal Risk Assessment was dismissed — Application brought application for judicial review — Application granted — It was ordered that matter be referred to another officer for redetermination — Officer’s analysis of present availability of state protection in respect of Christians in Iraq was inadequate — Officer’s conclusion on availability of state protection was not supported by recent past evidence — Applicant did not speak Arabic, did not know culture and customs, and it appeared from evidence that he would be stranger in strange land in dire danger. Touma v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 1597 ...... F.C. 158 Immigration and citizenship Refugee protection — Removal — Pre-Removal Risk Assessment (PRRA) — Factors to be considered — Adequate state protection –––– Ap- plicant was citizen of Nigeria — Applicant sought protection in Canada in 1999 based on his involvement with student group that opposed government — Claim was rejected and applicant returned to Nigeria — Applicant made second claim after being accused of witchcraft and allegedly illegally detained at father’s request — Applicant married Canadian citizen and had xiiIMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

pending sponsorship application — Pre-Removal Risk Assessment (PRRA) officer acknowledged that belief in witchcraft was widespread in Nigeria but stated that applicant had not demonstrated insufficiency of state protection and had not made reasonable efforts to seek protection — Applicant applied for judicial review of officer’s decision — Application granted — Decision overturned; matter remitted to different officer for redetermination — Stan- dard of review for evaluation of evidence by PRRA officer was reasonableness — Officer’s scepticism about applicant’s claim and supporting documentation was apparent — Decision, which contained number of grammatical and syntax errors, appeared to have been produced in rush — Officer had duty to assess evidence which contradicted finding and explained why it did not alter officer’s conclusion — Officer’s conclusion that presumption of state protection was not overcome failed to take into account applicant’s claim that police were complicit in his mistreatment — Decision was not based on evidence and lacked intelligibility and justifiability. Adeoye v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 1744 ...... F.C. 126 Immigration and citizenship Refugee protection — Removal — Pre-Removal Risk Assessment (PRRA) — Factors to be considered — Miscellaneous –––– Applicants were two Arab muslim women who were in lesbian relationship — Applicants were citizens of Israel — Applicants made unsuccessful claim for Conven- tion refugee status in Canada — Applicants received unfavourable pre-removal risk assessment (PRRA) — Applicants brought application for judicial review of decision of PRRA officer — Application granted — Officer did not mention applicants’ letter raising fear of death if they returned to Israel and illustrating that fear by newspaper report that one applicant’s cousin had recently confessed to “honour killing” of his sister 12 years earlier — Letter should have been considered by officer even if it were found ultimately of no weight or unhelpful. Musa v. Canada (Minister of Citizenship & Immigration), 2012 Car- swellNat 665 ...... F.C. 147 Immigration and citizenship Refugee protection — Removal — Pre-Removal Risk Assessment (PRRA) — Factors to be considered — Persecuted group –––– Applicant was citizen of Nigeria — Applicant sought refugee protection in Canada because he was homosexual and because homosexuality was crime in Nigeria — Board found that applicant was not credible and was not homosexual — Ap- plicant’s application for pre-removal risk assessment (PPRA) was refused on 8 Imm. L.R. (4th)DIGESTS OF CASES xiii

basis that he would not face risk of persecution if he returned to Nigeria — Applicant brought application under s. 72(1) of Immigration and Refugee Protection Act for judicial review — Application granted — Decision was quashed and matter was returned for reconsideration by differently constituted Board — Officer unreasonably assessed evidence that applicant was homosexual — Rejection of affidavit evidence regarding risk homosexuals faced in Nigeria for reasons given by officer was unreasonable — Affidavit clearly established that Nigerian police were looking for applicant because they believed his was homosexual. Ogunrinde v. Canada (Minister of Public Safety & Emergency Preparedness), 2012 CarswellNat 2288 ...... F.C. 131

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration

[Indexed as: Muneeswarakumar v. Canada (Minister of Citizenship & Immigration)] Jeyakumaran Muneeswarakumar, Applicant and The Minister of Citizenship and Immigration & the Minister of Public Safety and Emergency Preparedness, Respondents Jeyakumaran Muneeswarakumar, Applicant and The Minister of Citizenship and Immigration & the Minister of Public Safety and Emergency Preparedness, Respondents Federal Court Docket: IMM-1574-11, IMM-1575-11 2012 FC 446 John A. O’Keefe J. Heard: October 20, 2011 Judgment: April 18, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous –––– Motion for extension of time — Underlying judicial reviews were for review of negative decision in applicant’s humanitarian and compassionate application — Respon- dents brought motion for order extending time permitted to serve and file further affidavits — Motion dismissed — There had not been reasonable explanation for delay since respondents knew since March 2011 of new criminal charges — It was obvious that for some reason respondents did not provide counsel with information about applicant’s charges — Sole explanation for delay from March 2011 to October 6, 2011 in providing information to counsel was inadvertent oversight — Court had no idea what caused oversight or what was involved in oversight. Civil practice and procedure –––– Practice on appeal — Time to appeal — Extension of time — Grounds for extension –––– Motion for extension of time — Underlying judicial reviews were for review of negative decision in applicant’s humanitarian and compassionate application — Respondents brought motion for order extending time permitted to serve and file further affidavits — 2 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Motion dismissed — There had not been reasonable explanation for delay since respondents knew since March 2011 of new criminal charges — It was obvious that for some reason respondents did not provide counsel with information about applicant’s charges — Sole explanation for delay from March 2011 to October 6, 2011 in providing information to counsel was inadvertent oversight — Court had no idea what caused oversight or what was involved in oversight. Cases considered by John A. O’Keefe J.: Canada (Attorney General) v. Hennelly (1999), 167 F.T.R. 158 (note), 1999 CarswellNat 967, 244 N.R. 399, [1999] F.C.J. No. 846 (Fed. C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 115(2)(b) — referred to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — referred to Federal Courts Rules, SOR/98-106 R. 8 — referred to

MOTION by respondents for order extending time permitted to serve and file further affidavits.

Ronald Poulton, for Applicant Maria Burgos, Jelena Urosevic, for Respondents

John A. O’Keefe J.:

1 This is a motion by the respondents for an order extending the time permitted by the orders of Mr. Justice James O’Reilly, dated July 14, 2011, to serve and file the respondents’ further affidavits and allowing the respondents further affidavits to be filed and served nunc pro tunc or as ordered by the Court. The respondents also seek costs in the amount of $500. 2 The underlying judicial reviews were for review of the negative decision in the applicant’s H&C application and his paragraph 115(2)(b) of the Immigration and Refugee Protection Act application; decisions that were issued in February 2011. Muneeswarakumar v. Canada (MCI) John A. O’Keefe J. 3

3 In March 2011, criminal charges were laid against the applicant. An arrest warrant was issued on March 3, 2011. The applications for leave and for judicial review were filed on March 10, 2011. 4 During the month of March 2011, the applicant’s counsel was negotiating with Canada Border Services Agency (CBSA) officials for the release of the applicant from detention. As a result, CBSA officials were aware of the charges against the applicant. However, according to the argument at the hearing of this motion, the respondents’ counsel was not aware of this information until much later on October 6, 2011. 5 The applicant’s affidavit for the judicial review applications was sworn on April 5, 2011 and contained the following sentence: Page: 3 I, Jeyakumaran Muneeswarakumar, presently resident of the Central East Correction Centre, in Lindsay, Ontario, Make Oath and Say as Follows: 6 The respondents’ further affidavits which are at issue here, deal with the eleven new criminal charges against the applicant.

Issue 7 Should the respondents be granted an extension of time in which to file the further affidavits?

Analysis and Decision 8 Rule 8 of the Federal Courts Rules, SOR/98-106, permits an extension of time for filing affidavits to be made by the Court. 9 In Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399, [1999] F.C.J. No. 846 (Fed. C.A.), the Federal Court of Appeal stated the test for granting an extension of time as follows (at paragraphs 3 and 4): 3. The proper test is whether the applicant has demonstrated 1. a continuing intention to pursue his or her application; 2. that the application has some merit; 3. that no prejudice to the respondent arises from the delay; and 4. that a reasonable explanation for the delay exists. 4. Any determination of whether or not the applicant’s explanation justifies the granting of the necessary extension of time will turn on the facts of each particular case. 10 The facts of this case are somewhat different from those in Hennelly above, where the issue was failure to file a record within the time limit. 4 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Here, an extension of time is sought to file affidavits. I am of the view that the above test nevertheless also applies to this situation.

A continuing intention to pursue his or her application 11 There is no doubt that the respondents always intended to pursue their defence of the decision at issue in these judicial review applications.

That the application has some merit 12 Again, the respondents’ defence of the merits of this application would meet this branch of the test. I note that in making this finding, I am not deciding any of the merits of the decisions under judicial review.

That no prejudice to the respondent arises from the delay 13 The respondents are probably correct that there would be no prejudice to the applicant should the motion be granted. The applicant could ask to file further material to add to his arguments. Any extra costs could be compensated by an award of costs.

That a reasonable explanation for the delay exists 14 The facts relating to this branch of the test bear repeating. The decisions under review were made on February 2, 2011. The applicant was charged with the criminal offences in early March 2011. In March 2011, the applicant’s counsel was negotiating with CBSA officials for the release of his client from detention. The respondents knew in March 2011 that the applicant was facing new charges but apparently their counsel was not made aware of this fact until October 6, 2011. 15 On this motion, the respondents’ explanation for the delay is contained in paragraph 4 of the affidavit of Harminder Niki Singh: Due to an inadvertent oversight, the Department of Justice was not provided with the information and documentation about the Appli- cant’s pending criminal charges and detention until October 6, 2011. 16 In Hennelly above, the Federal Court of Appeal stated at paragraphs 6 and 7: 6. In this case the Motions Judge found that inadvertence was an insufficient explanation for the appellant’s delay. 7. We can find no compelling reason to interfere with the Motions Judge’s exercise of discretion in finding that the appellant failed to provide an adequate explanation which would justify granting an extension of time. Muneeswarakumar v. Canada (MCI) John A. O’Keefe J. 5

17 A perusal of the Singh affidavit does not persuade me that the depo- nent was handling the file at CBSA. The affidavit only states that Harminder Niki Singh is a justice liason officer with CBSA and that he reviewed the applicant’s file after an inquiry was received. It is obvious that for some reason the respondents did not provide their counsel with the information about the applicant’s charges. The sole explanation for the delay from March 2011 to October 6, 2011 in providing the information to their counsel was “inadvertent oversight”. The Court has no idea what caused the oversight or what was involved in the oversight. As a result, I must conclude that there has not been a reasonable explanation for the delay since the respondents knew since March 2011 of the new criminal charges. What is important here is when the parties knew; not when they told their counsel. 18 The respondents also contended that an extension of time should be granted to file the affidavits because they were useful for the clean hands argument, the futility argument and the credibility argument. 19 The clean hands argument is based on the fact that the applicant did not disclose his additional criminal charges in his judicial review application affidavit. I would not grant the extension of time on this basis for the following reasons. The applicant stated in his affidavit that he was presently resident in Central East Correction Centre. This is an indication that he probably had been charged with an offence. Also, the fact is that the respondents actually knew in March 2011 that the applicant had been charged as negotiations for his release were taking place. 20 I would also not grant the extension of time for reason of the futility argument. I have no way of knowing whether the applicant will be found guilty of the charges. As well, any future decisions with respect to the applicant are discretionary decisions. What the Ministers’ delegate does with the charges on any possible convictions is a discretionary decision on the delegate’s part. 21 Finally, with respect to the need for the new affidavits to address the credibility issues, I am of the view that the credibility issues can be dealt with on the basis of the material already filed in these judicial review applications. 22 The Court is also mindful that, with limited exceptions that have not been raised here, the material before the judge conducting the judicial review is the material that was before the decision maker below. The jurisprudence of this Court has also stated that the affidavit evidence for 6 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

which an extension of time to file is made must be relevant and admissible. 23 As a result of my findings on the Hennelly above test, and after balancing these findings, I am of the view that the respondents’ motion for an extension of time in which to file the additional affidavits (in each file) must be dismissed. 24 The applicant has asked for solicitor and client costs in this matter. Bearing in mind that this matter is related to immigration, I am not per- suaded that there are special reasons to award costs (see Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22).

Order THIS COURT ORDERS that the respondents’ motion is dismissed. Motion dismissed. Portillo Romero v. Canada (MCI) 7

[Indexed as: Portillo Romero v. Canada (Minister of Citizenship & Immigration)] Aida Luz Portillo Romero, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2510-11 2011 FC 1452 James Russell J. Heard: November 24, 2011 Judgment: December 12, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicant was citizen of El Salvador who lived in Canada with her son — Applicant’s three sons, who owned restaurant in El Salvador, where threatened with death in connection with extortion demands made on them by either criminal gang or police — Applicant’s three sons came to Canada and were granted Convention refugee status — Applicant was afraid that people who extorted and threatened her sons would come after her and alleged that she had been harassed and threatened — Refugee Protection Division (RPD) found applicant not to be Convention refugee or person in need of protection — Appli- cant brought application for judicial review of decision of RPD — Application granted — RPD made extremely important negative credibility finding based on fact that applicant did not mention certain allegations when she first reported her claim in Canada, nor did she mention it to authorities in her own country — It was unfair for RPD to rely upon what Applicant said on her original claim form and her later testimony without putting discrepancy to her. Cases considered by James Russell J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — considered Alizadeh v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 2079, [1993] F.C.J. No. 11 (Fed. C.A.) — referred to Aragon v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 310, 2008 FC 144, 2008 CarswellNat 1000, 2008 CF 144, 79 Ad- min. L.R. (4th) 203, [2008] F.C.J. No. 173 (F.C.) — considered Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 635, 2006 CF 359, 2006 FC 359, 2006 CarswellNat 4738, (sub 8 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

nom. Avila v. Canada (Minister of Citizenship and Immigration)) 295 F.T.R. 35 (Eng.), [2006] F.C.J. No. 439, [2006] A.C.F. No. 439 (F.C.) — considered Barbu v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5231, 2010 CarswellNat 5232, 2010 FC 1251, 2010 CF 1251 (F.C.) — referred to Brown v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 585, 2011 CarswellNat 1986, 2011 CarswellNat 2827, 2011 CF 585, [2011] F.C.J. No. 787 (F.C.) — considered 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 Caballero v. Canada (Minister of Employment & Immigration) (1993), 154 N.R. 345, 1993 CarswellNat 1399, [1993] F.C.J. No. 483 (Fed. C.A.) — considered Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 94, 69 Imm. L.R. (3d) 309, 2008 CAF 94, (sub nom. Flores Carrillo v. Canada (Minister of Citizenship & Immigration)) [2008] 4 F.C.R. 636, 2008 CarswellNat 1953, 2008 CarswellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — referred to Castroman v. Canada (Secretary of State) (1994), 81 F.T.R. 227, 27 Imm. L.R. (2d) 129, 1994 CarswellNat 218, [1994] F.C.J. No. 962 (Fed. T.D.) — referred to Cornejo v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 521, 2010 FC 261, 2010 CF 261, 2010 CarswellNat 2381, [2010] F.C.J. No. 295, [2010] A.C.F. No. 295 (F.C.) — considered Derbas v. Canada (Solicitor General) (1993), 1993 CarswellNat 1714, [1993] F.C.J. No. 829 (Fed. T.D.) — considered Elmi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 773, 2008 CarswellNat 2823, 2008 CarswellNat 2042, 2008 FC 773 (F.C.) — considered Giron v. Canada (Minister of Employment & Immigration) (1992), 143 N.R. 238, 1992 CarswellNat 555, [1992] F.C.J. No. 481 (Fed. C.A.) — considered Gracielome v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 237, 1989 CarswellNat 100, [1989] F.C.J. No. 463 (Fed. C.A.) — referred to Portillo Romero v. Canada (MCI) 9

Hou v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1586, 2005 CarswellNat 3829, 2005 CF 1586, 2005 CarswellNat 5466 (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.) — referred to Kumara v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5134, 2010 CF 1172, 2010 FC 1172, 2010 CarswellNat 4393 (F.C.) — considered Kurtkapan v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 2933, 2002 FCT 1114, 2002 CFPI 1114, 24 Imm. L.R. (3d) 163, 2002 CarswellNat 3994 (Fed. T.D.) — considered Li v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 1166, 2002 CarswellNat 3249, 2002 CarswellNat 4530 (Fed. T.D.) — considered Liao v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 2884, [2000] F.C.J. No. 1926 (Fed. T.D.) — referred to Lozada v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 823, 2008 FC 397, [2008] F.C.J. No. 492 (F.C.) — considered M. (K.) v. Canada (Minister of Citizenship & Immigration) (2001), 201 F.T.R. 74, 2001 FCT 94, 2001 CarswellNat 418, [2001] F.C.J. No. 290 (Fed. T.D.) — referred to Malik v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1707, 2005 CarswellNat 4389, 2005 CarswellNat 5723, 2005 CF 1707 (F.C.) — considered Martinez De La Cruz v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 259, 2011 CarswellNat 1147, 2011 FC 259, 2011 Car- swellNat 631 (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 Qureshi v. Canada (Minister of Citizenship & Immigration) (2009), 354 F.T.R. 256 (Eng.), 2009 CF 1081, 2009 CarswellNat 4478, [2010] 4 F.C.R. 256, 2009 CarswellNat 3328, 2009 FC 1081 (F.C.) — referred to 10 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Reyes v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 460, 2011 CarswellNat 1220, 2011 CarswellNat 2215, 2011 CF 460 (F.C.) — distinguished Romero v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2994, 2008 FC 977, 2008 CarswellNat 4533, 2008 CF 977 (F.C.) — considered 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.) — referred to Shaiq v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 360, 2009 FC 149 (F.C.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Tanase v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 48, 3 Imm. L.R. (3d) 308, 181 F.T.R. 111, [2000] F.C.J. No. 32 (Fed. T.D.) — considered Turna c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CF 202, 2006 CarswellNat 364, 2006 CarswellNat 4130, 2006 FC 202, [2006] F.C.J. No. 265 (F.C.) — referred to Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, [2001] A.C.F. No. 1131, [2001] F.C.J. No. 1131 (Fed. T.D.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — considered s. 96 — considered s. 96(a) — considered s. 97 — considered Portillo Romero v. Canada (MCI) James Russell J. 11

s. 97(1) — considered

APPLICATION by applicant for judicial review of decision of Refugee Protec- tion Division that she was not Convention refugee or person in need of protection.

Aisling Bondy, for Applicant Prathima Prashad, for Respondent

James Russell J.: Introduction 1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigra- tion and Refugee Board, dated 23 March 2011 (Decision), which refused the Applicant’s claim for protection as a Convention refugee under section 96 or a person in need of protection under section 97 of the Act.

Background 2 The Applicant is a citizen of El Salvador. She has five children (three sons and two daughters) all of whom live in Canada. The Applicant currently lives with her son, Francisco, in Toronto. 3 In El Salvador, the Applicant’s three sons, Francisco, Roberto, and Leo co-owned a restaurant. In March and April 2006, they were threatened with death in connection with extortion demands made of them by either the Maras gang or the El Salvadorian police. Roberto and Leo fled El Salvador on 1 May 2006. Francisco left El Salvador on 24 March 2007. The three brothers claimed refugee status in Canada. The RPD heard their claims together and, on 28 March 2008, granted them refugee status. 4 The Applicant is afraid the people who extorted and threatened her sons will come after her for payment of her sons’ debts. Beginning before her sons left El Salvador for Canada, she travelled to the United States of America (USA) and returned to El Salvador five times, as follows: a. From 4 October 2004 to 27 March 2005; b. From 2 October 2005 to 5 March 2006; c. From 22 October 2006 to 18 March 2007; 12 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

d. From 13 April 2008 to 19 June 2008; and e. From 14 February 2009 to 6 July 2009. 5 After she returned to El Salvador in 2009, the Applicant felt threatened several times. On 9 December 2009, someone called her home and asked for Roberto. When she told the caller Roberto was not home, he asked for Francisco or Leo; she told him that they also were not home, and the caller hung up. On 12 December 2009, the Applicant was outside her house watering plants when she saw a car with two men in it pull up in front of her house. She felt frightened and went into the house. The men parked in front of her house for a few minutes and then left. 6 On 14 December 2009, while the Applicant was in her house, she heard someone knocking on her garage door. She looked out, saw the two men who had parked in front of her house, and did not answer the door. Eventually, the men left. On 17 December 2009, the Applicant received another phone call. The caller did not identify himself, but asked for Roberto. She told him Roberto was not home, so he asked for her other sons. When the Applicant informed the caller that they were not home, he told her that she would have to pay what her sons owed. 7 When she arrived in Canada, the Applicant completed form IMM 5611 with the assistance of an interpreter. That form records the following under the heading “Why are you asking for Canada’s protection?”: On December 17th, 2009, I received another phone call, “Ma’am is Roberto home”, I asked who is calling, “how about your other children”, no I would like to know who is calling, they said “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts”. That type of threats are to my life. 8 In her PIF, the Applicant wrote that the caller “said that I would have to pay what my sons owed or they would kill me.” At the hearing, the Applicant said that “[The caller] told me, mother, you are going to pay for everything related to your children for the debt, if not we will kill you.” 9 After this phone call, the Applicant called her brother, who told her that she had to make a report to the police so that there would be a record of what had occurred. The Applicant says that she did not want to because she thought that the police were involved in the extortion and threats against her and her sons. However, on 18 December 2009 she went to the police station with her brother and filed a report of the phone call with the Policia National Civil (PNC), the National Civil Police. Portillo Romero v. Canada (MCI) James Russell J. 13

10 After filing the police report, the Applicant left El Salvador for the United States on 11 January 2010, where she landed in Atlanta, Georgia. She travelled to Buffalo, New York on the same day, and came to Can- ada on 14 January 2010. The Applicant claimed protection on 14 January 2010. 11 The RPD heard the Applicant’s claim for protection on 17 March 2011. At the hearing, the Applicant, her Counsel, a Refugee Protection Officer, an interpreter, and the RPD panel member were present. Before the hearing commenced, the Applicant’s counsel conferred with the RPD panel member. Counsel had given notice that he intended to call Roberto as a witness to establish the Applicant’s claim; however, the RPD noted that Roberto’s narrative in his PIF seemed to conflict with the Appli- cant’s. Roberto had said that the people who had extorted him were the Maras gang, while the Applicant had said in her PIF that the people who had extorted her children were the police. The RPD said that, if Roberto testified and the RPD found that he had given conflicting evidence, this could expose him to the risk that his refugee claim would be vacated. Counsel elected not to call Roberto as a witness. 12 After the hearing, the RPD made its Decision on 23 March 2011 and gave notice to the Applicant on 28 March 2011.

Decision Under Review 13 The RPD determined that the Applicant was neither a convention refugee under section 96 of the Act nor a person in need of protection under section 97. It found that the Applicant’s story was not credible and that there was no persuasive evidence that the threats to which she had been subjected rose to the level of persecution. It also found that there was no persuasive evidence of a risk of harm to her under section 97 of the Act.

Allegations 14 The RPD began by reviewing the Applicant’s allegations. It noted that she said at the hearing that she had travelled to the USA four times out of fear, and that she had been contacted by unknown persons after she last returned to El Salvador. The RPD also noted the phone call where the caller demanded payment and that she had filed a police report. 14 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Credibility 15 The RPD said that the only determinative issue in the case was credibility. It found that the Applicant’s allegations that she had been threatened in El Salvador and that people in El Salvador were looking to harm her were not credible.

Agents of Persecution 16 The Applicant had, in oral testimony, alleged that she feared the police in El Salvador because they had extorted her sons. She testified at the hearing that she “Did not see it, [my sons] told me” and that no one other than the police had threatened her sons. The RPD said that, when asked if her sons had ever sought the help of the military or the police, she initially said “no” then changed her answer to “I don’t know.” The RPD also asked if she knew about a report Roberto had filed with the police, which she said she did. The RPD found that there was a contradiction between her statements that she did not know if her sons had made any denunciations but she did know about the police report her son had filed. The RPD said that that the Applicant left the contradiction unexplained. 17 The RPD also noted that it had examined at the hearing the police report Roberto had filed with the PNC. It quoted the following portion of the report, which appears at page 116 of the Certified Tribunal Record: [...] four individuals appeared with a gang-like appearance and tat- toos in keeping with the Maras or Gang Eighteen, who showed weapons [emphasis in Decision] 18 There was no mention in this report of any police involvement; the only people who were suspected of involvement in the threats against Roberto were the Maras gang. At the hearing, the Applicant was unable to explain why her sons would tell her that the police were extorting them, when Roberto had told the police it was the Maras. 19 The RPD also noted that the Applicant had provided a letter from her nephew that said only that unknown persons had extorted her sons. The RPD found that no persuasive evidence had been placed before it which indicated that the police were involved in extorting her sons. 20 The RPD then turned to the threats alleged by the Applicant. It noted the Applicant testified that, during the 9 December 2009 phone call, the caller had not identified himself or made any threats before he hung up. With respect to the incident on 12 December 2009, the RPD noted that the Applicant testified that the men who came to her door had not spoken Portillo Romero v. Canada (MCI) James Russell J. 15

to her or threatened her. She was also not sure that they were looking for her. The RPD said that, during the 14 December 2009 incident, the men who came to the Applicant’s house had knocked on her door and left after she did not answer the door. The RPD also noted that she had been called on 17 December 2009 by a person who would not identify himself and that she said he had threatened to kill her if she did not pay what her sons owed. 21 The RPD said that none of the people involved in these incidents had been identified, and at no time was the Applicant threatened by any persons identifying themselves as police officers or wearing police uniforms. It found that her claim had nothing to do with the police in El Salvador. 22 Though she feared the police, the Applicant attended at the police station and filed a report the day after she had been threatened. The RPD also noted that the report she filed did not mention that she had been threatened by the police and only said that she had been called twice and visited twice by unknown men. When asked why shy would go to the police station to file a report if she was being threatened by the police, the Applicant testified that her brother forced her to go to make a record of what had occurred. She also testified that she had not told the police officer taking the report that she suspected the police had threatened her. 23 The RPD found that it was implausible that an elderly lady living alone, who believed that her three sons had been forced to flee the country because they were extorted by the police and believed that the police were going to kill her, would go to the same police and file a report. It pointed out that the Federal Court of Appeal, in Giron v. Canada (Minister of Employment & Immigration), [1992] F.C.J. No. 481 (Fed. C.A.), had upheld the reasonable findings of the RPD based on implausiblities, common sense, and rationality. Further, the RPD may reject evidence if it is not consistent with the probabilities affecting the case as a whole, even if that evidence is uncontradicted 24 The RPD also said that the police report the Applicant filed was apparently pointless: though she feared that the police were extorting her, she went to them to file a report. She did not mention that she suspected the police. At the hearing, she testified that she filed the report so that there would be a record of what had happened; the RPD said that the report served no purpose because the Applicant testified she did not inform the police officer taking the report that she thought the police were involved. These actions, the RPD held, were implausible. 16 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

25 The RPD found there was no persuasive evidence before it on police involvement; it reiterated its finding that the police were not involved.

Delay and Re-availment 26 The RPD noted that the Applicant had testified that she was afraid that the people who had threatened her children would also come after her. She had also testified that, when she travelled to the USA, she had done so out of fear. When she travelled to the USA, it was her practice to obtain a visa for six months, stay in the USA for almost the full term of her visa, and then return to El Salvador. She would then apply for another visa and repeat the process. 27 The RPD disagreed with the Applicant’s argument that she did not truly fear for her safety until the 17 December 2009 phone call. The Ap- plicant had testified and written in her PIF that she had left El Salvador out of fear, yet she repeatedly returned after her sons had fled. 28 Though she had travelled to the USA after her sons fled, the Appli- cant did not claim refugee protection there. The RPD said this showed that she did not have a subjective fear of persecution in El Salvador. Pointing to Caballero v. Canada (Minister of Employment & Immigra- tion), [1993] F.C.J. No. 483 (Fed. C.A.), it noted that the Federal Court of Appeal has upheld the RPD in finding that reavailment is fatal to a claim for protection. 29 The RPD found that the Applicant’s claim under section 96 of the Act failed because she could not demonstrate a well-founded fear of persecution.

Alleged Risk of Harm 30 The RPD noted the following events: a. The 9 December 2009 phone call, where a person called but made no threats before hanging up; and b. The 12 December 2009 incident, where two men sat in a car outside her house, then left. c. The 14 December 2009 incident, where the same two men knocked on her door, then left when the Applicant did not answer the door. 31 The RPD found that none of these events demonstrated a risk of harm to the Applicant. Though she thought that they showed that the police were trying to kill her, this was pure speculation. Portillo Romero v. Canada (MCI) James Russell J. 17

32 The RPD also reviewed the 17 December 2009 phone call and said that, when the Applicant first described the call in form IMM 5611 she wrote that the caller said “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts.” The RPD said that this statement does not mention a death threat. In her PIF narrative, completed three weeks later, the Applicant wrote, “He then said that I would have to pay what my sons owed or they would kill me and hung up.” The RPD also quoted the police report the Applicant had filed on 18 December 2009 which contained the words, “look lady, you are also going to pay for the [matter] regarding your children and he hung up on her.” [addition in translation] 33 At the hearing, the RPD asked the Applicant why the police report did not mention the death threat. She testified that she had told the officer taking the report about the omission, but he would not change it because the report had already been filed. When asked why she signed a report which was incomplete, the Applicant answered that “they are the authorities.” She had also testified that neither she nor her brother, who was with her at the police station, had spoken to a supervisor about the incomplete report. The RPD also asked why her PIF did not mention that the police report was incomplete, to which the Applicant answered that she forgot about it. 34 The RPD rejected the Applicant’s allegation that she had received a death threat. It found that she did not mention the threat when she completed form IMM 5611 and had not mentioned the threat to the authorities in El Salvador. The RPD found that she had advanced a new allegation at the hearing that the police had not properly completed the report. The RPD rejected the Applicant’s assertion that she forgot about the report being incorrectly filled out. It said that, in Aragon v. Canada (Minister of Citizenship & Immigration), 2008 FC 144 (F.C.), the Federal Court upheld the RPD when making a negative credibility finding from a new allegation advanced at the hearing without a reasonable explanation. This was a key element of her claim, so it was not reasonable for the Applicant to have forgotten this piece of information. The RPD found that no death threat had been made against the Applicant. 35 The RPD also noted that the Applicant fled El Salvador shortly after the 17 December 2009 phone call. She did not return to the police station or speak to the police about the progress of the investigation. Noting Romero v. Canada (Minister of Citizenship & Immigration), 2008 FC 977 (F.C.), the RPD found that there was no information to suggest that 18 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

the police would not have investigated the Applicant’s allegation. It also said that there was nothing to suggest the PNC would not have investigated her complaint. 36 The RPD also refers to my decision in Barbu v. Canada (Minister of Citizenship & Immigration), 2010 FC 1251 (F.C.), for the proposition that low level assaults, such as telephone calls, which are not a real threat to life will not support a claim under section 97. The RPD held that there was no actual risk of harm to the Applicant.

Conclusion 37 The RPD said that the onus is on claimants to establish their claims and found that the Applicant had not established hers. It said that there was no persuasive evidence, other than the police report she filed with the PNC, of persecution or risk of harm. The RPD also found that the Applicant’s testimony was without credibility with respect to material aspects of the claim and that there were unexplained discrepancies in her story. The Applicant had not established that it was more likely than not that she would face a risk to life or of cruel and unusual treatment or punishment if she were returned to El Salvador. There was no credible basis for any such risk, so she is not a Convention refugee or person in need of protection.

Statutory Provisions 38 The following provisions of the Act are applicable in this proceeding: 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 [...] 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 Portillo Romero v. Canada (MCI) James Russell J. 19

(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 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; [...] 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, 20 IMMIGRATION LAW REPORTER 8 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.

Issues 39 The Applicant raises the following issues: a. Whether the RPD’s finding that she did not have a subjective fear of persecution is reasonable; b. Whether the RPD breached her right to procedural fairness by denying her the opportunity to respond; c. Whether the RPD’s credibility finding was reasonable; d. Whether the RPD made a finding of state protection; e. Whether any state protection finding the RPD made was reasonable.

Standard of Review 40 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. 41 In Cornejo v. Canada (Minister of Citizenship & Immigration), 2010 FC 261 (F.C.), Justice Michael Kelen held at paragraph 17 that the standard of review on the question of a claimant’s subjective fear is reasonableness. Justice John O’Keefe, in Brown v. Canada (Minister of Citizenship & Immigration), 2011 FC 585 (F.C.), also found at paragraph 24 that the standard of review on this issue is reasonableness. The standard of review on the first issue is reasonableness. 42 In Elmi v. Canada (Minister of Citizenship & Immigration), 2008 FC 773 (F.C.), at paragraph 21, Justice Max Teitelbaum held that findings of credibility are central to the RPD’s finding of fact and are therefore to be Portillo Romero v. Canada (MCI) James Russell J. 21

evaluated on a standard of review of reasonableness. Further, in Hou v. Canada (Minister of Citizenship & Immigration), 2005 FC 1586 (F.C.), Justice O’Keefe held at paragraph 23 that the standard of review on a finding of credibility was patent unreasonableness. Also, in Aguebor v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 732 (Fed. C.A.) the Federal Court of Appeal held that the standard of review on a credibility finding is reasonableness. The standard of review on the third issue is reasonableness. 43 Justice Leonard Mandamin found in Lozada v. Canada (Minister of Citizenship & Immigration), 2008 FC 397 (F.C.), at paragraph 17, that the standard of review with respect to a finding of state protection is reasonableness. He primarily relied on the Federal Court of Appeal decision in Carrillo v. Canada (Minister of Citizenship & Immigration), 2008 FCA 94 (F.C.A.). Justice Luc Martineau made a similar finding in Turna c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 202 (F.C.). The standard of review with respect to the fifth issue is reasonableness. 44 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.” 45 The opportunity to respond to a decision maker’s concerns is an issue of procedural fairness (see Qureshi v. Canada (Minister of Citizenship & Immigration), 2009 FC 1081 (F.C.) at paragraph 31; Liao v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1926 (Fed. T.D.) at paragraph 17; and Rukmangathan v. Canada (Minister of Citizenship & Immigration), 2004 FC 284 (F.C.)). In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Can- ada held that the standard of review with respect to questions of procedural fairness is correctness. Further, the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either 22 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the second issue is correctness. 46 In Ward v. Canada (Minister of Employment & Immigration), [1993] S.C.J. No. 74 (S.C.C.), the Supreme Court of Canada held at paragraph 45 that state protection is a crucial element in establishing the well- foundedness of a claimant’s fear. In Malik v. Canada (Minister of Citizenship & Immigration), 2005 FC 1707 (F.C.), Justice Eleanor Daw- son held at paragraph that it is not necessary for the RPD to consider state protection where it first concludes that there is no well-founded fear of persecution or risk of harm. Further, Justice Elizabeth Heneghan held in Kurtkapan v. Canada (Minister of Citizenship & Immigration), 2002 FCT 1114 (Fed. T.D.) at paragraph 35 that the “failure to consider an objective basis for [a claimant’s] fear of persecution” was an error of law. This is the question raised by the fourth issue in this case; the standard of review on the fourth issue is correctness. 47 As the Supreme Court of Canada held in Dunsmuir (above, at paragraph 50). When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

Arguments The Applicant The RPD’s Subjective Fear Finding was Unreasonable 48 The Applicant argues that the RPD’s finding that she did not have a subjective fear of persecution in El Salvador was unreasonable because the RPD based this conclusion on the evidence that she had travelled to and from the USA from El Salvador. She says that the RPD has conflated discreet elements of her evidence, contrary to Reyes v. Canada (Minister of Citizenship & Immigration), 2011 FC 460 (F.C.). 49 The Applicant notes that her first trip to the USA was in 2004. She says that she continued to travel to the USA after her sons were threatened because she was afraid that the people who were threatening them would come after her. She did not make a refugee claim until 2010 Portillo Romero v. Canada (MCI) James Russell J. 23

because she was not directly involved in her sons’ dealings. Only when she was threatened on 17 December 2009 did the Applicant truly fear for her life, flee El Salvador, and claim protection in Canada. 50 In Reyes, above, Justice Donald Rennie held that the RPD erred when it conflated two distinct fears in analysing re-availment. In that case, the claimant fled Colombia to the USA after he was threatened by a gang. He later returned to Colombia, but fled again after he was threatened by a second gang. The RPD held he did not have a subjective fear of the second gang because he had returned to Colombia after he was threatened by the first gang. 51 In this case, the RPD has conflated the Applicant’s two distinct fears: the fear that caused her to travel to the USA between 2004 and 2009 and the fear arising from the 17 December 2009 phone call, where she was threatened directly. Though Reyes, above, dealt with multiple agents of harm, the Applicant says that her two fears were separate and should not have been conflated by the RPD. When the Applicant travelled to the USA, she only had a low level of fear which would not support a refugee claim. Once she was threatened directly, she faced a greater objective risk of harm, so she fled to Canada. 52 In addition to conflating the two distinct fears, the RPD ignored evidence going to the Applicant’s subjective fear. She says that the RPD ignored the statement in her PIF that she had travelled to the USA between October 2004 and March 2005 and between October 2005 and March 2006. Both of these trips occurred before her sons were threatened, which shows that she did not travel to the USA exclusively because she was afraid. She says that, in Reyes, Justice Rennie held that it was an error to ignore travels prior to a personal threat. 53 Because it conflated evidence of distinct events and ignored the evidence of her travels to the USA before she was threatened, the Applicant says that the RPD’s finding that she did not have a subjective fear of persecution was unreasonable. This finding was central to the RPD’s credibility finding and credibility was the determinative issue in the claim. In Reyes, Justice Rennie quashed the decision and remitted the matter for redetermination, having found that the subjective fear finding was erroneous, but without commenting on other grounds for the RPD’s credibility finding. The Applicant says that Reyes stands for the proposition that an erroneous subjective fear finding that goes to credibility is enough to overturn a decision. The RPD made an erroneous subjective fear finding in this case, so the Decision should be overturned. 24 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

The RPD Breached the Applicant’s Right to Procedural Fairness The RPD did not put Perceived Omissions to the Applicant 54 The RPD breached the Applicant’s right to procedural fairness when it did not put the omissions and inconsistencies it observed in her testimony to her at the hearing and so deprived her of the opportunity to respond. She relies on Gracielome v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 463 (Fed. C.A.), M. (K.) v. Canada (Minister of Citizenship & Immigration), 2001 FCT 94 (Fed. T.D.); Shaiq v. Canada (Minister of Citizenship & Immigration), 2009 FC 149 (F.C.); Kumara v. Canada (Minister of Citizenship & Immigration), 2010 FC 1172 (F.C.); and Martinez De La Cruz v. Canada (Minister of Citizenship & Immigration), 2011 FC 259 (F.C.) for the proposition that the RPD cannot make a negative credibility finding without first giving a claimant the opportunity to respond to perceived inconsistencies. 55 The RPD based its negative credibility finding in part on the statement in IMM 5611 that purported to be the words of a threatening caller to the Applicant; the RPD said that this statement does not include a death threat against the Applicant and, because the omitted threat later occurs in the Applicant’s PIF, the RPD drew a negative inference of credibility. The Applicant says that the RPD should have asked her about the perceived omission of the threat from IMM 5611. Its failure to do so violated her right to procedural fairness. She says her case is similar to that in Kumara, above, where Justice Hughes wrote at paragraph 3 that, by not putting a perceived contradiction to the claimant, “the Member simply lay in the weeds, waited till the hearing is over, then pulled out apparent contradictions and used them as the basis for disbelieving the Applicants’ claim.” Had the RPD put the omission to the Applicant in the present case, she says she would have been able to point out the reference in IMM 5611 to the death threat she received to explain and clarify the perceived omission.

The RPD Denied the Applicant the Opportunity to Respond to Concerns about her Oral Evidence 56 At the hearing, the RPD asked the Applicant why she said she did not know if her sons had sought military or police help, when she later said that she knew about the police report her son had filed. The RPD said Well madam just a second ago I asked did any of your sons ever try [sic] to get help from the army or the police, you said no, I do not know and yet you knew about this police report; so why did you say Portillo Romero v. Canada (MCI) James Russell J. 25

no, you did not know? So I want to be clear, did you know that your son Roberto made a police report in March of 2006? [see page 204 CTR] 57 The Applicant says that, when the RPD asked “So I want to be clear, did you know that your son Roberto made a police report in March of 2006?” this denied her the opportunity to respond. This exchange put her on notice that the RPD only wanted to know if she was aware of the police report, not why she said she did not know if her sons had sought police or military help. 58 Though the RPD questioned the Applicant about why she said she did not know her sons had sought help, she says that the phrasing of the question denied her the opportunity to respond. This breached her right to procedural fairness, as the RPD did not put the perceived inconsistency to her even though it based the Decision on that inconsistency.

The RPD’s Credibility Finding was Unreasonable The RPD Misstates Evidence and Relies on Speculative Conclusions 59 The Applicant also says that, when the RPD found that there was no evidence the police were involved in threatening the Applicant, it misstated the Applicant’s oral testimony. In the Decision, the RPD said that, when asked if her sons had ever filed a police report, the Applicant first said “no,” but then changed her answer to “I don’t know.” The RPD said that she did not respond when asked to explain the contradiction between “no” and “I don’t know.” This is a misstatement of the evidence because, as the transcript of the hearing shows, the Applicant did not change her answer; she said only “I don’t know about that.” (see page 203 CTR) 60 The RPD also misconstrued the evidence when it said in the Decision that the Applicant “did not answer the question and the contradiction was left unexplained” when asked to explain why she said she did not know if her sons had gone to the police. She says that, when the RPD said “So I want to be clear, did you know that your son Roberto made a police report in March of 2006?” this precluded her from answering the first question. The RPD misconstrues the evidence because it found that she did not answer the first question without having actually given her a chance to do so. Had the RPD given her the chance to answer the question, it might not have come to the same conclusion on credibility. 26 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

The RPD’s Plausibility Finding was Unreasonable 61 The Applicant says that, when the RPD found that it was implausible that she would file a report at the police station when she believed the police were involved in the threats against her, it made a finding which contradicted its other findings. This renders the implausibility finding unreasonable. In Valtchev v. Canada (Minister of Citizenship & Immigra- tion), 2001 FCT 776 (Fed. T.D.), at paragraph 7, Justice Francis Mul- doon said that, [...] plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. 62 It was not clearly implausible that the Applicant would have filed a police report, so the RPD should not have made this finding. The RPD’s finding that her filing of the report with the police was implausible also contradicts its later finding that there was no information to suggest the police would not investigate her complaint. It was not reasonable for the RPD to find that it was outside the realm of what could reasonably be expected that she would file a report and also find that the police would have investigated her claim. 63 Making a finding of this nature puts refugee claimants in an impossible position, given that they bear the onus of rebutting the presumption of state protection. By finding the Applicant not credible because she approached the police for protection and then finding that state protection would be forthcoming, the RPD made it impossible for her to establish her claim. She says that upholding this finding will discourage other potential refugee claimants from approaching their states for protection because those efforts might later be used against them in a refugee proceeding. 64 The Applicant also says that the RPD’s finding that it was not plausible she would report to the police contradicts other findings it made. It contradicts the RPD’s finding that she would not tell the police she believed they were involved, and the finding that she did not speak to a supervisor at the police station when she noticed the report was incomplete. Contrary to the RPD’s finding, it is plausible that, fearing the police were extorting her, she would not tell them she believed they were involved in the threats against her. The RPD’s implausibility finding is not reasonable. Portillo Romero v. Canada (MCI) James Russell J. 27

The RPD Misstated the Evidence in IMM 5611 65 When the RPD drew a negative inference as to credibility based on the Applicant’s statement in IMM 5611, it fundamentally misunderstood the evidence before it. The RPD said that there was no mention of any death threat in IMM5611, but this is not correct. The relevant section of the form reads On December 17th 2009, I received another phone call, “Ma’am is Roberto home”, I asked who is calling, “how about your other children”, no I would like to know who is calling, the said “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts”. That type of threats are to my life.[sic] 66 The Applicant says that the sentence “That type of threats are to my life” is a reference to the death threat she received during the phone call. The negative inference as to credibility the RPD drew from this perceived omission was unreasonable. 67 The RPD also ignored the evidence before it that suggested the form was not a complete record of the Applicant’s story. She notes that the form instructs claimants to “Please keep your answers short. You will have the opportunity to explain all the facts related to your claim to the Immigration and Refugee Board of Canada.” She also notes that, because the form is typed and written in English, while she only writes Spanish, it is clear that her answers were transcribed by someone else on her behalf. This evidence goes to the omissions the RPD perceived in the form on which it based its credibility determination. There is a possibility that the form was transcribed or translated incorrectly, especially since the form instructs claimants to keep their answers short. Credibility was the determining issue in her claim, so it was not reasonable for the RPD to neglect this evidence. The negative inference as to credibility the RPD drew was unreasonable because it was based on an erroneous understanding of the evidence.

The RPD does not Make a State Protection Finding 68 Although the RPD discussed state protection in the Decision, the Ap- plicant says that this discussion does not amount to state protection finding. The RPD says only that “there is no information to suggest that the police would not have made genuine and earnest efforts to investigate the claimant’s allegations and apprehend the perpetrator, had she pursued her complaint diligently.” The RPD said that the determinative issue in the 28 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

case was credibility and did not find that she had not rebutted the presumption of state protection.

The RPD’s State Protection Finding was Unreasonable 69 If the RPD made a state protection finding, the Applicant says that this finding was unreasonable. She says that the RPD did not consider evidence which could rebut the presumption of state protection. She points to the following: a. She and her sons believed it was the police who were threatening them; b. The amount demanded of her sons increased after they went to the police, as shown by Roberto’s PIF narrative; and c. She is unaware of any steps the police have taken to protect her 70 The Applicant also says that the RPD did not consider any of the documentary evidence before it which went to state protection. In Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 359 (F.C.), Justice Martineau wrote that “It is not sufficient for the Board to indicate in its decision that it considered all the documentary evidence. A mere reference in the decision to the National Document Package on Mexico, which contains an impressive number of documents, is not sufficient in the circumstances” (see paragraph 32). Here, the RPD does not even say that it considered all the evidence; it simply says there was no information to suggest the police would not pursue her complaint. This implies the RPD was unaware of the documentary evidence before it. 71 The RPD had before it the IRB’s Response to Information Request (RIR) on El Salvador. This RIR demonstrates that the PNC lacks the resources it needs to protect citizens and that the PNC may be involved in violence against citizens, including murders. The RPD also had before it an article from the International Human Rights Clinic at Harvard Law School entitled No Place to Hide: Gang, State and Clandestine Violence in El Salvador. This report points out weaknesses in the PNC, including its participation in human rights abuses. The Applicant also notes that the conviction rate on homicides in El Salvador is very low, as No Place to Hide shows. She says the low conviction rate shows a high level of impunity in El Salvador. The RPD did not consider any of this documentary evidence, so any state protection finding it might have made is unreasonable. The Decision should be set aside on this basis. Portillo Romero v. Canada (MCI) James Russell J. 29

The Respondent 72 The Respondent argues that the Decision should stand. It is supported by the evidence, the RPD provided adequate reasons for its decision, and the RPD’s determination falls within the Dunsmuir range.

The RPD’s Conclusion on Subjective Fear was Reasonable 73 The Respondent says that the RPD did not make the error that Reyes, above, cautions against. Reyes is distinguishable because the Applicant has always had the same fear that the people who threatened her sons would also harm her. This fear of harm was what drove the Applicant’s repeated travel to the USA and her flight to Canada. The RPD did not conflate an entirely new and substantially different fear that drove her to Canada with the fear that was present when she reavailed herself to El Salvador. 74 The RPD rejected the Applicant’s submission at the hearing that she only began to fear once she received the threatening phone call on 17 December 2009. This was reasonable because she had testified, in both her PIF and at the hearing, that she left El Salvador out of fear that those who had threatened her sons would come after her. This fear is what also drove her to seek refuge in Canada. Based on her repeated reavailment to El Salvador, it was also reasonable for the RPD to conclude she had no subjective fear.

The RPD’s Treatment of Roberto’s Police Report was Reasonable 75 The Applicant has asserted that what she actually said when the RPD asked her if her sons had sought help from the police or the military was “I don’t know about that,” and that she did not change her answer from “no” to “I don’t know.” The Respondent says that the words “about that” do not change the meaning of the statement “I don’t know” and that the Applicant changed her answer from “no” to “I don’t know.” The RPD simply confronted the Applicant with the fact that she had submitted Ro- berto’s police report to the RPD; this showed that he actually had sought the assistance of the police. When confronted with the presence of the report in her evidence, she changed her answer, saying that she actually did know that her sons had sought police assistance. The Applicant has not demonstrated that the RPD would have reached a different conclusion, had it understood that she did not actually change her answer from “no” to “I don’t know.” She knew the answer to the RPD’s question but did not answer truthfully. 30 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

The RPD did not Breach the Applicant’s Right to Procedural Fairness 76 The RPD did not breach the Applicant’s right to procedural fairness. The Applicant was represented at the hearing by counsel and was put on notice that inconsistencies in her answers were a concern by the RPD’s question. Though the RPD may have prevented the Applicant from ex- plaining why she initially said she did not know if her sons had sought police or military help (but then said she did know), her counsel could have asked her questions to clarify this issue. She also had the opportunity to make final submissions to address this issue. The Respondent also says the Applicant admitted that she was put on notice of the RPD’s concern when she wrote in her memorandum that “the Board did technically put this concern to the Applicant” (see paragraph 37 of the Applicant’s Memorandum of Fact and Law). The RPD cannot be faulted for counsel’s failure to take the opportunity to clarify and the Applicant has not demonstrated a breach of procedural fairness. 77 In Tanase v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 32 (Fed. T.D.), Justice Muldoon had this to say at paragraph 14: where a claimant is not confronted by a panel with alleged contradictions or asked for explanations prior to a decision on credibility being made, the reasons for showing deference to the panel are severely diminished as it is in no better position to weigh the contradictions than is this Court. This proposition does not imply, however, that the duty of fairness requires a panel to alert a claimant to a potentially adverse credibility finding in every case or in matters of trivial importance. 78 The Respondent says that this passage shows that the Court has moved away from rote application of the principle that every contradiction ought to be put to a refugee claimant as part of the duty of fairness.

The Applicant Takes the RPD’s Findings Out of Context 79 The Respondent says that, when she argues the RPD’s findings are in conflict, the Applicant has taken these findings out of context. The RPD’s finding that it is implausible that the Applicant would approach the police for protection while at the same time she believed they were extorting her was about her allegation that the police were the agents of harm. Once it determined that her allegations against the police were not credible, the RPD then analysed state protection. The plausibility finding and the state protection were distinct and cannot be conflated. Portillo Romero v. Canada (MCI) James Russell J. 31

80 When it found her story about filing the police report was implausible, the RPD acted reasonably. It does not make sense that a woman who feared the police would go to them for protection. The Respondent relies on Alizadeh v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 11 (Fed. C.A.) and Aguebor, above, for the propositions that the RPD need not accept a witness’s testimony just because it is not contradicted, and that the RPD is entitled to make reasonable findings based on implausiblities, common sense, and rationality. The RPD may reject evidence if it is not consistent with the probabilities affecting the case as a whole. 81 The RPD reasonably determined that the Applicant received a phone call from someone telling her she owed money, but that she was not threatened by anyone, including the police. When it found that there was no evidence the police would not have diligently investigated her claim, this was based on her evidence that she had not followed up with the police to see if there had been any progress. Though there was documentary evidence which showed problems with the PNC, this was not relevant to the Applicant, because the threats she received had nothing to do with the police. The Applicant’s argument that the RPD did not consider evidence relevant to the state protection finding is without merit.

There was no Evidence of Death Threats 82 The Respondent says that the RPD did not misstate or misunderstand the evidence in IMM 5611. In the passage from IMM 5611 [Li v. Canada (Minister of Citizenship & Immigration), 2002 CarswellNat 3249 (Fed. T.D.)] cited by the Applicant, the words “That type of threats are to my life” are outside the quoted words of the caller. These words are the Ap- plicant’s inference as to the meaning of this call, not an actual threat from the caller. In Derbas v. Canada (Solicitor General), [1993] F.C.J. No. 829 (Fed. T.D.), Justice Yvon Pinard said at paragraph 3 that By accepting the applicant’s version of events as fact, the Board was certainly not bound to accept the interpretation he put on those events. The Board still had to look at whether the events, viewed objectively, provided sufficient basis for a well-founded fear of persecution. In my view, the Board was entitled to reach the conclusions it did on the evidence in the record, and it applied the correct definition of persecution to that evidence. 83 The RPD was not bound to accept the Applicant’s gloss on the words of the caller, particularly since her PIF narrative contained a different 32 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

version of this event and the police report she filed did not mention any death threat. The RPD was entitled to reject the Applicants inference. 84 The Respondent says that, though IMM 5611 instructs claimants to keep their answers short, this does not explain why the passage the applicant cites does not include the death threat. He notes that IMM 5611 was consistent with her police report. Only in the PIF narrative, completed three weeks after IMM 5611, did the Applicant put the death threat into the mouth of the caller. Further, it does not assist the Applicant to argue that there may have been a translation or transcription error, as she and the interpreter both signed the declaration at the end of the form. That solemn declaration attests to the completeness, truthfulness, and correctness of the form. 85 There was also no breach of procedural fairness with respect to this finding. Though the RPD was concerned about the omission of the death threat from IMM 5611, the RPD pointed this out elsewhere. The RPD said at the hearing that the police report the Applicant filed did not include the death threat. Further, the RPD reasonably rejected the Appli- cant’s explanation that she forgot to mention this threat in her PIF. The RPD did not ambush the Applicant with this omission; rather, it put the omission to the Applicant, so she bore the onus to offer persuasive evidence as to why the threat was mentioned in some evidence but not others. The Respondent says that Castroman v. Canada (Secretary of State), [1994] F.C.J. No. 962 (Fed. T.D.), shows the importance of con- sistency between the PIF and oral testimony in order to establish a credible basis for a claim.

The RPD Made a Reasonable State Protection Finding 86 Though its state protection finding was not central to its determination of the Applicant’s claim, the RPD reasonably found that, by not following up on her report and by fleeing before the police had a chance to investigate, the Applicant did not demonstrate a lack of state protection in El Salvador. 87 In this case, the determinative issue was credibility, on which the RPD made a reasonable finding. Relying on Ward, above, the Respon- dent says that claimants must prove both the subjective and objective elements to their claims. Since she did not demonstrate a subjective fear of persecution, her claim must fail and a state protection analysis was unnecessary. Portillo Romero v. Canada (MCI) James Russell J. 33

The Applicant’s Reply 88 The Applicant argues that, though the Respondent has argued that this Court is moving away from the rote application of the principle that omissions must be put to claimants, more recent jurisprudence teaches that the duty of fairness requires the RPD to put all inconsistencies to claimants for comment. She points to De La Cruz, Kumara, and Shaiq, all above. 89 Though the Respondent has said that the RPD rejected the Appli- cant’s gloss on her statement in IMM 5611, she says there is no evidence it did so. It is not open to the Respondent to impute findings to the RPD that it did not make.

The Respondent’s Further Memorandum 90 The Applicant has argued that the RPD ignored the fact that some of her trips to the USA occurred before her sons were threatened and that this shows she did not travel there exclusively out of fear. However, the Applicant testifed that she went to the USA “because of the things that had happened to my children.” The evidence is clear that she travelled to the USA because she was afraid. She also said at the hearing that she did not know she could claim protection in the USA and that she had not made any efforts to find out if she could. The Applicant could not have known that the fear she had was not enough to ground a refugee claim, because she did not investigate that possibility. She has not explained why she did not claim protection in the USA and her behaviour is inconsistent with a person who feared persecution in El Salvador.

There Was no Breach of Procedural Fairness 91 When she argues that the RPD breached her right to procedural fairness, the Applicant over looks the fact that the RPD was open about the fact that it was concerned about her omission of the death threat from IMM 5611. The Respondent says that the RPD reasonably had cause for concern with the discrepancies between IMM 5611, the police report the Applicant filed, and her PIF narrative, and her testimony. As with the issue of her response to the RPD’s question about whether she knew if her sons had sought military or police assistance, the Applicant had counsel of her choice who could have assisted in clarifying these issues. The Applicant provided inconsistent responses to the RPD’s questions without offering reasonable explanations why she did so. 34 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

92 The Respondent says that the cases which show it is not always necessary to put omissions to a claimant are still good law. The facts of each case determine whether the RPD should allow claimants an opportunity to address discrepancies. In her case, the Applicant had the opportunity to explain why pivotal information was missing, but she simply said that she forgot.

There was no Evidence the Police Were Involved 93 The RPD reasonably concluded that the police were not involved in the threats against the Applicant. It clearly said that there was no persuasive evidence of police involvement; this statement was reasonably based on the Applicant’s response to the RPD’s question about the police report her sons filed. Her response was less than straightforward. In her son’s police report, he said that he was extorted by the Maras gang, so the RPD asked the claimant why her son would tell the police it was the Maras gang and then tell her that it was the police who were extorting him. She could not explain this inconsistency; this does not amount to evidence of police involvement. 94 The Respondent also notes that the RPD referred to the letter from the Applicant’s nephew. That letter makes no mention of police involvement in the threats against the claimant and cannot be evidence of police involvement. The RPD also examined the Applicant’s statements that none of the people who called her or came to her house identified themselves as police. The Applicant did not provide any persuasive evidence that the police were involved in the threats against her. The RPD’s conclusion that the police were not involved was reasonable.

The RPD’s Plausibility and State Protection Findings Were Reasonable 95 The Respondent says that the Applicant’s explanation for why she would go to the police station to make a report makes no sense. She claimed her brother made her file a report so that there would be a record of the incident; however, her report does not mention police involvement. According to her testimony, her brother thought it was a good idea to go to the same police who were threatening her to make a report about actions they had committed against her. She did not speak to a supervisor or otherwise ensure that the report she filed was correct. The RPD reasonably found that this makes the police report pointless. 96 Once it had determined that her allegations of police involvement were not credible, the RPD noted that she had never followed up on the Portillo Romero v. Canada (MCI) James Russell J. 35

progress of the investigation. The RPD also noted that the Applicant had not put forth any information to show the police would not investigate. This is not contrary to the RPD’s finding that her story was implausible. Showing that she filed a report and then left the country before the police had a chance to investigate is insufficient to rebut the presumption of state protection.

The RPD Reasonably Examined IMM 5611 97 The Respondent says that the statement the RPD extracted from IMM 5611, “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts” actually reflects the words of the caller who threatened the Applicant. It was therefore reasonable for the RPD to reject the Applicant’s inference that the caller was threatening her life.

Analysis Procedural Unfairness — the Death Threat 98 The Applicant says that procedural unfairness has occurred in this case because the RPD did not ask her about the omission of the death threat from the IMM 5611 form she completed. She says that, in fact, the RPD did not ask her any questions about this form at all at the hearing. She says this is akin to the situation in Kumara, above, where Justice Hughes had the following to say about the RPD relying upon inconsistencies that have not been put to a claimant for explanation: As to the first issue, whether a well founded fear had been established, the Member based the decision on five incidents found in the Record. The Member found that because of apparent contradictions there was reason to doubt the Applicants’ truthfulness in respect of each of the incidents thus the fear could not be well founded. How- ever at no time in respect of any of these incidents were the so-called contradictions put to the Applicants so that they could offer an explanation, if any; or clarify the matter. The Member simply lay in the weeds, waited till the hearing is over, then pulled out apparent contradictions and used them as the basis for disbelieving the Appli- cants’ claim. As Justice Russell wrote in Shaiq v. Canada (Minister of Citizenship and Immigration), 2009 FC 149at paragraph 77: 77 Although the RPD is not required to raise all concerns with an applicant that are related to the Act and the regulations, procedural fairness does require that an applicant be afforded an opportunity to address issues arising from 36 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

the credibility, accuracy or genuine nature of information submitted. See, for example, Kuhathasan v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 587at paragraph 37. Consequently, I think the RPD in the present case should have provided the Applicant with an opportunity to address an issue that was central to its negative credibility finding. In a similar vein Justice Dub´e in Malala v. Canada (Minister of Citi- zenship and Immigration), 2001 FCT 94 wrote at paragraphs 23 and 24: 23 A reading of the transcript leads me to believe that the applicant should have been given a better opportunity at the hearing to comment or explain the contradictions the Board saw in her testimony. Moreover, it appears that in certain instances the Board was over-zealous in discover- ing contradictions where none necessarily existed. 24 A review of the jurisprudence in the matter, as abridged above, reveals that it is not unanimous. It does however establish that, generally, contradictions must be put to the applicant at the hearing to enable him or her to provide all relevant explanations. The applicant must be afforded an opportunity to explain fully the alleged inconsistencies. Where the Board prefers the documentary evidence to the sworn testimony of an applicant, it must show clearly why it does so. While not every apparent contradiction has to be put to an applicant, where, as here, the decision was clearly and only based on five apparent contradictions, those matters should have been put to the Ap- plicants. In respect of each of those instances the Record shows that the apparent inconsistency was never raised with the Applicants. In respect of the bribe allegedly paid by the brother, the Record shows that the Member overlooked the evidence that shows it was paid not by the brother but by a broker. With respect to the identification of a distant family member, the Record does not show, unlike the Mem- ber found, that such member was identified as an LTTE member. With respect to why the Applicants could not be found in a small town, the evidence shows that they were in hiding. Further, as will be discussed later, the Member made contradictory findings as to whether this was in fact a small town or teeming metro area. In brief, just on the face of the Record, the Applicants should have been confronted with these matters before the Member jumped to negative conclusions. FC/CF Portillo Romero v. Canada (MCI) James Russell J. 37

[Italics in original] 99 The Applicant says hers is a similar lying-in-the-weeds case. 100 Those portions of the Decision dealing with inconsistencies regarding the death threat are at paragraphs 32 to 42: The claimant received one allegedly threatening phone call on De- cember 17, 2009. When she first described this incident to citizenship and immigration Canada, she stated that the unknown caller said: ... look ma’am, you’re going to pay for everything, your accounts and your children (sic) accounts. I note that there is no mention of any death threat in this statement. Three weeks later she completed her PIF narrative. At this time the statement was different: ...He then said that I would have to pay what my sons owed or they would kill me and hung up. Finally, I note that the police denunciation filed in El Salvador by the claimant reports the conversation as: ... look, lady, you are also going to pay for the [matter] regarding your children, and he hung up on her.... Again, there is no mention in this police report of any death threats. The claimant was asked to explain why there was no mention in the police report of the alleged death threats made on the telephone to her, the evening before. She testified that she noticed the oversight and told the police constable, but he replied that the “report had already been filed” and that it was too late. The report is signed by the claimant. She was asked why she signed the report if it was incorrect. She testified that she signed the incomplete report because “they are the authorities.” The claimant was asked if she or her brother spoke to a supervisor to report that the report was incomplete, prior to leaving the station. She testified that she did not. The claimant was also asked to explain why her PIF narrative does not mention that the police denunciation had been completed incorrectly, or that the officer had refused to correct the report. She testified that “she forgot about it.” I reject the claimant’s allegation that she ever received a death threat. The claimant did not mention this allegation when she first reported her claim to Citizenship and Immigration Canada, nor did she mention it to the authorities in her own country. The claimant attempted to advance a new allegation at her hearing, that the police, incorrectly 38 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

omitted the death threats in the police report, but when asked to explain why this had been omitted from the PIF, she testified that she had forgotten this important and pivotal statement. I reject her answer. The claimant only received one allegedly threatening phone call prior to leaving her country, yet forgot to mention in her PIF that her denunciation had been completed improperly. The Board has been upheld by the Federal Court when making a negative credibility finding when a pivotal allegation, which goes to the heart of the claim, has been omitted from a PIF and arises for the first time at a hearing, and for which a reasonable explanation has not provided. I do not find it reasonable that she would forget a key element of the only threat that she received while in El Salvador. I find that the claimant received a phone call from an unknown person who told her that she owed him money. I find, on a balance of probabilities, that no death threat was made. 101 Although the RPD points out that the “claimant did not mention this allegation when she first reported her claim to Citizenship and Immigra- tion Canada,” the RPD’s discussion of this issue also deals with the discrepancy between the alleged death threat and the police denunciation filed in El Salvador. Hence, the Respondent takes the position that, even if the RPD did not point out to the Applicant the contradiction between her death threat testimony and what she said in IMM 5611, the RPD “still pointed out to her the same contradiction elsewhere in her evidence.” In particular, the Respondent says that the RPD pointed out and gave the Applicant an opportunity to address the police report which did not mention the alleged death threat. 102 I do not think that what the Respondent says quite meets the point of concern. It is evident from the Decision that the extremely important negative credibility finding concerning the death threat was based upon the fact that the “claimant did not mention this allegation when she first reported her claim to Citizenship and Immigration Canada, nor did she mention it to the authorities in her own country.” In other words, the omission from IMM 5611 and the police report are both material and equally important to the negative credibility finding. Each supports the other. We do not know what the result would have been had the Appli- cant been placed on notice of the discrepancy arising from IMM 5611, and given the opportunity to explain. Had her explanation satisfied the RPD, it might have found she received a death threat. This would have been very important for the whole Decision because the RPD would have been obligated to assess that risk, even if the Applicant was wrong when Portillo Romero v. Canada (MCI) James Russell J. 39

she thought she was in danger from the police, if someone had threatened her life. 103 For these reasons, then, and relying upon the authorities referred to above, I think it was unfair on the facts of this case for the RPD to rely upon what the Applicant said in IMM 5611 and her later death threat testimony without putting the discrepancy to the Applicant and allowing her a chance to explain. 104 The Applicant has raised many other issues for review. However, given the importance of the death threat testimony for the Decision as a whole and my finding of procedural unfairness, there is no point in further discussion. This issue requires reconsideration of the claim. 105 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The decision is quashed and the matter is referred back for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. 40 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: R. v. Choi] Her Majesty the Queen and Jung Won Choi, Accused Manitoba Provincial Court Docket: None given. 2012 MBPC 38 Mary Kate Harvie Prov. J. Judgment: April 10, 2012 Immigration and citizenship –––– Refugee protection — Miscellaneous –––– Six refugees had worked for accused at restaurant without authorized work permits — Some of workers complained about nature of work they were assigned and expressed concern that they may have been forced to return to Korea if work was not satisfactory — On March 26, 2012, accused entered guilty plea to one count under s. 124(1)(c) of the Immigration and Refugee Protection Act (“IRPA”) with respect to multiple incidents involving six refugees — Sentenc- ing hearing was held to determine sentence of accused — Incidents spanned period of June 22, 2008 to May 26, 2009 — Accused sentenced — Appropriate disposition was 18-month conditional discharge — Imposition of discharge was in interest of accused and would not be contrary to public interest — Accused was also ordered to make charitable contribution in sum of $6,000 to Interna- tional Centre and $6,000 to Welcome Place within first nine months of order — This was offence in which accused did not exercise due diligence in dealings with individual workers — Secondly, while accused had admitted transgression, it was noteworthy that he employed services of immigration consultant, an individual whose advice on some issues seemed to have been less than satisfactory. Cases considered by Mary Kate Harvie Prov. J.: R. v. Campbell (October 25, 2011), Doc. 110602513P1 (Alta. Prov. Ct.) — considered R. v. Chiu (1984), 1984 CarswellMan 331, 31 Man. R. (2d) 15 (Man. C.A.) — considered R. v. DeKleric (1968), 66 W.W.R. 251, 1968 CarswellBC 166, [1969] 2 C.C.C. 367 (B.C. C.A.) — referred to R. v. Fallofield (1973), 22 C.R.N.S. 342, 13 C.C.C. (2d) 450, 1973 CarswellBC 184, [1973] 6 W.W.R. 472, [1973] B.C.J. No. 559 (B.C. C.A.) — followed R. v. Foianesi (2011), 2011 CarswellMan 194, 2011 MBCA 33, 507 W.A.C. 312, [2011] 7 W.W.R. 70, 262 Man. R. (2d) 312, 277 C.C.C. (3d) 366, [2011] M.J. No. 115 (Man. C.A.) — considered R. v. M.A.F.A. Inc. (2000), 2000 CarswellOnt 1854, [2000] O.J. No. 1773 (Ont. C.J.) — referred to R. v. Choi Mary Kate Harvie Prov. J. 41

R. v. McKeigan (2000), 2000 CarswellOnt 1577, [2000] O.J. No. 1598 (Ont. C.J.) — referred to R. v. McMeekin (1991), 1991 CarswellNWT 55, [1991] N.W.T.J. No. 11 (N.W.T. C.A.) — referred to R. c. Prokos (1998), (sub nom. R. v. Prokos) 127 C.C.C. (3d) 190, [1998] R.J.Q. 1773, 1998 CarswellQue 491, [1998] A.Q. No. 2374 (Que. C.A.) — referred to R. v. Rivais (January 5, 1981), Monnin J. (Man. C.A.) — followed R. v. Wisniewski (2002), 2002 CarswellMan 296, 2002 MBCA 93, 166 Man. R. (2d) 73, 278 W.A.C. 73, 6 C.R. (6th) 192, [2002] 9 W.W.R. 324, [2002] M.J. No. 268 (Man. C.A.) — considered Statutes considered: Criminal Code, R.S.C. 1970, c. C-34 s. 662.1 [en. 1972, c. 13, s. 57] — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 718(e) — considered s. 718(f) — considered ss. 718-718.2 — referred to s. 730(1) — considered s. 731(2) — referred to s. 732.1(3) [en. 1995, c. 22, s. 6] — considered s. 732.1(3)(h) [en. 1995, c. 22, s. 6] — considered s. 738(2) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 124(1)(c) — considered s. 124(2) — considered

SENTENCING HEARING of accused who entered guilty plea to one count under s. 124(1)(c) of Immigration and Refugee Protection Act with respect to multiple incidents involving six refugees.

Omar Siddiqui, for Crown Kenneth Zaifman, for Accused

Mary Kate Harvie Prov. J.: Introduction 1 On March 26, 2012, the accused, Jung Won Choi, entered a guilty plea to one count under section 124(1)(c) of The Immigrant and Refugee Protection Act (“IRPA”) with respect to multiple incidents involving six 42 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

refugees. These incidents span the period of June 22, 2008 to May 26, 2009. 2 At issue is the appropriate sentence to be imposed. Crown counsel suggests a fine in the sum of $20,000 is appropriate. Defence counsel suggests that the Court impose a conditional discharge with conditions including the requirement that the accused make a $5,000 donation to a charity.

Applicable Legislation 3 Section 124(1)(c) of the IRPA states as follows: Contravention of Act 124. (1) Every person commits an offence who [...] (c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed. (2) For the purposes of Paragraph (1)(c), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized. 4 Crown counsel chose to proceed by indictment. The punishment provisions state that the maximum penalty is a fine of no more than $50,000, or a term of imprisonment of not more than two years, or both. There is no minimum penalty prescribed. 5 The legislation sets out a number of requirements for the hiring of temporary foreign workers. The goal of the legislation is to protect immigrants and refugees from being preyed upon by employers and employed without proper remuneration or other benefits. The legislation also seeks to ensure that the job market is appropriately protected for Canadian citizens.

The Facts Supporting the Guilty Plea 6 The accused is the director and president of the corporation whose interests included two restaurants in Winnipeg, Manitoba. This investigation began when the authorities received information that individuals (other than those named in this count) were attending Canada from Ko- rea and expressing the intention of attending to Winnipeg to work in the accused’s restaurant. As a result of significant surveillance and investigation, a search warrant was ultimately executed and video footage was obtained. To sum up the findings of what was described as an extensive R. v. Choi Mary Kate Harvie Prov. J. 43

investigation, it was determined that the six individuals named in the information had worked for the accused at his restaurant without being properly authorized to do so. Some of the documentation seized suggested that different rates of pay were set, depending upon whether the individual had an authorized work permit. The evidence indicates that the accused had direct contact and discussions with some of the six individuals, and that some of the workers complained about the nature of the work they were assigned and expressed concern that they may have been forced to return to Korea if the work was not satisfactory.

The Position of the Crown 7 Crown counsel submits that there are a number of aggravating factors which support the quantum of fine sought. While the Crown has accepted the guilty plea to a global count, he points out that the individual count involves a number of employees. He argues that the accused was involved directly with the complainants who appeared to have been working for a reduced wage prior to obtaining appropriate documentation. Crown counsel submits that the principles of denunciation and deterrence require that the Court impose a sentence that sends out a message that this type of “predatory” exploitation of immigrants will not be tolerated. He argues that there is a high level of public abhorrence for the mistreatment of immigrant workers, particularly those from a less fortunate part of the world. He submits that the fine of $20,000 is at the “lower end” of the range taking into account the precedents provided.

The Position of the Defence 8 Defence counsel filed a number of documents which were initially part of the Crown’s disclosure package. Those documents included information which supports the defence’s position that the accused was not a “master mind” of a scheme to import and hire foreign workers, but rather was an individual who fell short of the “due diligence” requirements set out in the legislation. In further support of that position, defence counsel points out that the accused retained the services of “Arche Consulting” a registered consulting company who assisted the accused with the application for the various employees who worked in his restaurant. While defence counsel acknowledges that the accused had direct dealing with the employees and as such fell short of the due diligence requirements, he also points out that his client relied upon the services provided by Arche Consulting, the opinions of which were provided to and acted upon by the accused. 44 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

9 As such, defence counsel takes issue with the Crown’s suggestion that the accused “preyed upon” or “exploited” pointing out that these employees were not forced to reside with and work for the accused, that the accused did not detain them and did not take their passports. The accused acknowledges that the individuals named in the information did not have proper documentation when they began working for him, but counsel points out that the period of “unauthorized” work varied significantly, with some working for a number of months, while another worked for an unauthorized employment period of only four days. Defence counsel points out that all of the individuals eventually either obtained appropriate work permits, became permanent residents of Canada, thus authoriz- ing them to work, or returned to Korea. He submits that one of the principle purposes of the legislation, that being the protection of jobs for Canadian citizens or residents, was not significantly offended by the accused’s actions. Counsel points out, and the materials confirm, that the accused had earlier attempted to hire Canadian workers but was unable to find anyone with the appropriate qualifications.

Background of the Accused 10 The accused is 57 years old, is married with two grown children and six grandchildren. He immigrated to Canada from Korea in 2004. He has both a high school and post secondary education. He purchased his first restaurant in 2005, eventually selling it in 2010, in part due to the legal difficulties associated with these charges. He has some health issues which were documented for the Court. 11 A number of letters of reference were provided on behalf of the accused. The letters of reference describe the accused as being a hard working individual who has been very active in his local church and in the local Korean community. As a business man, the accused was praised for his work ethic, working hard to make his businesses successful and to integrate his family into the community. His offending behaviour was described by one supporter as a “bad judgment decision” made by one who does not fully speak the language. The accused has no record of any Criminal Code or other regulatory convictions.

A Review of the Case Law 12 Crown counsel provided a number of authorities in support of his position that a significant fine is appropriate. It is noteworthy that in most of the authorities, the fines imposed came to the Court by way of the R. v. Choi Mary Kate Harvie Prov. J. 45

joint recommendation, and therefore the information provided about the individual accused is, in each case, somewhat truncated. From a review of the authorities, the case with facts which are most similar to this case is R. v. Campbell (October 25, 2011), Doc. 110602513P1 (Alta. Prov. Ct.)), in which the Court accepted a joint recommendation for a fine of $9,000 on each of four counts under the IRPA, for a total of $36,000. In that case, the accused retained the services of an Immigration Consultant to “guide them through the process” of hiring four foreign workers, but also admitted that he “put them to work immediately” thinking that the “paperwork would soon follow”, thus in contravention of the legislation. 13 Counsel for the accused initially provided information to the Court in the form of newspaper articles about some unreported cases as well as a “sentencing chart” outlining what he understood the outcome of various cases in this area. He also provided a newspaper article on the decision of R. v. Davis, (Unreported Provincial Court of Manitoba, February, 2010) in which a prominent immigration lawyer who pleaded guilty to breach- ing the IRPA by employing a Filipino nanny without the proper paperwork was given a conditional discharge. In that case Crown counsel had called for a fine of $7,000, pointing out that as an immigration lawyer, the accused both knew the law and set a bad example for others. While the Court agreed with the comments of the Crown, Guy, PJC took into account the accused’s remorse, his guilty plea, as well as the many letters of support filed on his behalf. 14 At the conclusion of his submissions, defence counsel asked the Court to consider the imposition of a conditional discharge on terms that would include a sizeable donation to a charity related to the area of immigration. Counsel were asked to provide authorities as to whether the Court had the jurisdiction to make such an order and the matter was ad- journed for that purpose.

The Discharge Provisions and Charitable Donations 15 The issue of the appropriateness of including a “charitable donation” as a term of a sentence, and specifically as a term of a discharge, was addressed by the Manitoba Court of Appeal in R. v. Rivais [(January 5, 1981), Monnin J. (Man. C.A.)] (Unreported Man C.A. January 5, 1981). A crown appeal of a conditional discharge which included an order to pay $2,500 to the Manitoba Cancer Society was allowed and converted 46 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

to a $2,500 fine. In the course of the somewhat brief reasons, Monnin J. A. Stated: In our view, the penalty imposed was one that should not receive our sanction. Indeed, an order by the Court that an accused make a donation to some charitable organization is not an appropriate way of dealing with an offender. The less we hear of this practice, the better. 16 The issue came back to the Appellate Court in R. v. Wisniewski, [2002] M.J. No. 268 (Man. C.A.) where a Crown appeal was allowed respecting a conditional discharge imposed for the offences of public mischief and fraud over $5,000. The conditional discharge had included a term requiring the accused to pay $3,500 to a charity of his choice. It was apparent from the reasons that the sentencing judge felt a monetary penalty was most appropriate, but imposed a discharge over concerns about the impact that a fine would have on the accused’s immigration status. As such, the Court concluded that the sentencing judge erred, stating that “when the choice is between a discharge and a disposition involving a criminal record, the accused’s immigration status is one of the factors the sentencing judge may consider so long as “it is not the deciding factor” (at paragraph 17) citing with approval R. v. Chiu (1984), 31 Man. R. (2d) 15 (Man. C.A.) (paragraph 5). 17 While it thus became unnecessary for the Court to rule definitively on the issue of charitable donations, Steel J.A. did offer some “observa- tions”, noting that “Judicial creativity in sentencing ought to be en- couraged as long as it complies with the sentencing menu of options available in the Criminal Code.” In reviewing the authorities, Steel J.A. commented on the lack of consensus across the country on this issue. Certain jurisdictions, such as Quebec and Ontario appeared to have “little difficulty” with the concept: see R. c. Prokos (1998), 127 C.C.C. (3d) 190 (Que. C.A.); R. v. M.A.F.A. Inc., [2000] O.J. No. 1773 (Ont. C.J.); R. v. McKeigan, [2000] O.J. No. 1598 (Ont. C.J.). Other jurisdictions, such as British Columbia and the Northwest Territories Court of Appeal dis- approved the practice: see R. v. DeKleric (1968), [1969] 2 C.C.C. 367 (B.C. C.A.) and R. v. McMeekin, [1991] N.W.T.J. No. 11 (N.W.T. C.A.). At the end of the day, while swayed by the comments of the Court in Rivais, supra, and that Court concluded that “Reconsideration should wait upon another case on another day.” 18 The “discharge” provisions that were in place at the time that the Manitoba Court of Appeal considered the Rivais matter were set out in R. v. Choi Mary Kate Harvie Prov. J. 47

Criminal Code section 662.1 and are virtually the same as the provisions now set out in Criminal Code section 730 (1): (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of con- victing the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). 19 At the time of the Rivais decision, the law respecting the granting of discharges was similar as to what it is today. In R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C. C.A.), the British Columbia Court of Appeal outlined the factors to be considered, noting among other things that the discharge provisions “should not be exercised as an alternative to probation or a suspended sentence” and “the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.” 20 When an accused receives the benefit of a discharge, the Court may make a probation order pursuant to section 731(2), which may include any of the optional conditions outlined in section 732.1(3). Amendments to subsection (3) reflect the changing attitudes which have developed over the years, with additional conditions allowing for curative alcohol and drug treatment and for the use of an “interlock ignition device”. These conditions are consistent with the goals of any probation order and with the general provisions set out in subsection (h) which allows the Court to order an offender to “comply with other such reasonable conditions as the Court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.” 21 It appears clear from a review of the authorities that the Court must first be satisfied that the accused is eligible for some form of a discharge, and that it would be inappropriate to make an order for a charitable donation simply to circumvent the criminal record that would necessarily flow from the imposition of a fine. 22 The Court must consider whether, given the nature of the offence and the circumstances of the offender, imposition of a discharge satisfies the sentencing principle identified in Criminal Code section 718 through 48 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

718.2, as well as meets the test articulated in section 730(1). To that end I am mindful of the aggravating factors in this case, which include: (a) The single count references a number of immigrants who were working without documentation; (b) Immigrant workers from less fortunate areas of the world can be vulnerable and open to being taken advantage of by unscrupulous employers; (c) There is evidence that the accused had direct dealings with some of the workers, who appear to have been remunerated at a level which took into account their immigration status; (d) The accused would have benefitted financially from not having to pay employee contribution, taxes and other extra costs related to a properly documented employee; (e) Some of the workers expressed concerns about the working conditions. 23 The mitigating factors which I consider are as follows: (a) The accused entered a guilty plea, sparing what could have been a lengthy trial; (b) He employed the services of an immigration consultant, the advice from whom may have contributed to the confusion regarding his responsibilities under the legislation; (c) The employees ultimately either obtained the appropriate status allowing them to work in Canada or returned to Korea, thus reduc- ing the potential impact on the Canadian employment market; (d) There is no evidence of coercion on the part of the accused. The employees did not reside with the accused, he did not detain them or their passports; (e) The amount of time of undocumented employment varied, with some of the periods being very brief; (f) He has provided a number of letters of support confirming his contributions to the community; (g) The accused has no record. 24 It has always been the case that the discharge provisions require the Court to consider whether it is in the best interests of the accused to be the subject of a discharge. It is often the case where it is in the interest of the accused to receive a discharge, although I recognize that offenders R. v. Choi Mary Kate Harvie Prov. J. 49

who have a history of convictions may benefit less from such a disposition, depending, of course on the nature of the offences in question. 25 I am mindful of the fact that this is not a situation where counsel has suggested that specific consequences will befall his client in the event that he is ordered to pay a fine. I am also aware that the accused is not facing a Criminal Code conviction, but rather a regulatory offence. That should not, however, disentitle the accused to consideration for a conditional discharge. 26 The more significant issue rests with the question of whether the imposition of a discharge is “not contrary to the public interest”. Crown counsel submits that the nature of the offence is such that general deterrence is the paramount sentencing principle. To that end, I am mindful of the fact that while the infractions this legislation seeks to prevent are significant, across the country the actual number of prosecutions is quite limited. Defence counsel provided the decision of R. v. Foianesi, [2011] M.J. No. 115, 262 Man. R. (2d) 312 (Man. C.A.) in which a fine was overturned in favour of a conditional discharge for the offence of keeping a common gaming house. The Court ruled that the sentencing judge erred in placing too much weight on the principle of general deterrence given the nature of the offence. Chartier, J.A. analyzed the circumstances where a discharge can be considered, accepting at the outset that “discharges should not be available when general deterrence is the paramount sentencing principle”, (see paragraph 10). He then went on to note: “Typically, general deterrence will be brought to the forefront of the sentencing principles in two situations. The first arises when the sentencing judge is dealing with a crime which is particularly heinous (murder, home invasion, crimes involving children or the vulnerable, etc). Such crimes must always be deterred. The second situation arises when general deterrence can become a paramount consideration when sentencing an accused for a crime which, although not as serious as the ones stated above, is so prevalent in the community that it must be deterred in order to bring it under control.” See paragraphs 12 and 13. 27 While the argument could be made that the workers in this case were “vulnerable” I am not satisfied that they were so to such an extent to make general deterrence the overwhelming principle of sentencing. I am supported in this conclusion by the maximum penalties prescribed in the legislation, which are not nearly as significant as with some Criminal Code offences. 50 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

28 Nor can be it said that the offence is so prevalent in the community that general deterrence should be seen as displacing any possibility of a discharge. Without minimizing the seriousness of the offence, the very few decisions in this area, reported or otherwise, do not support the suggestion that this is an offence that “must be deterred in order to bring it under control.” 29 Having concluded that general deterrence is but one of many sentencing principles at play, there are two further aspects of this offence which bear comment in considering the applicability of the discharge provisions. First, this is an offence in which the accused did not exercise “due diligence” in his dealings with the individual workers. The so called “mental element” of the offence is one which can be considered when assessing the manner in which the offence was committed. Secondly, while the accused has admitted his transgression, it is noteworthy that he employed the services of an immigration consultant, an individual whose advice on some issues, it appears, seems to have been less than satisfactory. 30 Defence counsel provided the Court with a variety of cases in which discharges have been granted. Suffice it to say, it is a disposition which has been imposed for a wide variety of offences when the statutory terms have been satisfied. 31 Taking into account all of the foregoing, I am satisfied that the imposition of a discharge is in the interest of the accused and would not be contrary to the public interest. The next issue to be considered is the suggestion that the Court impose a condition requiring the accused to make a donation to a registered charity related to immigration issues. 32 As noted at the outset of this discussion, such an order should not be made if it is seen as being imposed as an alternative to a fine. I do not consider that to be the situation in this case. Having said that, there does appear to be a benefit in seeing an accused “give back” to the community most affected by his actions. In general terms, this is often accomplished by way of an order of community service work order. However, the Court has no control as to where such community service work might be completed. The advantage to a charitable donation is that it can be directed to a specific charity, ensuring that the broader range of sentencing principles are met: Criminal Code section 718 (e) “to provide reparation for harm done to victims or to the community;” and (f) “to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victim and to the community”. R. v. Choi Mary Kate Harvie Prov. J. 51

33 This issue must be approached with caution, with due deference shown to the decision of the Manitoba Court of Appeal in Rivais, supra. The fact that the decision is somewhat dated does not necessarily mean that it should not be followed. However, sentencing legislation and precedents have changed over the years, reflecting new areas which require emphasis and, in some case denunciation. Courts have been urged to sentence creatively and in a manner which best responds to the circumstances of the offence and of the offender. The Court of Appeal in Wisniewski, supra, tacitly recognized those changes. 34 The time has come to include in those changes the ability of the Court, in the appropriate cases, to order an offender to make a charitable donation as a probationary condition. It would seem appropriate that the Court be allowed to consider this as an option when the offence is one that calls for a sentence which promotes “a sense of responsibility in offenders, and acknowledgement of the harm done to victim and to the community”. Such a sentence would be one that could include community service work, a charitable donation, or both. I would note that an order of this nature is one which could be considered only where the accused has the financial ability to comply, and that a specified timeframe for compliance should be included.

Conclusion 35 Bearing in mind all of the foregoing, I am satisfied that the appropriate disposition in this matter is an 18 month conditional discharge. The accused will be placed on a period of supervised probation on the following terms: (a) Keep the peace and be of good behaviour; (b) Appear before the Court as and when directed to do so by the Court; (c) Notify the Court or probation services in advance of any change of name or address, and promptly notify the Court or probation services of any change of employment or occupation; (d) Report to probation services within 2 days of your appearance in Court; (e) Complete 50 hours of community service work at the time and place as directed to do so by probation services, with such work to be completed within the first nine months of this order; 52 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(f) Make a charitable contribution in the sum of $6,000 to the Interna- tional Centre and $6,000 to Welcome Place within the first nine months of this order. Payment is to be made through the office of the Clerk of the Court, with no tax receipt to be provided or accepted; 36 The accused is to pay costs and surcharge in this matter in the sum of $52, payable within 14 days. 37 There will be an order of forfeiture of all items seized, with the ex- ception of the business records which will be returned to the accused. Accused sentenced. Ng v. Canada (Minister of Citizenship & Immigration) 53

[Indexed as: Ng v. Canada (Minister of Citizenship & Immigration)] Kam Fah Ng, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7883-11 2012 FC 583 John A. O’Keefe J. Heard: May 8, 2012 Judgment: May 15, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review — Unusual, undeserved, or disproportionate hardship –––– Applicant was citizen of Malaysia — As homosexual and HIV-positive man, applicant alleged that he belonged to social group targeted for persecution in Malaysia — In December 1998 applicant came to Canada and remained after his visitor’s visa expired — Applicant was unaware of possibility of making refugee claim based on his HIV status — In April 2009 applicant filed humanitarian and compassionate (H&C) application; because he felt shame, he did not disclose his sexual orientation — In January 2010 applicant was requested to file any other evidence he wished to have considered in his application; however, as he was still struggling with his sexual orientation, he filed no evidence on issue of homosexuality — Applicant’s H&C application was dismissed in September 2010 — Applicant filed for leave and judicial review of decision and respondent agreed to redetermine H&C application — In May 2011 applicant filed additional evidence, including evidence of homophobia in Malaysia — Ap- plicant’s H&C application was denied in October 2011 — Applicant brought application for judicial review — Application granted — Officer’s assessment that although situation was better in Canada, HIV discrimination was world-wide problem and that applicant’s hardship if he returned to Malaysia would not be unusual or disproportionate was problematic — Officer relied predominantly on select evidence of country conditions without considering in detail applicant’s specific situation — Officer erred in comparing situation in Malaysia to that in Canada — Officer came to conclusions on availability of HIV medicine in Ma- laysia and similarities in stigma and discrimination faced by homosexual and HIV-positive people in Canada and Malaysia that were not supported by evidence — Officer failed to properly evaluate hardship that applicant would face in Malaysia as HIV-positive homosexual man. 54 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

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 Castillo c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 CarswellNat 5523, 2009 FC 409, 2009 CF 409, 2009 CarswellNat 1140, [2009] F.C.J. No. 543 (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.) — 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- swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — referred to 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.) — 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 Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — referred to s. 25(1) — considered s. 72(1) — pursuant to Ng v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 55

s. 72(2)(b) — pursuant to

APPLICATION for judicial review of decision of H&C officer.

John Norquay, for Applicant John Loncar, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) and paragraph 72(2)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of a senior immigration officer (the officer), dated October 6, 2011, wherein the applicant’s permanent residence application was refused (the decision). This decision was based on the officer’s finding that there were insufficient humanitarian and compassionate (H&C) grounds to warrant an exemption from the requirement to apply for permanent residence from abroad. 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.

Background 3 The applicant, Kam Fah Ng, is a citizen of Malaysia who currently lives in Canada. As a homosexual and HIV positive man, the applicant submits that he belongs to a social group targeted for persecution in Malaysia. 4 The applicant grew up in Malaysia. In 1993, he visited Thailand with a group of friends. The morning after an evening of celebration, the applicant awoke next to a woman prostitute. He later discovered that his friends had hired her as a birthday gift for him. This was his first sexual experience. He was traumatized by this experience and started spending more time drinking at gay bars to overcome the emotional pain. 5 In 1996, the applicant travelled to Singapore in search of a better job. One job that he applied for required a medical examination, which included HIV testing. Through this testing, he discovered that he was HIV positive. He attributed his illness to the night he spent with the prostitute in 1993. Fearing deportation from Singapore, the applicant returned to Malaysia and to his job there. However, as HIV testing was becoming increasingly common at workplaces in Malaysia and in light of the dis- 56 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

crimination faced by HIV positive people there, the applicant quit his job in June 1998. 6 In December 1998, the applicant travelled to Canada to escape his fears of being targeted in Malaysia as an HIV positive person. After his visitor’s status expired, the applicant remained in Canada in fear of being questioned on his return to Malaysia. He was unaware of the possibility of making a refugee claim based on his HIV status. 7 In 2007, the applicant became ill and was hospitalized. He was not able to work and became homeless. He was referred to the Hamilton AIDS Network for services and support. The support worker there en- couraged him to seek legal advice about his immigration status. Due to language barriers, the applicant was referred to the Asian Community AIDS Services (ACAS). There, he was connected with an immigration lawyer, who agreed to represent him in his refugee claim. He was later referred to the HIV & AIDS Legal Clinic Ontario (HALCO) where his current counsel assisted him with filing an H&C application on April 7, 2009. In his initial contact with the immigration lawyer and his current counsel, the applicant felt shame and therefore did not disclose his sexual orientation. 8 On January 18, 2010, CIC requested that the applicant file any other evidence he wished to have considered in his H&C application. Appli- cant’s counsel filed written submissions and supporting evidence on Feb- ruary 15, 2010. However, as the applicant was still struggling with his sexual orientation, no evidence was filed on the issue of homophobia. 9 The applicant’s refugee hearing was held on April 6, 2010. Immedi- ately before the hearing, the applicant disclosed his sexual orientation to his lawyer. 10 The applicant’s H&C application was denied on September 1, 2010. He filed an application for leave and judicial review of that decision. The respondent consented to the application and agreed to redetermine the application. 11 In May 2011, the applicant filed additional evidence to support the redetermination of his H&C application. This included evidence of homophobia in Malaysia.

Officer’s Decision 12 The officer issued the decision on October 6, 2011. The officer decided that an H&C exemption was not warranted in the applicant’s case. Ng v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 57

13 The reasons for the officer’s decision are outlined in the H&C grounds reasons for decision form. The officer first summarized the applicant’s background including the events that led to his departure from Malaysia and that transpired since his arrival in Canada. 14 The officer then noted relevant facts pertaining to the applicant’s es- tablishment in Canada. The officer observed that during most of the applicant’s stay in Canada (13 years), he had not held valid immigration status. The officer also noted that the applicant did not work in occupa- tions where his skills were unique to Canada or that he had special skills or training that would be lost, thereby causing him undue hardship if returned to Malaysia. 15 The officer observed that the applicant was aware of his HIV status when he arrived in Canada. However, he did not seek medical help until he became seriously ill in 2007. Although he had the option of returning to Malaysia to obtain free HIV medication, he did not do so. Thus, the officer concluded that the applicant’s lengthy stay in Canada was not beyond his control. In so doing, the officer also noted that there are many NGOs in Malaysia willing to provide support to the applicant. 16 On risk and adverse country conditions, the officer acknowledged the applicant’s submissions that should he return to Malaysia, he would be unable to pay for his medications, his personal medical information would be disclosed to potential employers, family and others and he would be persecuted and possibly incarcerated for his sexual orientation. Collectively, this would cause him undue and undeserved hardship. The officer also acknowledged the letters from Dr. Kamarulzaman of the Ma- laysian AIDS Council in Malaysia and from the Hamilton Health Ser- vices that supported the applicant’s submissions. 17 The officer then summarized the information in some of the documentary evidence on HIV/AIDS in developing countries. The officer cited one article in which the author explained that developing countries generally levy custom duties or import tariffs on essential medicines and other pharmaceutical products. However, the officer found that the 0% levy on antiretroviral treatment drugs in Malaysia demonstrated that it was serious in its battle to control HIV/AIDS. 18 The officer also noted that another article indicated programs were in place to reduce HIV transmission, provide therapy for drug users, offer free and anonymous HIV testing and distribute condoms. However, stigma, discrimination and punitive laws were barriers to the effective implementation of these programs. The officer concluded that HIV/AIDS 58 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

is prevalent in Malaysia and the country is struggling to control the dis- ease. Although challenges continue, the officer found that Malaysia is taking action on HIV/AIDS. 19 On the issue of sexual orientation, the officer first cited documentary evidence indicating that certain laws were sporadically enforced and religious and cultural taboos were widespread. The officer then noted the applicant’s submissions on his sexual orientation: he contracted HIV in a heterosexual act; in his initial refugee claim, he said he was heterosexual; at the refugee hearing, he said he was bisexual and had no intention of having a relationship with anyone in the future; and in his H&C application, he said he was homosexual and hoped to have a committed relationship with a man in the future. Although the Refugee Board Division had concluded that the applicant was not homosexual, the officer accepted that he is homosexual and HIV positive. 20 The officer then acknowledged that stigma and discrimination exist for those who have HIV/AIDS and who are homosexual. However, the officer found that this type of prejudice also exists in Canada. Although the treatment of homosexual and HIV positive persons is better in Can- ada than in Malaysia, the officer found that it remains a worldwide problem. Therefore, although the applicant would likely face challenges if returned to Malaysia, the officer concluded that his personal circumstances were such that the hardship he would experience would not be unusual and undeserved or disproportionate. The officer therefore refused the applicant’s permanent residence application.

Issues 21 The applicant submits the following point at issue: Was the officer’s decision unreasonable? 22 I would phrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the officer err in denying the applicant’s H&C application?

Applicant’s Written Submissions 23 The applicant submits that the appropriate standard of review of the officer’s decision is reasonableness. In this case, the officer’s decision was unreasonable for two reasons: Ng v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 59

1. In assessing hardship on the basis of sexual orientation, the officer erred by ignoring almost all the evidence on homophobia in Ma- laysia; and 2. In assessing hardship on the basis of HIV status, the officer erred by preferring general evidence of Malaysia’s efforts to fight HIV/AIDS over specific evidence on the applicant’s situation. 24 On the first point, the applicant submits that although the officer accepted that he is homosexual, the officer erred by finding that homophobia in Malaysia does not amount to unusual and undeserved or disproportionate hardship. The officer did not address documentary evidence from the University of Toronto that highlighted the discrimination against homosexual people in Malaysia. As the human rights violations faced by lesbian, gay, bisexual, transgender (LGBT) people in Malaysia was a central ground of the hardship claimed by the applicant, the officer was required to explain why he did not believe that these human rights violations did not rise to the level of unusual and undeserved or disproportionate hardship. 25 The applicant also notes the officer’s comparison of the situation in Malaysia with that in Canada. However, the applicant asks this Court to take judicial notice of the fact that police raids, extortion and harassment of the LGBT community are a thing of the past in Canada and that Cana- dian media is not subject to censorship of LGBT issues. Thus, the officer’s comparison between the situation in Canada and that in Malaysia suggests that the officer did not properly understand the oppression of LGBT people in Malaysia. 26 On the second point, the applicant submits that the officer erred by relying on country evidence, without adequately taking into account his specific situation as outlined in the letter from Dr. Kamarulzaman. This included the costs of his medication, without which his illness would risk advancing to AIDS as well as the applicant’s psychosocial issues, lack of formal education and lack of family support. Rather than focusing on the applicant’s specific situation, the officer focused almost entirely on the Malaysian government’s general attempts to fight HIV. The officer erred by finding that the general efforts adopted by Malaysia were sufficient to contradict Dr. Kamarulzaman’s opinion. Similarly, the officer ignored the evidence that echoed Dr. Kamarulzaman’s concerns on the hardships in employment and health care faced by HIV positive persons in Malaysia. 60 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Respondent’s Written Submissions 27 The respondent submits that the appropriate standard of review of the officer’s H&C decision is reasonableness. Reasonableness is a deferential standard that recognizes that certain questions coming before admin- istrative tribunals do not lend themselves to a specific, particular result. A decision is reasonable where it falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. In H&C decisions, the respondent submits that there is a highly discretionary element warranting significant deference, thus the scope of reasonable outcomes is wider. 28 The respondent submits that recent Supreme Court of Canada jurisprudence has clarified that reasons do not have to be comprehensive or perfect and a reviewing court should first seek to supplement a tribunal’s reasons before it subverts them. In addition, adequacy of reasons is not an independent basis for quashing a decision. Thus, a decision is reasonable if the reasons are sufficiently clear on why the decision maker reached its conclusion and that conclusion is within the range of acceptable outcomes. 29 The respondent submits that the officer clearly took into account the applicant’s submissions on the difficulties that the applicant would face on return to Malaysia as an HIV positive homosexual man. On review of the record as a whole, the respondent submits that the officer’s decision falls within a range of possible acceptable outcomes.

Issue 1 What is the appropriate standard of review? 30 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, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 31 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, [2009] F.C.J. No. 713 (F.C.A.) at paragraph 18; Adams v. Canada (Minister of Citizenship & Immigration), 2009 FC 1193, [2009] F.C.J. No. 1489 (F.C.) at paragraph 14; and De Leiva v. Canada (Minister of Citizenship Ng v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 61

& Immigration), 2010 FC 717, [2010] F.C.J. No. 868 (F.C.) at paragraph 13). 32 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, [2009] S.C.J. No. 12 (S.C.C.) at paragraph 59). 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 (see Khosa above, at paragraphs 59 and 61).

Issue 2 Did the officer err in denying the applicant’s H&C application? 33 In this application, the applicant’s submissions focus primarily on the officer’s treatment of the evidence on homophobia in Malaysia and on its preference of evidence on Malaysia’s efforts to combat HIV/AIDS over evidence specifically addressing the applicant’s situation. Conversely, in arguing that the officer’s decision was reasonable, the respondent relies predominantly on the significant deference owed to H&C decisions on judicial review and on recent pronouncements by the Supreme Court of Canada on the adequacy of reasons. 34 In the decision, the officer first addressed the applicant’s establish- ment in Canada. The officer noted that as the applicant had knowledge of his HIV status when he arrived in Canada, he had many options available to him, “including the option of returning to Malaysia and obtaining free of charge HIV medication”. The letter from Dr. Kamarulzaman clearly states that highly active anti retroviral treatment, a first-line treatment, is available free of charge in Malaysia. However, the applicant is currently on second-line treatment (Kivexa and Kaltra), which is not available free of charge in Malaysia. Thus, the officer’s statement suggests that the applicant would only have needed first-line treatment had he returned earlier to Malaysia. There was no evidence in the record to support this finding; the sole evidence was that he needed second-line treatment, which is only available for a fee in Malaysia. Thus, the officer erred by discount- ing the hardship that the applicant would face if returned to Malaysia and required to pay for his HIV medication. 35 Turning to the risk that the applicant would face if returned to Malay- sia, the officer acknowledged that the country is struggling to control 62 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

HIV/AIDS and existing stigma, discrimination and punitive laws on homosexuality act as barriers to the effective implementation of HIV programs. However, the officer then recited the progression of the applicant’s submissions on his sexual orientation in his immigration applications. Although the officer ultimately found that the applicant was a homosexual, this review of his previous submissions appears to have influenced the officer’s finding. Before finally denying the applicant’s application, the officer also cited some evidence of stigma and discrimination towards HIV in Canada. Recognizing that the situation was a great deal better in Canada, the officer nonetheless found that this was a worldwide problem and therefore the hardship that the applicant would experience if returned to Malaysia would not be unusual and underserved or disproportionate. 36 This assessment is problematic for several reasons. As mentioned by the applicant, the officer relied predominantly on select evidence of country conditions without considering in detail the specific situation of the applicant. This included the submissions made by Dr. Kamarulzaman that highlighted the challenges associated with paying for his medical treatment due to his lack of formal education and marketable work experience as well as the psychological issues associated with his lengthy time abroad, his lack of family support and the stigma and discrimination of homosexual men in Malaysia. 37 It is well recognized that in considering an application under subsection 25(1) of the Act, officers must assess and weigh the relevant factors in the personal circumstances of the particular applicant (see Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (Fed. C.A.) at paragraphs 11 and 15 to 17; Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3 (S.C.C.) at paragraph 34; and Castillo c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 409, [2009] F.C.J. No. 543 (F.C.) at paragraph 11). In this case, the officer clearly failed to do so, relying predominantly on country evidence without adequately considering the applicant’s personal circumstances as outlined in the evidence before it. 38 Finally, I also find that the officer erred in comparing the situation in Malaysia to that in Canada. This comparison seemed to focus on general societal stigma and discrimination. In so doing, the officer failed to adequately take into account the evidence on the record of state action against homosexuals in Malaysia, including the use of morality laws, po- Ng v. Canada (Minister of Citizenship & Immigration) John A. O’Keefe J. 63

lice raids and police harassment. This raises the level of hardship that the applicant would face on return to a much higher level than that here in Canada; arguably rendering the situations in the two countries incomparable. 39 In summary, it is well recognized that it is not this Court’s responsibility to reweigh relevant factors and evidence that are duly considered by officers making highly discretionary decisions. However, in this case, the officer came to conclusions that were not supported by the evidence as a whole. The officer failed to adequately consider the particular circumstances of the applicant. The officer also came to conclusions on the availability of HIV medicine in Malaysia and similarities in the stigma and discrimination faced by homosexual and HIV positive people in Canada and Malaysia that were not supported by the evidence before it. As such, the officer failed to properly evaluate the hardship that the applicant would face in Malaysia as an HIV positive homosexual man. I would therefore allow this application and refer the decision back for redetermination by a differently constituted panel. 40 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.

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 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. 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption 64 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

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. (2) The following provisions govern an application under subsection (1): ... (b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter; Canada (Minister of Citizenship & Immigration) v. B072 65

[Indexed as: Canada (Minister of Citizenship & Immigration) v. B072] The Minister of Citizenship and Immigration, Applicant and B072, Respondent Federal Court Docket: IMM-36-12, IMM-1698-12, IMM-2813-12 2012 FC 563 R.L. Barnes J. Heard: April 13, 2012 Judgment: May 10, 2012 Immigration and citizenship –––– Enforcement — Arrest and detention — Release from detention — General principles –––– Judicial review of decision ordering release — Respondent and his family were foreign nationals who arrived in Canada aboard ship — Respondent was detained on ground that he was flight risk — Respondent’s detention was reviewed 19 times over 16-month period and was ordered to continue — Respondent was found to be inadmissible because he had engaged in people-smuggling — Respondent initiated Pre-Re- moval Risk Assessment (PRRA) — At respondent’s 19th, 20th and 21st detention review hearings, three different members ordered his release on $20,000 bond and conditions (impugned decisions) — Last of impugned decisions (last decision) was decided by M — Impugned decisions were stayed pending judicial review — Minister of Citizenship and Immigration (Minister) brought applications for judicial review — Applications dismissed — Last decision was amply supported by evidence and fell within range of possible, acceptable outcomes — Relevant issue was whether respondent’s detention should be continued because he was unlikely to appear for hearing or removal — Respon- dent’s apparent involvement in human smuggling and his lack of credibility were relevant factors — However, also relevant were such factors as presence of respondent’s family in Canada, strength of surety and amount of bond, Min- ister’s inability to accurately estimate time required to complete PRRA, and fact that respondent had been in detention for 19 months — M weighed those factors appropriately — It was not speculative or unreasonable for M to conclude that it was “optimistic” for Minister to estimate that PRRA would be completed within six weeks — Minister failed to provide details about status of PRRA, so it was not open to Minister to complain about speculation — M’s finding that respondent was unlikely to report did not make decision to release him unreasonable — It was implicit from M’s reasons that he found inherent risk of flight was outweighed by other factors — There was no inconsistency in M’s finding that 66 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

respondent was unlikely to be concerned about financial interests of surety and his finding that surety was acceptable bondsperson — Surety was well informed about respondent and his family and had strong motivation to supervise respondent’s behaviour — It was of some significance that impugned decisions were rendered by three different members of Immigration Division, of which two had at earlier points ordered respondent’s continued detention — Minister’s challenges to other two impugned decisions were dismissed as moot. Cases considered by R.L. Barnes J.: Canada (Minister of Citizenship & Immigration) v. B046 (2011), 2011 Car- swellNat 2839, 2011 FC 877, 100 Imm. L.R. (3d) 139, 34 Admin. L.R. (5th) 206, 2011 CarswellNat 3928, 2011 CF 877, 394 F.T.R. 217 (Eng.) (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. B157 (2010), 2010 FC 1314, 2010 CarswellNat 5022, 379 F.T.R. 251 (Eng.), 2010 CarswellNat 5686, 2010 CF 1314 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Li (2009), 2009 FCA 85, 2009 CarswellNat 598, 308 D.L.R. (4th) 314, 80 Imm. L.R. (3d) 161, 388 N.R. 169, [2010] 2 F.C.R. 433, 188 C.R.R. (2d) 71, [2009] F.C.J. No. 329 (F.C.A.) — considered Canada (Minister of Citizenship & Immigration) v. Thanabalasingham (2004), 2004 FCA 4, 2004 CarswellNat 22, 236 D.L.R. (4th) 329, 315 N.R. 91, 247 F.T.R. 159 (note), 10 Admin. L.R. (4th) 285, 38 Imm. L.R. (3d) 1, [2004] 3 F.C.R. 572, 2004 CarswellNat 782, 2004 CAF 4, [2004] F.C.J. No. 15 (F.C.A.) — referred to Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 Car- swellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.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.) — referred to Sahin v. Canada (Minister of Citizenship & Immigration) (1994), 30 Imm. L.R. (2d) 33, 1994 CarswellNat 1425, 1994 CarswellNat 1425F, [1995] 1 F.C. 214, 85 F.T.R. 99, 24 C.R.R. (2d) 276, [1994] F.C.J. No. 1534 (Fed. T.D.) — referred to Sittampalam v. Canada (Minister of Public Safety & Emergency Preparedness) (2006), 2006 FC 1118, 2006 CarswellNat 2898, 56 Imm. L.R. (3d) 17, 2006 CF 1118, 2006 CarswellNat 6088, 300 F.T.R. 48 (Eng.), [2006] F.C.J. No. 1412 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 67

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 37(1)(b) — referred to s. 58(1) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 244 — referred to s. 245 — considered s. 248 — considered

APPLICATIONS by Minister of Citizenship and Immigration for judicial review of decisions ordering foreign national to be released from detention.

Helen Park, for Applicant Gurpreet Badh, for Respondent

R.L. Barnes J.:

1 These reasons are issued in connection with three applications for judicial review brought by the Minister of Citizenship and Immigration (Minister) all concerning the release of the Respondent from immigration detention by decisions rendered by members of the Immigration Divi- sion. The three applications were consolidated by Orders of the Court dated March 15, 2012 and April 5, 2012, and heard at Vancouver, British Columbia, on an expedited basis on April 13, 2012. It bears repeating that these proceedings are subject to a confidentiality order issued by the Court on March 8, 2012 protecting the identities of the Respondent and members of the Respondent’s family. All of the impugned decisions have been stayed by orders from the Court pending the disposition of the Minister’s applications.

Immigration Background 2 The Respondent and members of his family arrived in Canada aboard the “MV Sun Sea” on August 13, 2010. The Respondent has been held in immigration detention since his arrival albeit with the benefit of numerous detention review hearings before the Immigration Division. Initially, the Respondent was held because of concerns about his identity. When he eventually acknowledged who he was, the Minister sought and obtained his continued detention on security grounds. In a detention review 68 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

hearing held on March 6 and 13, 2011 (the 12th detention review hearing), the Minister also asserted that the Respondent should be held as a flight risk. The presiding member agreed with the Minister that the Re- spondent represented a flight risk but not that he was a danger to the public. The presiding member specifically noted a history of ongoing de- ception by the Respondent and found him to be unreliable. This lack of credibility was said to have undermined the ability of a proposed surety to influence the Respondent’s behaviour and his detention was ordered continued. 3 Subsequent detention review hearings resulted in similar dispositions and, on November 10, 2011, the Immigration Division found the Re- spondent to be inadmissible under section 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], on the basis of a finding of organized criminality for engaging in people-smuggling. In the result, he was ordered deported. That decision is presently the subject of an application for judicial review for which leave has been granted. 4 On December 1, 2011, the Immigration Division convened a 19th detention review hearing. The presiding member ordered the Respondent’s continued detention on the basis that there was no clear and compelling reason to depart from the earlier findings that he represented a flight risk. The presiding member also considered the finding that the Respondent was inadmissible and subject to a deportation order to be a circumstance favouring his continued detention. 5 On December 29 and 30, 2011, the Respondent appeared for his 20th detention review hearing. In support of his release, the Respondent proposed a surety and a cash bond of $20,000. It was also pointed out to the presiding member, Member Mackie, that the Respondent had initiated a Pre-Removal Risk Assessment (PRRA) that the Minister estimated would take three months to complete after submissions were received. At the conclusion of the hearing, Member Mackie ordered the Respondent’s release from detention on conditions. It is this decision that is the subject of the within application bearing court file number IMM-36-12. The conditions imposed by Member Mackie included the deposit of a $20,000 cash bond by the surety, monthly reporting and continued good behaviour. 6 In ordering the Respondent’s release, Member Mackie acknowledged that there were grounds for continuing the Respondent’s detention as a flight risk, but that the risk could be mitigated by appropriate conditions Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 69 of release. The central findings by Member Mackie include the following: Having made the decision that ongoing detention is appropriate, I have had to turn my attention to the factors in Regulation 248. At this point in time, the only ground for detention is a finding of flight risk. Regarding the length of time already in detention, detention has continued for this young man for the last 16 months. The length of future detention, if release does not occur, is likely at least a further six months, based on the current information presented yesterday, based only on the processes that are currently under way and without speculating about all future avenues of redress that are open to [the Respondent]. There have been no unexplained delays and the general length of this case is due, in part, because [the Respondent] arrived as one of 492 migrants on a single vessel and also, to some degree, as a result of his lack of truthfulness and candour in the early months of his detention. At this point in time, any period of future detention cannot be viewed as indefinite because the specific processes being undertaken will likely conclude within a reasonable period of time. The final issue that I’ve had to address is whether or not the alternative to detention that has been proposed is sufficient to offset the risk that [the Respondent] would not report for removal if released. In considering the general principles of bail that exist in this country and our strong belief in a person’s right to liberty wherever possible, it is my finding that the $20,000 cash bond offered, if deposited, with stringent terms and conditions of release, would be adequate to offset the perceived risk. In other words, it is my finding that [the Respon- dent] will report as required in the future if a large cash bond with very stringent terms and conditions is posted. The bondsperson, Ms. Vaithiyanathan, testified at length at yesterday’s hearing by teleconference. It is clear that she understands her responsibilities as a bondsperson and, although she is not a relative or a friend of long standing, she has known [the Respondent] for at least six months and she is in frequent telephone contact with him, speak- ing to him as often as four times a week. Additionally, in November of 2011, she travelled from Maple, Ontario, to Maple Ridge, B.C., specifically to meet him and meet with him at Fraser Regional Cor- rectional Centre where he is detained. Since that meeting, she has continued the frequent telephone contact with him. She seems to have a good grasp of his current situation and the challenges he faces. She stated that she trusts him and believes that he will abide by conditions of release and additionally, that she will do 70 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

everything reasonably possible to ensure that he does abide by terms and conditions of release. She has even offered him the opportunity to live in her home and if that proves too crowded, since she is a married woman with three children and inlaws — I should rephrase that, I’m not sure they’re in-laws, they may be her parents — so if it proves too crowded, she will find him a residence nearby. If his wife is allowed to move to Ontario with him, she acknowledges it could be a bit crowded, but she is quite confident that they will all cope and that she will do whatever is necessary to assist him in complying with all CBSA requirements, even indicating that if she was concerned that he was not complying with the terms and conditions of release that she would immediately contact CBSA. It’s also important to note that she is not a wealthy woman, has never posted a bond for a migrant before, has a significant mortgage and all three children still living at home, but has still agreed to post what for her is a large cash bond because of her faith in [the Respondent]. I find that knowing that she is risking the stability of her financial future to assist him and his wife will strongly influence [the Respondent] to do what is required of him to ensure that her bond is not forfeited. Probably one of the very few areas in which my rationale would de- viate from that of one previous Member, it is my view that, having brought his wife to Canada with him and now having a Canadian born child, both of whom are here in the Vancouver area at large, and his wife being in the process of a refugee determination hearing, is actually a factor that weighs in his favour. I do not accept that he is likely to do anything that will jeopardize his wife’s opportunities in Canada. Other motivating factors that I believe will also cause him to report as required are that his case is not over. Although he will not be allowed to pursue a refugee claim at this point, he has the right and has initiated an application for a pre-removal risk assessment. As well, the decision made at the admissibility hearing is being challenged in Federal Court and there was talk by previous counsel of a possible application for Ministerial consideration under subsection 37(2) of the Act. So with all of this ahead of him, I believe that with the alternative proposed put in place, that these things are adequate to mitigate the risk of flight in his case. This decision was stayed by the Order of Justice Fran¸cois Lemieux on February 10, 2012. Justice Lemieux identified a serious issue arising Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 71

from Member Mackie’s arguable failure to fully assess the ability of the surety to control the Respondent’s behaviour. 7 On February 13, 2012, the Immigration Division convened its 21st detention review hearing. Once again, the presiding Member, Member Tessler, ordered the Respondent’s release from detention on conditions. Member Tessler found the Respondent to be a moderate to low flight risk, but that the risk could be appropriately mitigated by the posting of a $20,000 cash bond by the surety and by weekly reporting. It is this decision that is the subject of the Minister’s application bearing court file number IMM-1698-12. The key findings by Member Tessler were as follows: I find that I’m not in agreement with the characterization of [the Re- spondent] as a high or substantial flight risk. I reserve this characterization for persons for whom there is evidence of an extraordinary reason for believing that they would not cooperate with their removal, the best example being fugitives from justice who have come to Canada to avoid prosecution in their home country — to avoid prosecution in their home country and who have the means and so- phistication to evade removal, and I note that even in those cases release is not out of the question where the terms and conditions address the risk. All refugee claimants assert that they cannot be returned to their home country because they face persecution. The reality is that they are rarely detained as flight risks. I do not believe that the Minister has established here that [the Respondent] is a flight risk than anyone else who does not want to return to their home country. So while I agree with my colleagues that [the Respondent] is a flight risk on the basis that his reliability has been compromised by his untruthfulness with immigration authorities, the characterization of [the Respon- dent] as a serious or high — or high flight risk is not, in my opinion, justified. The Minister has not established that there is any greater motivation for [the Respondent] to avoid removal than the ordinary person in flight from unrest in their home country. With a brother in Canada, a wife and infant child in Canada, and a child that he’s never been able to spend time with as he was born here while — she was born here while he was in detention, the likelihood of [the Respondent] choosing to go underground or fleeing Canada on his own is significantly lessened. He testified at this hearing that he does not want to break up his family and will not do anything to jeopardize his ability to keep the family together. He was very emotional describing his displacement — 72 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

the displacement endured by his family during the Sri Lankan Civil War. He is well aware that he may be returned to Sri Lanka by way of deportation; meanwhile he is a person waiting a pre-removal risk assessment, he has a wife and child in Canada, and wants to be reunited with them. He has acknowledged that he will cooperate with his removal to Sri Lanka if that is necessary. In summary, [the Respondent] is no more than a moderate or low flight risk. His circumstances suggest that the likelihood of flight has either been overstated in the past or diminished over time. In light of this finding, I will now turn to the proposed bondsperson. There was not a great of new information presented at the detention review. There was the Reasons for the Stay, [the Respondent] gave a bit of testimony, and the bondsperson — proposed bondsperson was once again called to give testimony, Ms. Uthayakumari Vaithiyanathan, U-t-h-a-y-a-k-u-m-a-r-i V-a-i-t-h-i-y-a-n-a-t-h-a-n. In the stay Reasons the judge referred to the comments of the Federal Court in Canada v B157, and I quote: First of all, the member nowhere assesses the capacity of the proposed bondsperson to control the detainee’s actions; yet, the whole rationale behind the appointment of a bondsperson is to ensure that the person released will comply with conditions of his release and will appear at the proceedings he may be called to attend. For such a surety to be meaningful the bondsperson must have the capacity and the incentive to control the person being released. My understanding has always been that in release orders a certain amount of risk has always been tolerable or acceptable; that a decision to release on terms and conditions is on the balance of probabilities. Terms and conditions of release, including the posting of bonds or guarantees were never considered in the past to eliminate all risk that a person will abscond. This is particularly true where the concern is that the person would be unlikely to appear for their removal. If the person fails to appear for their removal then the Minister is merely deprived of the current ability to remove him but at least the public is not endangered, and I note that is why in the Sahin decision the Fed- eral Court highlighted the reasons for detention as being a consideration in release. In addition, there are no absolutes with respect to bondspersons. It’s not an exact science and it’s not the role of the bondsperson to be a substitute jailer. No bondsperson can provide an absolute guarantee that his or her efforts plus the bond will eliminate all risk that a per- Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 73

son would be likely to appear for a future immigration proceeding and comply with all terms and conditions of release. Often the bondsperson is a family member and it can be said that the family relationship itself creates a kind of moral obligation on the person being released to ensure that their family member is not deprived of their monies. It is harder to find this kind of moral suasion from third- party bondspersons where the bondsperson and the person being released, the relationship is not close but that is not to say that it cannot exist. Where the flight risk is not significant the need for an ideal bondsperson is also reduced. As [the Respondent] is only a low or moderate flight risk, it’s unnecessary for the bondsperson to be able to be a constant monitor of his comings and goings. He does not require a form of house arrest and Ms. Vaithiyanathan is not required to be his substitute jailer. $20,000 is a great deal of money and it is not amount that — it is not an amount that the bondsperson can afford to lose. Her role is to see that [the Respondent] abides by terms and conditions of his release and appear for his removal if required, such that the bond is not forfeited to the government. Ms. Vaithiyanathan trusts [the Respondent] and his wife through a relationship that she has developed with them. She is prepared to receive [the Respondent] in her home and then when his wife comes to Ontario, to find them accommodation nearby together as she does not have room for [the Respondent], his wife, and child. Her incentive is to see that her bond is not lost; it’s a strong incentive. She is prepared to advise CBSA if she feels that [the Respon- dent] is in violation of his terms and conditions. In light of my finding that [the Respondent] is no more than a moderate or low flight risk, I’m satisfied that he will not do anything to put Ms. Vaithiyanathan’s bond at risk. There is a relationship between himself and his wife and the bondsperson and they share a common community. He does not want to be separated from his family again and it is only through his compliance that he can hope to keep his family together. I would also note that of the 492 persons aboard the Sun Sea only six persons remain in detention. Of those released, I am unaware of a single person who has failed to comply with the terms and conditions of their release. This includes [the Respondent’s] brother, who was also found inadmissible for aiding and abetting the Sun Sea operation, and who is also ineligible to apply for refugee status, and has only the pre-removal risk assessment as his remaining process that may allow him to remain in Canada. 74 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

CBSA has already visited Ms. Vaithiyanathan’s home, interviewed her, and seen where [the Respondent] will initially stay. I am aware of the Minister’s keen concerns about [the Respondent’s] availability for removal. I do not share the Minister’s deep suspicion about his future cooperation. It is always the Minister’s prerogative, should the Minister perceive an increased risk, to rearrest him and argue for continued detention. I want to be sensitive to the Minister’s concerns so I am prepared to impose terms and conditions that address these concerns but, as well, taking into consideration my evaluation of the risk. So I agree that [the Respondent] should report to CBSA on a weekly basis and that way CBSA is regularly in contact with him and aware of his continued presence — presence in Canada, I will also impose a term and condition that allows CBSA access to [the Respondent’s] residence to confirm his compliance with terms and conditions, and, as well, to impose a term and condition that prohibits his contact with anyone involved in human smuggling. So I am prepared to offer [the Respondent] release on terms and conditions. 8 This decision was stayed by the Order of Justice Simon No¨el on March 8, 2012. Justice No¨el identified a number of serious issues concerning the reasonableness of Member Tessler’s evidentiary analysis which he felt would benefit from a full and expedited hearing. 9 On March 14, 2012, the Immigration Division convened its 22nd detention review hearing before Member McPhelan. In the course of submissions, counsel for the Minister told Member McPhelan that the case was complex and high profile. For those reasons, guidance from headquarters in Ottawa was being sought and, in the result, “providing firm timelines for the resolution of [his PRRA application] isn’t as easy as it would be with other standard cases”. Nevertheless, the first stage of the PRRA was ostensibly being assessed on a priority basis and was estimated by counsel to be completed by the end of April. According to counsel for the Minister, the only other new development was that the Respondent was likely to be criminally charged for participating in a human smuggling operation. 10 Counsel for the Respondent pointed out to Member McPhelan that, in a related case, the Minster’s counsel had been unable to provide a reliable estimate for the completion of the outstanding PRRA. According to counsel, this uncertainty was such that the Respondent’s detention had no obvious end in sight. Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 75

11 Member McPhelan rendered a decision on March 21, 2012 and, once again, ordered the Respondent’s release from custody on conditions. The conditions included the posting of a $20,000 cash bond by a family acquaintance, a curfew and daily reporting. 12 Member McPhelan’s lengthy decision reviews the Respondent’s detention history including the reasons that had supported his ongoing detention for the previous 19 months. In deciding to release the Respon- dent, Member McPhelan cited in detail the Respondent’s detention history and made several findings concerning the risk that he would not abide by the terms of release. Those findings included the following: a. The Respondent had initially deceived immigration authorities about his true identity and was held in detention until January 2011 on identity grounds; b. After January 12, 2012, the Respondent was detained on security grounds because of his suspected involvement with the LTTE; c. On May 6, 2011, the Minister argued for the Respondent’s continued detention because he represented a flight risk and the presiding member agreed. The presiding member found that the Respon- dent was not a danger to the public. The presiding member also found that the Respondent’s assurances were, in the face of his lack of credibility, insufficient to justify a simple release on conditions; d. On November 16, 2011, the Immigration Division held the Re- spondent to be inadmissible to Canada because he was one of the principal organizers of the “MV Sun Sea” smuggling operation; e. At the detention review hearing on December 1, 2011, the Re- spondent’s detention was continued on the basis that he was extremely motivated to avoid removal to Sri Lanka and, therefore, represented a significant flight risk. The presiding member also expressed a concern that the Respondent had refused to sign a travel document necessary to facilitate his eventual removal; f. At the detention review of December 29, 2011, the Respondent was ordered released on conditions [see reasons at paragraph 6, above]. At this point, the Respondent had signed the necessary travel document. Member Mackie had concerns that the Respon- dent continued to be a flight risk but that this release could be justified on the strength of a surety, the posting of a $20,000 cash bond and regular reporting; 76 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

g. Member McPhelan was not convinced that the surety’s $20,000 cash bond would influence the Respondent’s behaviour, but that the presence of his family in Canada and their pursuit of refugee status would motivate his good behaviour. With respect to this influence, Member McPhelan observed: ...I accept counsel’s submissions that you want to be reunited in Canada with your wife and child and their attendance throughout the whole of the last hearing shows the strength of that relationship. I agree with Member Mackie that the presence of your wife and child in Canada tends to reduce your flight risk. h. The Respondent’s Federal Court challenge to the Immigration Di- vision’s inadmissibility ruling represented a “very strong inducement” to abide by the terms of release; i. The Respondent’s ongoing PRRA was a very viable option which made it unlikely that he would go underground before its completion; j. The Respondent’s regulatory charges in Thailand were not a significant factor although they indicated a negative “tendency”; k. The Respondent’s involvement in the “MV Sun Sea” smuggling operation and his broad use of a fraudulent passport reflected a willingness to contravene Canadian immigration laws and aggra- vated the risk of flight; l. The Respondent continued to lack credibility and his assurances of good behaviour could not be relied upon at face value; and m. It was likely that the Respondent would continue to report until the completion of his PRRA but, in the face of an imminent removal, it was unlikely that he would report. 13 Member McPhelan then concluded the analysis of the evidence and the law in the following way: You have been detained now for 19 months. In Canada, detention is considered to be an extraordinary measure and that alternatives are to be considered. You are a young man with no criminal convictions facing comparatively minor charges in Thailand with no proven LTTE connections. You are not currently frustrating removal by refusing to sign a travel document application. You are not a danger to the public in Canada or a threat to the security of Canada, yet you are still in detention after so much time. Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 77

In Sahin the court said there is a stronger case for continuing long detention when an individual is considered a danger to the public as opposed to merely a flight risk. Regarding the future length of detention, you cannot be removed until the outcome of PRRA is known and CBSA obtains a Sri Lankan travel document. The Minister’s representative said the local PRRA coordinator’s best estimate was that processing your PRRA application could be concluded by the end of April. He said that the “Sun Sea” cases are complex and high-profile and they are seeking guidance from their headquarters in Ottawa in making these decisions. Later in the hearing, when I asked a question in clarification, the Hearings Officer said the estimate of completing processing by the end of April is a time estimate to determine whether or not you are at risk. He declined to say how long PRRA would take if the case goes for balancing in Ottawa. Counsel disagreed with the Minister’s time estimate and submitted that in another “Sun Sea” PRRA case of which he was aware, that at subsequent detention reviews the Min- ister’s representative began giving longer and longer time estimates for the completion of PRRA and finally admitted that they did not know how long the PRRA would take because the matter was being dealt with in Ottawa. I’m also aware of that case. I consider that a time estimate of a decision by the end of April if you are found not to be at risk is optimistic and I have no idea how long processing your application will take if it has to go for balancing. Accordingly, it is very difficult to estimate how long you may remain in detention. There’s been no delay or lack of diligence on the part of CBSA in this matter. There is some delay attributable to your lack of cooperation with CBSA’s investigation and because you refused to sign a travel document application at first, there was a one month delay before you were invited to apply for PRRA. I’m satisfied that there’s been a realistic alternative to detention proposed which involves strict conditions, including a curfew, which I intend to set at 8:00 p.m. until 6:00,a.m.; a $20,000 cash bond and I’m suggesting weekly reporting because I’ve looked at where the bondsperson lives and where the person concerned would live in relation to GTEC’s offices. It doesn’t really seem that daily reporting would be feasible. I believe it’s half an hour each way by freeway. With frequent reporting and strict conditions, CBSA can always rearrest you if they believe there’s a significant change in the flight risk. Regarding the suitability of the bondsperson, I’m not sure why Mr. Justice Noel referred to Regulation 47(2)(b). Originally this person was going to sign a guarantee but after a discussion with counsel that 78 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

was changed to the paying of a cash deposit. The Regulations draw a distinction between a guarantor and someone who pays a deposit. This person is not a guarantor, she’s a bondsperson. Regulation 47(2) refers to the requirements if a guarantee is posted. I do not see that Regulation 47(2)(b) refers to bondspersons or is strictly applicable to a bondsperson. Nevertheless, I have considered what effect the posting of a cash bond by this person is likely to have on your behaviour. This person is an acquaintance of yours of six months. Unlike Members Mackie and Tessler, I find it hard to see how, for this particular bondsperson, you will feel compelled not to put her money at risk. The bondsperson explained before Member Mackie how she was raising the cash deposit and she has already posted the money. CBSA has had the opportunity to visit her home. Her unchallenged evidence before Member Tessler was that officers attended her home for two hours, asking questions and taking pictures. In spite of this, and with the Minister’s resources, the Minister has not demonstrated that she is an unsuitable bondsperson. She is aware that you are inadmissible for human smuggling and may be required to leave Canada. You will be living in her home. She understands her responsibilities as a bondsperson. She knows that her money is at risk if you do not comply with terms and conditions and I believe she will notify CBSA if you breach those conditions. The posting of a bond by this person doesn’t create a situation where you will feel compelled not to put her money at risk but the fact that she has posted her money and will be supervising you provides an extra level of monitoring your compliance with conditions in addition to what CBSA will be able to provide. Accordingly, I find that Ms. Vaithiyanathan is an acceptable bondsperson and I find that the alternative to detention that’s been proposed is a realistic one in all of the circumstances. Previously you were detained for admissibility hearing. Now the Minister was asking me to keep you detained for removal from Can- ada. The timelines for detention are now different and, of course, you have spent more time in detention. I consider that I have clear and compelling reasons for coming to a different conclusion than those members who previously kept you detained. It was only at the October and November 2011 hearings that there was a bondsperson offering to post $10,000 as an alternative to detention for admissibility hearing. This was a different bondsperson than will be posting the bond this time. When the Member rejected the first bondsperson who offered to post $10,000 at the detention Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 79

review in October, he was detaining you for the conclusion of your admissibility hearing. He wasn’t facing a decision as to whether to detain you for removal. He noted that the decision in the admissibility hearing had been reserved for more than a week, that the Member presiding over the admissibility hearing was giving the decision priority because you were detained and he didn’t expect detention for the admissibility hearing to be lengthy. Among the reasons that he rejected that bondsperson were that there was no indication that that bondsperson had ever met you or even spoken to you. That first bondsperson knew your wife but didn’t know much about you and your circumstances. He left open the possibility of release if there was a suitable bondsperson. He said at page 6 of the transcript on line 28; Now, if in the future it appears that you are facing lengthy further detention and if it could be established that Ms. Krishnamoorthy was well aware of particular circumstances of your case and if she were still willing to post a bond on your behalf and if she could provide some specific indication of how she would be able to influence you and affect your behaviour, then perhaps the outcome would be different But that’s a lot of ifs and, with the information before me today, I’m not able to conclude that this is an adequate alternative in the particular circumstances of your case. When I detained you for your admissibility hearing on November 3, 2011, the circumstances were similar. I expected that there would be a decision in the admissibility hearing likely within a month and that your detention situation could be re-evaluated after the decision from the admissibility hearing was known. At the December 1, 2011, detention review, for the first time CBSA sought your detention for removal from Canada. You weren’t represented by counsel on that day, you did not propose an alternative to detention and not surprisingly, the Member kept you detained. The situation is different now. This new bondsperson has met you in person. She talks to you on the phone regularly. She knows quite a bit about your circumstances. She knows that you’ve been found to be a people-smuggler. You have been in detention another four months since 1 last saw you in November. The timelines for future detention are less clear now than they were then. If your PRRA requires balancing, the Minister cannot give a time estimate for completion and it’s because of those 80 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

changes circumstances I’m offering you release now when I didn’t in November of 2011. 14 This decision was stayed by my Order of April 5, 2012 issued on consent pending the determination of these applications for judicial review.

Issues 15 What is the appropriate standard of review? 16 Do the detention review decisions that are the subject of these applications contain reviewable errors?

Analysis 17 For the reasons that follow, it is only necessary to deal with the Min- ister’s application challenging the Immigration Division’s third order re- leasing the Respondent from custody, that being the decision made by Member McPhelan on March 21, 2012. Because I have found that decision to be reasonable, the Minister’s challenge to the earlier release orders by Members Tessler and Mackie are dismissed as moot. 18 The Minister contends that Member McPhelan erred by making premature and speculative findings concerning the anticipated future dura- tion of the Respondent’s custody and by making unreasonable and perverse findings concerning the adequacy of the alternatives to detention. The Minister also argues that Member McPhelan erred by paying insufficient attention to the findings made in earlier detention reviews that the Respondent lacked credibility, that he represented a significant flight risk and that he could not be controlled by a bondsperson. 19 On the record before me the above issues are ones of mixed fact and law for which the deferential standard of reasonableness applies: see Canada (Minister of Citizenship & Immigration) v. B046, 2011 FC 877 (F.C.) at para 32, (2011), 394 F.T.R. 217 (Eng.) (F.C.); Canada (Minister of Citizenship & Immigration) v. B157, 2010 FC 1314 (F.C.) at paras 23- 25, (2010), 379 F.T.R. 251 (Eng.) (F.C.); and Sittampalam v. Canada (Minister of Public Safety & Emergency Preparedness), 2006 FC 1118 (F.C.) at para 7, (2006), 300 F.T.R. 48 (Eng.) (F.C.).1

1I recognize that a speculative finding that is material to a decision may constitute an error of law: see Canada (Minister of Citizenship & Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 (F.C.A.). However, in this case, I do not Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 81

20 Subsection 58(1) of the IRPA directs the Immigration Division to release a foreign national unless it is satisfied, upon taking account of the prescribed factors that the person is a danger to the public or is unlikely to appear for an examination or for removal. Sections 245 and 248 of the Immigration Refugee Protection Regulations, SOR 2002-227[IRP Regu- lations], set out the factors that the Immigration Division must consider in the application of subsection 58(1). In the case of section 248, if it is determined that grounds for detention exist, the Immigration Division is nevertheless directed to consider the following additional factors: a. the reason for detention; b. the length of time in detention; c. whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; d. any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and e. the existence of alternatives to detention. 21 Counsel for the Minister argues that Member McPhelan made the same mistake identified by the Federal Court of Appeal in Canada (Minister of Citizenship & Immigration) v. Li, see footnote 1 above, by prematurely speculating about the time that was required to complete the first stage of the Respondent’s PRRA. According to this submission, Member McPhelan ought to have continued the Respondent’s detention until the Minister’s time estimate had run its course. This impermissible speculation is said to be evident in the following passages from the decision: ...Regarding the future length of detention, you cannot be removed until the outcome of the PRRA is known and CBSA obtains a Sri Lankan travel document. The Minister’s representative said the local PRRA coordinator’s best estimate was that processing your PRRA application could be concluded by the end of April. He said that the “Sun Sea” cases are complex and high-profile and they are seeking guidance from their headquarters in Ottawa in making these decisions.

agree that the Member engaged in a premature or speculative exercise in expressing concern about the reliability of the Minister’s estimate to complete the first stage of the Respondent’s PRRA. 82 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Later in the hearing, when I asked a question in clarification, the hearings officer said the estimate of completing processing by the end of April is a time estimate to determine whether or not you are at risk. He declined to say how long PRRA would take if the case goes for balancing in Ottawa. Counsel disagreed with the Minister’s time estimate and submitted that another “Sun Sea” PRRA case of which he was aware, that at subsequent detention reviews the Minister’s representative began giving longer and longer time estimates for the completion of PRRA and finally admitted that they did not know how long the PRRA would take because the matter was being dealt with in Ottawa. I’m also aware of that case. I consider that a time estimate of a decision by the end of April if you are found not be at risk is optimistic and I have no idea how long processing your application will take if it has to go for balancing. Accordingly it is very difficult to estimate how long you may remain in detention. There’s been no delay or lack of diligence on the part of CBSA in this matter. There is some delay attributable to your lack of cooperation with CBSA’s investigation and because you refused to sign a travel document application at first, there was a one month delay before you were invited to apply for PRRA...... You have been in detention another four months since I last saw you in November. The timelines for future detention are less clear now than they were then. If your PRRA requires balancing, the Minister cannot give a time estimate for completion and it’s because of those changes in circumstances that I’m offering you release now when I didn’t in November of 2011. 22 I do not agree that this part of the decision amounts to speculation. Member McPhelan noted the Minister’s position that the Respondent’s PRRA would likely be completed within the following six weeks but found this to be “optimistic”. This does not seem to me to be an unreasonable conclusion in the face of the submission by the Minister’s counsel that, because of the involvement of “headquarters”, firm timelines were not as easy to obtain as in “standard” cases. Indeed, it is surprising to me that in a supposedly high priority case involving a person held in custody since August 13, 2010, it would take more than three months to complete a perfected PRRA. This Court has previously stated that the hardship of continuing immigration detention is required to be mitigated by the expeditious resolution of outstanding immigration processes: see Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214 (Fed. T.D.) at paras 32-33, (1994), 85 F.T.R. 99 (Fed. T.D.). Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 83

23 It is not enough for the Minister to say to the Member that a PRRA is underway. It was open to the Minister to provide clear details about the status of the Respondent’s PRRA, the precise reasons why it required 3.5 months to complete and why the involvement of headquarters would give rise to delays or uncertainties. The Minister failed to provide that information to Member McPhelan and, in the face of that failure, it is not open to the Minister to complain about speculation. Member McPhelan’s concern had an evidentiary basis and it was, therefore, not speculation to say that “it is very difficult to estimate how long you may remain in detention”. This uncertainty was a factor weighing in favour of the Re- spondent’s release: see Charkaoui, Re, 2007 SCC 9 (S.C.C.) at para 115, [2007] 1 S.C.R. 350 (S.C.C.). 24 It also seems to me that the Minister has placed undue emphasis on the time required to complete the Respondent’s PRRA. That issue was of no immediate significance because, as Member McPhelan noted, the Re- spondent had also challenged the inadmissibility finding by the Immigra- tion Division — a process requiring several months to complete and which was found to be “a very strong inducement” to abide by the terms of release. 25 The Minister also contends that the decision to release the Respon- dent was unreasonable because Member McPhelan had found that in the face of imminent deportation the Respondent was unlikely to report. Ac- cording to the Minister, this finding is inconsistent with the terms of section 244 of the IRP Regulations, which requires the continued detention of such a person. 26 I do not agree that the passage relied upon by the Minister can be read in isolation from Member McPhelan’s remaining analysis. It is at least implicit from the reasons that Member McPhelan’s concern about the risk of flight was expressed before the application of the factors set out in section 248 of the IRP Regulations including the length of this detention, the time required to complete outstanding proceedings and the existence of alternatives to detention. In other words, Member McPhelan found that the inherent risk of flight was ultimately outweighed by the section 248 factors. 27 The Minister also complains that Member McPhelan erred by relying on alternative measures to detention that were insufficient to mitigate the Respondent’s previously recognized risk of flight. In the face of the Re- spondent’s established lack of credibility, his key role in organizing the “MV Sun Sea” venture and his lack of concern for the interests of the 84 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

surety, it was perverse to find that anything short of continued detention would assure his presence for removal. According to this argument, Member McPhelan unreasonably departed from the previous findings of the Immigration Division in the absence of clear and compelling reasons: see Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4 (F.C.A.) at paras 11-13, [2004] 3 F.C.R. 572 (F.C.A.). 28 Member McPhelan did, however, identify the changes of circumstance that supported the Respondent’s release including the following: a. the Respondent’s added time in detention; b. the unreliability of the Minister’s estimates of the time required to complete the Respondent’s PRRA; c. the timeline for the Respondent’s future detention was “less clear” than earlier; d. the doubling of the proposed cash bond; e. the strength of the new surety as compared to the initial proposed surety; and f. the fact that the Respondent had signed the required travel document. 29 The fact that the Minster does not agree that these changes are sufficient to justify the Respondent’s release does not mean that it was unreasonable for Member McPhelan to act on them. This argument is no more than an invitation to reweigh the evidence and that is not the role of the Court on judicial review. 30 I also do not agree that there is an inconsistency in Member McPhe- lan’s finding that the Respondent was unlikely to be concerned about the financial interests of the surety and the finding that the surety was an “acceptable bondsperson”. Member McPhelan clearly understood that the value of the surety did not lie exclusively in the realm of moral suasion. In this situation, the surety was well informed about the Respondent and his family and had a strong motivation to supervise the Respondent’s behaviour including his compliance with a curfew. It is apparent from Member McPhelan’s decision that the Respondent was more likely to be motivated by the presence of his family in Canada and by his desire to pursue his claim to protection to a final conclusion. This is not a situation where the Board failed to carry out any analysis of the suitability of the surety. Although Member McPhelan had concerns about the ability of the surety to influence the Respondent, this did not mean that the surety Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 85

could not play a useful role in monitoring his compliance with the terms of release. 31 It is of some significance that the three recent decisions that are now challenged by the Minister were rendered by three different members of the Immigration Division of which two had at earlier points in the process ordered the Respondent’s continued detention. In the case of the most recent order of release, Member McPhelan continued the Respon- dent’s detention on at least three occasions in 2011 before coming to a different view on March 14 of this year. This is neither surprising nor troubling. It indicates an open-minded approach to the serious issue of lengthy immigration detentions of the sort that has occurred here and it is a recognition of the point made by the Supreme Court of Canada in Charkaoui, Re, above, that the ongoing process of immigration detention review must be meaningful and take into account the evolving context and circumstances of each case. 32 Since cases like this one do not remain static, the process requires vigorous re-revaluation of detentions. This is particularly true where, as here, no serious danger to public safety has been identified. To put it simply, as the length of a person’s detention increases with no obvious end in sight, so too does the concern for their loss of liberty and the need to consider alternatives. This point was well-expressed by my colleague Justice Yves de Montigny in Canada (Minister of Citizenship & Immigration) v. B157 [2010 CarswellNat 5022 (F.C.)] (Order, 6 Decem- ber 2010), Ottawa IMM-6862-10, in the following passage: First of all, it seems to me that a person should not be deprived of his or her liberty lightly, especially when that person has already been detained for more than three months. I am mindful of the public interest in ensuring that smuggling operations are not condoned and that people involved in such illegal schemes be treated accordingly. But this concern should not obscure the fact that the freedom from imprisonment or detention is certainly one of the most basic human rights and a cornerstone of a constitutional state, and that a person should not be denied the benefit of a release order without a careful examination of the arguments advanced to challenge that order. In the absence of any evidence that a person is a danger for the public, I would think that the longer a person has been detained, the more probing should be the review by this Court of the arguments advanced by the Minister to challenge the release order made by the Immigration Division. 86 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

33 I would add to this that immigration detention is not a form of punishment. It can only be imposed if the statutory conditions for detention have been satisfied. In this case, the relevant issue was whether the Re- spondent’s detention should be continued because he is unlikely to appear for a hearing or for removal. The Respondent’s apparent involvement in a sophisticated human smuggling operation and his lack of credibility were relevant factors but so were the presence of his family in Canada, their ongoing attempts to obtain Canadian protection, the strength of the surety and the amount of the bond, the Minister’s inability to accurately estimate the time required to complete the Respondent’s PRRA, the time needed to resolve his judicial challenge to the inadmissibility ruling and the fact that he had been in detention for 19 months. The Member weighed those factors appropriately and concluded that the conditions for continuing the Respondent’s detention were no longer compelling. 34 The Immigration Division’s responsibility over detention reviews is onerous. At its heart lies the difficult task of predicting future behaviour on the basis of past events and conduct. The Immigration Division must also balance the competing interests of a detainee not to be unduly deprived of freedom with the public interest in upholding the law including the effective execution of immigration removals. There is rarely one correct answer to cases like this one. Every person facing removal from Canada to a place that is less desirable represents, at some level, a flight risk. The Member understood that fact, weighed the available evidence and concluded that the risk was manageable with onerous conditions of release. It is not the role of the Court on judicial review to substitute its judgment for that of the responsible decision-maker and, even if I had that authority, this is not a decision that I would have been inclined to set aside. The decision was amply supported by the evidence and reasonable in the sense that it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59, [2009] 1 S.C.R. 339 (S.C.C.). The Minister’s application is accordingly dismissed. 35 At the conclusion of argument in this case, counsel for both parties expressed a desire to propose a certified question. The Applicant will have two days from the date of this Judgment to propose a certified question in writing and the Respondent will have two days thereafter to reply. Canada (Minister of Citizenship & Immigration) v. B072 R.L. Barnes J. 87

Judgment THIS COURT’S JUDGMENT is that these applications are dismissed. Judgment with respect to a certified question in Court file IMM-2813-12 is reserved pending the receipt of further submissions from the parties, if any. Applications dismissed. 88 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Grusas v. Canada (Minister of Citizenship & Immigration)] Phuangphen Grusas, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5828-11 2012 FC 733 James Russell J. Heard: April 30, 2012 Judgment: June 12, 2012 Immigration and citizenship –––– Admission — Temporary entry (visitors) — Foreign workers –––– Applicant was citizen of Thailand who applied for work permit in June 2011 — Applicant submitted Labour Market Opinion (LMO) from Human Resources and Skill Development Canada (HRSDC) which listed trade diploma or certificate and oral and written Thai and English as only necessary qualifications — Another untitled document in file listed three years experience in food service industry as job requirement — Applicant submitted several training certificates and licences to show her qualifications — Applicant submitted several letters to show her work experience — Applicant’s application was dismissed — Applicant brought application for judicial review of decision of visa officer — Application was dismissed — There was no procedural unfairness in this case and decision was reasonable — Visa officer found, on evidence before him, that there were reasonable grounds to believe that applicant was not able to perform work required — For this job, in addition to formal certification applicant would require significant amount of actual experience as specialized Thai cook — Applicant told visa officer that she had no employment experience in position of cook — It was reasonable for visa officer to consider applicant’s experience working as cook to be relevant and logical consideration in assessment of whether or not applicant would be able to perform work of cook — It was logical for officer to find that experience as waitress was distinct from experience and duties of cook — there was no evidence before visa officer that required amount of work experience was requirement that could be offset by training and orientation — There was no indication that officer failed to assess applicant’s whole education, her international experience, her English and Thai language skills or any other pertinent fact, all of which was set out in reasons. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Assessment –––– Applicant was citizen of Thailand who applied for Grusas v. Canada (Minister of Citizenship & Immigration) 89 work permit in June 2011 — Applicant submitted Labour Market Opinion (LMO) from Human Resources and Skill Development Canada (HRSDC) which listed trade diploma or certificate and oral and written Thai and English as only necessary qualifications — Another untitled document in file listed three years experience in food service industry as job requirement — Applicant submitted several training certificates and licences to show her qualifications — Applicant submitted several letters to show her work experience — Applicant’s application was dismissed — Applicant brought application for judicial review of decision of visa officer — Application was dismissed — There was no procedural unfairness in this case and decision was reasonable — Visa officer found, on evidence before him, that there were reasonable grounds to believe that applicant was not able to perform work required — For this job, in addition to formal certification applicant would require significant amount of actual experience as specialized Thai cook — Applicant told visa officer that she had no employment experience in position of cook — It was reasonable for visa officer to consider applicant’s experience working as cook to be relevant and logical consideration in assessment of whether or not applicant would be able to perform work of cook — It was logical for officer to find that experience as waitress was distinct from experience and duties of cook — there was no evidence before visa officer that required amount of work experience was requirement that could be offset by training and orientation — There was no indication that officer failed to assess applicant’s whole education, her international experience, her English and Thai language skills or any other pertinent fact, all of which was set out in reasons — Applicant was afforded procedural fairness; she was interviewed by visa officer and had every opportunity to convince him she could do job of cook. Cases considered by James Russell 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.) — followed 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.) — considered Ayyalasomayajula v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 248, 2007 CarswellNat 5544, 2007 CarswellNat 521, 2007 FC 248, [2007] F.C.J. No. 320 (F.C.) — considered 90 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Boughus v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2171, 2010 CF 210, 2010 FC 210, 2010 CarswellNat 404 (F.C.) — referred to 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 Chen v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 1378, 2005 CarswellNat 4950, 2005 FC 1378, 2005 CarswellNat 3219, [2005] F.C.J. No. 1674 (F.C.) — considered Choi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1372, 2008 FC 577, [2008] F.C.J. No. 734 (F.C.) — considered Huang v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 450, 2012 FC 145, 2012 CF 145, 2012 CarswellNat 1244, [2012] A.C.F. No. 203, [2012] F.C.J. No. 203 (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.) — referred to Masych v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1253, 2010 CarswellNat 5381, 2010 CarswellNat 4778, 2010 FC 1253, [2010] F.C.J. No. 1563 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (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 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, Grusas v. Canada (Minister of Citizenship & Immigration) 91

(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 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 Qin v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 815, 2002 CarswellNat 2974, 2002 FCT 815, 2002 CarswellNat 1895, [2002] F.C.J. No. 1098 (Fed. T.D.) — referred to Randhawa v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 6368, 2006 CF 1294, 2006 FC 1294, 2006 CarswellNat 3481, 57 Imm. L.R. (3d) 99, 302 F.T.R. 123 (Eng.), [2006] F.C.J. No. 1614 (F.C.) — distinguished Singh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1306, 2010 CarswellNat 5221, 2010 CF 1306, 2010 CarswellNat 5583, 95 Imm. L.R. (3d) 83, [2010] F.C.J. No. 1663 (F.C.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Talpur v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 42, 2012 FC 25, 2012 CarswellNat 298, 2012 CF 25, 4 Imm. L.R. (4th) 143 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered 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. 200(1)(c)(iii) — considered s. 200(3) — considered s. 200(3)(a) — considered s. 203(1)(a) — considered s. 203(1)(b) — considered s. 203(1)(c) — considered 92 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

s. 203(2.1) [en. SOR/2010-172] — considered

APPLICATION for judicial review of decision of visa officer dismissing applicant’s application for work visa.

Pacifique Siryuyumusi, for Applicant Orlagh O’Kelly, for Respondent

James Russell J.: Introduction 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 a visa officer (Officer) at the Canadian Embassy in Bangkok, Thailand, dated 28 June 2011 (Decision), which refused the Applicant’s application for a temporary work permit.

Background 2 The Applicant is a citizen of Thailand who currently lives in Khonkaen, Thailand. 3 The Applicant applied for a work permit on 21 June 2011. To support her application, the Applicant submitted a Labour Market Opinion (LMO) from Human Resources and Skill Development Canada (HRSDC). The LMO lists a trade diploma or certificate and oral and written Thai and English as the only necessary qualifications. Another untitled document (Page 3 of the Certified Tribunal Record (CTR)) lists three years experience in the food service industry as a requirement for the job the Applicant applied for in Canada. 4 The Applicant also submitted several letters to show her work experience. One letter from Banyan Tree Bangkok — a hotel and resort in Thailand — said she had completed training in food and beverage service from 9 July 2002 to 31 October 2002. She also submitted a certificate from Carnival Cruise Lines Ltd. (Carnival) which said she had worked on the MS Carnival Liberty cruise ship as a team waitress. 5 To show the training she had completed, the Applicant provided the Officer with several certificates (Training Certificates). A certificate from the Wandee Culinary School in Bangkok showed she had completed a Thai cooking course in June 2010. The Applicant also submitted a certificate from the Wandee Culinary Testing Institute in Bangkok, which showed she passed occupational testing in cookery. Further, she Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 93

submitted a licence issued by the Director General of the Department of Skill Development in Thailand to Mrs. Wichuda Na Songkhla Sriyaphai. The license allowed Mrs. Sriyaphai to perform occupational testing for the Wandee Culinary Testing Institute. 6 The Officer interviewed the Applicant on 28 June 2011. After the interview the Officer refused the Applicant’s application for a work permit the same day.

Decision under Review 7 The Decision in this case consists of a letter the Officer sent the Ap- plicant (Refusal Letter) on 28 June 2011 and his notes on her file in the Global Case Management System (GCMS Notes). 8 The GCMS Notes show the Officer considered the LMO. He noted the oral and written language requirements mentioned in the LMO and found the Applicant had submitted a signed employment contract. The Officer also reviewed the Applicant’s education and other qualifications, including her Training Certificates. The Officer also noted the Appli- cant’s work with Carnival and the Applicant’s statement at the interview she had no experience as a cook. 9 The Officer found the LMO required three years experience in the food service industry. He said he was obligated to refuse the application because the Applicant did not have the required three years of experience. In the Refusal Letter, the Officer said he was not satisfied the Ap- plicant met the requirements of the Act, so he refused her application.

Issues 10 The Applicant raises the following issues in this application: a. Whether the Officer misunderstood the role of the LMO in a work permit application; b. Whether the Decision was unreasonable; c. Whether the Officer provided inadequate reasons; d. Whether the Officer breached the Applicant’s right to procedural fairness.

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 94 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

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 challenges the Officer’s interpretation of paragraphs 200(3)(a) and paragraph 203(1)(a) of the Immigration and Refugee Pro- tection Regulations SOR/2002-227 (Regulations). In Dunsmuir, above, the Supreme Court of Canada held at paragraph 54 that a tribunal’s interpretation of its enabling statute will generally be accorded deference. The Supreme Court of Canada upheld this approach in Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at paragraph 26. Most recently, in A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.), the Supreme Court of Canada held at paragraph 30 that the standard of review on a tribunal’s interpretation of its home statute is reasonableness, unless the interpretation falls into the enumerated categories for which the correctness standard applies: constitutional questions, questions of central importance to the legal system as a whole, questions on the jurisdictional lines between specialized tribunals, and true questions of vires. The Officer’s interpretation of the Regulations does not fall into any of these categories, so the standard of review on the first issue is reasonableness. 13 The standard of review on the second issue in this application is also reasonableness. In Choi v. Canada (Minister of Citizenship & Immigra- tion), 2008 FC 577 (F.C.), Justice Michael Kelen held at paragraph 12 that the standard of review with respect to an officer’s decision to grant a work permit is reasonableness. Justice John O’Keefe made a similar finding in Singh v. Canada (Minister of Citizenship & Immigration), 2010 FC 1306 (F.C.) at paragraph 35, as did Justice Luc Martineau in Huang v. Canada (Minister of Citizenship & Immigration), 2012 FC 145 (F.C.) at paragraph 4. 14 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 unrea- Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 95

sonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 15 The Supreme Court of Canada recently addressed the issue of the adequacy of reasons in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.). It 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.” The adequacy of the Officer’s reasons will be analysed along with the reasonableness of the Decision as a whole. 16 The standard of review on the fourth issue is correctness. In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Canada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.”

Statutory Provisions 17 The following provisions of the Act are applicable in this proceeding: 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. 11. (1) L’étranger doit, préalablement a` son entrée au Canada, demander 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. 18 The following provisions of the Regulations are applicable in this case: 200. [...] (3) An officer shall not issue a work permit to a foreign national if (a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought; 96 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[...] 203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subpara- graphs 200(1)(c)(i) to (ii.1), an officer shall determine, on the basis of an opinion provided by the Department of Human Resources and Skills Development, If (a) the job offer is genuine under subsection 200(5); (b) the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada; (c) the issuance of a work permit would not be inconsistent with the terms of any federal-provincial agreement that apply to the employers of foreign nationals; [...] (2.1) An opinion provided by the Department of Human Resources and Skills Development shall consider the matters set out paragraphs (1)(a) to (e) [...] 200. (3) Le permis de travail ne peut etreˆ délivré a` l’étranger dans les cas suivants: a) l’agent a des motifs raisonnables de croire que l’étranger est incapable d’exercer l’emploi pour lequel le permis de travail est demandé; [...] 203. (1) Sur demande de permis de travail présentée conformément a` la section 2 par tout etranger,´ autre que celui visé a` l’un des sousalinéas 200(1)c)(i) a` (ii.1), l’agent décide, en se fondant sur l’avis du ministère des Ressources humaines et du Développement des compétences, si, a` la fois: a) l’offre d’emploi est authentique conformément au paragraphe 200(5); b) l’exécution du travail par l’étranger est susceptible d’avoir des effets positifs ou neutres sur le marché du travail canadien; c) la délivrance du permis de travail respecte les conditions prévues dans l’accord fédéralprovincial applicable aux em- ployeurs qui embauchent des travailleurs etrangers;´ [...] (2.1) Dans son avis, le ministère des Ressources humaines et du Développement des compétences prend en considération les circonstances visées aux alinéas (1)a) a` e) [...] Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 97

Argument Preliminary Issue 19 The Respondent objects to the affidavits the Applicant has submitted on judicial review. The affidavit from the Applicant’s prospective employer (Gobuyan) contains a description of the training program which the Applicant would go through. Although the Applicant refers to this training program in her argument, this evidence was not before the Of- ficer so the Court should not consider it on judicial review. The Appli- cant’s affidavit also contains a description of her duties as a waitress with Carnival Cruise Lines Ltd. which was not before the Officer. The Court should also disregard this evidence.

The Applicant Decision is Unreasonable 20 The Decision is unreasonable because the Officer relied on an erroneous interpretation of the LMO. He found he was obligated to refuse the application because the LMO required three years experience, which the Applicant did not have. The LMO does not require three years experience. Although the application for the LMO refers to three years of experience, this was not a part of the LMO given by HRSDC. The only requirements the LMO lists are a trade diploma or certificate and English and Thai language skills, both of which the Applicant meets. 21 The Decision is also unreasonable because the Officer relied on a condition from HRSDC to refuse the Application. Justice Judith Snider said at paragraph 12 of Chen v. Canada (Minister of Citizenship & Immi- gration), 2005 FC 1378 (F.C.) that In all applications, the visa officer is under a duty to examine all of the relevant evidence before him in order to come to an independent assessment of whether there are reasonable grounds to believe that the Applicant is unable to perform the work (Regulations, s. 200(3)(a)). The officer cannot be bound by a statement by HRDC that English is or is not required; he cannot delegate his decision making function to a third party such as HRDC. Conversely, a statement by an applicant or employer that English is not required cannot be binding on the visa officer. The officer must carry out his own evaluation based on a weighing of all of the evidence before him. 22 It was unreasonable for the Officer to rely on the three years experience requirement as the only factor in his Decision. Citizenship and Im- migration Canada (CIC) has published the FW-1 Temporary Foreign 98 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Worker Guidelines (Manual) to assist officers in processing foreign worker applications. The Manual says at page 93 that Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job. 23 Randhawa v. Canada (Minister of Citizenship & Immigration), 2006 FC 1294 (F.C.) says at paragraph 17 that While it is reasonable to require that an applicant satisfy the job requirements of a particular position before obtaining a work visa, it is unreasonable not to take into account some measure of job orientation that would inevitably be provided to the claimant. 24 The Officer did not consider the orientation the Applicant’s employer in Canada was going to give her after she arrived, which means the Deci- sion is unreasonable. 25 The Decision is also unreasonable because the Officer did not take into account the training the Applicant had received in Thai cooking. The Officer mentioned the Training Certificates in the GCMS notes. How- ever, his statement that “since the Applicant does not have the required three years of experience, I am obligated to refuse her application” shows he failed to asses the whole of the Applicant’s education, international experience, and knowledge of Gobuyan’s clientele. Chen, above, establishes that officers are obligated to examine all relevant evidence and come to an independent assessment of an applicant’s skills. The Officer did not do this, so the Decision is unreasonable. 26 Further, the Officer did not consider the requirements set out in the National Occupation Classification (NOC) which HRSDC used to evaluate the Applicant’s LMO. The NOC for cooks does not require three years of experience, though it requires completion of secondary school and a college or other program in cooking. The Applicant meets the requirements under the NOC because she has a Bachelor of Arts degree and has completed cooking courses. The Officer did not consider how the Applicant met the requirements in the NOC for the position she applied for, so the Decision is unreasonable. Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 99

The Officer Breached Procedural Fairness 27 Although the Officer interviewed the Applicant, nothing on the record indicates the interview addressed other requirements for the Appli- cant’s job in Canada. The Officer did not ask the Applicant about her duties as a team waitress for Carnival or how her experience there met the requirements of her job in Canada. He apparently thought that, because the Applicant did not have three years of experience he did not need to look at the other skills and training she possessed. The Officer’s failure to ask the Applicant about other aspects of her application was a breach of procedural fairness.

Inadequate Reasons 28 The Officer provided inadequate reasons, which also breached her right to procedural fairness. The reasons do not show what standard the Officer applied to evaluate whether the Applicant could perform the work required of her. They also do not show the Applicant was correctly assessed during the interview or how the Officer took the interview into account.

The Respondent 29 The Officer reasonably concluded the Applicant did not meet the requirements of the temporary foreign worker program, so the Decision should stand. 30 Work permit applicants must satisfy officers that they are able to perform the work required of them in Canada. When evaluating an applicant’s ability to perform the work required of them, officers are permitted to consider logically relevant considerations. See Chen, above, at paragraph 13. In this case, the Applicant’s experience working as a cook was relevant to her ability to perform her duties in Canada. The LMO was issued for a cook position and the Applicant admitted she had no experience as a cook. The Officer reasonably found the Applicant’s experience as a waitress did not show she could perform the duties of a cook. 31 Although the Applicant has said the Officer incorrectly interpreted the three year work experience requirement in the LMO, this requirement was not determinative. The Decision was consistent with objective requirements for the position the Applicant sought, including the three years experience set out in the LMO. The Decision was also consistent with the NOC for the position, which sets out completion of college or 100 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

another program or several years commercial cooking experience as requirements. The Officer considered the courses the Applicant had taken, but found her lack of work experience meant she could not perform the duties expected of her in Canada. 32 Randhawa, above, is distinguishable on its facts. In that case, the officer relied on standards outside the relevant NOC and her own standards to evaluate the application in question. In this case, the Officer relied on the relevant NOC and objective standards of employment experience. 33 The Officer also did not ignore any of the Applicant’s work experience. Randhawa, at paragraph 17, contemplates a situation where an officer ignores job training that could overcome other reasonable grounds to find an applicant cannot perform the work sought. Here, the evidence about the training program was not before the Officer, so the Court should not consider whether this would show the Applicant would be able to perform the work she sought in Canada.

No Breach of Procedural Fairness 34 In an application for a work permit, the duty of procedural fairness is low because applicants are free to reapply at any time. See Qin v. Canada (Minister of Citizenship & Immigration), 2002 FCT 815 (Fed. T.D.)at paragraph 5. The Officer did all that was required of him in this case, so there was no breach of procedural fairness.

Reasons are Adequate 35 The Officer’s reasons are adequate because they inform the Applicant why her application was refused. They also allow her to decide whether to seek judicial review. The reasons show the Officer was not satisfied that the Applicant would be able to perform the job she sought because she did not have enough work experience. The reasons also show how the Officer considered other evidence before him, including the interview. The Reasons were adequate given the minimal duty of fairness the Officer owed the Applicant in this case.

No Requirement to Notify 36 The Applicant bore the burden of showing the Officer she met the requirements of the Act. In Ayyalasomayajula v. Canada (Minister of Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 101

Citizenship & Immigration), 2007 FC 248 (F.C.), Justice Carolyn Layden-Stevenson had this to say at paragraph 19: In this case, the visa officer’s concerns stemmed from a deficiency regarding the applicant’s supporting documentation. There was no duty to put the applicant on notice. The nature of the information was the same as that required upon the submission of the application. The applicant knew precisely what the letters of reference must contain. The question of the applicant’s “knowledge” is discussed in the next section of these reasons. There was no breach of procedural fairness. 37 The Officer made his Decision based on the information the Appli- cant submitted and he cannot be faulted for not asking questions. The Applicant was required to provide all necessary information, including how her experience as a waitress would allow her to perform the work she sought in Canada. She did not do this and the Officer was not required to inform her of the deficiencies in her work experience.

The Applicant’s Reply 38 The Respondent has said the Officer considered the Applicant’s work experience independently of the LMO, but this is incorrect. His statement that, “since the Applicant does not have the required three years of experience, I am obligated to refuse her application” shows the Applicant’s lack of experience was the determinative factor in her application. He determined her application based on her experience even though there was other relevant evidence before him. 39 Although the Respondent refers to a document which says the job the Applicant sought in Canada required three years of experience, this document (CTR page 3) is not an LMO. The Officer therefore misinterpreted the requirements for the Applicant’s job in Canada. 40 The NOC relevant to the job the Applicant sought in Canada refers to either experience or training as requirements. Applicants under this NOC do not have to have both experience and education to meet the requirements. The Officer’s statement that “[The Applicant] recently attended a Thai foods cooking class” shows he disregarded her education.

The Respondent’s Further Memorandum 41 When he applied for an LMO to bring temporary workers to Canada, Gobuyan listed three years of experience as a requirement for the job. HRSDC issued an LMO on the strength of Gobuyan’s submissions. The documentation which was before the Officer established that three years 102 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

of experience was required for the job. The Officer reasonably concluded, based on his interview with the Applicant, that she lacked the necessary three years of experience as set out in the LMO document before him.

Interpretation of LMO Requirement Reasonable 42 Subparagraph 200(1)(c)(iii) of the Regulations establishes the requirement for an LMO. This document provides HRSDC’s opinion as to the effect a proposed temporary worker will have on the Canadian labour market. Chen, above, at paragraph 13 establishes that visa officers are not bound by a positive LMO. 43 In this case, the LMO required three years of experience in the food services industry. The Officer reasonably concluded this meant three years experience as a cook. The LMO in this case was issued for a position as a cook, not a waitress. Further, the LMO Application — which the Respondent has entered into evidence on judicial review by the Of- ficer’s affidavit — shows the work experience requirement was a factor in assessing the LMO.

Determinative Factor Reasonable 44 It was open to the Officer in this case to put controlling weight on the Applicant’s work experience. See Boughus v. Canada (Minister of Citizenship & Immigration), 2010 FC 210 (F.C.) at paragraph 57. This means that Chen, above, cannot stand for the proposition that visa officers are prohibited from basing their decisions on LMOs. Paragraph 200(3)(a) of the Regulations also shows it was reasonable for the Officer to assign determinative weight to the LMO requirements. Paragraph 200(3)(a) required the Officer to be satisfied the Applicant could perform the requirements of the cook position she sought in Canada. 45 Even though the Officer found one factor determinative, this does not mean he ignored evidence. The Officer turned his mind to all the other evidence, as the reasons clearly show.

Work Experience Reasonably Assessed 46 There is no evidence the Officer applied his own standard of what was required to perform the duties of a cook. The Officer looked at the requirements of the relevant NOC and compared them to the Applicant’s work experience. Justice Yves de Montigny approved this approach in Talpur v. Canada (Minister of Citizenship & Immigration), 2012 FC 25 Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 103

(F.C.) at paragraph 31. Applying this approach, the Officer reasonably concluded the Applicant did not have the ability to perform the duties of a cook. She cannot now attempt to rehabilitate her application by presenting evidence to the Court which was not before the Officer.

Analysis 47 Under subsection 200(3) of the Regulations (3) An officer shall not issue a work permit to a foreign national if: (a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought; [...] (3) Le permis de travail ne peut etreˆ délivré a` l’étranger dans les cas suivants: a) l’agent a des motifs raisonnables de croire que l’étranger est incapable d’exercer l’emploi pour lequel le permis de travail est demandé; [...] 48 It is clear from the reasons in the present case, that the Officer reviewed the application, interviewed the Applicant, and refused the application for a work permit because: a. “Ap admits that she has no employment experience in the position of cook. She just recently attended a Thai foods cooking class”; and b. “Since ap does not have a three yrs. employment experience in food service industry as required in the LMO, I am, then, obliged to refuse her application.” 49 The Applicant says that the Officer made a reviewable error here because the “Labour Market Opinion [...] submitted to the immigration officer along with the work permit application does not require three years experience.” She says that such a requirement was not before the immigration officer for consideration. 50 The Applicant concedes, however, that the “three years experience was mentioned by the employer in his LMO application.” 51 The LMO confirmation in this case sets out that the applicable NOC code and title is “6242 — Cook — Thai cuisine” (CTR page 16). The letter accompanying the positive confirmation to the employer makes it clear that “This SC labor market opinion is based on the information in your application, which is outlined in the attached annex.” 104 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

52 The Applicant concedes the necessary three-year experience as a cook was set out in the employer’s application upon which the LMO is based. In fact, the Job Details say that the duties are “cook authentic Thai, buffet and dinner, dishes; assists management in developing new menus; manage and oversee kitchen operations and supplies.” The requirements say “at least three years experience in food service industry, dealing with international Thai clientele.” 53 The job advertisement, admitted into evidence through Gobuyan’s affidavit, discloses, inter alia, the following requirements: a. Title: Ethnic food cook (Thai cuisine cook) (NOC: 6242); b. Education: Some college/CEGEP/vocational or technical training; c. Credentials: Cook Trade Certification; d. Experience: 2 years to less than 3 years; e. Cook categories: First cook, second cook, cook (general); f. Food preparation specializations: bakery goods and desserts, stocks, soups and sauces, eggs and dairy, cold kitchen (salads, appetizers, sandwiches), cereals, grains and pulses, vegeta- bles, fruits, nuts and mushrooms, meat, poultry, fish, seafood; g. Types of Meals/Food Prepared: lunches, dinners, buffet; h. Specific Skills: prepare and cook individual dishes and foods, ensure quality of food and determine size of food proportions, work with minimal supervision, inspect kitchens and food service areas, order supplies and equipment, work with specialized cooking equipment (deep fryer, etc.), clean kitchen and work areas. 54 It is clear that, for this job, the Applicant would need, in addition to formal certification, a significant amount of actual experience as a specialized Thai cook. The job details before the Officer showed that “three years experience in the food service industry [...]” was a requirement. The Officer also interviewed the Applicant and she told him she had no employment experience in the position of cook. With this information before the Officer, it is not difficult to understand why he concluded that the Applicant did not have the necessary work experience for the job. This being the base, subsection 200(3) of the Regulations makes it clear that he could not grant the work permit. The fact that the three-year requirement was not stipulated in the LMO itself is not the real issue. The LMO confirmation is based upon the application and the NOC for the job. The Applicant just did not have the experience for the job. Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 105

55 As the Respondent points out, the Officer in the present case considered the Applicant’s experience working as a cook to be a relevant and logical consideration in the assessment of whether the Applicant would be able to perform the work sought. This was a reasonable finding, given the LMO was issued for the position of cook. The Officer was not satisfied with the Applicant’s work experience, as outlined in her application. The Officer therefore conducted an interview, and the Applicant admitted that she had no experience as a cook. 56 It was logical for the Officer to find that experience as a waitress is distinct from the experience and duties of a cook. 57 The Applicant’s statement that the Officer took the wrong interpretation of a three-year work experience requirement in the LMO, as in Chen, above, is not, in my view, determinative. The Officer considered the Applicant’s experience as a waitress independently of the LMO and in light of the work she sought to perform in Canada. 58 I agree with the Respondent that the Officer’s determination in this regard was consistent with objective requirements for employment experience. The Officer’s determination is consistent with the language in the job details requiring “at least 3 years experience in Food Service Indus- try, Dealing with International Thai Clientele.” The determination is also consistent with the objective standards outlined by HRSDC in NOC 6242 — Cooks for which the LMO was explicitly issued. HRSDC ex- plains this NOC on its website. The relevant portion of NOC — 6242 Cooks provides the following objective “Employment Requirements”: • Completion of secondary school usually required; • Completion of a three-year apprenticeship program for cooks; or • Completion of college or other program in cooking; or • Several years of commercial cooking experience are required; • Trade certification is available but voluntary in all provinces and territories. • Interprovincial trade certification (Red Seal) is also available to qualified cooks. 59 The Applicant also appears to be suggesting that, even if she did not have the experience required for the job, it was unreasonable for the Of- ficer not to take into account some measure of job training and orientation that would be provided to her. 106 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

60 There is no evidence before me in this application that the Officer did not consider this factor or, more importantly, that there was any evidence before the Officer that the required amount of work experience was a requirement that could be offset by training and orientation. 61 There was no material or erroneous finding of fact here. The Officer looked at the record before him to see what experience the job required and reasonably concluded that the Applicant did not have this experience. The Applicant tries to make much of the fact that the three-years of employment experience as a cook was not set out in the LMO. However, as already explained, the LMO by its own terms is based upon what is set out in the application and the Officer is not assessing the LMO; his job is to assess whether the Applicant has the necessary experience for the job. This is what he did. 62 There is no indication either that the Officer failed to assess the Ap- plicant’s whole education, her international experience, her English and Thai language skills or any other pertinent fact. These matters are all set out in the reasons. There is nothing in the job description which says that these other qualifications will be sufficient if the Applicant does not have the necessary experience as a cook. The Officer was entitled to decide that, notwithstanding all of the factors, the lack of experience as a cook was determinative. See Boughus, above, at paragraph 57. The Applicant is simply asking the Court to find that her formal credentials and other work experience are sufficient to override her lack of experience as a cook. This is not the role of Court. 63 It is well-established that the level of procedural fairness in this situation is low. See Qin, above, at paragraph 5. It was up to the Applicant to prepare an application that would convince the Officer that she had the qualifications and experience to perform the work. See Masych v. Canada (Minister of Citizenship & Immigration), 2010 FC 1253 (F.C.) at paragraph 31 and Prasad v. Canada (Minister of Citizenship & Immigra- tion), [1996] F.C.J. No. 453 (Fed. T.D.) at paragraph 7. In addition, the Officer interviewed the Applicant and she had every opportunity to convince him she could perform the work of a cook. It was for the Officer alone to determine if the Applicant met this requirement. 64 There was no procedural unfairness in this case and the Decision was reasonable. The Officer simply found, on the evidence before him, that there were reasonable grounds to believe that the Applicant was not able to perform the work required. Naturally, the Applicant disagrees with this conclusion, but that is not a reviewable error. In any event, the Ap- Grusas v. Canada (Minister of Citizenship & Immigration) James Russell J. 107

plicant is young. She can acquire further experience and apply again if opportunities arise in Canada. 65 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is dismissed. 2. There is no question for certification. Application dismissed. 108 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Jacobo v. Canada (Minister of Citizenship & Immigration)] Emilio Flores Jacobo, Yesenia Alvarez Garciae, Emilio Flores Alvarez, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1660-11 2012 FC 345 John A. O’Keefe J. Heard: October 3, 2011 Judgment: March 21, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibil- ity –––– Principal applicant applied for refugee protection with co-applicant wife and minor applicant child — In 2005, principal applicant began working for government vehicle registration department in Mexico — His job entailed checking vehicle registrations for stolen vehicles imported into state — He began noticing vehicles on street that had previously been identified as stolen at office — He reported observation to supervisor, who told him to ignore matter — He then made complaint about supervisor to public ministry — During investigation of corruption in office, some men shot and killed commandant who was assigned to investigate matter — These men also shot at but missed principal applicant — One man chased him down and demanded that he give him documents relating to corruption incidents — Principal applicant managed to escape — Supervisor went to home of principal applicant’s mother and demanded documents — Based on fear of supervisor, applicants fled Mexico on June 20, 2009 and claimed refugee protection in Canada — Applicants brought application for judicial review of decision of Immigration and Refugee Board, Refugee Protection Division (“Board”), dated February 22, 2011, wherein applicants were determined to be neither Convention refugees within meaning of s. 96 of Immigration and Refugee protection Act (“Act”) nor persons in need of protection as defined in s. 97(1) of Act — Application granted — Board’s decision was unreasonable and was set aside and referred to different panel of board for redetermination — Board should have analyzed evidence to determine whether applicants satisfied test, so as to determine whether applicants had nexus with enumerated ground under s. 96 of Act — Principal applicant was not found to be not credible — Principal applicant’s evidence showed that there was corruption in department in which he worked — In fact, it appeared that former police Jacobo v. Canada (MCI) 109 commandant was murdered while attempting to provide evidence of corruption to governor — Evidence also shows that commandant had been fired because he was investigating corruption. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Principal applicant applied for refugee protection with co-applicant wife and minor applicant child — In 2005, principal applicant began working for government vehicle registration department in Mexico — His job entailed checking vehicle registrations for stolen vehicles imported into state — He began noticing vehicles on street that had previously been identified as stolen at office — He reported observation to supervisor, who told him to ignore matter — He then made complaint about supervisor to public ministry — During investigation of corruption in office, some men shot and killed commandant who was assigned to investigate matter — These men also shot at but missed principal applicant — One man chased him down and demanded that he give him documents relating to corruption incidents — Principal applicant managed to escape — Supervisor went to home of principal applicant’s mother and demanded documents — Based on fear of supervisor, applicants fled Mexico on June 20, 2009 and claimed refugee protection in Canada — Applicants brought application for judicial review of decision of Immigration and Refugee Board, Refugee Protection Division (“Board”), dated February 22, 2011, wherein applicants were determined to be neither Convention refugees within meaning of s. 96 of Immigration and Refugee protection Act (“Act”) nor persons in need of protection as defined in s. 97(1) of Act — Application granted — Board’s decision was unreasonable and was set aside and referred to different panel of board for redetermination — Board should have analyzed evidence to determine whether applicants satisfied test, so as to determine whether applicants had nexus with enumerated ground under s. 96 of Act — Principal applicant was not found to be not credible — Principal applicant’s evidence showed that there was corruption in department in which he worked — In fact, it appeared that former police commandant was murdered while attempting to provide evidence of corruption to governor — Evidence also shows that commandant had been fired because he was investigating corruption. Cases considered by John A. O’Keefe J.: Ariyathurai v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 2133, 2009 FC 716, 2009 CarswellNat 4191, 2009 CF 716, 80 Imm. L.R. (3d) 257, [2009] A.C.F. No. 879, [2009] F.C.J. No. 879 (F.C.) — referred to Gaymes v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2610, 2010 CF 801, 2010 FC 801, 2010 CarswellNat 3107, [2010] A.C.F. No. 982, [2010] F.C.J. No. 982 (F.C.) — referred to 110 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Guzman v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 2535, 179 F.T.R. 309, [1999] F.C.J. No. 1869 (Fed. T.D.) — considered 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 James v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 546, 2010 CarswellNat 1413, 2010 CF 546, 2010 CarswellNat 2586, [2010] A.C.F. No. 650, [2010] F.C.J. No. 650 (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 Klinko v. Canada (Minister of Citizenship & Immigration) (2000), [2000] 3 F.C. 327, 184 D.L.R. (4th) 14, 251 N.R. 388, 2000 CarswellNat 283, 179 F.T.R. 253 (note), 2000 CarswellNat 3251, [2000] F.C.J. No. 228 (Fed. C.A.) — distinguished Lozano Navarro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 768, 2011 CarswellNat 2407, 2011 FC 768, 2011 CarswellNat 3294, [2011] A.C.F. No. 968, [2011] F.C.J. No. 968 (F.C.) — referred to Marino Gonzalez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 971, 2011 FC 389, 2011 CarswellNat 2741, 2011 CF 389, (sub nom. Gonzalez v. Canada (Minister of Citizenship & Immigration)) 387 F.T.R. 226 (Eng.), [2011] F.C.J. No. 498, [2011] A.C.F. No. 498 (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 Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Jacobo v. Canada (MCI) John A. O’Keefe J. 111

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — considered s. 96 — considered s. 97 — considered s. 97(1) — considered s. 97(1)(a) — considered s. 97(1)(b) — considered

APPLICATION by applicants for judicial review of decision of Immigration and Refugee Board, Refugee Protection Division wherein applicants were determined to be neither Convention refugees nor persons in need of protection.

David Matas, for Applicants Nalini Reddy, 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 22, 2011, wherein the applicants were determined to be neither Convention refugees within the meaning of section 96 of the Act nor persons in need of protection as defined in subsection 97(1) of the Act. This conclusion was based on the Board’s finding that the principal applicant had witnessed corruption by some individuals rather than the Mexican government more broadly and that the principal applicant had failed to rebut the presumption of state protection. 2 The applicants request that the Board’s decision be quashed.

Background 3 Emilio Flores Jacobo is the principal applicant. Yesenia Alvarez Garciae, is the principal applicant’s wife and their child, Emilio Flores Alvarez, is the minor applicant. 4 Prior to 2005, the principal applicant worked as a business account- ant. He also briefly helped put up campaign signs for a local political campaign. 5 In late 2005, the principal applicant began working for the government vehicle registration department. His job entailed checking vehicle 112 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

registrations for stolen vehicles imported into the state. Initially, he encountered no problems at work. However, to protect the safety of its in- spectors, the government regularly moved them to different municipali- ties. Therefore, in 2007, the principal applicant was moved to a new municipality. There, he began noticing vehicles on the street that had previously been identified as stolen at his former office. He reported this observation to his supervisor, Carlos Avena Ledon, who told him to ignore the matter. He therefore made a complaint about Mr. Ledon to the Public Ministry. A civil servant recorded the complaint. The principal applicant was unable to obtain a copy of the complaint. He was never contacted and was not aware of any follow-up to his complaint. 6 The principal applicant also began receiving requests to sign-off on vehicles that he found had false papers. Although Mr. Ledon ordered him to pass them, the principal applicant refused to do so. Finally, Mr. Ledon summoned the principal applicant to his office and threatened him should he not cooperate. Mr. Ledon said that he was the nephew of the local Governor, Ney Gonzalez Sanchez, and could therefore do as he wanted. The principal applicant told Mr. Ledon that he would report him to the General Secretary of Public Security, Commandant Julio Cesar Jimenez Arcadia (the Commandant). Mr. Ledon seemed unconcerned. 7 The principal applicant did report to the Commandant, stating that Mr. Ledon was putting stolen vehicles on the road and had falsely accused the principal applicant of doing so. The Commandant replied that he was in the process of investigating the situation. Mr. Ledon found out about the report and began harassing the principal applicant. Subse- quently, at the end of his contract, the principal applicant left his employment at the vehicle registration department. He kept some documents as evidence of the corruption incidents. 8 After leaving the vehicle registration department, the Commandant helped the principal applicant secure work as a driver in the Secretariat of Health Office. Concurrently, he applied for the Agricultural Workers Program (Mexico-Canada) and later, in 2008, he completed a seven month contract in Ontario. Within days of returning to Mexico, the principal applicant was informed by friends that individuals with judicial police certification had tried to reach him. The principal applicant believed these people had been sent by Mr. Ledon. 9 The principal applicant was subsequently asked to report to the Gov- ernor’s office. Before going, he called the Commandant to thank him for the driver’s job. The Commandant informed him that he had been fired Jacobo v. Canada (MCI) John A. O’Keefe J. 113

due to his investigation of the sale of stolen cars and drug trafficking within the police. The Commandant asked to accompany the principal applicant to the Governor’s office to present his own evidence. 10 On their way to the Governor’s office, the principal applicant and the Commandant stopped to pick up some advertising materials. Upon exit- ing the shop, four men confronted, shot and killed the Commandant. These men also shot at, but missed the principal applicant. One man chased him down and demanded that he give him the documents of the corruption incidents. However, as the Commandant’s death drew a large public crowd, the principal applicant was able to slip away and escape. 11 After escaping, the principal applicant fled to his in-laws’ farm and later to the mountains where he hid for approximately five months. The principal applicant’s wife and son were allegedly able to escape Mr. Ledon’s attention because in 2005, when the principal applicant first began working at the vehicle registration department, his civil status was single. The couple married the following year, on May 10, 2006. There- fore, according to the principal applicant, Mr. Ledon did not know of the existence of his wife and son. 12 In June 2009, Mr. Ledon visited the house of the principal applicant’s mother, demanding the documents of the corruption incidents. Mr. Ledon retrieved some, but not all of them. At the same time, Mr. Ledon demanded the whereabouts of the principal applicant and threatened to kill him. 13 Based on their fear of Mr. Ledon, the applicants fled Mexico on June 20, 2009. They claimed refugee protection in Canada on July 2, 2009.

Board’s Decision 14 The applicants’ claim was heard by the Board on January 18, 2011. The Board’s decision was issued on February 18, 2011. 15 The Board found: 1. The applicants are not Convention refugees as they do not have a well-founded fear of persecution on a Convention ground in Mexico; 2. The applicants are not persons in need of protection in that their removal to Mexico would not subject them personally to a risk to their lives, or to a risk of cruel and unusual treatment or punishment; and 114 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

3. There are no substantial grounds to believe their removal to Mex- ico would subject them personally to a danger of torture. 16 In assessing the Convention refugee claim, the Board referred to the grounds on which a person must fear persecution to qualify under the definition; namely: race, religion, nationality, membership in a particular social group or political opinion. The Board acknowledged that it is established jurisprudence that where corruption so permeates the government, an applicant opposed to the corruption may fear persecution on the grounds of political opinion (see Klinko v. Canada (Minister of Citizenship & Immigration), [2000] 3 F.C. 327, [2000] F.C.J. No. 228 (Fed. C.A.), at paragraph 35). However, the Board found the facts in this case to be distinguishable from those in Klinko above. The Board referred to the country evidence in finding that although corruption was present in some Mexican institutions, the country is a functioning democracy rather than a failed state and the government is taking steps to deal with crime and corruption. The Board also found that only particular individuals were targeting the principal applicant. For these reasons, the Board refused to find that corruption was part of the very fabric of the Mexican system. 17 Turning to the claim that the applicants were persons in need of protection under section 97 of the Act, the Board held that since no allegations of torture were made, no such claim was established under paragraph 97(1)(a). 18 Under paragraph 97(1)(b), the Board examined the evidence to determine whether the applicants would face a risk to their lives or a risk of cruel and unusual treatment or punishment should they return to Mexico. The Board found that the determinative issue on this point was state protection. To rebut the presumption of state protection in a functioning democracy, the Board required the applicants to produce objectively-based, clear and convincing evidence of the state’s inability to protect them. 19 The Board found it questionable that there was a discrepancy between the principal applicant’s Personal Information Form (PIF) and his testimony on whether or not he reported Mr. Ledon’s corruption to the Public Ministry. Nevertheless, the Board proceeded on the basis that it had been reported. No report of the complaint was available and the principal applicant testified that as he did not see any results from his reporting of the corruption, he concluded, without inquiring any further, that the police were not doing anything to investigate the matter. As the principal appli- Jacobo v. Canada (MCI) John A. O’Keefe J. 115

cant’s subjective belief of police corruption was not supported by objective evidence, the Board was not convinced of this claim. 20 The Board also found some of the principal applicant’s decisions and actions questionable. For instance, the Board found it illogical or unbe- lievable that: 1. The principal applicant would inform Mr. Ledon of his intention to report him if he truly feared him; 2. The principal applicant would make his initial complaint to a civil servant if he had ready access to a high level police officer such as the Commandant; 3. The principal applicant would not seek a follow-up of his complaint with the Commandant; 4. The letter of complaint sent by the principal applicant to the Com- mandant focused on Mr. Ledon accusing him of taking a bribe rather than on the alleged corruption related to the stolen cars; 5. The men who shot the Commandant would allow the principal applicant to escape solely because a crowd had gathered; and 6. The principal applicant did not report what he saw when the Com- mandant was shot, even though the murder generated significant public interest. 21 The Board then referred to country evidence that labelled Mexico a democracy with a relatively independent and impartial judiciary. The evidence also described the police forces as hierarchal; suggesting the possibility for citizens to seek redress at higher levels if dissatisfied with local services. In addition, the Board highlighted evidence showing that several authorities and agencies are available to the public if they believe they have encountered corrupt officials or if they are dissatisfied with the services of security forces. Acknowledging the evidence on the corruption in parts of the Mexican administration, including the police, the Board referred to other evidence that pointed to efforts made to purge the agencies of such corruption, including new legislation and government led anti-corruption operations. The Board found that although there may be corrupt individuals working within the government system, this did not mean that the entire system was corrupt, as the principal applicant subjectively believed. 22 The Board also found no evidence of a complete breakdown of the Mexican state apparatus. It noted the lack of evidence of similarly situated individuals with past personal experiences that would lead the prin- 116 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

cipal applicant to believe that state protection was not reasonably available to him. 23 In summary, the Board found that the principal applicant had not provided clear and convincing evidence that state protection would not be available to him in Mexico should he seek it and that under the circumstances, it would not be unreasonable for him to seek it. 24 As the claims of the minor applicant and the wife of the principal applicant were based on the same facts as the principal applicant’s claim, the Board held that its analysis and evaluation on state protection applied equally to them.

Issues 25 The applicants submit the following points at issues: 1. Nexus and section 96 of the Act; a. Some evidence / no evidence; b. Nexus and state protection; and 2. State protection and 97 of the Act. 26 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the Board err in finding that the applicants’ claims lacked nexus with the enumerated grounds under section 96 of the Act? 3. Did the Board err in its analysis of state protection under section 97 of the Act?

Applicants’ Written Submissions 27 The applicants submit that corrupt elements in Mexico so permeate the government as to be part of its very fabric. As the principal applicant is opposed to corruption, his opposition amounts to a political opinion and therefore falls within the Convention refugee definition under section 96 of the Act. 28 The applicants submit that the Board unreasonably found no evidence that corruption was so pervasive in Mexico that it was part of its very fabric. The applicants point to excerpts in the country evidence that they submit provide a reasonable basis on which to find such pervasive corruption — the relevant sections are as follows: Jacobo v. Canada (MCI) John A. O’Keefe J. 117

• United States Department of State Country Reports on Human Rights Practices for 2009, released in 2010, recognized that: • The President of Mexico had remarked that corruption was a serious problem in the country’s police forces; • Police, especially at the state and local level, were involved in kidnapping, extortion, and in providing protection for, or acting directly on behalf of, organized crime and drug traffickers; • Local forces tended to be directly pressured by criminal groups, leaving them most vulnerable to infiltration; and • Impunity in the country was pervasive, contributing to the reluctance of many victims to file complaints. • USA Today reported in 2008 that: • The Mexican government and army were attempting to purge local forces of corrupt officers; and • Similar attempts had failed in the past and some analysts doubted that the attempts would produce lasting results. • University of Chicago Chronicle reported in 1995 that: • A history professor reported that corruption had been a force in public life in Mexico since colonial times; • Corruption in Mexico consisted of an intricate system of exchanges in return for certain privileges; and • Corruption developed as a means of raising revenues and has developed its own set of norms and public expectations. • Metropolitan Corporate Counsel reported in 2009 that: • Recent widespread violence is speculated to be a response to increasing efforts to confront corruption; • Corruption is largely associated with the drug trade; • Bribery is a long-standing tradition in Mexico; • The government has attempted to change the corruption since the 1990s with modest success; • Mexico has a score of 3.6 out of 10 on the Transparency International’s Corruption Perceptions Index that measures the degree of corruption associated with doing business; and 118 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

• Although Mexico has very strong anti-corruption laws, businesses still report that corruption remains a major issue. 29 In support of their submission on section 96, the applicants draw an analogy to the facts in Guzman v. Canada (Minister of Citizenship & Immigration) (1999), 179 F.T.R. 309, [1999] F.C.J. No. 1869 (Fed. T.D.). In Guzman above, the applicant feared physical harm should she return to Mexico because of her knowledge of corruption in the government’s tax department. The applicants submit that the Court in Guzman above, upheld the applicant’s counsel’s characterization that nothing had changed in Mexico, even though the government had been claiming it was fighting corruption. Although Guzman above, was decided in 1999, the applicants submit that the situation in Mexico remains much the same today. 30 In further support of their submission on section 96, the applicants submit that the Board confused the two components of the Convention Refugee definition; namely nexus and state protection. The applicants refer to the following statement made by the Board: Mexico is not a failed state but rather is a functioning democracy who’s [sic] institutions follow the rule of law. Country documents tell me that the government is taking serious steps to deal with crime and corruption within its ranks. [emphasis added] 31 According to the applicants, the failed state reference applies to the state protection test and not the nexus test. The applicants refer to Klinko above, stating that based on evidence in that case — 9,000 officials convicted of economic crimes — it was also open for the reviewing Court to find that the government was taking serious steps to deal with corruption in its rank. However, the Court did not do so and it was wrong for the Board to deny this part of the applicants’ claim on that basis in this case. 32 The applicants refer to Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.), in their submission that the Board incorrectly required the applicants to rebut the presumption of state protection in the section 96 analysis. Rather, they submit that the need to rebut state protection does not even arise where a complete breakdown has occurred of the state apparatus. 33 In addition, the applicants submit that the Board failed to assess the three components of the absence of state protection, namely: 1. Complete breakdown of the state apparatus; Jacobo v. Canada (MCI) John A. O’Keefe J. 119

2. Personal experience; or 3. Experience of the similarly situated. Therefore, according to the applicants, the Board applied the test incorrectly. 34 The applicants also submit that there are different standards of proof under sections 96 and 97 of the Act: reasonable possibility or good grounds (section 96) and whether persecution is more likely than not (section 97). 35 The applicants submit that the Board erred by confusing the subjective with the objective. On the nexus point, the applicants rely on Ward above, at paragraph 83, in their submission that what matters is whether, from the perspective of the feared agent of persecution, an applicant has a political opinion. Therefore, a claim of nexus cannot be dismissed merely by reference to state protection. 36 The applicants submit that the Board overstated the criteria of permeation. In the applicants’ view, permeation means that corruption is widespread, not that there is nothing but corruption. In support, the applicants refer to the Court’s use of the word “part” in reference to the fabric of government in Klinko above, as evidence that this test does not require the whole government to be corrupt; corruption of a part of government is sufficient. 37 Finally, the applicants criticize the Board’s lack of objective assessment of the state’s ability to protect. They submit that the Board incorrectly focused solely on the state’s willingness and not its ability to protect. They refer to the above listed evidence as proof of the state’s inability to protect. 38 In summary, the applicants submit that the Board’s section 96 analysis was fundamentally flawed, which they claim is sufficient in itself to justify the setting aside of the decision. 39 Turning to the section 97 analysis, the applicants submit that the Board erred by only referring to Mexico’s willingness to protect and not objectively assessing its ability, or the effectiveness of its willingness, to protect. Further, the applicants submit that the following findings made by the Board showed that it was oblivious to the evidence before it: 1. No evidence of similarly situated individuals that did not receive state protection; and 120 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

2. Lack of evidence of past personal experience that would lead the applicants to believe state protection was not available to them. 40 As evidence contradicting these findings, the applicants refer to the shooting of the Commandant when he was on his way to visit the Gover- nor with the principal applicant to report the same corruption and the attempted shooting and kicking of the principal applicant. With regards to the principal applicant seeking protection, the applicants rely on Ward above, at paragraph 48, where the Supreme Court held that it would de- feat the purpose of international protection if an applicant had to risk his life seeking ineffective state protection, merely to demonstrate that it was ineffective. 41 In summary, the applicants submit that the Board’s decision was made without regard to the material before it and was perverse and capricious.

Respondent’s Written Submissions 42 The respondent submits that the Board conducted the required analysis for determining whether the principal applicant’s opposition to corruption constituted a political opinion under section 96 of the Act and that it made a reasonable determination based on the evidence before it. The respondent highlights the Board’s awareness of the evidence of crime and corruption in Mexico, as well as the evidence that supported its finding that corruption was not part of the very fabric of the Mexican system. Therefore, the respondent submits that the Board’s conclusion was reasonable. 43 The respondent distinguishes Guzman above, from the case at bar. It emphasizes the Board’s analysis of whether corruption so permeated the state; an analysis not completed in Guzman above, as sufficient to distin- guish the two cases from one another. 44 The respondent also submits that the Board did not incorporate a state protection law concept in its analysis of nexus. The Board’s use of the words “failed state” in its assessment of the degree of corruption in the Mexican state did not render its nexus analysis erroneous. Rather, when read as a whole, instead of as a single sentence, the respondent submits that this section of the decision reveals that the Board did not commit the alleged error. 45 On the question of the Board’s state protection analysis under section 97 of the Act, the respondent submits that the Board’s decision shows Jacobo v. Canada (MCI) John A. O’Keefe J. 121

that it assessed both Mexico’s willingness and ability to protect. In support, the respondent refers to the Board’s conclusion that: ... the criminal justice system in Mexico is not corrupt but rather is a system of a functioning democracy and offers protection at an adequate level to Mexican citizens. 46 The respondent also submits that the Board made a reasonable finding that there was no credible evidence of similarly situated individuals who did not find state protection; or past personal experience that would lead the principal applicant to believe that state protection was not reasonably available to him. 47 The respondent refers to the limited evidence submitted on protection previously sought by the Commandant, his acts in opposing corruption and previous incidents in which he was targeted. This limited evidence was not sufficient to allow the Board to assess whether the principal applicant and the Commandant were similarly situated. With regards to the state protection previously sought by the principal applicant, the respondent submits that this was limited before the killing of the Commandant and non-existent thereafter. The respondent also submits that evidence adduced by the applicant on this point was insufficient to rebut the presumption of state protection. 48 In summary, the respondent submits that the Board’s decision was sound and without reviewable error. It should therefore stand and this application dismissed.

Analysis and Decision Issue 1 What is the appropriate standard of review? 49 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, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 50 It is established law that the findings of nexus to a Convention ground under section 96 of the Act are questions of mixed fact and law and reviewable against a standard of reasonableness (see Ariyathurai v. Canada (Minister of Citizenship & Immigration), 2009 FC 716, [2009] F.C.J. No. 879 (F.C.) at paragraph 6; Marino Gonzalez v. Canada (Minister of Citizenship & Immigration), 2011 FC 389, [2011] F.C.J. No. 498 (F.C.) at paragraph 22; Lozano Navarro v. Canada (Minister of 122 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Citizenship & Immigration), 2011 FC 768, [2011] F.C.J. No. 968 (F.C.) at paragraph 15). 51 It is also established law that assessments of the adequacy of state protection raise questions of mixed fact and law and are reviewable against a standard of reasonableness (see Hinzman, Re, 2007 FCA 171, [2007] F.C.J. No. 584 (F.C.A.) at paragraph 38; Gaymes v. Canada (Minister of Citizenship & Immigration), 2010 FC 801, [2010] F.C.J. No. 982 (F.C.) at paragraph 9; and James v. Canada (Minister of Citizenship & Immigration), 2010 FC 546, [2010] F.C.J. No. 650 (F.C.) at paragraph 16). 52 In reviewing the Board’s decision on the standard of reasonableness, the Court should not intervene unless the Board 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; Khosa v. Canada (Minister of Citizenship & Im- migration), 2009 SCC 12, [2009] S.C.J. No. 12 (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 paragraphs 59 and 61).

Issue 2 Did the Board err in finding that the applicants’ claim lacked nexus with the enumerated grounds under section 96 of the Act? 53 In the case at bar, the applicants’ claims must meet both of the following requirements for them to qualify as Convention refugees under section 96 of the Act: 1. have a well-founded fear of persecution for reason of their political opinion; and 2. be unable, or unwilling by reason of fear of that persecution, to avail themselves to the protection of Mexico. 54 As acknowledged by the Board, the first question may be answered affirmatively where an applicant opposes widespread corruption: [...] Where, as in this case, the corrupt elements so permeate the government as to be part of its very fabric, a denunciation of the existing corruption is an expression of “political opinion” [...] (see Klinko, above, at paragraph 35). Jacobo v. Canada (MCI) John A. O’Keefe J. 123

55 In this case, the Board did not find that corrupt elements so permeated the Mexican government. The question is whether this was a reasonable finding. 56 The Board stated at paragraphs 25 to 27 of its decision: [25] I have no evidence before me that corruption is so pervasive in the Mexican justice/political system that is a part of its very fabric. In fact the US Department of State report states that Mexico continues its fight against organized crime. There is no doubt that crime is a problem in Mexico and that corruption is present in some Mexican institutions. This does not mean, however, that corruption is part of the very fabric of the Mexican system as is required under Klinko before denunciation of criminal activity can be considered an expression of political opinion. Mexico is not a failed state but rather is a functioning democracy who’s [sic] institutions follow the rule of law. Country documents tell me that the government is taking serious steps to deal with crime and corruption within its ranks. [26] The evidence before me is that the principal claimant allegedly is being targeted by criminals that work within the Mexican government system. This does not mean that the entire system is corrupt. [27] I find that the harm feared by the claimants is not by reason of one of the five grounds enumerated in the Convention refugee definition. I therefore find that the claimants’ are not Convention refugees as defined in section 96 of the Act. 57 I do not agree with the Board that there was no evidence showing that corruption is a part of the very fabric of the Mexican system. As noted by the applicants, in order to satisfy Klinko above, it is not necessary to show that corruption is a part of the very fabric of the whole Mexican system. 58 In the present case, the principal applicant was not found to be not credible. The principal applicant’s evidence showed that there was corruption in the department in which he worked. In fact, it appears that the former police Commandant was murdered while attempting to provide evidence of the corruption to the Governor. The evidence also shows that the Commandant had been fired because he was investigating corruption. 59 As well, there is documentary evidence that supports the fact there is corruption within the Mexican system (see tribunal record at page 389 and applicants’ application record at pages 86 to 89, 90 to 95). 60 In my view, the Board should have analyzed this evidence to determine whether the applicants satisfied the test in Klinko above, so as to 124 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

determine whether the applicants had a nexus with an enumerated ground under section 96 of the Act. 61 As a result, the Board’s decision was unreasonable and must be set aside and referred to a different panel of the Board for redetermination. 62 The Board’s analysis of state protection was done for the purposes of section 97 of the Act and not for section 96, hence, I have no decision with respect to state protection for section 96 purposes. 63 Because of my findings on this issue, I need not deal with the remaining issue. 64 The applicants proposed serious questions of general importance for my consideration for certification. I am not prepared to certify these questions as they would not be dispositive of this case.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed 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. 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 Jacobo v. Canada (MCI) John A. O’Keefe J. 125

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. 126 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Adeoye v. Canada (Minister of Citizenship & Immigration)] Teslim Olatunbosun Adeoye, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7355-11 2012 FC 680 Richard G. Mosley J. Heard: May 24, 2012 Judgment: June 4, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — Adequate state protection –––– Applicant was citizen of Nigeria — Applicant sought protection in Canada in 1999 based on his involvement with student group that opposed government — Claim was rejected and applicant returned to Nigeria — Applicant made second claim after being accused of witchcraft and allegedly illegally detained at father’s request — Applicant married Canadian citizen and had pending sponsorship application — Pre-Removal Risk Assessment (PRRA) officer acknowledged that belief in witchcraft was widespread in Nigeria but stated that applicant had not demonstrated insufficiency of state protection and had not made reasonable efforts to seek protection — Applicant applied for judicial review of officer’s decision — Application granted — Decision overturned; matter remitted to different officer for redetermination — Standard of review for evaluation of evidence by PRRA officer was reasonableness — Officer’s scepticism about applicant’s claim and supporting documentation was apparent — De- cision, which contained number of grammatical and syntax errors, appeared to have been produced in rush — Officer had duty to assess evidence which contradicted finding and explained why it did not alter officer’s conclusion — Of- ficer’s conclusion that presumption of state protection was not overcome failed to take into account applicant’s claim that police were complicit in his mistreatment — Decision was not based on evidence and lacked intelligibility and justifiability. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Evidence — General principles. Adeoye v. Canada (MCI) Richard G. Mosley J. 127

Cases considered by Richard G. Mosley 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.) — referred to Hidalgo v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4886, 2011 FC 1334, 2011 CF 1334, 2011 CarswellNat 5383 (F.C.) — referred to Kovacs c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CarswellNat 3735, 2010 CF 1003, 2010 CarswellNat 4747, 2010 FC 1003, [2010] F.C.J. No. 1241, [2010] A.C.F. No. 1241 (F.C.) — referred to Matute Andrade c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CF 1074, 2010 CarswellNat 4120, 2010 CarswellNat 4752, 2010 FC 1074 (F.C.) — followed 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 Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 167 — considered

APPLICATION for judicial review of PRRA officer’s decision rejecting applicant’s PRRA application.

Richard Odeleye, for Applicant Sybil Thompson, for Respondent

Richard G. Mosley J.:

1 Mr. Teslim Olatunbosun Adeoye seeks judicial review of the decision of a Pre-Removal Risk Assessment officer who found that Mr. Adeoye was not likely to be at risk of being tortured, mistreated or killed if sent back to his country of origin, Nigeria. 2 Mr. Adeoye sought protection in Canada in 1999 based on his involvement in a student group in opposition to the government. The claim 128 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

was rejected and he returned to Nigeria in 2001. In 2008 his step mother and brother were involved in two car accidents, the second of which resulted in their deaths. The applicant says he was accused of witchcraft and illegally detained at the request of his father. He escaped with the help of his mother and came to Canada. He was informed that he could not make a second refugee claim. He is now married to a Canadian citizen and a sponsorship application is pending. 3 The Pre-Removal Risk Assessment (PRRA) officer gave little weight to letters from a medical centre and a police inspector and affidavits from the applicant’s brother and mother tendered in support of the application. The officer acknowledged that belief in witchcraft is widespread in Nige- ria but found that the applicant had adduced insufficient evidence to demonstrate the insufficiency of state protection in his own country and had not made reasonable efforts to seek such protection. 4 The issues raised on this application are: a. was the officer required to grant the applicant a hearing? b. was the decision reasonable? 5 The evaluation of the evidence by a PRRA officer attracts the standard of review of reasonableness: Matute Andrade c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 1074 (F.C.) at para 23. 6 Justice B´edard analysed the issue of the applicable standard of review to questions involving s.167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (hereafter the Regulations) in Matute An- drade at paragraphs 19-22. After reviewing the jurisprudence she concluded: [22] Here, I am of the view that whether the PRRA officer made findings on the applicant’s credibility and, if so, whether he was required to hold a hearing based on the factors prescribed in section 167 of the Regulations are questions of mixed fact and law that are subject to the standard of reasonableness (Borbon Marte v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 930, [2010] F.C.J. No. 1128). 7 The applicant here did not ask for a hearing. Had he done so, the officer would have been obliged to evaluate whether a hearing was warranted: Hidalgo v. Canada (Minister of Citizenship & Immigration), 2011 FC 1334 (F.C.). The context here is similar to that in Matute An- drade. The Court must determine whether a credibility finding was made, explicitly or implicitly, and if so, must determine if the issue of credibility was central to the decision. Since s.167 of the Regulations Adeoye v. Canada (MCI) Richard G. Mosley J. 129

deals with a question of mixed fact and law, and the exercise of discretion, I agree with Justice B´edard that the standard of review should be reasonableness. 8 Although the officer did not make any explicit credibility findings, his scepticism about the applicant’s claim and supporting documents is apparent from the decision. If the applicant had been believed, specifically in relation to his illegal detention, the officer may have arrived at a different conclusion with respect to the availability of state protection. In my view, the officer should have considered whether the criteria set out in s.167 applied and either convene a hearing or clearly indicate why a hearing was not necessary. 9 I agree with the respondent that the officer was not obliged to refer the applicant’s documents for forensic testing as to their authenticity. And it was open to the officer to question the affidavits as the attestations are unclear. It is trite law that the officer may determine the weight to be given to the evidence. In this instance, the officer found that all of the evidence adduced by the applicant had little probative value. 10 Some of the officer’s conclusions appear to be wrong on the face of the record. The letter from the medical centre, for example, does corroborate the applicant’s narrative to the extent that he claims to have suffered mistreatment, contrary to the officer’s finding. And it is unreasonable to expect that a medical report would go further to identify the aggressor. The brother’s affidavit is not vague, as the officer finds, as it contains statements which, if believed, clearly corroborates the applicant’s claim. 11 The officer found that the letter from the police inspector was of little weight because it did not represent the views of the national police force. Apart from non-material misdescriptions of the country and police force concerned, this finding was unreasonable. The letter indicates that the inspector personally witnessed the illegal detention of the applicant on instructions from his father. Further, the PRRA officer does not explain why it would have been necessary for the letter to express the official position of the national police force. 12 The decision contains a number of grammatical and syntax errors. These, in themselves, are not material but they point to the lack of attention the officer appears to have given to this decision. It leaves the im- pression of having been produced in a rush. 13 The officer had a duty to assess the evidence which contradicted his finding and explain why it did not alter his conclusion: Kovacs c. 130 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 1003 (F.C.) at paras 57-61; and Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 (Fed. T.D.) at paras 15-17. His confusing analysis of the documentary evidence does not support his findings with regard to the state’s efforts to suppress secret cults and how that applied to the applicant’s situation. From the record, it appears that those efforts are aimed at state institutions, such as universities, and that the police continue to be ineffective or complicit in dealing with witchcraft at the local level. 14 The officer’s conclusion that the presumption of state protection was not overcome failed to take into account the applicant’s claim that the police were complicit in his mistreatment. 15 I find the decision is not based on the evidence and lacks intelligibility, justifiability and transparency: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47. It is, therefore, unreasonable and must be overturned. 16 No questions were proposed for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review of the preremoval risk assessment dated September 20, 2010 is granted and the matter is remitted for reconsideration by a different officer. No questions are certified. Application granted; matter remitted for reconsideration by different officer. Ogunrinde v. Canada 131

[Indexed as: Ogunrinde v. Canada (Minister of Public Safety & Emergency Preparedness)] Francis Ojo Ogunrinde, Applicant and The Minister of Public Safety and Emergency Preparedness; The Minister of Citizenship and Immigration, Respondents Federal Court Docket: IMM-6711-11 2012 FC 760 James Russell J. Heard: April 24, 2012 Judgment: June 15, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — Perse- cuted group –––– Applicant was citizen of Nigeria — Applicant sought refugee protection in Canada because he was homosexual and because homosexuality was crime in Nigeria — Board found that applicant was not credible and was not homosexual — Applicant’s application for pre-removal risk assessment (PPRA) was refused on basis that he would not face risk of persecution if he returned to Nigeria — Applicant brought application under s. 72(1) of Immigration and Ref- ugee Protection Act for judicial review — Application granted — Decision was quashed and matter was returned for reconsideration by differently constituted Board — Officer unreasonably assessed evidence that applicant was homosexual — Rejection of affidavit evidence regarding risk homosexuals faced in Nige- ria for reasons given by officer was unreasonable — Affidavit clearly established that Nigerian police were looking for applicant because they believed his was homosexual. Cases considered by James Russell J.: Chokheli v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 4514, 2009 CF 35, 2009 FC 35, 2009 CarswellNat 173 (F.C.) — considered Herrera v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1233, 2005 CarswellNat 2802, 2005 CarswellNat 4264, 2005 CF 1233, [2005] F.C.J. No. 1499, [2005] A.C.F. No. 1499 (F.C.) — referred to Hnatusko v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 21, 2010 FC 18, 2010 CarswellNat 620, 2010 CF 18, [2010] A.C.F. No. 21, [2010] F.C.J. No. 21 (F.C.) — considered 132 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Kaybaki v. Canada (Solicitor General) (2004), 2004 CarswellNat 149, 2004 FC 32, 2004 CF 32, 2004 CarswellNat 5940, [2004] F.C.J. No. 27 (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.) — referred to Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — referred to Marte c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile) (2010), 2010 CF 930, 2010 CarswellNat 3391, (sub nom. Borbon Marte v. Canada (Minister of Public Safety and Emergency Preparedness)) 374 F.T.R. 160 (Eng.), 2010 FC 930, 2010 CarswellNat 4745, [2010] F.C.J. No. 1128 (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 Ponniah v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 1016, 2003 CarswellNat 2575, 2003 CarswellNat 4436, 2003 CF 1016, 35 Imm. L.R. (3d) 88 (F.C.) — referred to Sayed v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3409, 2010 CF 796, 2010 FC 796, 2010 CarswellNat 2612, [2010] F.C.J. No. 978, [2010] A.C.F. No. 978 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — referred to s. 97 — referred to s. 112(1) — considered s. 113(a) — considered s. 114(1)(a) — considered

APPLICATION for judicial review decision by officer refusing applicant’s application for pre-removal risk assessment. Ogunrinde v. Canada James Russell J. 133

Sina Ogunleye, for Applicant Nadine Silverman, for Respondents

James Russell J.: Introduction 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 Senior Immigration Officer (Officer), dated 30 August 2011 (Decision), which refused the Applicant’s application for a Pre-Re- moval Risk Assessment (PRRA).

Background 2 The Applicant is a 40-year-old citizen of Nigeria. He has been living in Canada since October 2007. 3 The Applicant came to Canada as a refugee claimant. He sought Can- ada’s protection because homosexuality is a crime in Nigeria and he is homosexual. The Refugee Protection Division of the Immigration and Refugee Board (RPD) rejected his claim for protection on 29 January 2010. The RPD found the Applicant was not credible and was not homosexual. It rejected his claim because he had no other nexus to a Conven- tion ground (RPD Decision). 4 After the RPD Decision, the Applicant applied for his PRRA on 14 December 2010 and provided additional written submissions on 23 De- cember 2010. He also provided a letter from his landlord and roommate, Daniel Asaolu (Asaolu), which said Asaolu knew the Applicant was homosexual (Asaolu Letter). The Applicant also submitted a letter from Larry Olugbade (Olugbade) which said Olugbade knew the Applicant was homosexual because of his behaviour and actions (Olugbade Letter). Olugbade said he had seen the Applicant with a man Olugbade believed was the Applicant’s boyfriend. The Applicant also provided the Officer with a letter from Samuel Adigun (Adigun), in which Adigun said he and the Applicant were in a relationship and had been going out since April 2010. In addition, the Applicant provided the Officer with several photographs of him with Adigun. 5 The Applicant also submitted documents to show the risk he faced in Nigeria because he is homosexual. An affidavit (Arowojobe Affidavit) from Peter Arowojobe (Arowojobe) — a citizen of Nigeria and friend of the Applicant — said Arowojobe had been arrested by a team of police officers in November 2010. The police officers said they were looking 134 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

for the Applicant because of his homosexual activities and accused Arowojobe of being the Applicant’s lover. A further affidavit (Akomolede Affidavit) from Tope Akomolede (Akomolede) — also a Nigerian citizen and the Applicant’s friend — said Nigerian police came to his home and asked if he knew where the Applicant was. Akomolede said he did not know where the Applicant was, and the police left telling Akomolede to tell them when he knew of the Applicant’s whereabouts. 6 The Officer considered the Applicant’s PRRA application and rejected it on 30 August 2011.

Decision under Review 7 The Decision in this case consists of a letter the Officer sent the Ap- plicant on 30 August 2011 (Refusal Letter), along with the Officer’s notes on the file (Notes). 8 The Officer rejected the PRRA application because she determined the Applicant would not face a risk of persecution if he returned to Nige- ria. The Applicant also did not face a risk to his life or a risk of torture or cruel and unusual treatment or punishment. 9 The Officer noted the Applicant continued to fear harm in Nigeria because he is homosexual. She then reviewed the RPD’s reasons for rejecting his refugee claim. The RPD had found the Applicant’s testimony contained inconsistencies. He had also not provided documents to establish his sexual orientation and had not properly documented his homosexual relationship in Canada. The RPD had further found the Applicant did not have a secret homosexual relationship in Nigeria, as he said he had, and was not homosexual. 10 The Officer instructed herself on the law applicable to the question before her. She found Kaybaki v. Canada (Solicitor General), 2004 FC 32 (F.C.) establishes that a PRRA application is not an appeal of a refugee determination. Rather, it is a process by which any new risks which may have developed since the RPD hearing can be evaluated. Further, subsection 113(a) of the Act establishes that only evidence which arises after the refugee decision, or which was not reasonably available, can be presented on a PRRA application.

Documentary Evidence 11 The Officer found the Adigun Letter was of low probative value and did not establish the Applicant was in a genuine homosexual relationship. This letter was undated and unsworn and did not provide details of Ogunrinde v. Canada James Russell J. 135

the relationship, including how Adigun and the Applicant met or whether there was a sexual or romantic component to their relationship. The Adigun Letter said that Adigun and the Applicant had been in a relationship for over a year, so the Officer found it was reasonable to expect the Applicant to present more details or evidence to corroborate the relationship. 12 The Officer also found the photographs submitted by the Applicant did not show that his relationship with Adigun was genuine. The Appli- cant had not provided any context or identified the purpose for which the photographs were taken. The photographs were insufficient to overcome the RPD’s determination that the Applicant was not credible. 13 The other letters were also insufficient to overcome the RPD’s finding that the Applicant was not credible. The Asaolu Letter said the author was aware the Applicant is homosexual, but did not include details of how Asaolu knew this was so. Asaolu had not said he had any first-hand knowledge of the Applicant’s sexual activities or orientation. 14 The Olugbade Letter said “I got to know Francis Ogunrinde is gay because of his behaviour and actions. I always see him with a guy which I believe is his girlfriend [sic].” This letter, however, did not set out what behaviours or actions led Olugbade to believe the Applicant is homosexual, so it was also of low probative value. Further, the Olugbade Letter and Asaolu Letter were both unsworn and undated. Their low probative value did not establish that the Applicant is homosexual. They were insufficient to overcome the RPD’s negative credibility finding. 15 The Applicant also submitted a letter from Helen Rykens (Rykens Letter), the office manager at the 519 Church Street Community Center (519 Center). The 519 Center provides resources to people in Toronto who are homosexual, bisexual, or transgendered. The Officer found the Rykens Letter was not new evidence because it spoke to membership at the 519 Center. The RPD had dealt with the Applicant’s membership in the 519 Center when it evaluated his credibility and the Rykens Letter was insufficient to overcome the RPD’s finding that the Applicant was not credible. 16 Although the Applicant said he was still at risk in Nigeria, the Officer found this was not so. She found the affidavits he submitted were not enough to establish he is homosexual or that he is wanted by the Niger- ian police. The Akomolede Affidavit did not say why the Applicant was wanted by the police and did not provide any insight into the Applicant’s homosexuality. Although the Arowojobe Affidavit said the police were 136 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

interested in the Applicant for his “gay activities,” this affidavit did not show that Arowojobe had been arrested or detained. Further, the Arowojobe Affidavit was not corroborated by other evidence. 17 The Arowojobe Affidavit attested to new developments in a claim that had already been rejected because the RPD found the Applicant was not credible. The Arowojobe Affidavit was not enough to overcome the RPD’s negative credibility finding. 18 The Officer found country condition evidence before her showed that conditions in Nigeria were unfavourable for people who are homosexual. She also found there was insufficient persuasive evidence to allow her to come to a different conclusion from that of the RPD. Although the Ap- plicant said he faced unusual and undeserved hardship, this was an irrele- vant consideration. The Officer therefore refused the Applicant’s PRRA application.

Issues 19 The sole issue the Applicant raises in this proceeding is whether the Officer’s treatment of the evidence was reasonable.

Standard of Review 20 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. 21 In Hnatusko v. Canada (Minister of Citizenship & Immigration), 2010 FC 18 (F.C.) at paragraph 25, Justice John O’Keefe held the standard of review applicable to a PRRA officer’s decision is reasonableness. Justice Maurice Lagacé made a similar finding in Chokheli v. Canada (Minister of Citizenship & Immigration), 2009 FC 35 (F.C.) at paragraph 7, as did Justice Marie-Josée Bédard in Marte c. Canada (Ministre de la Sécurité publique & de la Protection civile), 2010 FC 930 (F.C.) at paragraph 17. The standard of review in this case is reasonableness. 22 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 Ogunrinde v. Canada James Russell J. 137

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.”

Statutory Provisions 23 The following provisions of the Act are applicable in this proceeding: 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). [...] 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [...] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; [...] 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1). [...] 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; [...] 138 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, a` la mesure de renvoi le visant. [...]

Arguments The Applicant 24 Contrary to the Officer’s conclusion, the evidence the Applicant submitted was sufficient to show he is homosexual and in a relationship with Adigun. The Officer unreasonably assessed the Asaolu Letter and Olugbade Letter. 25 The Officer also unreasonably assessed the Rykens Letter. The Rykens Letter shows the Applicant’s involvement with the 519 Centre after the RPD Decision. Since the Rykens Letter speaks to events after the RPD Decision, it was an error for the Officer to conclude this letter was not new evidence. It was also an error for the Officer to reject this letter only because of the negative RPD decision. The Officer was required to consider the evidence before her independently of the RPD decision. 26 The Officer also treated the Akomolede Affidavit and Arowojobe Af- fidavit unreasonably. Both affiants described experiences with the Niger- ian police. What they said was corroborated by a report from the United States Department of State called Nigeria: Country Condition Reports on Human Rights Practices for 2010 (DOS Report). Although the Akomolede Affidavit said the Nigerian police sought the Applicant for homosexual activities, the Officer rejected it because it did not give any insight into the Applicant’s homosexuality. The Officer unreasonably expected the Nigerian police to give details of the homosexual activities which led them to seek the Applicant. 27 The evidence the Applicant submitted was more than sufficient to establish he is homosexual and faces a risk on that basis if he is returned to Nigeria. The Officer also did not consider how the new evidence establishes that the Applicant faced a risk when the RPD made its decision. The Officer erred in concluding the Applicant does not face a risk in Nigeria. Ogunrinde v. Canada James Russell J. 139

The Respondents 28 The Respondents point out that a PRRA is not an appeal of a negative RPD decision. The RPD denied the Applicant’s claim because his evidence was inconsistent and did not establish that he is homosexual. The Decision was reasonable and it is not open to the Court to re-weigh the evidence.

Reasonable Assessment of the Evidence: 29 Sayed v. Canada (Minister of Citizenship & Immigration), 2010 FC 796 (F.C.) teaches that new evidence submitted in a PRRA application must address the deficiencies in the evidence which was before the RPD and which led to a negative decision. The evidence on the PRRA must address any new risks which have developed since the negative RPD decision. Further, a PRRA is not an appeal from a negative RPD decision and a PRRA officer must respect the original RPD decision. 30 Here, the Officer reasonably placed low probative weight on the evidence the Applicant submitted to show he is homosexual. The Applicant has not shown why the Officer’s treatment of the letters from Olugbade and Asaolu was unreasonable. The Applicant has not met his burden to show these letters can overcome the RPD’s findings. The Officer also considered how the Rykens Letter addressed the credibility finding and reasonably concluded it did not constitute new evidence. The Applicant’s continued attendance at the 519 Center did not overcome the RPD’s negative credibility assessment. 31 It was also reasonable for the Officer to put low weight on the Arowojobe and Akomolede Affidavits. The Applicant has not said why the weight the Officer put on these affidavits was unreasonable. There was no evidence corroborating the allegations in the Arowojobe Affida- vit. Although Arowojobe’s arrest and the search by the Nigerian police for the Applicant because of his homosexual activities would be new evidence, it was insufficient to overcome the RPD’s negative credibility finding. The Officer’s findings were open to her on the evidence, so the Court should not interfere.

Analysis 32 The RPD found “on a balance of probabilities that the claimant is not gay.” The basis for this conclusion was a series of negative credibility findings and a general finding that “the claimant is not a credible or trust- worthy witness.” 140 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

33 Because the Applicant was unable to convince the RPD that he was gay, the RPD did not analyze the risks faced by homosexuals in Nigeria: “In light of the panel’s assessment of the credibility of the claimant, there is no reliable evidence to establish, on a balance of probabilities, that the claimant has a personalized fear of this nature.” 34 In the Decision before me, the PRRA Officer appears to accept that homosexuals are at risk in Nigeria: I have considered country conditions and acknowledge that conditions in Nigeria are not favourable for lesbian, gay, bisexual or transgendered persons. However, in the case before me, I find that I have insufficient persuasive evidence to allow me to arrive at a different conclusion from the Board. 35 So the Applicant’s problem is that he could not convince the PRRA Officer that he is gay, just as he could not convince the RPD that he is gay. Both decisions suggest that, if he could establish this fact, and overcome the RPD’s initial credibility concerns, then he may well face section 96 persecution or section 97 risk in Nigeria. 36 The Officer concedes that the Applicant presented “new evidence” that she was obliged to consider under subsection 113(a) of the Act. The Officer then proceeds to address each document in turn. In doing so, I think that the Officer commits several reviewable errors, including a failure to consider the evidence in its totality. 37 First, the Officer’s treatment of the Arowojobe Affidavit is unreasonable. The question before the Officer on the PRRA application was whether, based on the evidence before her, the Applicant was at risk of harm in Nigeria. The Arowojobe Affidavit speaks to crucial aspects of the risk the Applicant faces in Nigeria. First, the Nigerian police believe the Applicant is homosexual and, second, they are seeking him because of his “gay activities.” However, the Officer found this affidavit “is an attestation of new developments in a claim that was already rejected by the [RPD] over credibility.” The Officer reasons that, because the RPD did not believe the Applicant was homosexual, he could not be at risk in Nigeria on this basis. 38 What the Officer fails to consider is that what mattered with respect to the Arowojobe Affidavit was not whether the Applicant is homosexual, but that the authorities in Nigeria believe he is homosexual. This affidavit contained relevant, sworn evidence of the risk the Applicant faces in Nigeria. As a sworn document, the Arowojobe Affidavit was entitled to the presumption of truth. See Maldonado v. Canada (Minister Ogunrinde v. Canada James Russell J. 141

of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.). Whether the RPD found the Applicant credible or not about his homosexual activities in Canada had no bearing on whether the Arowojobe Affidavit establishes a risk in Nigeria. This affidavit clearly establishes that the Nigerian police are looking for the Applicant because they believe his is homosexual. 39 It is true that the Officer gives the Arowojobe affidavit little weight because of the absence of corroborative evidence, “such as evidence of a police warrant, the name of the ‘Investigation Police Officer,’ or evidence that Mr. Arowojobe was in fact arrested and detained.” The evidence that Mr. Arowojobe was arrested and detained is the affidavit itself, and there is no reason to suspect that Mr. Arowojobe is not telling the truth, at least no reason that the Officer cared to mention. As for the lack of a police warrant or the name of the “Investigation Officer,” the Officer is being wilfully blind in expecting normal formalities in a country where, as the documentary evidence before the Officer makes very clear, homosexuality is not tolerated and the authorities are not likely to treat gay people with any kind of formal respect or due process. 40 In my view, then, the rejection of the Arowojobe Affidavit for the reasons given by the Officer is unreasonable. That affidavit says quite clearly that the authorities in Nigeria perceive the Applicant to be homosexual and that they are seeking him for this very reason. This important factor should also have been borne in mind by the Officer when she considered the other new evidence before her. 41 The Court is mindful of the difficulties that PRRA officers face when dealing with claimants who assert a risk of harm because of their sexual orientation. Claimants bear the onus of satisfying the officer evaluating their application they have a profile that will put them at risk. 42 At the same time, the acts and behaviours which establish a claimant’s homosexuality are inherently private. When evaluating claims based on sexual orientation, officers must be mindful of the inherent difficulties in proving that a claimant has engaged in any particular sexual activities. Claimants may not be in contact with past sexual partners for various reasons, including relationship breakdown, distance, or simply the passage of time. 43 In this context, it is my view that the Officer’s treatment of the letters the Applicant submitted in this case was unreasonable. The Officer gave the Asaolu Letter low probative weight because “[t]he author of the letter provides no explanation as to how he knows [the Applicant is homosex- 142 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

ual], and if he has first hand knowledge of the Applicant’s sexual activities and orientation.” This was an unreasonable basis upon which to assign the letter low probative weight. The Asaolu Letter says that Mr. Asaolu knows the Applicant is gay “because we have been living in the same apartment since 2007.” It may lack details, but it cannot be said that Mr. Asaolu “provides no [...] explanation as to how he knows” the Applicant is gay. He knows it because he has lived in the same apartment as the Applicant since 2007. 44 The Officer also did not adequately consider Mr. Asaolu’s relationship with the Applicant in assigning weight to his letter. The letter says that Mr. Asaolu and the Applicant live together. Two people who live together would have some idea as to each other’s sexual orientation, particularly in a case like this where the Applicant was in a relationship with another man. The Officer’s analysis ignores this. The Officer’s statement that “the author of the letter provides no explanation as to how he knows [the Applicant is homosexual]” fails to account for the fact that Mr. Asaolu knows the Applicant is homosexual because they live together. 45 The Officer’s treatment of the Olugbade Letter was also unreasonable. The Officer gave this letter little probative weight because Mr. Olugbade did not set out which “‘behaviours and actions’ have per- suaded him the [Applicant] is gay.” Mr. Olugbade wrote that he believed the Applicant was homosexual because he saw the Applicant “with a guy who I believe is his girlfriend [sic].” Although Mr. Olugbade did not mention any specific sexual acts he had witnessed, he had observed the Applicant with another man and, based on that observation, had concluded the Applicant was homosexual. It was clearly erroneous for the Officer to conclude Mr. Olugbade had no basis for his belief. The explanation for how he knows is that he has observed his “behaviours and actions” generally and has witnessed him with another man who is regarded as his “girlfriend.” 46 The Officer’s reasoning on this point also suggests that she had in mind a set of actions or behaviours which would convince her that the Applicant is homosexual. It is inappropriate for officers to rely on stereo- types when evaluating whether or not a person has established any ground of risk, including sexual orientation. See Ponniah v. Canada (Minister of Citizenship & Immigration), 2003 FC 1016 (F.C.) at paragraph 10 and Herrera v. Canada (Minister of Citizenship & Immigra- tion), 2005 FC 1233 (F.C.) at paragraphs 12 through 20. Ogunrinde v. Canada James Russell J. 143

47 The Respondents have pointed out that any new evidence which is presented on a PRRA application must address the deficiencies in the evidence which was before the RPD. I agree. The Olugbade and Asaolu Letters were both directed at addressing the RPD’s concern the Applicant had not adequately documented his homosexuality. 48 In addition, however, the Rykens Letter of 2 December 2010 attested to the Applicant’s continued membership and participation with the gay community in Toronto and that he has shared his story at “Coming Out Being Out meeting [...].” 49 This letter seems to suggest that the Applicant has gone beyond simple membership at the 519 Center and has now come out and shared his story. So there would appear to be something new here for the Officer to consider that goes beyond the RPD’s concerns and findings, and it is more than just “continued membership,” a fact which the Officer ne- glects to mention or deal with. 50 Perhaps each piece of new evidence, when viewed in isolation does not overcome the RPD’s concerns about whether the Applicant is gay. But when we look at the complete picture, it seems that the Applicant: a. Is regarded as homosexual by the man he lives with; b. Has been observed “with the guy who I believe is his girlfriend [sic]”; c. Has continued his activities with the gay community in Toronto and has shared his coming out story at an organization that assists gay people; d. Is wanted by the Nigerian police who believe he is gay, so that he faces a significant risk if he is returned to Nigeria. 51 I do not think the Officer considered the complete picture before her. This is a reviewable error. In particular, I do not think the Officer considered that, whether or not the Applicant has established his homosexual identity in Canada to the Officer’s satisfaction, he is regarded as homosexual in Nigeria and the authorities are looking for him for this reason. 52 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 144 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

1. The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. Thomas v. Canada 145

[Indexed as: Thomas v. Canada (Minister of Public Safety & Emergency Preparedness)] Leonie Maria Thomas, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-3385-12 2012 FC 458 Michael L. Phelan J. Heard: April 18, 2012 Judgment: April 19, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal after admission — Deportation –––– Applicant claimed to have filed spousal sponsorship humanitarian and compassionate application in timely manner — Applicant brought motion for stay of deportation order — Motion granted — Deportation would render humanitarian and compassionate application moot, as applicant by virtue of separation imposed by deportation would no longer qualify for spousal sponsorship — Balance of convenience favoured applicant. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Applicant claimed to have filed spousal sponsorship humanitarian and compassionate application in timely manner — Applicant brought motion for stay of deportation order — Motion granted — Deportation would render humanitarian and compassionate application moot, as applicant by virtue of separation imposed by deportation would no longer qualify for spousal sponsorship — Balance of convenience favoured applicant. Cases considered by Michael L. Phelan J.: Shase v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 418, 2011 CarswellNat 1820 (F.C.) — followed

MOTION by applicant for stay of deportation order.

Kweku Ackaah-Boafo, for Applicant Sybil Thompson, for Respondent 146 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Michael L. Phelan J.:

1 These are the brief reasons for the Order granting the stay of deportation which was issued yesterday. 2 There is a significant factual point in issue on this motion which im- pacts the serious legal issue raised. The Applicant claims to have filed a spousal sponsorship H&C application in a timely manner. If accurate the Applicant would, arguably, be entitled to the benefit of a Ministerial policy which precludes her removal while the H&C application is being considered. 3 The resolution of this point may be somewhere in the mysteries of Canada Post who delivered the application to CIC Vegreville approximately three months after alleged mailing. The resolution may be elsewhere but time did not permit a proper exploration of the facts either through cross-examination or further affidavit evidence. 4 A deportation in these circumstances would, in reality, render the H&C application moot as the Applicant by virtue of the separation imposed by deportation would no longer qualify for the spousal sponsorship. 5 The balance of convenience favours the Applicant as it flows from the first two issues. 6 This case is somewhat similar to Shase v. Canada (Minister of Citizenship & Immigration), 2011 FC 418 (F.C.) and I adopt Justice Le- mieux’s approach to the issue of whether to grant a stay. 7 As I will also be deciding the Leave Application, the Applicant should know that this decision to grant a stay was “close to the line”. The granting of leave is not in any way certain. The Court will expect to see further and better evidence if the Applicant persists in the claim of a timely finding of her H&C. Motion granted. Musa v. Canada (MCI) 147

[Indexed as: Musa v. Canada (Minister of Citizenship & Immigration)] Iman Musa and Majida Mugrabi, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6410-11 2012 FC 298 Roger T. Hughes J. Heard: March 7, 2011 Judgment: March 8, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — Miscella- neous –––– Applicants were two Arab muslim women who were in lesbian relationship — Applicants were citizens of Israel — Applicants made unsuccessful claim for Convention refugee status in Canada — Applicants received unfavourable pre-removal risk assessment (PRRA) — Applicants brought application for judicial review of decision of PRRA officer — Application granted — Officer did not mention applicants’ letter raising fear of death if they returned to Israel and illustrating that fear by newspaper report that one applicant’s cousin had recently confessed to “honour killing” of his sister 12 years earlier — Letter should have been considered by officer even if it were found ultimately of no weight or unhelpful. Cases considered by Roger T. Hughes J.: Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — considered Sztern v. Canada (Attorney General) (2010), 2010 CarswellNat 3022, 2010 CF 181, 363 F.T.R. 224 (Eng.), 64 C.B.R. (5th) 59, 2010 FC 181, 2010 Car- swellNat 376, [2010] F.C.J. No. 210 (F.C.) — considered Thompson v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3863, 2009 FC 867, 2009 CarswellNat 4995, 2009 CF 867 (F.C.) — followed 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 148 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 113 — considered Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) Generally — referred to s. 21 — considered s. 22 — considered

APPLICATION by applicants for judicial review of negative decision of Pre- Removal Risk Assessment officer.

Daniel Kingwell, for Applicants Sybil Thompson, for Respondent

Roger T. Hughes J.:

1 This is an application for judicial review of and to set aside a decision of a Pre-Removal Risk Assessment (PRRA) Officer dated August 9, 2011 wherein it was determined that the Applicants would not be at risk if they were to return to Israel. For the reasons that follow, I will allow the application. 2 The Applicants are two Arab muslim women who are citizens of Israel. They are in a lesbian relationship. They claimed refugee protection in Canada. That claim was rejected. They applied for a pre-removal risk assessment. It is important to note that the application was in the English language and in response to the question at the top of the first page: “Language you prefer for correspondence and service” they checked the box “English”. They filed evidence including a letter written by both of them to which is attached an Arabic language newspaper report with an English language translation relating to a confession by a cousin of one of them, to an “honour killing” of his sister twelve years ago. 3 The Applicants, in their letter, wrote, inter alia: The situation we are facing now, is that if we go back home, we are at risk of being KILLED. Same sex relationships are not permitted or accepted in all Arabic countries. There are many stories about honor killing and we are victims of this. We have a same sex relationship, which is forbidden back home and we have dishonoured our families by running away to try and start a life with each other. Honor killing is a murder by families on a family member who have brought shame to the family. We have searched many articles and it turns out that In Majida Mugrabi’s family, he cousin Youssef Musa v. Canada (MCI) Roger T. Hughes J. 149

Mugrabi has killed his own sister on the grounds of killing. However, there are many situations of honor killing/family killing in Israel. We have done our research and have attached the Arabic and English Google translation of the articles about Youssef Mugrabi, and other unfortunate Israel killings based on honor for the family. We don’t like to bring religion into it; however, we feel it maybe necessary to save our lives. As Muslim women, we don’t have any rights in our families, and the fact that we are lesbians does not help. Majida’s grandfather is a sheikh, and has repeatedly threatened to kill her. Iman’s brother has threatened to kill her if she does not leave her lesbian relationship and marry a male. There are several police complaints regarding the threats of her brother. If we go back to Israel, we will be killed. ... 4 The record also shows that the Officer had available a number of country reports, all in English, detailing, among other things, the height- ened risk to which Arab lesbians are exposed in Israel. 5 The Officer provided a letter addressed to the Applicants, dated Au- gust 9, 2011 in which they were informed that their PRRA application had been rejected. The letter was in the English language essentially on a pre-printed form. An “X” was placed opposite the following paragraph: [X] No new evidence, which arose after the rejection of your claim at the Immigration and Refugee Board or after the rejection of your PRRA application, or that was not normally accessible, or that you could not reasonably have been expected in the circumstances to have presented, at the time of rejection, was presented in support of your application. 6 The reasons for the decision were attached to the letter. Much of those reasons were on a printed form familiar to many lawyers and others practicing in the immigration and refugee field. However, the form and the typewritten narrative were entirely in the French language. I repeat one of the paragraphs: Les demandeures n’ont pas fourni de nouveaux el´´ ements de preuves selon les critères requis par 113 a). En effet, tous les articles fournis sont datés d’avant la décision de la SPR. Et le rapport de police qui a et´´ e soumis, faisait déjà parti de la liste de documents ayant et´´ e remis a` la SPR. Les demandeures n’ont pas fourni d’explications sur les raisons pour lesquelles elles n’ont pas pu fournir les articles a` la SPR, par conséquent, je n’ai pas de raisons de croire que ceux-ci n’étaient pas normalement accessibles au moment du rejet, ni qu’il n’était pas 150 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

raisonnable de s’attendre a` ce que les demandeures les aient pr´esent´es. 7 The Applicants received this decision on September 13, 2011. The next day, September 14, 2011, Applicants’ counsel made a request that the Applicants be provided a copy of the reasons in the English language. A translation was made by Citizenship and Immigration Canada and sent to the Applicants’ lawyer on October 11, 2011. 8 The present application for leave, meanwhile, had been filed with the Court, in English, on September 19, 2011. The Applicants filed a motion for a stay of removal on September 28, 2011. On October 4, 2011 this Court granted an Order staying the removal. All of this occurred before the English language version of the reasons was sent to the Applicants’ lawyer. 9 On December 13, 2011 leave was granted to permit the Applicants to pursue this judicial review. I heard the matter on March 7, 2012. 10 The Applicants have raised a number of grounds for judicial review. It is necessary to refer only to two of them. 11 The first ground is whether the Applicants were entitled to receive the reasons for the decision, in the first instance, in the English language. In this respect the Applicants Counsel argues that the Applicants should be entitled to receive the decision in the official language of their choice so as to be able to understand it and instruct their lawyers properly. Simi- larly, their lawyers should be able to understand it properly. A more nuanced argument was made by applicants’ Counsel but only in reply in the oral argument before me. It was to the effect that, given that the evidence, the argument and all correspondence was in the English language, the Applicants, and their lawyer, should feel assured that the decision- maker understood that language including its complexities and nuances, sufficiently well so as to make a proper decision. It would be expected that if the decisionmaker was fluent in English, that the reasons for the decision should have been produced in the first instance, in English. 12 The Official Languages Act, RSC 1985, c.31 (4th Supp.) guaranties that any member of the public has the right to communicate with and receive available services from federal institutions, where there is significant demand, in either official language. I repeat sections 21 and 22: Rights relating to language of communication 21. Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part. Musa v. Canada (MCI) Roger T. Hughes J. 151

Marginal note: Where communications and services must be in both official languages 22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities (a) within the National Capital Region; or (b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language. Droits en matière de communication 21. Le public a, au Canada, le droit de communiquer avec les institutions fédérales et d’en recevoir les services conformément a` la présente partie. Note marginale: Langues des communications et services 22. Il incombe aux institutions fédérales de veiller a` ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l’une ou l’autre des langues officielles. Cette obligation vaut egalement´ pour leurs bureaux — auxquels sont assimilés, pour l’application de la présente partie, tous autres lieux où ces institutions offrent des services — situés soit dans la ré- gion de la capitale nationale, soit là où, au Canada comme a` l’étranger, l’emploi de cette langue fait l’objet d’une demande importante. 13 The decision of Justice Frederick Gibson of this Court in Thompson v. Canada (Minister of Citizenship & Immigration), 2009 FC 867 (F.C.) is instructive. He held that where a translation is provided in a timely fashion such that there is no prejudice to a party then there is no breach of a Charter right. He wrote at paragraphs 8 and 9: 8 Subsections 19(1) and 20(1) of the Canadian Charter of Rights and Freedoms establish rights before courts created by Parliament, such as this Court, for persons to be heard and dealt with in either official language. They also create rights for members of the public in Can- ada who deal with institutions of the Government of Canada to conduct those dealings, with certain limitations, in the official language of their choice and to receive communications from those institutions in the language of their choice. With relation to government institutions, the provisions provide no stipulation as to the time within which communications in the official language of the member of the public’s choice must be provided. Thus, I take it as implied that, 152 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

where applicable, government institutions must provide communications within a “reasonable” time of the request for the provision of the communication in a particular official language or, put another way, within a time that results in no prejudice to the individual seeking the communication. 9 On the facts of this matter, while the delay in providing the notes to file with respect to the decision here under review was, perhaps, in- ordinate, I find that it resulted in no prejudice to the Applicant. 14 In Sztern v. Canada (Attorney General), 2010 FC 181 (F.C.) Justice Boivin considered the Official Languages Act, supra. He found that, in the particular circumstances of the case before him, no prejudice had been shown. He wrote at paragraphs 69 to 73: 69 The applicants also argue that the Delegate contravened and offended the Act, the Charter and the Official Languages Act, 1985, c. 31 (4th Supp.), by not immediately providing an English translated version of his decision dated December 15, 2008. The English translated version of the Delegate’s decision was e-mailed to the applicant, Henry Sztern, on February 3, 2009. Mr. Sztern submits that the English version of the decision is not properly translated as many statements appear to be literally translated, resulting in nonsensical statements in English. The applicant submits the English translation was delivered too late for the appeal process to be initiated and it is of little value as a legible and understandable document. The applicant also argues that there was no interpreter available during his English testimony and during the English examinations and cross- examinations. 70 It is worth nothing that on April 3, 2007, Henry Sztern filed a motion requesting the services of an interpreter and the Delegate rejected this request on October 2, 2007. The Delegate found that section 14 of the Charter did not apply to the case at bar and that Henry Sztern had not established he did not have knowledge of French. 71 Furthermore, this very same issue had been previously decided by the Superior Court of Quebec and the Quebec Court of Appeal on April 16, 2007 (see Affidavit of Sylvie Laperri`ere sworn March 13, 2009 at Exhibit SL-11, pp. 2494-2498 of the respondent’s Record). 72 On the basis of this evidence, the Court finds that Henry Sztern had sufficient knowledge of French to file his application for judicial review pursuant to subsection 18.1(2) of the Federal Courts Act, R.S., 1985, c. F-7 and there has not been a breach of procedural fairness. There is no evidence on file that Henry Sztern made a specific request to the Delegate prior or during the disciplinary hearing for the decision to be rendered or translated in English. To the contrary, the Musa v. Canada (MCI) Roger T. Hughes J. 153

evidence demonstrates that the Delegate issued his decision in French on December 15, 2008 and a request for a translation was sent to the Delegate on December 21, 2008, six days after the decision was rendered. The Delegate followed-up on the request and a translation of the decision was obtained by the applicants on Febru- ary 3, 2009. In the present circumstances, the Court finds this was an acceptable delay. The applicants filed this application for judicial review on January 10, 2009, within the prescribed time limit, and they have not convinced the Court that they suffered any prejudice on this point. 73 The Court also notes that in spite of a ruling from the Delegate rejecting the request for translation, the respondent nonetheless made arrangements upon its own initiative during the disciplinary hearing before the Delegate to provide an interpreter to translate the testimonies rendered in French for Henry Sztern (see Sylvie Laper- ri`ere’s affidavit at paragraph 41). Most of the disciplinary hearing was conducted in English and the testimonies rendered in French were translated by an interpreter provided by the respondent for Henry Sztern. The Court is of the view that the applicants’ claims on this point are unfounded. 15 In the case before me no prejudice has been alleged. The Applicants were able to file their Application for Leave and Judicial Review and they obtained a stay of removal; all before an English language translation was sent to their lawyer. I have no evidence, one way or the other, as to whether the Applicants or their lawyer, is fluent in French. I find, on this ground; that the Applicants have not made out any prejudice. 16 The second issue raised by the Applicants’ Counsel is that, given that all the evidence and argument was in English it was surprising to receive the reasons for decision in French. This raises a question as to whether the decision-maker competently understood the English language evidence and submissions. 17 This argument was not raised in the Applicants’ written argument and only raised by Counsel in his oral submissions in reply. The Respon- dent’s Counsel had no opportunity to meet this argument whether by argument orally or in writing or by filing appropriate evidence. Therefore, I will disregard this argument. 18 I pass to the next issue raised by the Applicants. Nowhere in the reasons does the Officer mention the Applicants’ letter (parts of which have been set out earlier in my reasons) raising the fear that they might be killed if they return to Israel and illustrating that fear by a newspaper 154 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

report that a cousin of one of the Applicants had recently confessed to an “honour killing” of his sister some twelve years earlier. 19 The newspaper report pre-dates the Refugee Board’s decision, however the letter from the Applicants, as set out earlier, states that the article was only recently discovered by them. As such, the evidence should at least have been considered under section 113 of the Immigration and Refugee Protection Act, SC 2001, c. 27 as interpreted by the Federal Court of Appeal in Raza v. Canada (Minister of Citizenship & Immigra- tion), 2007 FCA 385 (F.C.A.). It may be that the Officer would ultimately consider it of no weight or unhelpful, but it should have been considered. For this reason the matter will be sent back 20 There is no question for certification and there is no basis for an Or- der as to costs.

Judgment FOR THE REASONS PROVIDED: THIS COURT ORDERS AND ADJUDGES that: 1. The application is allowed; 2. The matter is returned for redetermination by a different officer; 3. No question is certified; and 4. No Order as to costs. Application granted. Siavoosh v. Canada 155

[Indexed as: Siavoosh v. Canada (Minister of Public Safety & Emergency Preparedness)] Kavoos Soofi Siavoosh, Applicant and The Minister of Public Safety and Emergency Preparedness and The Minister of Citizenship and Immigration, Respondents Federal Court Docket: IMM-679-12, IMM-959-12 2012 FC 149 Michel M.J. Shore J. Heard: February 3, 2012 Judgment: February 3, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Applicant of Kurdish descent and Sahaja Yoga practitioner was on hunger strike due to imminent removal to Iran — Applicant deemed himself to be under peril due to ideological, religious beliefs and practice — Applicant applied for stay of removal — Appli- cation granted — Stay granted until specified legal proceedings were fully determined — In addition to Internet postings of applicant’s beliefs in protest of Ira- nian regime, applicant fulfilled criteria of tripartite conjunctive test of Supreme Court authority. Cases considered by Michel M.J. Shore J.: Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123, 1988 CarswellNat 64, 1988 CarswellNat 1571, [1988] F.C.J. No. 587 (Fed. C.A.) — followed

APPLICATION for stay of removal.

Mr. Robin L. Seligman, for Applicant Mr. Michael Butterfield, for Respondents

Michel M.J. Shore J.:

1 Ideological diversity is not tolerated in Iran. 2 The Applicant of Kurdish descent and a Sahaja Yoga practitioner is on a hunger strike due to an order for his imminent removal (scheduled for February 7, 2012) to Iran where he deems himself to be under peril to life and limb due to his ideological, religious beliefs and practice. 156 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

3 In addition to a number of current internet postings on the Applicant’s beliefs in protest of the Iranian regime, according to the Toth decision (Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302 (Fed. C.A.)) tripartite conjunctive test criteria, the present objective evidence presents: 1. A serious issue overwhelmingly in the Applicant’s favour; 2. No margin permits error in the Applicant’s regard as the irrepara- ble harm to his person is in no doubt, if he is, now, who he alleges to profess; 3. The balance of convenience tilts in recognition of the Applicant’s present evidence that points to the Applicant’s plight should he be returned to Iran. 4 In regard to those who oppose the Iranian regime, this file’s evidence includes a National Post article of January 31, 2011, written by the Honourable Irwin Cotler, former Minister of Justice of Canada, Head of the Interparliamentary Group on Human Rights in Iran, wherein he states: Human rights organizations report that in January 2011, Iran executed at least 65 people, while another 43 executions took place in the 10 days before the New Year, this is a rate of about one person every eight hours, an unprecedented “executive binge” even by Ira- nian standards.

Conclusion 5 For all the above, the Court grants the Applicant a stay of removal, pending the CIC decision, regarding the Humanitarian and Compassion- ate application in addition to the second Pre-Removal Risk Assessment application; and this is to include the Court’s determination of the Appli- cation for Leave and for Judicial Review of the decision, dated Novem- ber 10, 2011, that is a determination by this Court of the Applicant’s Application for Leave and for Judicial Review of the Removal Officer’s decision to deny a deferral of removal if it still remains at issue after the other proceedings will have been effected. 6 Thus, the stay is to remain in effect until all the legal proceedings outlined above will have been fully concludingly determined.

Order THIS COURT ORDERS that the application for the stay of removal be granted until all legal proceedings will have been fully concludingly Siavoosh v. Canada Michel M.J. Shore J. 157 determined as specified in the conclusion above. No question of general importance is certified. Application granted. 158 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

[Indexed as: Touma v. Canada (Minister of Citizenship & Immigration)] Mazin Touma, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8192-11 2012 FC 657 Michel M.J. Shore J. Heard: May 25, 2012 Judgment: May 29, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — Adequate state protection –––– Applicant was citizen of Iraq and was Christian — Appli- cant came to Canada at age of eleven and became permanent resident in 1981 — Accused compiled more than sixty-nine convictions in Canada relating to property crimes, weapons, narcotics, failure to comply and violence — In 1996, applicant was found inadmissible due to serious criminality — Applicant’s application for Pre-Removal Risk Assessment was dismissed — Application brought application for judicial review — Application granted — It was ordered that matter be referred to another officer for redetermination — Officer’s analysis of present availability of state protection in respect of Christians in Iraq was inadequate — Officer’s conclusion on availability of state protection was not supported by recent past evidence — Applicant did not speak Arabic, did not know culture and customs, and it appeared from evidence that he would be stranger in strange land in dire danger. Cases considered by Michel M.J. Shore J.: Aguirre v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 916, 2010 CarswellNat 3341, 2010 FC 916, 2010 CarswellNat 4052, [2010] F.C.J. No. 1116 (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 N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (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’ Touma v. Canada (MCI) Michel M.J. Shore J. 159

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 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 Wisdom-Hall v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 685, 2008 CarswellNat 1597, [2008] F.C.J. No. 851 (F.C.) — referred to Statutes considered: Immigration Act, R.S.C. 1985, c. I-2 s. 27(1)(d)(ii) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36(1)(a) — referred to s. 72(1) — pursuant to s. 113 — considered

APPLICATION for judicial review decision by officer dismissing applicant’s application for Pre-Removal Risk Assessment.

Carole Simone Dahan, for Applicant Sybil Thompson, for Respondent

Michel M.J. Shore J.: I. Introduction 1 There was and is no denial that the Applicant was (as per the Pre- Removal Risk Assessment [PRRA]) and still is inadmissible to Canada due to his sixty-nine criminal convictions; however, as a Christian in Iraq, would it be more likely than not that he would be persecuted? 160 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

2 Reliable evidentiary reports compete in their statements as to the level of risks to Christians in Iraq. The following excerpts bear reflection in assessing the matter (quoting from diverse reliable sources cited in the International Religious Freedom Report, 2010 from the U.S. Department of State, issued on November 17, 2010 for the year 2011): ... Very few of the perpetrators of violence committed against Chris- tians and other religious minorities in the country were punished; ar- rests following a murder or other crimes were rare. (Third to last para of p 5 of 13). ... Christian leaders inside and outside the country reported that members of their communities received threatening letters demanding that Christians leave or be killed. (At the bottom of the 2nd para at p 5 of 13).

II. Judicial Procedure 3 This is an application for judicial review, under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision, dated October 18, 2011, dismissing the Applicant’s application for a PRRA.

III. Background 4 In Canada for more than thirty years, the Applicant, Mr. Mazin Touma, was born on November 20, 1969; and, is a citizen of Iraq. He is a Chaldean Roman Catholic, of Assyrian ethnicity. 5 The Applicant came to Canada at the age of eleven and became a permanent resident of Canada on July 22, 1981 with his parents, his brothers and sisters. 6 The Applicant’s father passed away when he was thirteen years of age, two years after arriving in Canada. Subsequently, the Applicant was placed in the custody of the Catholic Children’s Aid Society [CCAS] because he had not been attending school regularly. The Applicant ex- plains that, during his years in foster care, he was pulled into drug trafficking and developed a drug addiction. 7 The Applicant has compiled more than sixty-nine convictions in Can- ada relating to property crimes, weapons, narcotics, failure to comply and violence. He was convicted of a number of offences between 1994 and 2002 for breaking and entering, theft and possession of narcotics. Touma v. Canada (MCI) Michel M.J. Shore J. 161

8 The Applicant has been arrested numerous times by the Canada Boarder Services Agency for failing to comply with reporting requirements. He has been in detention since June 28, 2011. 9 On February 5, 1996, the Applicant was found inadmissible under subparagraph 27(1)(d)(ii) of the former Immigration Act, RSC 1985, c I- 2. The Immigration Appeal Division dismissed his appeal of the removal order. This Court denied leave to appeal on June 10, 1999. 10 The Applicant filed a PRRA application in which he alleged a fear of persecution as a Catholic in Iraq.

IV. Decision under Review 11 The officer found that the Applicant’s inadmissibility under subparagraph 27(1)(d)(ii) of the former Immigration Act was equivalent to inadmissibility under paragraph 36(1)(a) of the IRPA. 12 The officer noted that the current prohibition on removals to Iraq does not apply to persons who were found to be inadmissible. 13 The officer concluded that the Applicant’s fear of persecution based on his religion was justified; nevertheless, after a detailed analysis of the country conditions documentation before him, the officer found that the general security situation and the religious violence situation in Iraq is improving because of the government’s efforts. Consequently, the Appli- cant did not rebut the presumption of state protection. 14 The officer concluded that the Applicant had not provided evidence with respect to the risk he alleged and questioned his understanding of Iraq’s situation. The Applicant did not demonstrate having specific ene- mies. The officer found that the fact the Applicant does not speak Arabic did not justify a positive decision. The officer also concluded that the Applicant would have an Internal Flight Alternative [IFA].

V. Issue 15 Is the PRRA decision reasonable?

VI. Relevant Legislative Provisions 16 The following legislative provisions of the IRPA are relevant: Consideration of application 113. Consideration of an application for protection shall be as follows: 162 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and se- verity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Examen de la demande 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; b) une audience peut etreˆ tenue si le ministre l’estime requis compte tenu des facteurs réglementaires; c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 a` 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des el´´ ements mentionnés a` l’article 97 et, d’autre part: (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait etreˆ rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Touma v. Canada (MCI) Michel M.J. Shore J. 163

VII. Position of the Parties 17 The Applicant submits that the officer applied the wrong legal test in this case; he applied the wrong standard of proof. Given the officer’s finding that the Applicant’s religious fear was “plausible”, the standard of proof was met and justified a positive decision. 18 The Applicant contends that the officer did not analyze the fact that he could easily be identified as a Christian because he does not speak Arabic, he is not Muslim and he is a westerner. 19 The Applicant submits that the officer also erred in assessing state protection. 20 The Respondent submits that the officer took into account the Appli- cant’s Christian identity in his analysis. The Respondent argues that the officer carefully weighed all the evidence submitted. With respect to the availability of state protection, the Respondent argues that the officer analyzed and cited country conditions documentation in order to support his finding.

VIII. Analysis 21 It is trite-law that the PRRA decision should be given deference since it rests on assessments of the facts. The appropriate standard of review is reasonableness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.); Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.)). Recently, the Supreme Court of Canada in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), made the following statement on reasonableness: [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decisionmaking process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. 22 In the present case, the officer has unequivocally concluded that the Applicant has a wellfounded fear of persecution: Nevertheless, he clearly has a plausible fear of religious violence. There are numerous examples of serious violence directed at persons of different faiths, at one time and place or another. 164 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

(PRRA Decision at p 11). 23 This Court notes that it is difficult to find the officer’s reasoning intelligible when he did not detail the facts he relied upon and made contradictory statements. Nonetheless, in light of his finding, the Applicant had a plausible fear of religious violence; it appears that the officer did accept that the Applicant was Christian. Again, the officer did not cite any evidence; instead, he made general assertions without justifying them: It is not clear to me that Mr. Touma is a regular church goer or a practicing Roman Catholic. It is not clear to me what would mark him, in Iraq, as a Christian to be victimized. On the one hand, this might lower any risk. On the other hand, in a particular neighbourhood at a particular time an extremist might target anyone of a different faith or sect. It is certainly possible for Mr. Touma to be caught up in this sort of targeting and subsequent violence. (PRRA Decision at p 11). 24 The officer’s negative finding is essentially grounded on the country conditions documentation that he reviewed which demonstrated, to him, that state protection is available for the Applicant. This finding is contrary to his analysis of the documentary evidence that he cited: ... “It is the government’s policy to protect the rights of all religious groups to gather and worship freely; however, in practice ongoing violence and instability impeded citizens’ ability to exercise this right in some parts of the country.” ... “Despite the apparent increase in sectarian integration, numerous incidents of sectarian violence occurred during the reporting period. Very few of the perpetrators of violence committed against Chris- tians and other religious minorities in the country were punished; ar- rests following a murder or other crimes were rare.” [Emphasis added]. (PRRA Decision at pp 7 and 9). 25 The officer’s conclusion reads as follows: According to the evidence, the general security situation is improving as the government increases its capacity. There is a clear intent by the government to reduce or eliminate sectarian violence. It is clearly taking effective steps to publicly support Christian communities and to protect them by various measures. ... Touma v. Canada (MCI) Michel M.J. Shore J. 165

My conclusion is that Christians do benefit from state protection in Iraq. It is far from perfect but it is improving, both with respect to general security and with respect to religious violence. (PRRA Decision at p 12). 26 The case law is clear that a decision-maker must focus on the availability of (present) state protection (on the ground) rather than the good- will (or intentions as to what it might become in the theoretical speculative future) of the state (Aguirre v. Canada (Minister of Citizenship & Immigration), 2010 FC 916 (F.C.); Wisdom-Hall v. Canada (Minister of Citizenship & Immigration), 2008 FC 685 (F.C.)). The officer made statements in respect of current intentions; however, the recent situation on the ground includes a dispatch from “Agence France Presse” by a Christian Archbishop who has stated that “Christians are the target of liquidation”. The Responses to Information Requests (RIRs) IRQ102990.E — 15 January 2009, which the officer had before him, describe the situation of Christians in Iraq: Christians in Iraq According to the Office of the United Nations High Commissioner for Refugees (UNHCR), the Iraqi census of 1987 showed 1,400,000 Christians living in Iraq, but in 2006 it was estimated that there were fewer than 1,000,000 Christians living in Iraq (UN Aug. 2007, 59). The United States (US) International Religious Freedom Report 2008 estimates the Christian population as 550,000 to 800,000 people out of Iraq’s 28.2 million, down from 800,000 to 1,200,000 in 2003 (US 19 Sept. 2008, Sec. 1). Similarly, Radio Free Europe/Radio Liberty (RFE/RL) reports that there are 500,000 to 700,000 Chris- tians in Iraq (RFE/RL 17 Apr. 2008). Sources estimate that Iraqi Christians account for three percent of Iraq’s overall population (IWPR 17 May 2006; The Chicago Tribune 24 Nov. 2008). Iraqi Christians are members of several sects including the Chaldeans (an eastern sect of the Catholic Church), Assyrians (Church of the East), Syriacs (Eastern Orthodox), Armenian Catholics, Armenian Ortho- dox (UN Aug. 2007, 59-60; US 19 Sept. 2008, Sec. 1), Syriac Catholics and Roman Catholics (UN Aug. 2007, 59-60). The Chris- tian communities are primarily located in Baghdad and in northern regions such as Mosul, Erbil, Dohuk, Kirkuk (UN Aug. 2007, 60; US 19 Sept. 2008, Sec. 1) and Sulaymaniyah (UN Aug. 2007, 60). Security of Christians Since the US-led invasion of Iraq in 2003, Christians have been targets of violence, which sources primarily attribute to Islamic extremists, including al-Qaida in Iraq, or criminal gangs (IWPR 7 Aug. 166 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

2007; UN Aug. 2007, 60, 65). The UNHCR reports that the “security environment and political climate has steadily worsened for religious minorities in Iraq since the 2003 toppling of the former regime” (UN Aug. 2007, 61). The Institute for War and Peace Reporting (IWPR), a not-for-profit international network promoting free and fair media (IWPR n.d.), notes that while millions of Iraqi citizens live in fear, Christians are “especially vulnerable” because of their religion (IWPR 7 Aug. 2007). Media sources quote the Chaldean Archbishop of Kirkuk as stating that Christians are the “‘target of a campaign of liquidation’” (AFP 10 Oct. 2008) and that Christians in Mosul are fleeing “‘ethnic-religious cleansing’” (RFE/RL 15 Oct. 2008). The director of the Hudson Institute’s Center for Religious Freedom, an international policy research organization based in the US (Hudson Institute n.d.), similarly states that Christians and other minorities in Iraq “are being targeted in a ruthless cleansing campaign” (Charlotte Observer 20 Aug. 2007). Minority Rights Group International (MRG), the UNHCR and Radio Free Europe/Radio Liberty (RFE/RL) report that Christians have been the targets of killings, kidnappings, attacks, harassment and in- timidation in Iraq (MRG 2007, 10- 11; UN Aug. 2007, 61; RFE/RL 17 Apr. 2008). Multiple sources provide details on incidents where Iraqi Christians have received death threats urging them to leave their homes or risk being killed (US 11 Mar. 2008, Sec. 2c; UN 30 June 2007, Para. 30; HRWF 18 Apr. 2007). According to MRG and media sources, businesses such as liquor stores, owned by non-Muslims, have been bombed or forcibly closed down and their owners have faced threats, attacks and killings from extremists (MRG 2007, 8; Houston Chronicle 11 Nov. 2007; The Miami Herald 6 July 2008). MRG notes that other traditionally Christian-owned businesses such as gymnasiums, beauty parlours, music shops and recording studios are also targets (MRG 2007, 8). Human rights groups, the UNHCR and the US International Religious Freedom Report 2008 report that many women, including Christians, comply with Islamic dress codes to avoid threats, harassment and the risk of being raped, abducted or killed (US 19 Sept. 2008, Sec. 2; MRG 2007, 11, 23; UN Aug. 2007, 65; AI Mar. 2008, 2). Christian churches, schools and convents have been attacked (MRG 2007, 9; UN Aug. 2007, 61; The Washington Post 22 Apr. 2008). Human Rights Without Frontiers (HRWF) lists over forty churches or convents in Iraq that were bombed or attacked between 26 June 2004 and 4 June 2007 (HRWF 8 Jan. 2008). The majority of these attacks were in Baghdad; there were also a large number in Mosul and a few in Kirkuk (ibid.). The US International Religious Freedom Touma v. Canada (MCI) Michel M.J. Shore J. 167

Report 2008 gives details on many attacks, including ten reported bomb attacks of Iraqi churches and convents that occurred in January 2008 in Baghdad, Mosul and Kirkuk (US 19 Sept. 2008, Sec. 2). A number of churches in Iraq have closed because of these threats (US 19 Sept. 2008, Sec. 2; IWPR 7 Aug. 2007). (TR at pp 95-96). Specific details as to the violence throughout Iraq targeting Christians (in regard to the above) are specified in significant depth in the remain- der of the Responses to Information Requests which were also before the officer; and, are thus part of the record. 27 Thus, in the present case, the officer did not adequately address the availability of state protection to the Applicant. Moreover, his conclusion on the availability of state protection is not supported by recent past evidence. Occasional exceptions, hopes and intentions are not a barometer for a true climate of religious tolerance from one of religious persecution. Thus, the decision is unreasonable. 28 Given that the officer’s Internal Flight Alternative finding is linked to the availability of state protection, it is not necessary to analyze the IFA finding as to whether this finding was reasonable. (A simple reading of the Responses to Information Requests of January 15, 2009, under the title, Violence in Northern Iraq, where presumably an IFA would have been considered, demonstrates an actual recent past (on the ground), in and around the city of Mosul, as one of peril to Christians, pp 95, 96 and 97 in particular.)

IX. Conclusion 29 For all of the above reasons, the Applicant’s application for judicial review is granted and the matter is referred to another officer for redetermination. 30 It is important to note that the PRRA decision is only set aside because of the deficient analysis on the present availability of state protection in respect of Christians in Iraq. This does not mean that any subsequent decision will necessarily be other than that presently analyzed if viewed only from the perspective of the criminality finding. The particular context recognizes the fact that the Applicant is inadmissible for serious criminality and is therefore removable to his country of origin despite the current prohibition on removals to Iraq; however, this case is a case unto itself due to its specific fact pattern. The Applicant does not speak the language. He does not know the culture and customs. It ap- 168 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

pears from the evidence that he would be a stranger in a strange land in dire danger. 31 In conclusion, it is necessary for the PRRA officer to assess the availability of state protection for the Applicant in Iraq in light of all the recent actual past evidence as a comprehensive whole rather than what may occur in a well-intentioned, speculative theoretical future. State protection cannot be based on good-will that has, thus far, led but to occasional exceptions, hopes and possibilities rather than a stark past reality and thus far an unknown eventual outcome.

Judgment THIS COURT ORDERS that the Applicant’s application for judicial review be granted and the matter be referred to another officer for redetermination. No question of general importance for certification. Application granted. Hamad v. Canada (MCI) 169

[Indexed as: Hamad v. Canada (Minister of Citizenship & Immigration)] Nouh Hussein Abdalla Hamad and Abdalla, Ahmad, Asia, and Abderrahman Hamad by Their Litigation Guardian Nouh Hussein Abdalla Hamad, Applicants and The Minister of Citizenship and Immigration, Respondent Munira Saleh Mahmoud, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4250-11, IMM-4251-11 2012 FC 336 Russel W. Zinn J. Heard: March 1, 2012 Judgment: March 21, 2012 Immigration and citizenship –––– Admission — Temporary entry (visitors) — Students –––– Libyan husband and wife had no debts, owned orchard and well in Libya, and arranged leaves of absence from their jobs while in Can- ada — Family brought applications to set aside decisions of visa officer refusing their requests for visas to come to Canada so that husband could study, young children attend school, and wife could stay at home or work while in Canada — Applications granted — Decisions of visa officer set aside — Applications returned to different visa officer — Visa officer’s decisions were unreasonable — Visa officer’s conclusion that family’s ties to Libya were weak, and finding of limited future employment in Libya were unreasonable and not supported by evidence — Visa officer unreasonably suggested that entire purpose of visit to Canada was to escape instability in Libya. Cases considered by Russel W. Zinn J.: 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 170 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 179 — considered

APPLICATIONS by family to set aside decisions of visa officer refusing their requests for visas to come to Canada so that father could study, young children attend school, and mother could stay at home or work while in Canada.

Barbara Jackman, for Applicants Judy Michaely, for Respondent

Russel W. Zinn J.:

1 Mr. Hamad and his children are the applicants in Court File IMM- 4250-11; his wife and the mother of his children, Ms. Mahmoud, is the applicant in Court file IMM-4251-10. The applicants seek to set aside decisions of a visa officer refusing their requests for visas to come to Canada so that Mr. Hamad could study, his young children attend school, and Ms. Mahmoud stay at home or work while in Canada. 2 The decisions rendered in each application were identical and these applications were heard together. As a result, only one set of reasons will issue but a copy shall be placed in each of the Court files. 3 These applications are allowed and the decisions of the visa officer are set aside, for the reasons that follow.

Background 4 Mr. Hamad lives in Benghazi, Libya, with Ms. Mahmoud and their four children who are all under the age of ten (collectively the applicants). All the applicants are Libyan citizens. In June of 2011, Mr. Hamad traveled to the Canadian Embassy in Egypt to apply to study in Canada at George Brown College in a business administration-accounting program. Following the instruction given him at the Embassy, he filed separate applications for his wife and his four children. 5 Mr. Hamad has two brothers living in Libya. His third brother is a Canadian citizen who lives in Toronto and who, as an affiant on the applications, testified that he was committed to supporting and financially assisting his brother’s family during their stay in Canada. Mr. Hamad has previously traveled to Egypt, and in his application stated that he had visited his brother in Canada in 1991, on a visitor’s visa valid from Janu- Hamad v. Canada (MCI) Russel W. Zinn J. 171

ary 24, 1991 to July 23, 1991, and that he left Canada before the expiry date. 6 The applicants have no debts, have a home, an orchard and a well in Libya. Mr. Hamad also owns a transport truck and an interest in a building supply store. He is Head of Teaching Staff Human Resources, Faculty of Agriculture, Garyounis University in Benghazi, and his wife is a teacher. Both of them arranged for leaves of absence from their jobs while in Canada. 7 On June 14, 2011 their applications were refused. The refusal was because the officer not being satisfied that the applicants would return to Libya after their visit. In reaching this view, the officer examined their travel history; their purpose for the visit; family ties in Egypt, Libya and Canada; employment prospects in Libya; and incentives to return. 8 The relevant portion of the decision is brief and reads as follows: ...letter from representative stating Libya “is a country experienceing [sic] sever [sic] instability. The normal patterns of life for its poula- tion [sic] have been disrupted and it is not possible to discoun [sic] the risk of harm. By coming to Canada for several years to study Mr. Hamad can ensure that his children are safe adn [sic] settled.” and “It is not possible, of course, to predict the outcome of the conflict in Libya...”, “Should the conditions in the country worsen rather than improve in the next several years, then Mr. Hamad would take legal and appropriate steps to retain his status in Canada until it is resolved...” Evidence of funds:- stat dec from brother, employment letter, Notice of assessment showing funds of $1,360,147 in 2011 — company docs for building materials company, vehicle, real estate docs I am not satisfied that the applicants meet the requirements for a temporary resident visa based on the applicants’ travel history (only limited travel to Egypt in ppts, no documentation given of other travel, purpose for visit (reps letter states his decision to pursue studies in CDA was based on the unstable situation in Libya), family ties in Egypt/Libya and Canada (while family is travelling to CDA), limited employment prospects in Libya (although PA and spouse state they are employed, current situation in Libya is very unstable and future employment is not certain) and weak incentives to return (rep. letter states PA and family will seek to stay in CDA as long as the situation in Libya remains unstable). Applicants lack strong ties which would ensure return after visit as per R179(b). Therefore, this application is refused. 172 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th)

Issues 9 The applicants in their memoranda raise the following issues: 1. Did the officer err in law in applying section 179 and consequent provisions of the Immigration and Refugee Protection Regula- tions, SOR/2002-227 with respect to dual intent, and unreasonable conclusions; 2. Did the officer breach the duty of fairness owed to the applicants; and 3. Did the officer err in not providing adequate reasons? 10 In my view, the real issue in this application is whether the officer’s decision was reasonable in the manner described in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.).

Analysis 11 I find that the decision of the officer lacks justification in the decision-making process and falls outside a range of possible, acceptable outcomes defensible in respect of the facts. The following summarizes why I have reached this view. 12 First, the officer noted only Mr. Hamad’s limited travel to Egypt but completely disregarded or ignored his travel to Canada in 1991 and the fact that he returned to Libya before the expiry of his Canadian visa. 13 Second, the officer’s conclusion that the applicants’ ties to Libya were weak is unreasonable and not supported by the record. The evidence is that Mr. Hamad has one brother in Canada, but he has his mother and his two brothers and their families in Libya. Ms. Mahmoud has no immediate family in Canada, but she has her parents, two sisters and two brothers and their families in Libya. 14 Third, the officer’s finding of limited future employment in Libya resulting from the current instability is speculative, and an unreasonable conclusion not supported by the record. The evidence before the officer was that Mr. Hamad and his wife have been working for years, and that Mr. Hamad owns businesses, a transport truck and a building supply store, all of which he intends to leave in the control of his brothers and business partner while in Canada. 15 Fourth, the officer’s statement that “the family will seek to stay in [Canada] as long as situation in Libya remains unstable” mischaracter- izes the statements made in the application. What the letter from the applicants’ counsel states is that the applicants, although expecting the situ- Hamad v. Canada (MCI) Russel W. Zinn J. 173

ation to improve, would take all legal steps to remain in Canada if the conditions in Libya worsened but that they would not remain in Canada without status. It reads as follows: He has every expectation that the country will stabilize, as it cannot continue as it is at present. He wants to return when he completes his course and contribute to the development of the country. Should the conditions in the country worsen rather than improve in the next several years, then Mr. Hamad would take legal and appropriate steps to retain his status in Canada until it is resolved. Please be assured that he has no intention, with a wife and four children, of attempting to remain without status in Canada. It is also of note that the visa was requested for a three year period end- ing in 2014. The officer made his decision at a time the citizens of Libya were attempting, with the support of the international community, to oust Muammar Gaddafi. The danger of the officer’s speculation as to the country conditions some three years in the future is shown by the fact that since then, Muammar Gaddafi has been ousted and killed, and although the current administration has issues, the stability in Libya has significantly improved. 16 Fifth, the officer unreasonably suggests that the entire purpose of the visit to Canada is to escape the instability in Libya. He writes: “the decision to pursue studies in [Canada] was based on the unstable situation in Libya.” This is not an accurate reflection of the information in the record which was more aptly described by counsel as the instability in Libya affected the timing of the study in Canada, not its validity. Although there is little doubt that all were looking to Canada as a safer environment for the children, this does not imply that the study was not bona fide, especially when, as here, there is a description of the value of the study to Mr. Hamad as was outlined in the application. Mr. Hamad has the opportunity to develop his English language abil- ities and his professional skills, which he can put to good use in Libya when he and his family return there, and at the same time he can remove his family from danger and uncertainty in their lives for the next three years. It can be expected that the children will become fluent in English, which will benefit them in their later lives. 17 Neither party proposed a question for certification. 18 The visa applications indicate that Mr. Hamad, who he can speak En- glish, was to take an intensive English program from the end of August to the end of the year before embarking in January on the administration- accounting program at George Brown College in Toronto. In light of the 174 IMMIGRATION LAW REPORTER 8 Imm. L.R. (4th) timing of these programs, I find it appropriate to direct that the applications be considered and a new determination made within the next ninety (90) days. He should not lose a second year due to any delay in making the determination.

Judgment THIS COURT ORDERS that the decisions of the visa officer refusing the applicants’ visa is set aside; the applicants’ applications are referred to a different visa officer for determination to be made no later than 90 days from the date hereof in accordance with these reasons; and no question is certified. Applications granted.