IMMIGRATION LAW REPORTER Third Series/Troisi`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration

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

VOLUME 94 (Cited 94 Imm. L.R. (3d))

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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[Indexed as: Neupane v. Canada (Minister of Citizenship & Immigration)] Predeep Neupane, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court James Russell J. Heard: October 27, 2010 Judgment: December 7, 2010 Docket: IMM-644-10, 2010 FC 1237 Mr. Predeep Neupane, for himself Mr. John Loncar, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — General principles –––– Ap- plicant, citizen of Nepal, was allegedly kidnapped twice by Maoists, who made demands for money and threatened applicant’s life — Applicant claimed refugee protection in Canada — Tribunal Officer interviewed applicant and produced expedited report — Tri- bunal Officer recommended that hearing be held — Refugee Protection Division (RPD) made negative credibility finding and dismissed applicant’s claim — Applicant applied for judicial review, alleging that it was unreasonable and inconsistent that RPD’s findings on credibility seemingly conflicted with those of Tribunal Officer — Application granted on other grounds — Tribunal Officer was of view that, notwithstanding what he might have written in his own report, applicant’s claim required full RPD hearing in order to determine whether it was genuine — There was no inconsistency and, in any event, as claimant’s guide makes clear to applicants, it is always RPD that makes final decision on claim, not Tribunal Officer — There was no breach of natural justice in this process — All applicants are aware up front that expedited interview does not necessarily mean claim will be accepted without hearing — At both expedited interview and hearing, each applicant is given full opportunity to make his or her case. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board –––– Applicant, citizen of Nepal, was allegedly kidnapped twice by Maoists, who made demands for money and threatened applicant’s life — Applicant claimed refugee protection in Can- ada — Refugee Protection Division (RPD) made negative credibility finding regarding applicant and dismissed claim — Applicant applied for judicial review — Application 2 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d) granted — Three letters submitted by applicant supported his narrative that he was under threats from Maoists and were evidence that contradicted RPD’s conclusions on various points — RPD either did not refer to that evidence or did not refer to portion of letter that supported applicant’s narrative — RPD did not have to accept evidence, but evidence was contrary evidence and, in accordance with principles in 1998 Federal Court decision, RPD should have specifically dealt with it — Fact that RPD did not do so led to conclusion that RPD either overlooked it entirely or simply ignored it because it inconveniently contradicted conclusion that RPD was determined to reach regardless of contrary evidence — Either way, this was reviewable error. Cases considered by James Russell J.: Ababio v. Canada (Minister of Employment & Immigration) (1988), 1988 CarswellNat 37, 5 Imm. L.R. (2d) 174, (sub nom. Ababio v. Canada (Minist`ere de l’Emploi & de l’Immigration)) 90 N.R. 28, [1988] F.C.J. No. 250 (Fed. C.A.) — referred to Aguirre v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1367, 2008 FC 571, [2008] F.C.J. No. 732 (F.C.) — referred to Armson v. Canada (Minister of Employment & Immigration) (1989), 101 N.R. 372, 9 Imm. L.R. (2d) 150, 1989 CarswellNat 91, [1989] F.C.J. No. 800 (Fed. C.A.) — referred to Attakora v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 168, 1989 CarswellNat 736, [1989] F.C.J. No. 444 (Fed. C.A.) — considered Boulis v. Canada (Minister of Manpower & Immigration) (1972), 1972 CarswellNat 431, [1974] S.C.R. 875, 26 D.L.R. (3d) 216, 1972 CarswellNat 431F (S.C.C.) — referred to 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.) — followed Clifford v. Ontario (Attorney General) (2009), 256 O.A.C. 354, 93 Admin. L.R. (4th) 131, 2009 ONCA 670, 2009 CarswellOnt 5595, 2009 C.E.B. & P.G.R. 8359, 98 O.R. (3d) 210, 312 D.L.R. (4th) 70, 188 L.A.C. (4th) 97, 76 C.C.P.B. 184, [2009] O.J. No. 3900 (Ont. C.A.) — referred to Clifford v. Ontario (Attorney General) (2010), 2010 CarswellOnt 439, 2010 CarswellOnt 440, 405 N.R. 388 (note), [2009] S.C.C.A. No. 461 (S.C.C.) — referred to Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A- 1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — referred to Frimpong v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 164, 8 Imm. L.R. (2d) 183, 1989 CarswellNat 61, [1989] F.C.J. No. 441 (Fed. C.A.) — referred to Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236, 1991 CarswellNat 96, [1991] F.C.J. No. 228 (Fed. C.A.) — referred to Kim v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1594, 2008 FC 632, 2008 CF 632, 73 Imm. L.R. (3d) 55, 2008 CarswellNat 3878 (F.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (2008), 76 Imm. L.R. (3d) 265, 337 F.T.R. 100 (Eng.), 2008 FC 1284, 2008 CarswellNat 4261, 2008 CarswellNat 5159, 2008 CF 1284, [2008] F.C.J. No. 1625 (F.C.) — referred to Neupane v. Canada (Minister of Citizenship & Immigration) 3

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.) — considered Medina v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 33, 120 N.R. 385, 1990 CarswellNat 66, [1990] F.C.J. No. 926 (Fed. C.A.) — referred to Mooker v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 779, 2007 CarswellNat 3038, 62 Imm. L.R. (3d) 311, 2007 CarswellNat 2113, 2007 FC 779, [2007] F.C.J. No. 1029 (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 Bruns- wick) 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 Orelien v. Canada (Minister of Employment & Immigration) (1991), 1991 CarswellNat 810, 15 Imm. L.R. (2d) 1, 135 N.R. 50, [1992] 1 F.C. 592, 1991 CarswellNat 75, [1991] F.C.J. No. 1158 (Fed. C.A.) — considered Owusu-Ansah v. Canada (Minister of Employment & Immigration) (1989), 98 N.R. 312, 8 Imm. L.R. (2d) 106, 1989 CarswellNat 53, [1989] F.C.J. No. 442 (Fed. C.A.) — referred to Pehtereva v. Canada (Minister of Citizenship & Immigration) (1995), 1995 CarswellNat 1148, 103 F.T.R. 200, [1995] F.C.J. No. 1491 (Fed. T.D.) — followed Pinter v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 296, 2005 CarswellNat 530, 44 Imm. L.R. (3d) 118, 2005 CF 296, 2005 CarswellNat 2938, [2005] F.C.J. No. 366 (F.C.) — referred to Rajaratnam v. Canada (Minister of Employment & Immigration) (1991), 135 N.R. 300, 1991 CarswellNat 851, [1991] F.C.J. No. 1271 (Fed. C.A.) — considered Woolaston v. Canada (Minister of Manpower & Immigration) (1972), [1973] S.C.R. 102, 1972 CarswellNat 422, 1972 CarswellNat 422F, 28 D.L.R. (3d) 489, [1972] S.C.J. No. 79 (S.C.C.) — referred to Yaliniz v. Canada (Minister of Employment & Immigration) (1988), 7 Imm. L.R. (2d) 163, 1988 CarswellNat 99, 7 Imm. L.R. 163, [1988] F.C.J. No. 248 (Fed. C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered

APPLICATION for judicial review of decision of Refugee Protection Division dismissing applicant’s claim for refugee protection. 4 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

James Russell J.:

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 Immigration and Refugee Board, dated 11 January 2010 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a married father and a citizen of Nepal. He was employed in that country as a general manager of a dairy processing company. The Appli- cant claims that he was kidnapped in September 2005 by Maoists, demanding that he and his company hire more people from the area and pay more money to the All Nepal Farmers Union, a sister organization of the Maoists. The Maoists also demanded that he make personal donations of money to their cause. 3 In July 2007, a group of Maoists kidnapped the Applicant for a second time. They threatened to kill him if he did not meet their demands. The Applicant agreed to do so, in writing, in order to be released. 4 The Applicant travelled to the United States for employment-related training between June 2006 and June 2007. During that time, the Applicant stated, the Maoists approached no one else in the company. However, they continued to visit his home and made threats to his wife and children that, if he did not fulfill his written obligations to them, they would kill him. 5 In July 2007, one month after the Applicant returned from the United States, the Maoists again attempted to extort money from him and threatened his life. In consequence, the Board of the dairy company helped him to exit the country by registering him in a food exhibition in Ontario. He acquired a Canadian visitor’s visa on 26 July 2007 and left Nepal on 27 September 2007. 6 The Applicant received a December 2007 letter from his former boss at the dairy, saying that the company was trying to resolve the problems with the Maoists. The Applicant stated that, between the time of his departure and Sep- tember 2009 (the date of his hearing before the RPD), the Maoists made thirteen threatening phone calls to his wife and children. 7 The Applicant claims that he cannot return to Nepal because of the Maoists’ threats. He alleges that he has been targeted primarily because he is a known monarchist and neither he nor his family will join the Maoist cause. Because he has refused to pay the money demanded by the Maoists, they will kill him if he returns. 8 The Applicant appeared before the RPD on 23 September 2009. He was represented by counsel and an interpreter was present. Neupane v. Canada (Minister of Citizenship & Immigration) James Russell J. 5

9 At that hearing, the RPD found that the Applicant was neither a Convention refugee under section 96 of the Act nor a person in need of protection under section 97 of the Act. For this reason, it rejected the refugee claim. This is the Decision under review.

Decision under Review 10 The RPD stated five “determinative issues” that resulted in a refusal of the Applicant’s refugee claim: i) credibility; ii) failure to establish the subjective component of a well-founded fear of persecution; iii) failure to establish an objective, evidentiary basis for a well-founded fear of persecution; iv) delay in leaving Nepal; and v) failure to claim asylum in the United States. 11 The RPD found much of the Applicant’s oral evidence to be implausible. Jurisprudence indicates that the sworn testimony of the claimant is presumed to be true in the absence of a valid reason to doubt its truth. See Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, [1979] F.C.J. No. 248 (Fed. C.A.) [Maldonado]. However, in the instance case, the RPD found that the Applicant’s oral evidence was sufficiently “implausible” to rebut that presumption. 12 For example, the RPD asked the Applicant why the Maoists would target him when his position at the dairy did not allow him to make any of the marketing or pricing decisions needed to achieve the Maoists’ demands. The Applicant replied that he believed he was targeted because of his political affiliations: he and his family are monarchists. The RPD concluded that, had the Maoists been serious, they would likely have targeted the dairy owner or the Board members, who had the power to answer their demands. The RPD also found persuasive the fact that the Maoists approached no one else at the dairy while the Applicant was in the United States (2006 to 2007). 13 The RPD found no evidence to explain why the Maoists would think that the Applicant could answer their demands for money and improved hiring at the dairy simply because he was a monarchist. 14 The RPD identified additional reasons to doubt the Applicant’s credibility. When asked if the Maoists had made demands of anyone at the dairy company since he left Nepal, the Applicant answered that the Maoists called his house thirteen times in two years. When the RPD questioned the Applicant about the letter from his boss and the negotiations regarding the Maoists, the Applicant’s response was confusing and unsatisfactory. When the Applicant reported his boss’s conclusions that the demands were directed at the Applicant personally, the RPD found that the demands of Maoists would not extend beyond the Appli- cant’s perceived influence in the company. Since the Applicant was no longer employed by the company, the Maoists would no longer be interested in him. 6 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

15 On the question of credibility, the RPD concluded that the evidence was “totally untrustworthy and lacking in any credibility and that, on the balance of probabilities, the incidents as described, never occurred and, therefore, do not believe what the claimant has alleged ....” The RPD relied on Orelien v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 592 (Fed. C.A.), in which Justice Patrick Mahoney observed: “It seems to me one cannot be satisfied that evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so.” 16 The RPD found that the Applicant had no reasonable explanation for the two-month delay between receiving his visitor’s visa to Canada (on 26 July 2007) and departing for Canada (on 27 September 2007). The Applicant’s claim that it took him two months to arrange for the money to pay for the ticket was rejected. He had a good job and a supportive employer. The RPD expected that, if he feared for his personal safety, he would have found the money and fled at the earliest opportunity. Because the Applicant did not do this, the RPD drew a negative inference and found that the Applicant lacked a subjective fear of persecution. 17 With respect to an objective fear of persecution, the RPD acknowledged documentary evidence that “extortions and abductions continue” and that Maoists continue to extort money from truck drivers and to “recruit villagers into their army, regardless of the peace agreement.” However, due to the “negative credibility findings in all this claimant’s particular circumstances,” the RPD found that it would be unreasonable to conclude that the Maoists would be more interested in the Applicant than they would in any other person in Nepal. Also, the RPD found it unreasonable to conclude that, after two years, the Maoists would bother to track down the Applicant if he were to return to Nepal. Finally, the RPD found it impossible to conclude that, simply because the Applicant was a monarchist who worked for a dairy company, he would face more than a mere possibility of persecution were he to return to Nepal. For this reason, the Appli- cant did not meet the definition of a Convention refugee under section 96 of the Act nor a person in need of protection under section 97 of the Act.

Issues 18 The Applicant has raised the following issues: 1. Whether the RPD’s credibility findings were unreasonable; 2. Whether the RPD ignored relevant evidence, took into account irrelevant evidence or misinterpreted the evidence; 3. Whether the RPD’s finding that the Applicant did not have a well- founded fear of persecution was based on an erroneous finding of fact; 4. Whether the RPD applied the correct test in determining that the Appli- cant did not have a well-founded fear of persecution; Neupane v. Canada (Minister of Citizenship & Immigration) James Russell J. 7

5. Whether the RPD denied the Applicant an opportunity to respond to its concerns or whether it failed to provide procedural fairness or to conduct itself in accordance with the principles of natural justice in any way.

Statutory Provisions 19 The following provisions of the Act are applicable in these proceedings: Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. 8 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nation- alité 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 Convention 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, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes interna- tionales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

Standard of Review 20 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (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 the particular question before the court is well- settled by past jurisprudence, the reviewing court may adopt that standard of Neupane v. Canada (Minister of Citizenship & Immigration) James Russell J. 9

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 The RPD’s decision is based, in part, on its assessment of the Applicant’s credibility. The determination of credibility is within the expertise of the Board. For this reason, credibility findings attract a standard of reasonableness on review. See Aguirre v. Canada (Minister of Citizenship & Immigration), 2008 FC 571, [2008] F.C.J. No. 732 (F.C.) at paragraph 14. 22 The Applicant has also brought an issue before the Court concerning the RPD’s treatment of the evidence before it. In considering whether the RPD ignored material evidence, considered irrelevant evidence, incorrectly dismissed the probative value of certain documents or misunderstood the evidence, the appropriate standard is one of reasonableness. See Dunsmuir, above, at paragraphs 51 and 53. 23 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making 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 Dunsmuir, above, at paragraph 47. 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.” 24 Whether the RPD applied the correct test in determining that the Applicant did not have a well-founded fear of persecution attracts a standard of correctness. See Pinter v. Canada (Minister of Citizenship & Immigration), 2005 FC 296 (F.C.); Mooker v. Canada (Minister of Citizenship & Immigration), 2007 FC 779 (F.C.), at paragraph 16; and Kim v. Canada (Minister of Citizenship & Immigration), 2008 FC 632 (F.C.) at paragraphs 24, 29. 25 Whether the RPD provided the Applicant an opportunity to respond to its concerns raises a question of procedural fairness and natural justice. The appropriate standard is correctness. See Li v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 1284 (F.C.) at paragraph 35.

Arguments The Applicant Credibility Findings Were Unreasonable 26 The Applicant argues that the RPD’s credibility findings were unreasonable. He swore to the truth of his allegations and, absent evidence to the contrary, the RPD must presume that evidence to be true. See, for example, Maldonado, above, at 305. 10 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

27 Moreover, where the RPD had credibility concerns with the Applicant’s evidence, it was duty-bound to state its concerns and give reasons for the credibility findings. It failed to do so. See Ababio v. Canada (Minister of Employment & Immigration) (1988), 5 Imm. L.R. (2d) 174 (Fed. C.A.); Armson v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 150 (Fed. C.A.) (Armson); Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (Fed. C.A.). 28 The RPD failed to take into account, in assessing the Applicant’s credibility, that he was presenting his oral evidence through an interpreter. For this reason, the RPD should have resisted being “over-vigilant” and, in comparing statements made on different occasions, the RPD should have exercised caution. The RPD erred in this regard. See Attakora v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 168 (Fed. C.A.) (Attakora). 29 The RPD’s adverse credibility findings were also unreasonable because the RPD ignored evidence offered by the claimant to explain the apparent inconsistencies. See Owusu-Ansah v. Canada (Minister of Employment & Immigration) (1989), 8 Imm. L.R. (2d) 106 (Fed. C.A.). 30 Where the RPD based its findings on inferences drawn from the Applicant’s evidence, the Court can determine the reasonableness of those inferences. See Frimpong v. Canada (Minister of Employment & Immigration) (1989), 8 Imm. L.R. (2d) 183 (Fed. C.A.). 31 Even if the RPD found the Applicant not to be a credible witness, that finding does not automatically mean that the Applicant is not a Convention refugee. If the Applicant establishes the subjective and objective components of the test for refugee status, he should be deemed a Convention refugee. See Attakora, above; and Armson, above. Moreover, if the RPD accepted some of the Appli- cant’s evidence, then it must consider the accepted evidence when determining whether the Applicant qualified as a Convention refugee, and the RPD failed to do this. See Yaliniz v. Canada (Minister of Employment & Immigration) (1988), 7 Imm. L.R. (2d) 163 (Fed. C.A.). As Justice Arthur Stone observed in Rajaratnam v. Canada (Minister of Employment & Immigration) (1991), 135 N.R. 300, [1991] F.C.J. No. 1271 (Fed. C.A.): If it is apparent that a decision of the Board was based on the claimant’s credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility. See Dan- Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.), where Mr. Justice Hugessen observed, at page 35: ...unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which Neupane v. Canada (Minister of Citizenship & Immigration) James Russell J. 11

a witness’s contradictions will move even the most generous trier of fact to reject his evidence. This Court has also recognized the peculiar position of a refugee claimant whose mother tongue is neither one of our two official languages, but who was able to complete a Personal Information Form and to testify at a hearing with the assistance of an interpreter. In Owusu-Ansah v. Canada (MEI) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.) by Mr. Justice Mahoney, at pages 107-108: In many cases, this among them, the claimant’s evidence has been given through interpreters, usually different at each proceeding. The process is fraught with the possibility of innocent misunderstanding.

RPD’s Treatment of the Evidence Was Unreasonable 32 The Applicant argues that the Expedited Report, dated 3 November 2008, and the Decision are contradictory in their credibility assessments of the Appli- cant. The former makes positive assessment, stating that the Applicant “testified in a straightforward manner” with no inconsistencies or hesitation and that the evidence offered supported his claim. The Decision, on the other hand, found that the Applicant lacked credibility. The Applicant argues that the RPD’s failure to adopt a credibility assessment that is harmonious with that of the Tribunal Officer who carried out the interview for the Expedited Report is contrary to the jurisprudence and represents a breach of natural justice. 33 The RPD failed to give sufficient or, indeed, any weight to important evidence presented by the Applicant, including: evidence of his membership in the monarchist party; the letters from his former employers referencing the difficulties with the Maoists; and the letter from the Maoists, which proved that he had been threatened by them. The RPD did not properly evaluate the documentary evidence detailing the country conditions in Nepal, most especially the evidence describing the “massive human rights violation situation” and the 31 killings committed to advance the Maoist cause. 34 For the above reasons, the Applicant submits that the RPD’s Decision was unreasonable and unfair.

The Respondent RPD’s Credibility Findings Were Reasonable 35 The Applicant assumes that the RPD was required to adopt the Tribunal Of- ficer’s assessment in the Expedited Report. This assumption is incorrect. The information guide provided on the RPD’s website informs refugee claimants of the pre-hearing process and the reports generated following the interviews. That guide clearly states that, although a Tribunal Officer will conduct an interview 12 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

and prepare a report, claimants may be required to attend a hearing where an Immigration and Refugee Member will make a decision regarding the claim. 36 Had the Tribunal Officer been convinced that the Applicant’s case was credible and well-founded, he could have recommended that the claim be accepted without a hearing. That did not happen. The Applicant’s reliance on the Expe- dited Report is without merit.

RPD’s Treatment of the Evidence Was Reasonable 37 The Applicant has failed to provide any persuasive arguments to demonstrate that the RPD erred in its Decision. What the Applicant is asking this Court to do is re-weigh the evidence. As that is not the duty of this Honourable Court, intervention is unwarranted. See Medina v. Canada (Minister of Employment & Immigration) (1990), 120 N.R. 385 (Fed. C.A.); Boulis v. Canada (Minister of Manpower & Immigration) (1972), 26 D.L.R. (3d) 216 (S.C.C.). 38 Tribunals are assumed to have weighed all evidence unless this is proven to the contrary. The Applicant has provided no cogent argument to rebut that presumption. See Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.); Woolaston v. Canada (Minister of Manpower & Immigration) (1972), [1973] S.C.R. 102 (S.C.C.). The Applicant refers explicitly to the letter from his former employer and his oral evidence in that regard. Despite this evidence, the RPD determined that his claim was “totally untrustworthy and lacking any credibility.” On this point, the Respondent relies on Clifford v. Ontario (Attorney General), 2009 ONCA 670 (Ont. C.A.) , leave dismissed, (2010), [2009] S.C.C.A. No. 461 (S.C.C.) at paragraph 40: [T]he majority faulted the Tribunal for not referring to evidence that could have led it to decide differently. Again, I disagree. As I have described, reasons need not refer to every piece of evidence to be sufficient, but must simply provide an adequate explanation of the basis upon which the decision was reached. 39 Finally, the comments of Mr. Justice MacKay in Pehtereva v. Canada (Minister of Citizenship & Immigration), [1995] F.C.J. No. 1491 (Fed. T.D.) at paragraph 13, answer the Applicant’s argument regarding the RPD’s references to, and assessment of, the documentary evidence: Finally, the tribunal’s decision does not set out in precise terms why it pre- ferred certain documentary evidence and not other evidence, but that does not constitute error. Here, the applicant’s concern is primarily that the documentary and other evidence offered by the RHO was relied upon without specifying why evidence of the applicant was not. But that preference of the tribunal, related to evidence of the general circumstances within Estonia, of which the applicant’s experience was but an example. The general circumstances based on documentary evidence from recognized sources provided the basis for objectively assessing the applicant’s expressed fear. In my opinion, the tribunal did not err by ignoring evidence offered by the applicant, or Neupane v. Canada (Minister of Citizenship & Immigration) James Russell J. 13

by failing to specify reasons for preferring other sources of evidence, particularly in seeking an objective overview of circumstances within Estonia. Nor am I persuaded that the tribunal misunderstood or misstated the evidence of the applicant in any way significant for its ultimate finding that the applicant is not a Convention refugee, because it found no serious possibility or reasonable chance she would be persecuted for any reason set out in the definition of Convention refugee should she return to Estonia. 40 Applying these comments to the instant case, it cannot be said that the manner in which the RPD dealt with the documentary evidence was unreasonable.

Analysis 41 The Applicant represented himself in this matter at the review hearing. Hav- ing reviewed his written materials and heard his oral arguments, it seems to me that he has presented two principal grounds for reviewable error.

Contradictory Findings on Credibility 42 The Applicant considers it unreasonable and inconsistent that the RPD’s findings on credibility seem to conflict with those of the Tribunal Officer who interviewed him earlier and produced an expedited report. 43 The Applicant is, however, failing to understand the purpose and status of an expedited report. As the RPD’s website makes clear in its Claimant’s guide, the RPD hold interviews for claims who appear to be straightforward and, at the “expedited interview,” a Tribunal Officer will ask questions and prepare a report. The Tribunal Officer also makes a recommendation about whether or not a claim can be accepted without a hearing. 44 Notwithstanding this expedited process, the guide makes it very clear that the “final decision about your claim is made by an IRB Member.” 45 This means that, if the Tribunal Officer recommends that the claim can be accepted without a hearing, it is open to the Member to either accept that recommendation or to reject it and proceed to a hearing. 46 In the present case, after interviewing the Applicant, the Tribunal Officer did not recommend that the Applicant’s claim be heard without a hearing. In fact the Tribunal Officer who had interviewed the Applicant recommended that a hearing be scheduled. In other words, the Tribunal Officer was of the view that, notwithstanding what he may have written in his own report, the Applicant’s claim required a full RPD hearing in order to determine whether it was genuine. 47 The comments in the Tribunal Officer’s report, which the Applicant seeks to rely upon to dispute the RPD’s finding on his credibility, have little relevance to the credibility issue. The Tribunal Officer’s impressions of the Applicant gained during an expedited interview may well be entirely different from what eventu- ally emerges as a result of a full hearing. As the guide makes abundantly clear, the Tribunal Officer’s decision is not binding on the RPD, and for good reason. 14 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

An expedited interview and a full hearing before the RPD are very different processes. The RPD hearing is much more thoroughgoing and many things are likely to emerge that are not detected at an expedited interview. In the present case, notwithstanding his own impressions that the Applicant testified in a straightforward and consistent manner and readily answered all questions without hesitation or evasiveness, the Tribunal Officer still recommended that a hearing was necessary in order to determine the claim. Obviously the Tribunal Officer was not so convinced by the Applicant that his claim could be accepted without a hearing. 48 There is no inconsistency here and, in any event, as the guide on the website makes clear to applicants, it is always the RPD that makes a final decision on the claim, not a Tribunal Officer. 49 There is no breach of natural justice in this process because all applicants are made aware up front that an expedited interview does not necessarily mean that a claim will be accepted without a hearing and, at both the expedited interview and any eventual hearing, each applicant is given a full opportunity to make his or her case. The Applicant in this case is simply disappointed that, after a full hearing before the RPD, the earlier impressions of the Tribunal Officer following the expedited interview were not sustained or confirmed by the RPD. This does not give rise to a reviewable error.

The Country Situation 50 The Applicant says that the RPD erred in its failure to evaluate the whole country situation in Nepal. As the Decision makes clear, however, the RPD reviewed all of the country documentation and confirmed reports that Maoist extortions and abductions continue. As the RPD makes clear at paragraph 13 of the Decision, however, the general country conditions were not the real issue in the Decision. The Decision is based upon a negative credibility finding concerning the Applicant’s particular circumstances. The RPD simply found it “unreasonable to conclude that the Maoists would have any more interest in this claimant than any other person in Nepal.”

Credibility Issues 51 In assessing the Applicant’s personal credibility, the Applicant says, the RPD erred in overlooking documentation that supports his narrative of threats from the Maoists. 52 The RPD found the Applicant’s testimony implausible: The panel has credibility concerns with the claimant’s rational (sic) as to why the Maoists, if their intent was to achieve their demands of the company, that they would choose the person in the company who had no influence to activate the changes demanded. Neupane v. Canada (Minister of Citizenship & Immigration) James Russell J. 15

53 The Applicant’s explanation was that he was being targeted because he and his family were monarchists, but there was nothing in the objective evidence to suggest that a monarchist association would cause the Maoists to believe that the Applicant would be able to influence their demands upon the dairy company for which he worked: There is no evidence before the panel that the claimant was a target outside of his association with the company and, according to the claimant’s own testimony, his position as an employee afforded him no jurisdiction over monetary or policy decisions. 54 There were, however, three letters which the Applicant introduced into evidence, one of which the RPD refers to in its Decision, but only in a passing way. 55 One of the letters, dated 5 August 2007, was from the National Democratic Party (the Monarchists) and was signed by Hari bahadur Basnet as Chairman of the Village Party Unit. This letter says that the Applicant is an “active member of this National Democratic Party” and that he has “been participating actively in various political activities organized in village/community level.” The letter then says: “It has been making known that personal life and liberty of Mr. Neupane and his family member are in danger from Maoist Cadres.” I quote from the translation. This letter does not explain very much and one can see why the RPD might not consider it to be of any great significance. However, it has to be read in conjunction with the other letters. 56 There is also a letter from the Applicant’s old boss at Kapan Dairy Udhyog Pvt. Ltd., which appears to be the letter referred to by the RPD in its Decision, although the date on the letter is 24 September 2007. 57 This letter reads as follows: It is hereby inform to all the concern parties and employees of this company that GENERAL MANAGER Mr. Pradeep neupane, is being abused, tortured, threatened, attempt of kidnapping by insurgents Nepal Community Party (Maoist) and it’s fraternal organizations All Nepal Farmer Union Rev- olutionary and Young communist league time to time. The management of this company is trying to deals with the individual groups to solve this problem. As per the board meeting decision on 9th July 2007, Mr Neupane is going to take participate in the world largest organic food exposition: ethnic & spe- cialty Food Expo 2007 in Ontario, Canada. The company has arranged all necessary requirements for the participation on to that program in Canada. We always wishing Mr. Neupane’s safe life. 58 In its Decision the RPD had the following to say about this letter: The claimant submitted in evidence a letter from his ex-boss dated December (sic) 2007, suggesting that the company was trying to work out the problems with the Maoists and, when questioned at the hearing regarding this information, the claimant testified in a confusing manner, indicating first that he did 16 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

not know, that he did not ask, that he had no information and that when he asked his boss, he did not get a satisfactory response. 59 The Applicant has appeared before me. He does have language problems and he does seem confused at times, but I put this down to problems with understanding my language and what I was asking him. More important, however, is the fact that the RPD says nothing about the other important aspect of the letter to the effect that the Applicant is being abused, tortured, threatened by Maoists who are trying to kidnap him. This information supports the Applicant’s narrative and is evidence that is directly contrary to the RPD’s conclusion that the Applicant is of no interest to the Maoists. 60 A third letter that was introduced into evidence is addressed to the Applicant and comes from the Maoists themselves. It is dated 25 January 2006. It reads as follows in translation: It is hereby informed that you, Mr. Pradeep Neupane, General Manager of Kapan Dairy Udhyog, had agreed verbally to arrange make payment to milk producer farmer of Pachkhal, Kusadevi village and its’ surrounding areas of Kavre Distrct (sic) the amount which is owed by your employer company Kapan Dairy Udhyog. In this concern we sent you a letter number of times to fulfill that verbal agreement from your side but you never give an attention to our letter. Therefore we informed you regarding this from time to time from the side of our party. You gave no any positive response even after. That is why being forced to decide of your own consequence we would like to inform you that our party has decided any possible action taken as a punishment. 61 Once again, this letter supports the Applicant’s narrative that he is under threats from the Maoists and it is also evidence that contradicts the RPD’s conclusions on this point. 62 The RPD either does not refer to this evidence or, in the case of the ex-boss’ letter, it does not refer to that portion of the letter that supports the Applicant’s narrative. I am not, of course, saying that the RPD had to accept this evidence, but it was contrary evidence and, in accordance with the well-known principles in Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (Fed. T.D.) at paragraphs 15 and 17, the RPD should have specifically dealt with it. The fact that it did not leads me to the conclusion that the RPD either overlooked it entirely or simply ignored it because it inconveniently contradicted a conclusion that the RPD was determined to reach no matter what the contrary evidence. Either way, this was a reviewable error. Judgment THIS COURT ORDERS AND ADJUDGES that 1. The application is allowed. The Decision is quashed and returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. Ralda Gomez c. Canada 17

[Indexed as: Ralda Gomez c. Canada (Ministre de la Citoyenneté & de l’Immigration)] Nelson Ruben Ralda Gomez, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Marie-Josée Bédard J. Heard: October 13, 2010 Judgment: October 22, 2010 Docket: IMM-1412-10, 2010 CF 1041, 2010 FC 1041 Claude Whalen, for Applicant Simone Truong, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Applicant was citizen of Guatemala — Applicant left Guatemala and went to United States, remaining there for some time before coming to Canada and claiming refugee protection — Applicant feared being threatened by criminal gang if he returned to his country — Immigration and Refugee Board rejected applicant’s claim for refugee protection — Board found, among other things, that applicant had not rebutted presumption of state protection because he had not sought help of Guatemalan authorities before claiming refugee protection — Applicant brought application for judicial review — Applica- tion granted — Board’s decision regarding existence of state protection was unreasonable — Board stated proper legal principles but conducted insufficient and superficial analysis of evidence submitted by applicant — Documents board based decision on did not give any indication of effectiveness of protection mechanisms and were not sufficient to conclude applicant had not rebutted presumption of state protection, considering evidence to contrary — In its decision, board did not mention, much less deal with, evidence submitted by applicant which tended to support his argument about inability of authorities to protect him from gang — Board did not have to accept this evidence, but it was relevant and tended to contradict finding that state was able to protect its citizens from violence of gang — General statement by board about corruption in Guatemala was not, in this case, sufficient — Board should have mentioned this evidence and explained why it could not give it any weight. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — General principles –––– Applicant was citizen of Guatemala — Applicant left Guatemala and went to United States, remaining there for some time before coming to Canada and claiming refugee protection — Applicant feared being threatened by criminal gang if he returned to his country — Immigration and Refu- gee Board rejected applicant’s claim for refugee protection — Board found, among other things, that applicant did not prove that he had subjective fear of persecution — Board ruled that by illegally remaining in United States for almost two years without claiming refugee protection, applicant had not acted as person who feared for his life would 18 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d) have — Applicant brought application for judicial review — Application granted — It was unreasonable for board to conclude that applicant did not behave as person who feared for his or her life would have — Board inferred from fact that applicant had not claimed refugee protection in United Sates that he had not behaved as person who feared for his or her life would have — In so concluding, board was in fact questioning credibility of applicant, who claimed to fear for his life — However, board specifically stated at beginning of its decision that it had not assessed applicant’s credibility — It could not therefore draw any negative inferences about applicant’s credibility without making any analysis — Board’s finding was unreasonable. Cases considered by Marie-Josée Bédard 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.) — considered Allinagogo v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 545, 2010 CarswellNat 2348, 2010 FC 545, 2010 CarswellNat 1418, [2010] F.C.J. No. 649 (F.C.) — followed Balakumar v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 20, 2008 CarswellNat 38, 2008 CarswellNat 320, 2008 CF 20, [2008] F.C.J. No. 30 (F.C.) — referred to 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 Car- swellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — considered 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.) — followed Chagoya c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2008), 2008 Car- swellNat 1694, 2008 CF 721, 2008 FC 721, [2008] F.C.J. No. 908, [2008] A.C.F. No. 908 (F.C.) — considered Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A- 1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — considered Herrera v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 979, 2007 CarswellNat 3214, 2007 CF 979, 2007 CarswellNat 5477, [2007] F.C.J. No. 1297 (F.C.) — 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 Car- swellNat 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.) — followed Kadenko v. Canada (Solicitor General) (1996), 1996 CarswellNat 2216, (sub nom. Kadenko v. Canada (Solliciteur général)) 206 N.R. 272, (sub nom. Kadenko v. Canada (Solliciteur général)) 124 F.T.R. 160 (note), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376, [1996] A.C.F. No. 1376 (Fed. C.A.) — considered Khakimov v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 909, 2010 CarswellNat 3459, 2010 FC 909, 2010 CarswellNat 4059 (F.C.) — considered Ralda Gomez c. Canada Marie-Josée Bédard J. 19

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.) — followed Martinez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 3962, 2009 FC 798, [2009] F.C.J. No. 933 (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 Bruns- wick) 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 Rocque v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3297, 2010 CF 802, 2010 FC 802, 2010 CarswellNat 2611, [2010] F.C.J. No. 983 (F.C.) — followed Sanchez v. Canada (Minister of Citizenship & Immigration) (2007), 360 N.R. 344, 62 Imm. L.R. (3d) 5, 2007 CarswellNat 5452, 2007 CAF 99, 2007 CarswellNat 572, 2007 FCA 99, [2007] F.C.J. No. 336 (F.C.A.) — referred to Sanchez v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 1336, 2008 CarswellNat 5522, 76 Imm. L.R. (3d) 102, 2008 FC 1336, 2008 CarswellNat 4437, 90 Admin. L.R. (4th) 90, [2009] 3 F.C.R. 591, [2008] F.C.J. No. 1673 (F.C.) — considered Singh c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 FC 1070, 2009 CarswellNat 4811, 2009 CarswellNat 3322, 2009 CF 1070, [2009] F.C.J. No. 1312 (F.C.) — referred to 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 CarswellNat 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.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 97 — considered s. 97(1) — considered

APPLICATION for judicial review of decision of Immigration and Refugee Board rejecting applicant’s claim for refugee protection.

Marie-Jos´ee B´edard J.:

[UNREVISED CERTIFIED ENGLISH TRANSLATION] 20 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

1 This is an application for judicial review under subsection 72(1) of the Immi- gration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated February 23, 2010, which rejected the applicant’s claim for refugee protection and determined that he was not a refugee within the meaning of section 96 of the IRPA or a “person in need of protection” within the meaning of section 97 of the IRPA.

Background 2 The applicant is a citizen of Guatemala. He fears being threatened by a criminal gang, the Mara Salvatrucha (Maras), if he returns to his country. 3 The applicant was a fisherman. In December 2004, when he was fishing with a friend, he was allegedly approached by the Maras, who tried to extort them by demanding that they hand over their catches three days per week. They com- plied with this demand until December 2005. 4 On December 20, 2005, the Maras demanded that they hand over their catches every day. The applicant’s friend refused, and the Maras beat him and threatened to kill him. On December 25, 2005, the applicant and his friend went back to fish but decided to throw most of their catch back into the water rather than give it to the Maras. The Maras beat the applicant and his friend when they noticed the small catch they had brought. The applicant managed to flee. He went home during the night, and his parents told him that they had been visited by the Maras, who were looking for him. The applicant went into hiding at his uncle’s home in Retalhuleu. On December 25, 2005, the applicant’s mother advised him that his friend had disappeared and that the Maras were looking for him everywhere, even in Retalhuleu. 5 The applicant left Guatemala on January 15, 2006, and went to the United States. He remained there until he came to Canada in January 2007 and claimed refugee protection.

Impugned decision 6 The Board rejected the claim for refugee protection for two reasons. First, it found that the applicant had not rebutted the presumption of State protection. It is important to note that the Board stated that it did not consider it useful to assess the applicant’s credibility because, even if he was credible, he had not rebutted the presumption. In that regard, the Board stated that it must be presumed that Guatemala was able to protect its citizens and that the applicant had made no effort to seek protection from the authorities in Guatemala. The Board was not satisfied with the applicant’s explanations, which were to the effect that he was afraid of making a complaint because he had been warned by the Maras to keep quiet or he would die, that even if he had the Maras with whom he had Ralda Gomez c. Canada Marie-Jos´ee B´edard J. 21

had problems arrested, other gang members would seek revenge, and that the Guatemalan police had been infiltrated by this gang. 7 Secondly, the Board found that the applicant did not prove that he had a subjective fear of persecution. The Board ruled that by illegally remaining in the United States for almost two years without claiming refugee protection, the applicant had not acted as a person who feared for his life would have. The Board was not satisfied with the applicant’s explanations in that regard.

Issues 8 This application for judicial review raises two issues: 1) Did the Board err in finding that the applicant had not rebutted the presumption that Guatemala was able to protect him? 2) Did the Board err in finding that the applicant had not demonstrated a subjective fear of persecution, and was this finding determinative? 9 For the following reasons, I find that the Board made errors warranting intervention by this Court.

Analysis Standard of review 10 It is trite law that issues regarding the adequacy of State protection are questions of mixed law and fact, which are subject to the standard of reasonableness (Hinzman, Re (2007), 2007 CAF 171, [2007] F.C.J. No. 584 (F.C.A.); Rocque v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 802, [2010] F.C.J. No. 983 (F.C.)). The first issue will therefore be analyzed according to the standard of reasonableness. 11 It is also well established that the Board’s findings of fact, especially its assessment of the evidence, are also subject to the standard of reasonableness. It is not up to the Court to substitute its own assessment of the evidence for that of the Board, and it will intervene only if the Board’s conclusions are based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (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.); Martinez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 798, [2009] F.C.J. No. 933 (F.C.); Allinagogo v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 545, [2010] F.C.J. No. 649 (F.C.)). 12 The second issue also involves a sub-question of law: was the Board’s conclusion regarding the applicant’s subjective fear fatal to his application for refugee protection? This question will be reviewed on the basis of the standard of correctness (Dunsmuir). 22 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

13 The role of the Court when it reviews a decision according to the standard or reasonableness was established in Dunsmuir, at paragraph 47: ... A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Analysis a. Did the Board err in finding that the applicant had not rebutted the presumption that Guatemala was able to protect him? 14 The applicant submits that the Board conducted a superficial and selective analysis of the evidence regarding the ability of Guatemala to protect its citizens and that it failed to consider the documentary evidence he submitted, which was clear and convincing evidence of the inability of Guatemala to protect its citizens. 15 The respondent in turns submits that the Board is presumed to have considered all of the evidence and is not required to mention all of the evidence adduced, that the Board’s finding was based on the evidence, and that a reading of the decision shows that the Board was aware of the problems with corruption in Guatemala. The respondent also submits that, in any event, the documentary evidence adduced by the applicant was not clear and convincing evidence of Guate- mala’s inability to protect its citizens and that in the absence of any attempt by the applicant to seek assistance from the Guatemalan authorities, the Board’s finding was reasonable. 16 In my view, at first sight, the Board stated the proper principles but conducted an insufficient and superficial analysis of the evidence submitted by the applicant. 17 In Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.), the Supreme Court clearly established that, absent the complete breakdown of the state apparatus, there is a presumption that a country is able to protect its citizens and that a person must seek protection in his or her own country before claiming refugee protection in a foreign country. 18 Justice La Forest explained as follows the principle underlying the protection of refugees and the crucial importance of the presumption according to which the home State offers protection to its citizens: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an Ralda Gomez c. Canada Marie-Jos´ee B´edard J. 23

individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135. With this in mind, I shall now turn to the particular elements of the definition of “Convention refugee” that we are called upon to interpret. [Emphasis added] 19 The presumption of the availability of State protection can only be rebutted if the applicant submits “clear and convincing evidence” of his or her home country’s inability to offer effective protection (Ward). In Carrillo v. Canada (Minister of Citizenship & Immigration), 2008 CAF 94, [2008] 4 F.C.R. 636 (F.C.A.), the Federal Court of Appeal dealt with the nature of the evidence which was required and specified the following at paragraph 30: “In other words, a claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate”. 20 In Kadenko v. Canada (Solicitor General), [1996] F.C.J. No. 1376, 143 D.L.R. (4th) 532 (Fed. C.A.), Justice D´ecary wrote that the burden of proof was on the claimant and was directly proportional to the level of democracy in the state in question. 21 The Board properly stated the above principles in its decision. It then found that the applicant had not rebutted the presumption of State protection because he had not sought the help of the Guatemalan authorities before claiming refugee protection. The Board did not accept the applicant’s explanations for his failure to do so. 22 In general, an applicant must have sought assistance from the authorities before concluding that the State is unable to give him or her adequate protection, but this is not necessary in all cases, as the Supreme Court noted in Ward: A refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors ... however, he must show that he sought their protection when he is convinced, as he is in the case at bar, that the official authorities — when accessible — had no involvement — direct or indirect, official or unofficial — in the persecution against him. (Jos´e Ma- ria da Silva Moreira, Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per V. Fatsis.) This is not true in all cases. Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively. Moreover, it would seem to defeat the purpose of international 24 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. 23 In Chagoya c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2008), 2008 CF 721 (F.C.), Justice Martineau wrote the following on the failure to seek help from the authorities: ... This Court pointed out recently in Shimokawa v. Canada (Minister of Citizenship and Immigration), 2006 FC 445, [2006] F.C.J. No. 555 (QL), at paragraph 21: “... in seeking state protection, refugee claimants are not expected to be courageous or foolhardy. It is only incumbent upon them to seek protection if it is seen as being reasonably forthcoming. If the refugee claimants provide clear and convincing evidence that contacting the authorities would be useless or would make things worse, they are not required to take further steps.” In short, it is unreasonable to force refugee claimants to ask for protection that has little chance of materializing or that will be a long time coming, simply to demonstrate that state protection is ineffective. 24 It is however up to the applicant to show that it was unreasonable to require that he seek the protection of Guatemala to justify his omission. In this case, the applicant explained that he had not contacted the authorities for three reasons: the Maras had warned him to keep quiet, failing which he would be dead; he feared other Maras would take revenge, even if those who had confronted him were arrested; and the Maras had infiltrated the police. The applicant also submitted documentary evidence in support of his allegations. 25 The Board acknowledged that there was a tremendous amount of corruption in Guatemala but found that the country was making efforts to solve its problems and protect its citizens. The Board based its finding on two documents. It cited an excerpt from the 2008 US Country Report which showed that free elections had been held in Guatemala in November 2007 and that the party in power had been elected for a four-year term. The Board also cited the response to a request for information dated May 5, 2009, which described the complaint mechanism available to crime victims. 26 The applicant submits that the documents cited by the Board did not in any way show that Guatemala was able to protect its citizens, while the Board ignored the documentary evidence which he had submitted at the hearing. He referred to three documents included in the National Documentation Package on Guatemala: Tab 2.3, which deals with the impunity of criminals and the low conviction rate; Tab 7.2, which deals with the inability of police forces to control the gangs and corruption within the police forces; and Tab 7.5, which deals with the corruption of police forces, violence, extortion by gangs and the epi- demic of violence. 27 It is right to affirm as did the applicant, that the Board is presumed to have considered all of the evidence and there is no need to state all of the documentary evidence that was before it (Florea v. Canada (Minister of Employment & Ralda Gomez c. Canada Marie-Josée Bédard J. 25

Immigration), [1993] F.C.J. No. 598 (Fed. C.A.); Chagoya c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), 2008 CF 721 (F.C.)). However, when the applicant submits evidence on an important point which directly contradicts the Board’s findings, it has the obligation to deal with this evidence and to explain why it chose to dismiss it. In Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. no, 1425, 157 F.T.R. 35 (Fed. T.D.), Justice Evans aptly explained the applicable parameters in this regard: 15 The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. 16 On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. 17 However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the op- posite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [Emphasis added] 28 I find that in this case, the documents on which the Board based its decision do not give any indication of the effectiveness of the protection mechanisms and 26 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

were not sufficient to conclude that the applicant had not rebutted the presumption of State protection, considering the evidence to the contrary. In its decision, the Board did not mention, much less deal with, the evidence submitted by the applicant which tended to support his argument about the inability of the authorities to protect him from the Maras. The Board did not have to accept this evidence, but it was relevant and tended to contradict the finding that the State was able to protect its citizens from the violence of the Maras. A general statement by the Board about corruption in Guatemala was not, in this case, sufficient. The Board should have mentioned this evidence and explained why it could not give it any weight (see to the same effect: Khakimov v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 909 (F.C.); Sanchez v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 1336, [2008] F.C.J. No. 1673 (F.C.); Aguirre v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 916, [2010] F.C.J. No. 1116 (F.C.)). 29 I therefore find that the Board’s decision regarding the existence of State protection was unreasonable.

2) Did the Board err in finding that the applicant had not demonstrated a subjective fear of persecution, and was this finding determinative? 30 The applicant submits that the failure to claim refugee protection in the United States should not be determinative because the Board did not question his credibility. 31 The respondent submits that the applicant’s failure to claim refugee protection in the United States undermines his credibility and shows the lack of a subjective fear, which is fatal to his claim for refugee protection. 32 It is important to reframe the Board’s decision. First, the Board did not conduct distinct analyses of the claim for refugee protection under sections 96 and 97 of the IRPA respectively. However, upon reading the decision, I presume that it dealt with applicant’s lack of subjective fear in the context of a “fear of persecution”, which is a feature of an analysis under section 96 of the IRPA. The Board wrote the following: [14] Furthermore, the claimant has not behaved like a person who fears for his life. The claimant went to the United States and lived there for almost two years illegally without claiming asylum there. The panel confronted him with this failure to claim asylum in the United States. He explained that he did not want to claim asylum in the United States because he was afraid of being returned to his country, as has happened to other refugees. [15] The panel is of the opinion that these explanations are insufficient to justify a two-day stay in the United States without claiming asylum when the claimant alleged that he was afraid of being returned to his country. The panel would like to note here the meaning of the words of the Honourable Justice MacKay in Ilie: [translation] “A claimant’s failure to claim refugee Ralda Gomez c. Canada Marie-Jos´ee B´edard J. 27

status in a country that is a signatory to the Convention or to the 1967 Proto- col contradicts the claim that he/she fears persecution.” [16] On this point, the case law has already established the principle according to which a person who claims to fear for his or her life must take the first opportunity in a country that is a signatory to the Convention and/or the Pro- tocol relating to the Status of Refugees to claim that country’s protection. The claimant did not take this opportunity, which casts doubt on his subjective fear. Regarding this absence of subjective fear, the words of the Federal Court in Kamana should be noted: “The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition — subjective and objective — must be met.” 33 Analyzed from the perspective of section 96 of the IRPA, the Board’s finding was determinative. This is not however the case under section 97 of the IRPA, which requires the application of an objective test. In Herrera v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 979, [2007] F.C.J. No. 1297 (F.C.), Justice Beaudry wrote that “[w]hile the applicant’s lack of subjective fear properly disposes of his claim under section 96, the subjective element is not required in order to conclude that a claimant is a person in need of protection under subsection 97(1)”. (See also Sanchez v. Canada (Minister of Citizenship & Immigration), 2007 CAF 99, [2007] F.C.J. No. 336 (F.C.A.); Singh c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 CF 1070, [2009] F.C.J. No. 1312 (F.C.); Balakumar v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 20, [2008] F.C.J. No. 30 (F.C.)). 34 However, I find that subjective fear may sometimes be relevant when assessing the truth of the allegations of a person who claims to be a person in need of protection within the meaning of subsection 97(1) of the IRPA. 35 In any event, I find that in this case, it was unreasonable for the Board to conclude that the applicant did not behave as a person who fears for his or her life would have. As the Supreme Court stated in Ward, “[t]he subjective component relates to the existence of the fear of persecution in the mind of the refugee”. The Board inferred from the fact that the applicant had not claimed refugee protection in the United States that he had not behaved as a person who fears for his or her life would have. In so concluding, the Board was in fact questioning the credibility of the applicant, who claimed to fear for his life. However, the Board specifically stated at the beginning of its decision that it had not assessed the applicant’s credibility. It could not therefore draw any negative inferences about the applicant’s credibility without making any analysis. I am therefore of the opinion that the Board’s finding was unreasonable. 36 The parties did not propose any question of importance for certification, and no question will be certified. 28 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Judgment THIS COURT ORDERS that the application for judicial review be allowed and that the applicant’s claim for refugee protection be referred back to the Im- migration and Refugee Board for redetermination by a differently constituted panel. Application granted.

[Indexed as: Memari v. Canada (Minister of Citizenship & Immigration)] Aref Memari, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Paul S. Crampton J. Heard: November 17, 2010 Judgment: November 26, 2010 Docket: IMM-1091-10, 2010 FC 1196 Angus Grant, for Applicant Kareena R. Wilding, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Ap- plicant citizen of Iran claimed that he was politically involved in student group defending Kurdish rights and that as result he was detained twice, beaten and tortured — Applicant claimed to have fled to escape torture and persecution at hands of Iranian government — Refugee board rejected claim for refugee protection, finding applicant’s credibility as determinative issue — Applicant brought application for judicial review — Application granted; matter remitted for redetermination — Cumulative impact of prejudice suffered by applicant as result of counsel’s inadequate representation was sufficiently serious to compromise reliability of board’s decision — Applicant was prejudiced by errors made by interpreter retained by counsel, who failed to review English version of applicant’s personal information form with him before it was filed — Applicant was unable to read English translation, from Persian calendar into Gregorian calendar, of dates of his detention and escape from Iran — Applicant had to rely on counsel and was prejudiced by her failure to adequately represent him in relation to those critical aspects of his claims — Applicant may have been prejudiced by counsel’s failure to obtain medical report to corroborate his claims of torture — Applicant was prejudiced by counsel’s illness in weeks leading up to hearing, and in hearing itself, when it appeared that counsel was medicated and not lucid — Counsel’s failure to withdraw from matter well before initially scheduled hearing date deprived applicant of opportunity to retain competent counsel in time to Memari v. Canada 29 properly prepare for his hearing — Combined effect of actions and omissions of counsel was sufficient to result in miscarriage of justice — Board recognized counsel’s shortcomings in its decision and counsel volunteered to board that she had not provided adequate representation — Reliability of board’s conclusion that there was still insufficient credible evidence to justify positive determination was compromised by counsel’s representation of applicant. Cases considered by Paul S. Crampton J.: Dukuzumuremyi c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 519, 2006 CF 278, 2006 FC 278, 2006 CarswellNat 2427, [2006] F.C.J. No. 349 (F.C.) — referred to Gulishvili v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 1200, 2002 CarswellNat 3416, 47 Admin. L.R. (3d) 87, 225 F.T.R. 248, 2002 CFPI 1200, 2002 CarswellNat 4128, [2002] F.C.J. No. 1667 (Fed. T.D.) — referred to Huynh v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 107, 21 Imm. L.R. (2d) 18, 65 F.T.R. 11, [1993] F.C.J. No. 642 (Fed. T.D.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — 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 Bruns- wick) 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 R. v. B. (G.D.) (2000), [2000] 8 W.W.R. 193, 81 Alta. L.R. (3d) 1, 2000 SCC 22, 2000 CarswellAlta 348, 2000 CarswellAlta 349, 143 C.C.C. (3d) 289, 261 A.R. 1, 224 W.A.C. 1, 32 C.R. (5th) 207, 184 D.L.R. (4th) 577, [2000] 1 S.C.R. 520, 253 N.R. 201, [2000] S.C.J. No. 22 (S.C.C.) — considered Shirwa v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 183, 1993 CarswellNat 1360, 23 Imm. L.R. (2d) 123, 22 Admin. L.R. (2d) 220, [1994] 2 F.C. 51, 71 F.T.R. 136, [1993] F.C.J. No. 1345 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — pursuant to s. 97 — pursuant to

APPLICATION for judicial review of rejection of applicant’s claim for refugee protection. 30 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Paul S. Crampton J.:

1 Mr. Aref Memari is a citizen of Iran. He is of Sunni Kurdish ethnicity. He claims to have fled Iran to escape torture and persecution that he experienced at the hands of the Iranian government because of his political beliefs and activities. He arrived in Canada in May 2007 and claimed refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 2 In February 2010, the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) rejected his claim for refugee protection. 3 The Applicant seeks to have the decision set aside on the basis that: i. the principles of natural justice were breached as a result of his former counsel’s incompetence; ii. comments made by the Board subsequent to its decision gave rise to a reasonable apprehension of bias; and iii. the Board’s analysis of the evidence was unreasonable. 4 For the reasons that follow, this application is allowed.

I. Background 5 In an addendum to the personal information form (PIF) filed in support of his application for refugee status, the Applicant states that he was politically involved with a clandestine student group that defended Kurdish rights and ad- vocated an end to the discrimination and persecution of Kurds. In 1996, after students and local teachers at the University of Sanandaj were humiliated and persecuted for being Kurds and Sunnis, he became seriously involved with that group. Among other things, the group distributed flyers, held meetings on a clandestine basis and held peaceful rallies. The Applicant also was a supporter of the leftist Hekmatiye political movement. 6 After an Iranian Kurd was arrested and killed by Iranian security forces in 2005, the Applicant participated in a peaceful protest. He claims that this protest was raided and that he was arrested. He further claims that he was then detained, beaten, lashed on numerous occasions and interrogated for 15 days, before being released five days later. 7 He claims that he did not return to his political activity until after the Nowrooz (Iranian New Year) holiday in 2006, when he was asked by one of the members of the student group to attend a meeting and speak about his experience. He renewed his involvement with the group and began photocopying flyers that were distributed by other members of the group. 8 The Applicant claims that he was then arrested a second time, on January 15, 2007. He states that he was again beaten, seriously tortured and interrogated about his activities. After being detained for over two weeks, he was forced to Memari v. Canada Paul S. Crampton J. 31

sign an undertaking stating that he would not tell anyone about his detention and was threatened with death if he violated this undertaking. 9 The Applicant claims that a few weeks later, on February 4, 2007, he was taken to the outskirts of the city and left there. He states that he immediately went into hiding for three nights until he could meet with a smuggler. He spent five days hiding with the smuggler before departing for Turkey on February 11, 2007. He stayed in Turkey until he departed for Canada, where he arrived on May 22, 2007. 10 Since fleeing Iran, the Applicant claims that his house has been raided and that his parents, brother, wife and neighbours have been interrogated. In addition, his wife was dismissed from her job, was forced to sign an undertaking stating that she would report the Applicant, and has been required to report to the Sepah (a branch of Iran’s military) every other month. 11 In his PIF, the Applicant added that that his family was opposed to the revolution in Iran, that their home was raided and searched, and that his father was arrested and detained in an undisclosed location for four months, where he was severely tortured. He was finally released when the Applicant’s mother posted the deed to her property as bond. Due to the injuries he suffered as a result of his torture, he has been unable to work since that time. In addition, he was dismissed from the military and is prohibited from leaving the country.

II. The Decision under Review 12 At the outset of its decision, the Board identified the Applicant’s credibility as the determinative issue in its decision. 13 Before addressing the substance of the Applicant’s claim, and after acknowledging that the Applicant’s counsel at the time, Ms. Anita Leggett, was known to the Board as a capable and conscientious refugee lawyer, the Board noted that there were “issues with her performance.” The Board noted that the hearing was originally scheduled for November 24, 2009, but was adjourned to January 27, 2010 because Ms. Leggett submitted a revised narrative on the morning of the hearing. The Board noted that the document was dated March 2009. It also noted that Ms. Leggett took responsibility for this late submission, “citing both illness and simply not getting around to it.” 14 The Board then observed that, at the hearing on January 27, 2010, Ms. Leg- gett indicated that she was ill and had not been feeling well. The Board also noted that she submitted at that time a detailed psychological report that she claimed to have just received. 15 The Board then noted that once the hearing commenced and an issue arose about the Applicant’s claimed dates of detention in Iran, Ms. Leggett approached the Panel and showed the Panel her copy of the PIF, on which she had marked some different dates than what appeared in the document. At that time, 32 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

she claimed that she had intended to amend the PIF before the hearing, but forgot, due to her illness. 16 The Board further noted that Ms. Leggett subsequently volunteered that she had not provided adequate representation for the Applicant, and that she had apologized. The Board stated that the Applicant would not be penalized for any alleged errors made by Ms. Leggett. It added that it had been very careful to fairly consider the implications of such alleged errors. However, it maintained that there was still insufficient credible evidence to justify a positive determination. 17 The Board then addressed various inconsistencies that it found in the Appli- cant’s evidence. It stated that, cumulatively, those inconsistencies and one significant implausibility led it to conclude that the Applicant’s evidence, on the whole, was not credible. 18 The first inconsistency identified by the Board concerned the number of times the Applicant claimed to have been detained. The Board noted that in his PIF and in his testimony, the Applicant stated that he had been detained twice. However, the Board noted that in a Declaration that he signed at his port of entry, he only mentioned one detention. The Board did not accept the Appli- cant’s explanations that (i) he was told by the immigration officer at the port of entry to keep his story short, and (ii) the proximate cause of his departure from Iran was his second detention. Instead, it concluded that his claim to having been detained on another occasion was an embellishment. It therefore made a negative inference as to his credibility. 19 The second inconsistency identified by the Board related to the difficulties that the Applicant claimed to have had with the interpreter during his point of entry interview. The Applicant alleged at the hearing that he had difficulties understanding the interpreter on several occasions because (i) the interpreter was Afghani, who speaks Dari (which is similar to Farsi) and Iranians (who speak Farsi) don’t understand much of the terminology used by Afganis, and (ii) the interpreter was interpreting over a speaker telephone that did not transmit clearly. The Applicant further claimed to have requested a Kurdish interpreter, but was told that none was available, and claimed to have requested that various questions posed during the interview be repeated several times. 20 The Board rejected the Applicant’s claims after noting that: • the Officer told the Applicant to let him know if a question was unclear or if he did not understand, and the Applicant did not do so; • there was no record in the interview notes of the Applicant having complained about the interpretation, having requested that questions be repeated, or having requested a Kurdish interpreter; Memari v. Canada Paul S. Crampton J. 33

• at the end of his Declaration, the Applicant thanked immigration personnel for their help and did not express any complaints about the interview process; • the Applicant signed the written record of the interview, to confirm that what was contained therein was true; • the interpreter had signed a declaration stating that he had interpreted the contents of that record to the Applicant and the Applicant had informed him that he had he understood that record; • the Applicant indicated at the hearing that he is just as fluent in Farsi as he is in Kurdish, and requested a Farsi, rather than a Kurdish, interpreter; • the Applicant’s Declaration was done free-hand with no interpretation, and was done in Farsi; and • as a university graduate, the Applicant would not have simply signed a form because he was told to do so, and an immigration officer would not have requested him to sign something that he knew or ought to have known not to be true, since there is a presumption that CIC deals fairly that was not rebutted. 21 The third inconsistency was identified as involving the dates of the Appli- cant’s first detention. The Board noted that there were differences between the Applicant’s testimony and his PIF on this matter. In his testimony, the Board stated that he identified those dates to be August 3, 2005 to August 24, 2005, and that when he was asked if he was sure about those dates, he replied in the affirmative. However, in his PIF, the Board stated that the dates of his first detention were identified as being from September 3, 2005 to October 3, 2005. 22 The Board observed that, at the beginning of the hearing, he had sworn to the accuracy of his PIF, yet he alleged later in the hearing that it was not accurate in this respect. It then noted that he suggested that the interpreter at Ms. Leggett’s office may have copied the dates from the interview record. The Board did not accept this explanation because there was nothing in the interview record indicating that he had been detained on the dates set forth in his PIF (September 3, 2005 to October 3, 2005), and thus the interpreter at Ms. Leg- gett’s office could not have copied the dates wrong. 23 The Board also noted that Ms. Leggett had showed the Panel her copy of the PIF, which appeared to indicate some changes in pen or pencil. The Board observed that Ms. Leggett had indicated that this was evidence that she had intended to change that section of the PIF before the Applicant swore to it at the hearing, but she forgot to do so due to her illness. The Board acknowledged that Ms. Leggett correctly indicated that the revised narrative set forth in the addendum to the Applicant’s PIF indicated that the Applicant was arrested on August 3, 2005. 34 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

24 However, the Board found that the fact that the Applicant, apparently incorrectly, blamed this on the interpreter and also, apparently incorrectly, indicated that the interpreter had taken the wrong information from the interview record, would tend to indicate that his explanations should not be accepted. The Board therefore made a negative inference as to credibility, although it noted that this was partially mitigated by Ms. Leggett’s explanation. 25 The fourth inconsistency concerned the dates of the Applicant’s alleged second detention. The Board noted that the dates set forth in the interview record and the Applicant’s PIF were different. In the interview record, the dates were stated to be October 25, 2006 to November 15, 2006. However, in his PIF, the Applicant stated that he was released from custody, and escaped from Iran, in February 2007. 26 When asked to explain the apparent inconsistency, the Applicant claimed that they resulted from errors made by the interpreter in converting the Persian calendar to the Gregorian calendar. Since the Board did not accept the Appli- cant’s allegations regarding poor interpretation at the interview, the Board did not accept this explanation. 27 The fifth “inconsistency” concerned the Applicant’s response to a question regarding the location where Mansour Hekmat, the head of the party the Appli- cant claimed to support, died. The Applicant stated that he died in Iran or Iraq. It was only after the Applicant was asked how the leader of an anti-regime party would be allowed to live in Iran that the Applicant corrected himself and stated that he died in London. The Board found that this indicated that the Applicant had little knowledge of the party he claimed to support. It therefore made a further negative inference regarding the Applicant’s credibility. 28 Finally, the Board found a significant implausibility in the Applicant’s claim. The Applicant indicated that although his wife has been interrogated fre- quently since he left, she had not disclosed to the authorities that he had fled to Canada. The Board found it implausible that the Applicant’s wife would not have been forced to reveal this fact, particularly if the regime were targeting the Applicant to the extent that he claimed. 29 Based on the foregoing, the Board concluded that the Applicant’s evidence was, on the whole, not credible. Accordingly, it found that he would not face a risk contemplated by sections 96 or 97 of the IRPA.

III. Standard of review 30 The issues of procedural fairness and natural justice raised by the Applicant are reviewable on a standard of correctness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paras. 55, 60 and 79; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), at para. 43). Memari v. Canada Paul S. Crampton J. 35

31 The issue regarding the Board’s analysis of the evidence is reviewable on a standard of reasonableness (Dunsmuir, above, at paras. 51-56).

IV. Analysis A. Were the principles of natural justice breached as a result of his former counsel’s incompetence? 32 The Applicant submits that the principles of natural justice were breached as a result of Ms. Leggett’s incompetence in representing him. I agree. 33 In R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520 (S.C.C.), at para. 26, the Supreme Court of Canada stated that for this ground of challenge to succeed, “it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.” The Court elaborated as follows: 27 Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hind- sight has no place in this assessment. 28 Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. 29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self governing body [...] 34 Although B. (G.D.) was a criminal case and the Supreme Court’s analysis of the issue of the right to effective counsel was focused on persons charged with a felony, this Court has recognized this right in the refugee context (see, for example, Gulishvili v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 1667, 2002 FCT 1200 (Fed. T.D.); Shirwa v. Canada (Minister of Employment & Immigration) (1993), [1994] 2 F.C. 51 (Fed. T.D.), at 60-64). 35 It may also be noted that subsection 167(1) of the IRPA provides a statutory right to be represented by counsel, to persons who are the subject of Board proceedings. 36 However, in proceedings under the IRPA, the incompetence of counsel will only constitute a breach of natural justice in “extraordinary circumstances” (Huynh v. Canada (Minister of Employment & Immigration) (1993), 65 F.T.R. 11 (Fed. T.D.), at 15). With respect to the performance component, at a minimum, “the incompetence or negligence of the applicant’s representative [must be] sufficiently specific and clearly supported by the evidence” (Shirwa, above, 36 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

at 60). With respect to the prejudice component, the Court must be satisfied that a miscarriage of justice resulted. Consistent with the extraordinary nature of this ground of challenge, the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.

(i) The performance component 37 As noted in Part II above, the Board acknowledged in its decision that there were “issues with [Ms. Leggett’s] performance.” In this regard, the Board mentioned that: • the hearing originally scheduled for November 24, 2009 was adjourned to January 27, 2010 after Ms. Leggett submitted a revised narrative, dated March 2009, on the morning of the hearing; • when issues arose during the hearing on January 27, 2010 regarding the Applicant’s claimed dates of detention in Iran, Ms. Leggett approached the Panel and displayed a marked-up copy of the Applicant’s PIF and claimed that she had intended to amend the PIF prior to the hearing, but forgot, due to her illness; and • Ms. Leggett had volunteered that she had not provided adequate representation for the Applicant, and apologized for her shortcomings. 38 The Applicant submits that Ms. Leggett’s incompetence was not confined to his hearing before the Board, but was evident throughout her representation of him. In addition to the foregoing, additional examples identified by the Appli- cant include her failure to: • cross-examine the port of entry interpreter and immigration officer; • notice and correct errors of the interpreter; • adduce evidence regarding the conversion of the Persian calendar to the Gregorian calendar; • obtain a medical report to confirm that the scars on his body were consistent with his having been tortured; and • withdraw from the record given the severity of her health condition. 39 The Applicant also claims that Ms. Leggett was responsible for his poorly prepared PIF narrative. 40 In addition to acknowledging and apologizing for her shortcomings before the Board, Ms. Leggett swore an affidavit in support of this application. In that affidavit, she stated that it was very clear to her that the Afghani interpreter who assisted with the Applicant’s port-of-entry interview had incorrectly translated the dates provided by the Applicant with respect to his second detention. She added that “due to illness,” only a brief PIF narrative was submitted, that she Memari v. Canada Paul S. Crampton J. 37

intended to expand on this narrative before the hearing, and that in the rush to get the PIF submitted on time, the interpreter she used made some mistakes in converting calendar dates from the Persian calendar to the Gregorian calendar. 41 In her affidavit, Ms. Leggett also stated the following: 8. Just prior to the hearing, I did provide an addendum to the PIF narrative. The refugee claim was originally scheduled to be heard in November, 2009. At the time, I had become seriously ill with a medical condition that was initially misdiagnosed by medical practitioners. On the morning of the hearing, I was feeling very dizzy and unwell. When I arrived at the hearing, I learned that the presiding Board Member — Michael Sterlin — had not received the revised PIF narrative. Because I was also feeling sick, the hearing was postponed. While the postponement was in no way the fault of Mr. Memari, the member set the next hearing date as peremptory. 9. As it turned out, I had contracted a serious virus and the drugs that were prescribed to me made the situation worse. I have permanently lost hearing in one ear and the medication seriously impeded by mental faculties. 10. While I was still seriously ill, I nevertheless went to the resumption of Mr. Memari’s hearing on January 27, 2010 because I knew that it would go ahead regardless of my condition. I told the member at the beginning of the hearing that I was not feeling well and that I had lost hearing in my right ear. I told him that I was on medication which was making me very sick, and did not permit me to think or reason, and at times understand what was being said. Nevertheless, the member insisted that the hearing proceed. 42 The foregoing is consistent with the following extract from the first page of Ms. Leggett’s written submissions to Board member Michael Sterlin, dated Jan- uary 31, 2010, a few days after the Board’s hearing in this matter, and after Ms. Leggett claims to have ceased taking her medication: On the sitting of November 24, 2009, I wanted to request a postponement, as I was not feeling well, was feeling dizzy, and mentioned it to you at the beginning of the hearing. As you mentioned, you felt sorry I was not feeling well, but you would have proceeded if all the material submitted had been on time. You adjourned the matter as the extensive addendum to the narrative was filed on November 23, 2009, despite the fact that the letter I wrote and the addendum were written on March 1, 2009. The addendum came to your attention on the day of the hearing. You did not have time to read it. You insisted on making the next sitting, January 27, 2010, peremptory, irrespective of any illness of counsel. Since November 24, 2009, I have been quite unwell, as I mentioned to you at the sitting of January 27, 2010, with a condition that was misdiagnosed by the medical professional, with serious and maybe permanent consequences. As I mentioned to you on January 27, 2010, I was not well: - I was under the influence of some strong medication, and it was very difficult for me to function. Despite that, we did proceed. 38 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

You also had not received the psychiatric report which was filed on the Mon- day, January 25, 2010, as the psychiatrist did not have time to see the claimant prior to January 11, 2010, despite the fact that I made the referral immediately after the November 23, 2009 adjournment. I did not receive the psychiatric report until the Thursday prior, on January 21, 2010, and there was no one at the office to file the report on Friday, January 22, 2010. At the conclusion of the hearing on January 27, 2010, you asked me if I wanted to make submissions. I did not understand your question. Then I indicated that I did want to make submissions, and I made them orally, despite the fact that I could hardly function due to the medication I was on, and the medical condition I have. I also felt you had made up your mind irrespective of my submissions. 43 The foregoing is also consistent with the complaint that the Applicant filed with The Law Society of Upper Canada. In that complaint, the Applicant elaborated as follows with respect to the various ways in which Ms. Leggett’s illness and inattention to his file adversely impacted upon his case before the Board: Ms. Leggett prepared my initial refugee claim forms poorly, partly because she was ill and partly because she was out of the country. The forms were prepared in haste, and were inaccurate. After the forms were sent in, I tried to contact her on numerous occasions, at least ten times. On every occasion, I was told that there was no need to come in to see her, that everything was OK and that there was nothing to be done. I later found out that this was wrong. I was only able to meet up with her a matter of days before my hearing was scheduled to take place. At that point over two years had passed since I first retained Ms. Leggett’s services. At that time, it became clear to me, that substantial changes were needed to be done to the papers (known as the Personal Information Form). We made the changes, but Ms. Leggett only sent them to the Refugee Board a day before the hearing. The Board Member had not received these changes on the day of the hearing, so it had to be adjourned. It also had to be adjourned because Ms. Leggett was sick. The next hearing date was made peremptory even though I wasn’t at fault for the postponement. At the next hearing, despite the fact that I told Ms. Leggett that there were other corrections that needed to be made, she forgot to inform the Board Member of the amendments. This led the Member to disbelieve my story. I attach to this complaint a copy of the Refugee Board decision that discusses the problems that my lawyer had. I learned at the second hearing that she was still very sick, and was not feeling lucid. She was not competent during the hearing. I am sympathetic that she was sick, but she should never have come to the hearing. She should have told me and withdrawn from the record if she was not able to represent me competently. I honestly feel that my life is at stake, and I feel that she did not represent me adequately, despite what might have been her good intentions. In addition, her interpreter made numerous errors, which I was told not to worry about and could be fixed later. These mistakes were never corrected. Memari v. Canada Paul S. Crampton J. 39

44 In summary, the Board itself recognized and devoted five paragraphs of it decision to discussing Ms. Leggett’s shortcomings. Ms. Leggett herself volunteered to the Board that she had not provided adequate representation for the Applicant and then apologized to the Board. She subsequently elaborated upon these shortcomings in her written submissions to the Board and in an affidavit sworn in support of this Application. The Applicant has also made a detailed complaint to The Law Society of Upper Canada. This evidence is all internally consistent. It is also consistent with the balance of the record. 45 I am satisfied that the particular claims of incompetence set forth above are sufficiently specific, exceptional and clearly supported by the evidence to meet the performance component established in the jurisprudence discussed above.

(ii) The prejudice component 46 In its decision, the Board stated that the Applicant would not be penalized for any alleged errors made by Ms. Leggett. However, after considering the implications of the alleged errors, it concluded that there was still insufficient credible evidence to justify a positive determination. 47 In my view, it is readily apparent that the reliability of this conclusion by the Board was compromised by Ms. Leggett’s representation of the Applicant, and that therefore there has been a miscarriage of justice. 48 The Board dismissed the Applicant’s claim for refugee protection on the basis that his evidence, “on the whole, was not credible.” As discussed in Part II above, the Board identified five “inconsistencies” which, cumulatively, and together with one implausibility finding, led the Board to conclude that the Appli- cant was not credible. In my view, Ms. Leggett’s representation of the Applicant adversely impacted on three of those alleged “inconsistencies.” 49 With respect to the other two inconsistencies, one was relatively minor. It occurred when the Applicant quickly corrected himself regarding the place where the leader of the anti-regime party he supported died. The negative inference for the Applicant’s credibility that was drawn from this inconsistency was explicitly made having regard to “the other concerns regarding the claimant’s credibility.” Similarly, the implausibility finding also appears to have been mi- nor, in relation to the other concerns identified by the Board. The remaining inconsistency involved the Applicant’s failure to disclose, in his port-of-entry interview and in his port-of-entry declaration that he had been detained twice. He was not represented by counsel at that time. 50 There is no question that that the cumulative impact of these latter two inconsistencies and the implausibility finding is significantly less than the cumulative impact of all five of the inconsistencies and the implausibility finding that provided the basis for the Board’s rejection of the Applicant’s claim for refugee protection. 40 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

51 The other three inconsistencies involved interpretation issues, the most important of which concerned the dates of the Applicant’s two alleged detentions and beatings. These inconsistencies appear to have played a central role in the Board’s finding that the Applicant’s evidence was, “on the whole, not credible.” 52 With respect to the dates of his first detention, the Board noted in its decision that there was a “very significant” inconsistency between the dates he provided in his initial PIF narrative and the dates he provided to the Board during its hearing. At the hearing, and in the more detailed PIF statement that he filed as an addendum, he stated that the dates were from August 3, 2005 to August 24, 2005. However, in his initial PIF, the dates were stated to be from September 3, 2005 to October 3, 2005. The Applicant attributed this inconsistency to the interpreter retained by Ms. Leggett. 53 As previously noted, Ms. Leggett acknowledged during the hearing that she had meant to change this, but forgot due to her illness. 54 Another one of the inconsistencies identified by the Board as having been “very significant” involved the dates of the Applicant’s second detention. The port-of-entry interview record indicated that he stated that he had been detained from October 25, 2006 to November 15, 2006. However, in his PIF, he stated that he escaped from Iran upon his release from detention, in February 2007. Once again, the Applicant attributed the inconsistency to poor interpretation, this time on the part of the interpreter who assisted with his port-of-entry interview. The Board rejected this explanation. 55 The nature of the Applicant’s problems with the translation of the dates from the Persian calendar to the Gregorian calendar is revealed in the transcript of his hearing with the Board (at page 30). His exchange with the Board member regarding the dates of his second detention, as set forth in the port-of-entry interview record, went as follows: CLAIMANT: That’s not a complete document. I stated on the 15th of 11 month and they, the Interpreter thought the 11 month is the — according to Western calendar. MEMBER: M’hm. CLAIMANT: But 11 month in the Persian calendar is sometime in February. MEMBER: Okay. So, you’re telling me that — COUNSEL: So, I detected that and I can always refer to the Persian version of my declaration. MEMBER: Okay. Let me see that — so, let me see that declaration, please. Let me get it back. Okay. CLAIMANT: Thanks. MEMBER: Yeah. Okay. So, you’re saying this is right? It’s February, not November? Memari v. Canada Paul S. Crampton J. 41

CLAIMANT: In our calendar, it’s the 11th month. I left, fled from Sanandaj. MEMBER: I see it. It’s 11th. It’s 11 Persian month and it came out with the 11th Gregorian month, November. I see what you’re saying (emphasis added). CLAIMANT: Exactly. And that’s what I detected as well. MEMBER: What do you mean you detected it? CLAIMANT: Because — because there — the same mistake was made in another place. MEMBER: So, if you detected it, why didn’t you have him correct the error, then? CLAIMANT: Later, after I left the airport, later, I found out. 56 Notwithstanding that the Board member seemed to understand the Appli- cant’s explanation, he nevertheless made a negative inference regarding the Ap- plicant’s credibility. As with the inconsistency regarding the dates of his first detention, the Applicant was clearly prejudiced by this unfortunate error, which Ms. Leggett failed to draw to the Board’s attention back in March 2009, when she first learned of it. During the hearing, when the Board asked for an explanation of why there was so much time between when the initial PIF was filed and when the more detailed PIF addendum was filed, Ms. Leggett replied that she thought it had been filed previously. She added: “But when I opened the file, I found that it had not been, just before the hearing” (transcript, p. 34). 57 Elsewhere during the hearing, the Board identified additional inconsistencies in the record that involved dates. For example, at page 31 of the transcript, the following exchange took place: MEMBER: Okay. So, I’m looking at your PIF, not the narrative. PIF, section 7, it says you worked, okay, ’til January 2007. That would make — right. Section 11 of your PIF says you lived in Sanandaj until May ’07. How can that be? CLAIMANT: It’s not possible at all. In 2007 I was already in Canada. MEMBER: So, why did you put it? CLAIMANT: I didn’t put it there. MEMBER: Who did? CLAIMANT: My interpreter put it there. MEMBER: Okay. You said the PIF was read back to you and you understood it. CLAIMANT: Yes, when it was read to me in Persian, in Farsi, I understood what I — the statements I made in Farsi, I understand, because the interpreter, my interpreter, interpreted everything in Farsi for me. 42 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

58 Once again, the Applicant was prejudiced by errors made by the interpreter retained by Ms. Leggett, who failed to review the English version of the Appli- cant’s PIF with him before it was filed by her. 59 The Applicant appears to have been consistent from the outset with respect to the dates, according to the Persian calendar, of his detentions and his escape from Iran. However, he was unable to read the English translation of those dates into the Gregorian calendar, or to verify the accuracy of the translated dates as they were interpreted to him at the port-of-entry and in his counsel’s office. He therefore had to rely on Ms. Leggett in that regard. He was clearly prejudiced by her failure to adequately represent him in relation to those critical aspects of his claims. 60 In addition to the foregoing, the Applicant also may have been prejudiced by Ms. Leggett’s failure to obtain a medical report to corroborate his claims of torture. Had she obtained such a report, it may very well have buttressed the Appli- cant’s credibility in the eyes of the Board. During the hearing before the Board, Member Sterlin expressed, on four occasions, his displeasure with the fact that a medical report had not been provided with respect to the injuries the Applicant claimed to have suffered from having been tortured (transcript, at pp. 9 and 22). He also expressed unhappiness with Ms. Leggett’s failure to submit a psychiatric report before the date of the rescheduled hearing, on January 27, 2010 (transcript, at pp. 10-11). 61 I have little doubt that the Board may very well have reached a different overall conclusion with respect to the Applicant’s credibility, had he not been prejudiced by Ms. Leggett’s inadequate representation. Indeed, the Board also may have been more positively predisposed to accept the explanation that he provided with respect to the only other significant inconsistency that it identified in its decision, namely, his failure to mention his initial detention during his port-of-entry interview, before he retained Ms. Leggett. 62 I am also satisfied that the Applicant was further prejudiced by Ms. Leg- gett’s illness in the weeks leading up to the hearing, and in the hearing itself, when it appears that she was medicated and not lucid. For example, at the initial hearing on November 24, 2009, Ms. Leggett acknowledged that she had not been feeling well for the past four to five weeks, and had to cancel meetings that had been scheduled with the Applicant “practically every day.” In addition, it is clear that her failure to submit, prior to the day before the initially scheduled hearing date, the Applicant’s revised narrative, which had been prepared in March of that year, led the Panel to adjourn the hearing to January 27, 2010 and to inform the Applicant that it intended to proceed with the hearing on the latter date whether or not Ms. Leggett was able to proceed on that date. This left the Applicant in the very difficult position of having to retain new counsel on short notice or stay with Ms. Leggett. While the choice to stay with Ms. Leggett was his, he could not have anticipated that she would arrive for the rescheduled hear- Memari v. Canada Paul S. Crampton J. 43

ing in a state where, according to her own subsequent submission to the Board: “I could hardly function due to the medication I was on, and the medical condition I have.” 63 Moreover, Ms. Leggett’s failure to withdraw from the matter well before the initially scheduled hearing date deprived the Applicant of the opportunity to retain competent counsel in time to properly prepare for his hearing. 64 In my view, on the particular facts of this case, the cumulative impact of the prejudice suffered by the Applicant as a result of Ms. Leggett’s inadequate representation of him was sufficiently serious to compromise the reliability of the Board’s decision. Taken in isolation, each of the individual actions and omissions on the part of Ms. Leggett addressed above would not have satisfied the prejudice component of the jurisprudence set forth above. However, I am satisfied that the combined effect of these actions and omissions was sufficient to result in a miscarriage of justice. Taken as a whole, Ms. Leggett’s representation of the Applicant was not adequate or reasonable. 65 The particular facts of this case differ significantly from the typical case in which “the various omissions alleged against the applicant’s former counsel are not such that they would undermine the confidence of a reasonably informed objective person regarding the outcome of the applicant’s appeal” (Dukuzumuremyi c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 278 (F.C.), at para. 20). 66 Accordingly, this application will be granted. 67 Given my conclusion on this issue, it is not necessary to address the remaining issues that have been raised by the Applicant.

V. Conclusion 68 The application for judicial review is allowed. The Board’s decision is set aside, and the matter is referred back to the Board for redetermination by a differently constituted panel. 69 There is no question for certification.

Judgment THIS COURT ORDERS AND ADJUGES that this application for judicial review is allowed. Application granted; matter remitted for redetermination. 44 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Li v. Canada (Minister of Citizenship & Immigration)] Sen Lin Li, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Douglas R. Campbell J. Heard: December 14, 2010 Judgment: December 15, 2010 Docket: IMM-2154-10, 2010 FC 1289 Shelley Levine, for Applicant Prathima Prashad, for Respondent Immigration and citizenship –––– Refugee protection — Identity –––– Applicant was resident of China and sought refugee protection based on fear of persecution and risk due to Christian faith — Applicant tendered into evidence number of documents to establish identity — Applicant produced Hukou which was determined to not belong to applicant because name and signature of person issuing document was missing — After oral reasons were provided, counsel for applicant pointed to evidence indicating faded stamp and name of issuing officer, which was found to be insufficient to change decision — Appli- cant applied for judicial review of decision — Application granted — Conduct of hearing leading to conclusion exposed fundamental fact-finding error — Refugee Protection Di- vision (RPD) was required to carefully consider evidentiary value of Hukou including new evidence presented — If new evidence was not sufficient, RPD was required to clearly state reasons — Decision was unreasonable, matter referred back for redetermination by differently constituted panel. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous issues –––– Applicant was resident of China and sought refugee protection based on fear of persecution and risk due to Christian faith — Applicant tendered into evidence number of documents to establish identity — Applicant produced Hukou which was determined to not belong to applicant because name and signature of person issuing document was missing — After oral reasons were provided, counsel for applicant pointed to evidence indicating faded stamp and name of issuing officer, which was found to be insufficient to change decision — Appli- cant applied for judicial review of decision — Application granted — Conduct of hearing leading to conclusion exposed fundamental fact-finding error — Refugee Protection Di- vision (RPD) was required to carefully consider evidentiary value of Hukou including new evidence presented — If new evidence was not sufficient, RPD was required to clearly state reasons — Decision was unreasonable, matter referred back for redetermination by differently constituted panel.

APPLICATION for judicial review of decision by Refugee Protection Division dismissing claim for refugee protection. Li v. Canada Douglas R. Campbell J. 45

Douglas R. Campbell J.:

1 The present Application concerns a decision of a Member of the Refugee Protection Division (RPD) in which the Applicant’s claim for refugee protection was dismissed on a finding that the Applicant had not established his identity. The Applicant’s claim for protection is based on his subjective and objective fear of persecution and risk as a Christian citizen of China. 2 In support of his claim, the Applicant tendered into evidence a number of documents to establish his identity: a Chinese Resident Identity Card in his name which the RPD Member found to be fraudulent on the basis of an uncontested forensic analysis; an original Hukou and an original marriage certificate each in his name; and photocopies of his wife’s and son’s Identity Cards. With respect to each of these documents the RPD Member applied expert knowledge to find that they displayed deficiencies on their face, and these perceived deficiencies were applied to support the negative identity finding made. Indeed, the Applicant’s explanations of the circumstances under which he acquired the false Identity Card and the reasons for his belief that no deficiencies existed in the documents submitted were not accepted: I find that the claimant has not provided any reasonable explanations for the problematic documents disclosed and lacking that, I find that he has not established his identity and therefore I reject his claim. (Decision, paragraph 11) 3 In my opinion, the conduct of the hearing leading to this conclusion exposes a fundamental fact-finding error. 4 The transcript of the hearing conducted before the RPD Member reveals that both the RPD Member and Counsel for the Applicant have expert knowledge of identity issues arising with respect to refugee claimants from China. The RPD Member’s expertise played out during the course of the hearing by the Member stating his understanding of what might be expected of the identity documents supplied by the Applicant, with Counsel for the Applicant responding with arguments intended to dissuade the RPD Member from making negative findings. It is easy to conclude that the RPD Member’s confidence in his knowledge allowed him to quickly engage on the identity issues during the course of the hearing and, following the hearing and submissions by Counsel for the Applicant, to immediately orally render the negative decision which was subsequently committed to writing. In my opinion, a rush to judgment facilitated the error made. 5 It is uncontested that a Hukou is an important identity document and no finding was made by the RPD Member that the original Hukou submitted by the Applicant was not his. With respect to the Hukou the Member found as follows: The claimant disclosed a Hukou but as I noted earlier, there is a place for the signature and name for the person who registered the Hukou. Neither the signature nor the name appears on the pages of the Hukou disclosed. Counsel 46 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

noted that quite often some personal information in various boxes in the Hukou page is not provided and I agree. However, the signature and the name of the person who registered the Hukou are different. In my experience it is always provided. (Decision, paragraph 8) 6 However, after the hearing, and after oral reasons were provided, Counsel for the Applicant pointed to evidence which had not been considered by the RPD Member before finding that the Hukou was deficient, and which appears to directly address the deficiency concern. This exchange is appended to the written decision presently under review immediately following paragraph 11 as quoted above: POST-DECISION EXCHANGE COUNSEL: I am sure that this will displease the panel but in light of the panel’s comments about the hukou, I am just examining the original document and I see a faint stamp, which I have asked the interpreter to translate. There is a faint stamp beside — first of all, the Chinese characters say, a person who... INTERPRETER: Undertaker’s stamp. COUNSEL: Undertaker’s stamp, which I presume does not need to... INTERPRETER: The stamp says that, say a police officer, Li Chuan Xian (ph). COUNSEL: So there is a stamp that indicates a civil police named. You can see it is quite faint but it is in the hukou beside the area where the undertaker, I think has been translated as person who issued — is that what you mean by undertaker? INTERPRETER: The person who was responsible for processing this document. COUNSEL: Okay. MEMBER: Is there a name? INTERPRETER: Li Chuan Xian (ph). MEMBER: Okay. I have this information that was not available earlier but I find it is not sufficient to change the decision. [Emphasis added] 7 In my opinion, once presented with evidence which showed that the finding at paragraph 8 of the reasons was made in probable error and, as such, was very much to the benefit of the Applicant’s effort to prove his identity, the RPD Member was required to carefully reconsider the evidentiary value of the Hukou. To meet this obligation it was necessary for the Member to clearly state why the new information was “not sufficient”. Because no reason is given, I find that the decision under review as unreasonable. Order The decision under review is set aside and the matter is referred back for redetermination by a differently constituted panel. There is no question to certify. Application granted. Yoon v. Canada 47

[Indexed as: Yoon v. Canada (Minister of Citizenship & Immigration)] Soondeok Yoon, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Douglas R. Campbell J. Heard: September 30, 2010 Judgment: October 18, 2010 Docket: IMM-180-10, 2010 CF 1017, 2010 FC 1017 Jegan N. Mohan, for Applicant Suranjana Bhattacharyya, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Applicant was citizen of South Korea who moved to Canada to escape chronic domestic abuse — After repeatedly moving, husband continued to locate, harass and abuse applicant — Applicant travelled to Canada without seeking state protection at home because police did not take domestic abuse seriously and would not assist — Ap- plicant applied for citizenship four months after arriving in Canada and Refugee Protec- tion Division (RPD) denied application due to state protection issue and delay — Appli- cant appealed — Appeal allowed — Board member’s reasons indicate that Chairperson’s Gender Guidelines were considered in context of application, but reasons showed no such analysis — Was not sufficient to withstand judicial review for RPD to simply state Guidelines were applied — No indication of careful analysis on issue of reasonableness of applicant’s decision not to seek state protection as directed by Guidelines — Decision was unreasonable because it was not defensible in respect of facts — Decision set aside and remitted back to differently constituted panel for redetermination. Immigration and citizenship –––– Refugee protection — Credibility –––– Applicant was citizen of South Korea who moved to Canada to escape chronic domestic abuse — After repeatedly moving, husband continued to locate, harass and abuse applicant — Ap- plicant travelled to Canada without seeking state protection at home because police did not take domestic abuse seriously and would not assist — Applicant applied for citizenship four months after arriving in Canada and Refugee Protection Division (RPD) denied application due to state protection issue and delay — Applicant appealed — Appeal allowed — Was unreasonable for RPD to accept applicant’s evidence as credible but reject reasoning for four month delay between arrival in Canada and application for refugee protection — RPD had legal requirement to explain why negative credibility finding was made on delay issue — Decision set aside and remitted back to differently constituted panel for redetermination. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous issues –––– Applicant was citizen 48 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

of South Korea who moved to Canada to escape chronic domestic abuse — After repeatedly moving, husband continued to locate, harass and abuse applicant — Applicant travelled to Canada without seeking state protection at home because police did not take domestic abuse seriously and would not assist — Applicant applied for citizenship four months after arriving in Canada and Refugee Protection Division (RPD) denied application due to state protection issue and delay — Applicant appealed — Appeal allowed — Board member’s reasons indicate that Chairperson’s Gender Guidelines were considered in context of application, but reasons showed no such analysis — Was not sufficient to withstand judicial review for RPD to simply state Guidelines were applied — No indication of careful analysis on issue of reasonableness of applicant’s decision not to seek state protection as directed by Guidelines — Was unreasonable for RPD to accept applicant’s evidence as credible but reject reasoning for four month delay between arrival in Canada and application for refugee protection — RPD had legal requirement to explain why negative credibility finding was made on delay issue — Decision set aside and remitted back to differently constituted panel for redetermination. Cases considered by Douglas R. Campbell J.: Garcia v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 79, 2007 CarswellNat 187, 2007 CF 79, 2007 CarswellNat 1055, [2007] 4 F.C.R. 385, 308 F.T.R. 54 (Eng.), [2007] F.C.J. No. 118 (F.C.) — 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 Car- swellNat 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.) — considered 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

APPLICATION for judicial review of decision of Refugee Protection Division that applicant had failed to establish insufficiency of state protection from domestic violence.

Douglas R. Campbell J.:

1 The present Application concerns a citizen of South Korea who advanced a gender-based claim for protection before the Refugee Protection Division (RPD). The Applicant’s claim is based on her uncontested evidence of suffering extreme physical and mental assault by her husband over many years. Even though the Applicant’s evidence was accepted as true, her claim was rejected by the RPD on two grounds: failure to claim protection within a reasonable time after her arrival in Canada, and failure to seek state protection in South Korea before fleeing to Canada. 2 The evidence which supports the Applicant’s claim for protection is found in her Personal Information Form (PIF). The complexity of this evidence is impor- Yoon v. Canada Douglas R. Campbell J. 49 tant to state prior to engaging in an evaluation of the legal and factual finding made by the RPD: I am 51 years of age, a citizen of Korea South, and of no other country. I met my husband, JEONG, Deok Soo, while we worked together at Hampyung Public Health office in Korea in 1976. I had dated him from March 1977. I was a devoted Christian and while we were dating I evangelized to him and he agreed to believe in God. With this promise, on January 1, 1982, we got married. On June 15, 1983, I had my first child and my husband wanted to have more children, but I avoided having more children since I was studying theology at the time. However, in January 1994, I was pregnant again. In August 1994 my husband had a traffic accident and he was hospitalized for three years. Due to his severe physical injury he lost his job and was not able to support our family any longer. I had to [sic] my second child but I was not able to rest after my delivery since I had to work to support our family and also take care of my husband. Under these circumstances, my husband became more abusive and violent. My husband has a big body and weights [sic] 105kg and is 180cm tall. Whenever he was angry, I was scared and had great fear but tried to overcome it with my belief in God. However, I was not able to endure his abusive behaviour and wanted to separate. Therefore, in October 1995, I went to Seoul with my two children and my mother-in-law took care of my husband. However, from time to time, my husband came to us and asked for money and complained about my religious life. In January 1996 I served as an assistant pastor and I used to prepare floral arrangements for Sunday worship service in our church. He followed me and grabbed my neck from behind and dragged me onto the road. In May 1996, my husband called my name outside of the church and he broke the window of the church with a thick wooden stick. When I was assigned as an assistant pastor, his temper flared because he did not approve of my religious activities. For this reason, I was always afraid of my husband. As I was not able to endure my husband’s threats and harassment, I bor- rowed money from my friends and siblings and opened a business in October 1996 for my husband. My husband operated the business and I did not in- volve myself with the business. However, he had no ability to operate the business and our house was on power of sale. Therefore, I and my two children moved from place to place. In April 1997, when we lived in a small one-room residence, my husband came to us and asked for money and to live with us. When I said that I had no money to give him and did not want to live with him, he pushed me on the ground and hit me. In October 1997 as his business was declining, he came to me again and threatened me because he believed that since I believed in God, his business was declining and had no luck. When I replied that he should sell the business and live calmly, he hit and pushed me and I fell down and lost consciousness. I was so afraid and have been suffering from deep migraines since then. In May 1998, he came again and he hit my face many times while swearing. I fell down and bled from my mouth due to severe teeth and gum injury. As a 50 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

result, I needed surgery for my wounded and infected gums from the injury. I have been treated every week for three years every week. In February 2000, my heart was closed towards him and I had a great fear of my husband. I hated him a lot, so I fled from him but he found us and force- fully had sex with me. I was so shamed and humiliated due to his behaviour as he asked me to follow what he watched in a porn video. As a devoted Christian and a pastor in a church, I was not able to report his behaviour to the police and also I did not call the police since the Korean police did not do anything for this kind of domestic violence. I was also afraid of my husband’s reaction if called [sic] the police. In January 2004 due to severe physical abuse and fear of my husband, I was not able to move so I was confined to bed. With the help of my friends I was taken to the hospital and was medically examined. Most of my body was swollen and had many physical problems. Due to my husband’s physical abuse and severe mental stress, in December 2004, I was bleeding for over 40 days and I lost consciousness. When I woke up, I had had a transfusion of blood and a medical operation. After recovering from this incident, I studied family counselling at IRE Fam- ily Counselling Research Institute from March 2004 to May 2005. During the time, I also served as a part time youth counsellor as practicum. In Janu- ary 2006, I invited a church minister to dinner and my husband was there. During a conversation, when I laughed, my husband suddenly slammed the table and stood up and yelled at me, saying that I laughed at other men but not him. I also met with a family counsellor, but my husband and I were too far apart, and I could not avoid my husband’s abuse. He had an obsession for me so he was suspicious of me since I avoided him for many years. His forceful and abusive sex was another physical abuse so I was scared and had a great fear of my husband. I took a Master of Divinity course at Pyongyang Theological Seminary from March 2005 to December 2007 and I was ordained as a pastor in December 2007. My husband was mad for my ordination since he really did not want me to be involved in religious matters. In December 2007, my husband had to close his business and had no place to live. He found and came to my place again and when I refused him he immediately attempted to hit me. As I found that I was not able to get rid of him in Korea, I left Korea seeking a safe place from my husband’s physical and mental abuse. I also felt that I was not able to perform my religious duties as a pastor due to my husband. For these reasons I am not able to return back to Korea South. (Applicant’s Application Record, pp. 31 - 33) 3 The Applicant’s decision not to seek state protection in South Korea is the central feature of the RPD decision. In the decision under review the RPD made the uncontested finding that “the onus is on the claimant to approach her state for protection in situations where state protection might be reasonably forthcoming” (Decision, para. 10). The decision in Hinzman, Re, 2007 FCA 171 (F.C.A.) Yoon v. Canada Douglas R. Campbell J. 51

at paragraph 56 clarifies the content of this onus by finding that a refugee claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his or her home authorities. The focus of the present Application is whether the RPD conducted a proper analysis of the objective reasonableness of the Applicant’s decision not to seek state protection in South Korea before fleeing to Canada. 4 The RPD’s key finding with respect to the reasonableness of the Applicant’s decision not to seek state protection is as follows: The claimant must show that she has taken all reasonable steps to obtain state protection, which she had failed to do, as she says she never contacted the police or a lawyer or any other office or organization for help, despite the abuse which she says spanned approximately 10 years, from 1994 until 2005, the time of the last violent incident. She says that she did not approach the authorities at any time because she heard from other victims of domestic violence that the police do not really provide a solution. She also stated that domestic violence is considered a shame, that she was afraid of her husband, and that she was concerned how it would look on her due to her work in a church. Despite her profession as a counsellor which involved her working with women who suffered abuse, and which included her having to advise women to seek police assistance, the claimant herself did not personally test the protection of the state because, according to what she was told by listen- ing to other victims of domestic violence, the police do not really help. (Decision, para. 13) Counsel for the Applicant argues that in reaching this finding the RPD did not properly apply the Guidelines issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Re- lated Persecution (Gender Guidelines) and, as a result, did not conduct a proper analysis. The argument is as follows: In her reasons for the decision, the Board Member makes reference to the Chairperson’s Gender Guidelines were stating that the Chairperson’s Gen- der Guidelines were taken into account when considering the facts in this case. She has referred on two occasions that Chairperson’s Gender Guide- lines were taken into consideration on two occasions, however a review of the reasons shows no analysis what consideration was given of the Chairper- sons Gender Guidelines. The failure on the part of the member to conduct and provide an analysis of the Chairperson’s Gender Guidelines is a prima facie indication that they were not considered. It is clearly noticeable that the Member makes a reference to the Chairper- son’s Gender Guidelines but there is no analysis of the facts in this case at bar in accordance with the Guidelines. Therefore, it is apparent that no consideration of the guidelines, were made even though it was asked by the applicant that her claim be considered under the gender guidelines and the Member stating the facts in this case has been considered under these guidelines. The more compelling indication that they were not considered lies in 52 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

the content of the decision, which is full of the kind of presumptions and microscopic logic that the guidelines warn against. (Applicant’s Application Record, p. 45) And further: In this case at bar, the applicant did not seek police protection because she testified that as a Professional Counselor, providing counseling to women, who were subjects of domestic abuse, she advised them to report to the police about the abuse and seek protection. The clients whom she advised to do so reported back to her stating that the police have not taken any action and protection was not afforded. Based on this information, which she received from the clients and her fear of shame and that her husband will get aggra- vated and will harm her, if she has complained to the police made her to refrain from seeking police protection. As a Professional Counselor, she was aware about the reality of the laws to protect from domestic abuse and the effectiveness of the laws she was not prepared to take the risk of com- plaining to the police. It is in this context, the Chairperson’s Gender Guide- lines provide the type of evidence the Board must consider in gender-based claims, which has been ignored by the Board. The cumulative effect of the Board’s failure to consider this case at bar in light of the Chairperson’s Gen- der Guidelines and ignoring the Psychological Report, failing to consider the totality of the evidence has resulted in making findings of fact, which are perverse and capricious on the face of the record. (Applicant’s Application Record, p. 49) 5 I agree with Counsel for the Applicant’s argument. It is not sufficient to withstand a judicial review for the RPD to simply say that the Gender Guide- lines were applied but fail to demonstrate that they were applied. I have previously expressed the importance of clearly applying the Gender Guidelines in Garcia v. Canada (Minister of Citizenship & Immigration), 2007 FC 79 (F.C.), at paragraphs 24 and 25, and 27 and 28 as follows: The Gender Guidelines provide RPD members with the guidance that, in determining a gender-based claim, it is necessary to understand what actions can be realistically expected of a woman who has suffered violence: Decision-makers should consider evidence indicating a failure of state protection if the state or its agents in the claimant’s country of origin are unwilling or unable to provide adequate protection from gender-related persecution. If the claimant can demonstrate that it was objectively unreasonable for her to seek the protection of her state, then her failure to approach the state for protection will not defeat her claim. Also, the fact that the claimant did or did not seek protection from non-government groups is irrelevant to the assessment of the availability of state protection. When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the deci- Yoon v. Canada Douglas R. Campbell J. 53

sion-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related persecution in the form of rape, she may be ostra- cized from her community for seeking protection from the state. Decision-makers should consider this type of information when determining if the claimant should reasonably have sought state protection (Gender Guidelines, Section C.2) As guiding authority, the Gender Guidelines cite the Supreme Court of Can- ada’s decision in Lavallee in footnote 31: For a discussion of the battered woman syndrome see R. v. Lavallee, [1990] 1 S.C.R. 852. In Lavallee, Madame Justice Wilson addressed the mythology about domestic violence and phrased the myth as “[e]ither she was not as badly beaten as she claims, or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some maso- chistic enjoyment of it.” The Court further indicated that a mani- festation of the victimization of battered women is a “reluctance to disclose to others the fact or extent of the beatings”. In Laval- lee, the Court indicated that expert evidence can assist in dispel- ling these myths and be used to explain why a woman would remain in a battering relationship. [...] Justice Wilson in Lavallee enforces the concept that understanding the context in which an action or inaction takes place is essential to judging the action or inaction itself. While Lavallee dealt with judging the actions of a woman who killed her abusive husband, the following statements, at paras. 31 to 34 and 38, are instructive with respect to the approach to be adopted when dealing with a gender-based claim for protection, and, indeed, other factual scenarios calling for enhanced knowledge and understanding on the part of decision-makers: Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be for- given for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called “battered wife 54 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

syndrome”. We need help to understand it and help is available from trained professionals. The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life. Far from protecting women from it the law historically sanctioned the abuse of women within marriage as an aspect of the husband’s ownership of his wife and his “right” to chastise her. One need only recall the centuries old law that a man is entitled to beat his wife with a stick “no thicker than his thumb”. Laws do not spring out of a social vacuum. The notion that a man has a right to “discipline” his wife is deeply rooted in the history of our society. The woman’s duty was to serve her husband and to stay in the marriage at all costs “till death do us part” and to accept as her due any “punishment” that was meted out for failing to please her husband. One consequence of this attitude was that “wife battering” was rarely spoken of, rarely reported, rarely prosecuted, and even more rarely punished. Long after society abandoned its formal approval of spousal abuse tolerance of it continued and continues in some circles to this day. Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously. How- ever, a woman who comes before a judge or jury with the claim that she has been battered and suggests that this may be a relevant factor in evaluating her subsequent actions still faces the prospect of being condemned by popular mythology about domestic violence. Either she was not as badly beaten as she claims or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some maso- chistic enjoyment of it. [...] If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man”. 6 I find that there is no indication in the RPD’s decision of the careful, knowl- edgeable, and understanding analysis on the issue of the reasonableness of the Yoon v. Canada Douglas R. Campbell J. 55

Applicant’s decision not to seek state protection before leaving South Korea as directed by the Gender Guidelines. As a result, I find that the decision under review is unreasonable because it is not defensible in respect of the facts. 7 The RPD’s analysis on the issue of the Applicant’s delay in claiming protection is as follows: The claimant arrived in Canada on December 24, 2007 and made her claim on April 29, 2008. The panel draws a negative inference with respect to the claimant’s subjective fear due to her four-month delay in making a refugee claim. When she was asked why she failed to seek protection earlier, she stated that she was unaware of the possibility. The claimant has 19 years of formal education, including a Masters degree. She worked as a counselor in a family counseling centre which involved her counseling victims of domestic violence. She declared in her Personal Information Form (PIF) narrative, as she stated in the hearing, that she “left Korea seeking a safe place from my husband’s physical and mental abuse.” Nonetheless, she says she made no enquiries after her arrival in Canada about the possibility of getting help to remain here, until she says she happened to hear about the possibility at church, months after her arrival in Canada. The claimant’s testimony in this regard is not reasonable. (Decision, para. 9) 8 In the present case the RPD accepted the Applicant’s evidence as credible. Given this fact, it is counter-indicated for the RPD to not accept her explanation for the delay in formally seeking refugee protection. Even if the Applicant’s evidence on the delay issue is considered distinct from the balance of her evidence, it is certainly not sufficient to simply find that her explanation is “unreasonable” without clarifying analysis. Clearly stating “why” the negative credibility finding was made on the delay issue is a legal requirement (Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.) at p. 305) which was not met by the RPD. As a result, I find that the decision under review is unreasonable because it is not defensible in respect of the law.

Order Accordingly, I set the RPD’s decision aside and refer the matter back to a differently constituted panel for re-determination. There is no question to certify. Appeal allowed. 56 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Afable v. Canada (Minister of Citizenship & Immigration)] Juanita Castillo Afable, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Michael A. Kelen J. Heard: December 15, 2010 Judgment: December 21, 2010 Docket: IMM-1986-10, 2010 FC 1317 Mr. H. John Kalina, for Applicant Mr. Ian Hicks, for Respondent Immigration and citizenship –––– Admission — Immigrants — Family class — Members of family class –––– Applicant was Canadian citizen who immigrated from Philippines — Applicant was schoolteacher nearing retirement, and had no family in Canada — Applicant sponsored application of L as her niece — Visa officer denied application on basis that genuineness of applicant’s relationship with L was not established — Applicant’s appeal was dismissed by Immigration Appeal Division (IAD) — Applicant applied for judicial review — Application granted — As applicant had no family in Canada, critical issue was whether applicant and L were in fact blood relatives — Evidence of DNA analysis attached to applicant’s supplementary affidavit for application could not be admitted, as it was new evidence post-dating decision of IAD — Applicant attempted to submit evidence that decision was incorrect in absolute terms, and this court had no capacity to assess that evidence — IAD stated that it was rejected applicant testimony because documents it expressly considered were only ones tendered into evidence by applicant, which indicated IAD did not consider remaining documentary evidence — IAD made reviewable error in failing to consider evidence indicating that applicant and L’s mother E were sisters — IAD rejected authenticity of purported birth certificates, but failed to consider whether additional documentation was sufficient to establish relationship — Applicant submitted two marriage contracts, of applicant and of E, which listed names of their parents as identical, as well as school records showing applicant’s shared parentage with E — Matter referred back to IAD for redetermination, at which applicant could submit results of DNA analysis. Immigration and citizenship –––– Admission — Appeals and judicial review — Ap- peal division — Evidence –––– Applicant was Canadian citizen who immigrated from Philippines — Applicant was schoolteacher nearing retirement, and had no family in Canada — Applicant sponsored application of L as her niece — Visa officer denied application on basis that genuineness of applicant’s relationship with L was not established — Applicant’s appeal was dismissed by Immigration Appeal Division (IAD) — Applicant applied for judicial review — Application granted — As applicant had no family in Canada, critical issue was whether applicant and L were in fact blood relatives — Evidence of DNA analysis attached to applicant’s supplementary affidavit for application Afable v. Canada 57 could not be admitted, as it was new evidence post-dating decision of IAD — Applicant attempted to submit evidence that decision was incorrect in absolute terms, and this court had no capacity to assess that evidence — IAD stated that it was rejected applicant testimony because documents it expressly considered were only ones tendered into evidence by applicant, which indicated IAD did not consider remaining documentary evidence — IAD made reviewable error in failing to consider evidence indicating that applicant and L’s mother E were sisters — IAD rejected authenticity of purported birth certificates, but failed to consider whether additional documentation was sufficient to establish relationship — Applicant submitted two marriage contracts, of applicant and of E, which listed names of their parents as identical, as well as school records showing applicant’s shared parentage with E — Matter referred back to IAD for redetermination, at which applicant could submit results of DNA analysis. Cases considered by Michael A. Kelen J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Chopra v. Canada (Treasury Board) (1999), 168 F.T.R. 273, 1999 CarswellNat 1050, [1999] F.C.J. No. 835 (Fed. T.D.) — considered Dong v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 1364, 2010 CF 55, 2010 CarswellNat 83, 2010 FC 55 (F.C.) — referred to Encinas c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 Car- swellNat 3122, 2006 FC 61, 2006 CarswellNat 127, 2006 CF 61, [2006] F.C.J. No. 85 (F.C.) — referred to Khokhar v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 449, 2008 CarswellNat 927, [2008] F.C.J. No. 571 (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 Malveda v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 849, 2008 FC 447, 2008 CF 447, 2008 CarswellNat 2124, 71 Imm. L.R. (3d) 224, [2008] F.C.J. No. 527 (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 Bruns- wick) 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 Saleem v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 804, 2008 FC 389, 2008 CF 389, 2008 CarswellNat 2417, [2008] F.C.J. No. 482 (F.C.) — referred to Wu v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 2913, 2009 FC 929, 2009 CarswellNat 5423, 2009 CF 929 (F.C.) — considered 58 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 2 “relative” — considered s. 117(1) — considered s. 117(1)(h) — considered

APPLICATION for judicial review of decision denying applicant’s appeal from dismissal of sponsorship application.

Michael A. Kelen J.:

1 This is an application for judicial review of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, dated February 23, 2010, denying the applicant’s appeal from the decision of a visa officer refusing the applicant’s application to sponsor her alleged niece for permanent residence in Canada.

Facts Background 2 The applicant is a 62-year-old Canadian citizen who came to Canada from the Philippines twenty years ago, in June 1989, as a landed immigrant. She has no children, no family members in Canada, and her parents and grandparents are deceased. She is a schoolteacher, and anticipates retiring from her teaching ca- reer in the near future. 3 The applicant sponsored the application for permanent residence of Alma Toni Castillo Lasalita, who she claimed was her niece, the daughter of her deceased elder sister. 4 By letter dated October 5, 2006, a visa officer informed the applicant that her application had been denied. The reason for the denial was that the officer was not persuaded of the genuineness of the applicant’s relationship to Ms. Lasalita, and determined that Ms. Lasalita was not a member of the family class under section 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). 5 The applicant appealed the refusal of the visa officer to the IAD on Novem- ber 3, 2006. The applicant’s first scheduled hearing before the IAD, on October 14, 2009, was adjourned in order to allow the applicant to provide additional evidence regarding her relationship to Ms. Lasalita. Following a hearing on Jan- uary 26, 2010, the IAD dismissed the applicant’s appeal. It is this dismissal that forms the basis of this application for judicial review. Afable v. Canada Michael A. Kelen J. 59

6 Attached to her supplementary affidavit on this application, the applicant included the results of a DNA test dated June 28, 2010 - that is, subsequent to her hearing before the IAD.

Decision under Review 7 The applicant represented herself at her hearing before the IAD. In its decision, the IAD stated that the issue before it was whether Ms. Lasalita fell within the definition of a member of the family class. The relevant aspect of that definition was paragraph 117(1)(h) of the Regulations, which provides that any relative of the sponsor is a member of the family class in cases where the sponsor does not have another member of the family class who is a Canadian citizen or permanent resident, or who may otherwise be sponsored as a member of the family class. The IAD agreed with the visa officer that the applicant did not have any other relative who is a Canadian citizen or permanent resident or who could be sponsored to come to Canada by the applicant as a member of the family class. As a result, the IAD agreed with the immigration officer that if Ms. Lasalita was in fact the applicant’s niece then she would be eligible to be sponsored as a member of the family class. The critical issue before the IAD was whether the applicant and Ms. Lasalita were in fact blood relatives. 8 The IAD stated that the applicant had the onus of proving that she and Ms. Lasalita were blood relatives on the balance of probabilities. The IAD considered the evidence that the applicant had provided, recognizing that she had been given additional time to adduce more and better evidence by having the original October 14, 2009 hearing adjourned. In particular, the IAD considered the following evidence: a. A copy of a document that the applicant stated was the birth certificate of her elder sister, Eugenia Imaguin Castillo, submitted with a sworn Affi- davit for Delayed Registration of Live Birth, sworn by the applicant’s brother, who resides in the Philippines. The document stated that Euge- nia’s birth date was June 5, 1932. The applicant testified that the original birth certificate had been destroyed in bombings of the government office during World War II. b. A copy of a document that the applicant stated was her birth certificate, submitted with a sworn Affidavit for Delayed Registration of Live Birth, sworn by the applicant’s brother, who resides in the Philippines. The document stated that the applicant’s birth date was December 7, 1947. The applicant testified that the original birth certificate was destroyed in a fire at the government office. c. A copy of a Certificate of Live Birth for Ms. Lasalita. The birth certificate listed Ms. Lasalita’s mother as Eugenia Castillo Lasalita, the applicant’s elder sister. 60 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

d. Eugenia’s school record, which stated her birth date as June 8, 1932. e. Eugenia’s marriage certificate, which stated that she was 30 years old at the time of her marriage on June 8, 1965. 9 The IAD questioned the reliability of the information contained in the birth certificates of Ms Lasalita and of Eugenia. In particular, the IAD raised the following concerns: a. The IAD questioned Eugenia’s date of birth for the following reasons: i. The date of birth stated on the school record differed from that on the birth certificate (June 8, 1932, as opposed to June 5, 1932). ii. The marriage certificate, dated June 8, 1965, lists Eugenia’s age as 30 at the time of marriage, but if the birth certificate were correct then she would have been 33 at that time. iii. Ms. Lasalita’s birth certificate states that her mother’s age was 34 at the time of her birth, but if the birth certificate were correct then she would have been 36 at that time. Because the birth certificate and the marriage certificate corresponded - that is, if Eu- genia was 30 at the time of marriage then she would have been 34 at the time of Ms. Lasalita’s birth - the IAD questioned the reliability of the document purporting to be Eugenia’s birth certificate. b. The IAD related additional reasons that it had for doubting the reliability of the documentary evidence: i. Eugenia’s birth certificate stated that at the time of her birth her mother was 18 years old. The birth certificate of the applicant, who was apparently born of the same mother 15 years later, however, stated that at the time of her birth her mother was 17 years old. ii. The birth weight of Eugenia and the applicant were listed as an identical 2722 grams. iii. The IAD doubted the likelihood of both the applicant’s and her sister’s birth certificates being destroyed. iv. The IAD further doubted the destruction because the affidavits provided by the applicant’s brother state the reason for delay in registration was “negligence,” whereas the applicant testified to the cause of destruction being bombing and fire. v. The IAD was “deeply disturbed” that the affidavits sworn by the applicant’s brother were sworn in 2006 and 2007, as opposed to soon after the destruction of the original documents. 10 The IAD found that the applicant’s oral testimony was not sufficiently detailed to dispel its concerns regarding the reliability of the documentary evi- Afable v. Canada Michael A. Kelen J. 61

dence. Because those were the only documents submitted to the IAD, the IAD concluded that there was not enough reliable or credible evidence before it to establish on the balance of probabilities that the applicant and Ms. Lasalita were aunt and niece as claimed.

Legislation 11 Section 117(1) of the Regulations defines who is a member of the family class who may become a permanent resident in Canada: 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is ... (h) a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father (i) who is a Canadian citizen, Indian or permanent resident, or (ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor. 117. (1) Appartiennent a` la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les etrangers´ suivants: ... h) tout autre membre de sa parenté, sans egard´ a` son age,ˆ a` défaut d’époux, de conjoint de fait, de partenaire conjugal, d’enfant, de parents, de membre de sa famille qui est l’enfant de l’un ou l’autre de ses parents, de membre de sa famille qui est l’enfant d’un enfant de l’un ou l’autre de ses parents, de parents de l’un ou l’autre de ses parents ou de membre de sa famille qui est l’enfant de l’un ou l’autre des parents de l’un ou l’autre de ses parents, qui est: (i) soit un citoyen canadien, un Indien ou un résident permanent, (ii) soit une personne susceptible de voir sa demande d’entrée et de séjour au Canada a` titre de résident permanent par ail- leurs parrainée par le répondant. 12 Section 2 of the Regulations defines a relative: “relative” means a person who is related to another person by blood or adoption. « membre de la parenté » Personne unie a` l’intéressé par les liens du sang ou de l’adoption. 62 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Issue 13 The applicant raises the following issue: 1. The IAD exceeded its jurisdiction, erred in law and made a decision that is patently unreasonable in that it ignored relevant evidence in coming to its decision to dismiss the appeal. 14 In addition, the respondent raises a preliminary issue, which is that the DNA report attached as an exhibit to the supplementary affidavit submitted by the applicant prior to this hearing should not be admitted into evidence. 15 I shall deal first with the issue of whether the supplementary affidavit will be admitted into evidence.

Standard of Review 16 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), the Supreme Court of Canada held at paragraph 62 that the first step in conducting a standard of review analysis is to “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of (deference) to be accorded with regard to a particular category of question”: see also Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), per Justice Binnie at paragraph 53. 17 As I recognized in Wu v. Canada (Minister of Citizenship & Immigration), 2009 FC 929 (F.C.), at paragraph 17, credibility determinations are factual in nature. Post-Dunsmuir jurisprudence has established that the appropriate standard of review applicable to these factual determinations is reasonableness: see also, for example, Saleem v. Canada (Minister of Citizenship & Immigration), 2008 FC 389 (F.C.), at paragraph 13; Malveda v. Canada (Minister of Citizenship & Immigration), 2008 FC 447 (F.C.) at paras. 17-20; Khokhar v. Canada (Minister of Citizenship & Immigration), 2008 FC 449 (F.C.) at paras. 17-20, and my decision in Dong v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 55 (F.C.), at paragraph 17. 18 The standard of review is therefore reasonableness. In reviewing the IAD’s decision using a standard of reasonableness, the Court will consider “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra, at paragraph 59. 19 The first issue, however, regarding the admissibility of the DNA Analysis Report, is a question of law which is reviewed by the Court on a standard of correctness. Afable v. Canada Michael A. Kelen J. 63

Analysis Issue No. 1: Should the supplementary affidavit be admitted into evidence? 20 On applications for judicial review, the parties are entitled to submit supplementary affidavits. In this case, the applicant filed a supplementary affidavit that was sworn on October 16, 2010. As an exhibit to that affidavit, the applicant attached a copy of a document entitled “Results of DNA Analysis,” dated June 28, 2010. 21 The respondent submits that this evidence cannot be admitted because it is new evidence that post-dates the decision of the IAD and was, therefore, not before the IAD when it rendered its decision. 22 The Court agrees with the respondent. The law is clear that judicial review applications are to be conducted strictly on the evidence that was before the decision-maker, unless the additional evidence pertains to questions of procedural fairness or jurisdiction: see, e.g., Encinas c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 61 (F.C.). In this case, the applicant’s affidavit purports to put into evidence the results of a DNA test conducted subsequent to the visa officer’s decision. As explained by Justice Dub´e in Chopra v. Canada (Treasury Board), [1999] F.C.J. No. 835 (Fed. T.D.) at paragraph 5, There is considerable jurisprudence to the effect that only the evidence that was before the initial decision-maker should be considered by the Court on judicial review. These decisions are premised on the notion that the purpose of judicial review is not to determine whether or not the decision of the Tri- bunal in question was correct in absolute terms but rather to determine whether or not the Tribunal was correct based on the record before it.... [references omitted] 23 The applicant’s affidavit attempts to submit evidence that the decision of the officer was incorrect in absolute terms. This Court has no capacity to assess that evidence.

Issue No. 2: Did the IAD err by ignoring relevant evidence in making its decision? 24 The applicant submits that the IAD ignored or misconstrued the applicant’s documentary evidence. In particular, the applicant submits that the IAD committed the following errors: a. The IAD ignored the two marriage contracts showing Eugenia and the applicant having the same parents. b. The IAD ignored the fact that Eugenia’s high school record showed Eu- genia’s father’s name. c. The IAD ignored Ms. Lasalita’s baptism certificate, which showed her parents’ names. 64 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

d. The IAD ignored Ms. Lasalita’s birth certificate, which showed her parents’ names. e. The IAD ignored the applicant’s university transcript, which showed the applicant’s parents’ names. f. The IAD ignored the joint affidavit of elders from the applicant’s hometown, Florentina Torres and Feliza Pastores, dated August 24, 1990, swearing that Eugenia and the applicant are sisters. 25 The IAD is presumed to have considered all of the evidence before it, and need not refer to individual pieces of evidence. As stated by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 (Fed. T.D.), at paragraph 16, ¶16. On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employ- ment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.... 26 In this case, however, the IAD stated, at paragraph 29, that it was rejecting the applicant’s testimony regarding her relationship with her niece because the documents that it had expressly considered were “the only ones tendered into evidence by the applicant”. Thus, the IAD’s failure to expressly consider other documents submitted into evidence by the applicant leads this Court to conclude that the IAD did not consider that evidence. If that evidence could have led to a different result, then this review application must be granted. 27 The Court accepts that the IAD has made a reviewable error because it failed to consider evidence submitted by the applicant that indicates that the applicant and Eugenia are sisters. That is, the IAD rejected the purported birth certificates of the applicant and Eugenia, but failed to consider whether other evidence could itself support their alleged relationship. In particular, the Court accepts that the IAD did not adequately address the applicant’s documentary evidence regarding the fact that both the applicant and Eugenia had the same parents. Although the IAD rejected the authenticity of the two birth certificates, the IAD nevertheless ought to have considered whether the other documentation was sufficient to establish the relationship between the applicant and Ms. Lasalita. 28 The applicant submitted two marriage contracts to the IAD. At the Court hearing, both parties agreed that these marriage contracts had been accepted as authentic documents. The first marriage contract was that of the applicant’s sister, Eugenia, dated June 8, 1965. The IAD expressly considered this marriage contract at paragraph 22 of its decision, where it states that the fact that Euge- Afable v. Canada Michael A. Kelen J. 65

nia’s age is consistent between her marriage contract and the birth certificate of Ms. Lasalita suggests that those documents, as opposed to Eugenia’s birth certificate, correctly state her age. The IAD held that this fact “calls into question the reliability of the information contained in the document that purports to be Eu- genia’s birth certificate.” That is, the IAD concluded that the marriage contract was an authentic document. 29 The second marriage contract submitted by the applicant was from her own marriage, dated January 2, 1988. The IAD did not expressly refer to this document in its reasons. 30 Both marriage contracts list the names of the parents of the parties, and the names of the parents of the applicant and of Eugenia are the same. The IAD accepted the validity of Eugenia’s marriage contract. Although the IAD found that that undermined the legitimacy of the purported birth certificate, the IAD ought to have considered whether it could itself constitute evidence of the relationship between the two alleged sisters when considered together with the applicant’s marriage contract. 31 The applicant also provided school records showing the applicant’s shared parentage with Eugenia. The IAD did not expressly consider the applicant’s university transcript, which names both of her parents. The IAD did consider Euge- nia’s high school records, but did not refer to the fact that those, too, listed the names of her parents. 32 The IAD did not appear to doubt that Eugenia is Ms. Lasalita’s mother. As a result, had the IAD accepted that the applicant and Eugenia shared parents - that is, were sisters - then the IAD would have concluded that Ms. Lasalita is, indeed, the applicant’s niece. Conclusion 33 Because the IAD stated that the only evidence before it was the evidence referred to in the reasons for decision, and because the IAD failed to refer to probative evidence, this Court concludes that the IAD committed a reviewable error so that this matter must be referred back to a different panel of the IAD for redetermination. At that new hearing, the applicant can submit the results of the DNA Analysis showing, as both parties agreed at the hearing, that the applicant and Ms. Lasalita are related on a probability threshold of 99.98 percent. Certified Question 1 Both parties advised the Court that this case does not raise a serious question of general importance which ought to be certified for an appeal. The Court agrees. Judgment THIS COURT’S JUDGMENT is that: This application for judicial review is granted and the matter referred back to a different panel of the IAD for redetermination. Application granted. 66 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Katwaru v. Canada (Minister of Citizenship & Immigration)] Ramnaresh Katwaru, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Paul S. Crampton J. Heard: November 16, 2010 Judgment: December 10, 2010 Docket: IMM-1066-10, 2010 FC 1277 Krassina Kostadinov, for Applicant Brad Gotkin, for Respondent Immigration and citizenship –––– Exclusion and removal — Removal from Can- ada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was citizen of Guyana and was granted permanent resident status in Canada — Ten years later, applicant was convicted on charge of manslaughter for infant son’s death and later on charge of assault of wife — Applicant found to be inadmissible to Canada due to criminality and order for removal was issued but stayed, pending completion of sentence — Applicant filed application for permanent residence on humanitarian and compassionate grounds; application rejected by Director of Case Determination with Citi- zenship and Immigration Canada (“Director”) — Applicant applied for judicial review of decision — Application dismissed — Director considered aggravating circumstances of applicant’s crime and determined there were insufficient humanitarian and compassionate considerations to warrant granting waiver of criminal inadmissibility — Director’s decision was well within range of possible, acceptable outcomes defensible in respect of facts and law — Director did not fail to use correct test in determination, and exclusion of specific wording from decision was not unreasonable — Director reasonably concluded that evidence of threats against applicant in Guyana were not properly supported by cor- roborating evidence — Decision of Director was transparent, intelligible and appropriately justified. Cases considered by Paul S. Crampton J.: Akinbowale v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 1221, 2007 CarswellNat 5781, 320 F.T.R. 100 (Eng.), 2007 CarswellNat 4236, 2007 FC 1221, [2007] F.C.J. No. 1613 (F.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 Car- swellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered Bui v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 816, 2005 Car- swellNat 1636, 2005 CarswellNat 5429, 2005 CF 816, [2005] F.C.J. No. 1025 (F.C.) — referred to Katwaru v. Canada 67

Cha v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 751, 2006 FCA 126, 2006 CarswellNat 3036, 267 D.L.R. (4th) 324, 349 N.R. 233, 42 Admin. L.R. (4th) 204, 2006 CAF 126, [2007] 1 F.C.R. 409, 53 Imm. L.R. (3d) 1, [2006] F.C.J. No. 491 (F.C.A.) — considered Chieu v. Canada (Minister of Citizenship & Immigration) (1998), 1998 CarswellNat 2410, 169 D.L.R. (4th) 173, [1999] 1 F.C. 605, 234 N.R. 112, 46 Imm. L.R. (2d) 163, 159 F.T.R. 271 (note), 1998 CarswellNat 2882, [1998] F.C.J. No. 1776 (Fed. C.A.) — considered El Doukhi v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 4262, 2006 CarswellNat 6193, 2006 CF 1464, 2006 FC 1464, 304 F.T.R. 266 (Eng.), [2006] F.C.J. No. 1843 (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.) — followed Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 CarswellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — followed Lau v. Canada (Minister of Employment & Immigration) (1984), 6 D.L.R. (4th) 676, 52 N.R. 63, [1984] 1 F.C. 434, 1984 CarswellNat 38F, 1984 CarswellNat 38 (Fed. C.A.) — distinguished Legault v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 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 Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 2 S.C.R. 539, 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 339 N.R. 1, EYB 2005-95306, [2005] S.C.J. No. 31 (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 Bruns- wick) 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 Pannu v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 3670, 2006 FC 1356, [2006] F.C.J. No. 1695 (F.C.) — referred to Pushpanathan v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 499, 50 Imm. L.R. (2d) 74, [1999] F.C.J. No. 380 (Fed. T.D.) — distinguished Ramirez v. Canada (Minister of Citizenship & Immigration) (2006), 60 Imm. L.R. (3d) 27, 2006 CF 1404, 2006 CarswellNat 6135, 304 F.T.R. 136 (Eng.), 304 F.T.R. 136, 2006 FC 1404, 2006 CarswellNat 3950, [2006] F.C.J. No. 1763 (F.C.) — considered Ribic v. Canada (Minister of Employment & Immigration) (1986), 1986 CarswellNat 1357, [1985] I.A.B.D. No. 4, [1985] I.A.D.D. No. 4 (Imm. App. Bd.) — followed 68 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Sierra Club of Canada v. Canada (Minister of Finance) (2000), 256 N.R. 1, 2000 Car- swellNat 970, 24 Admin. L.R. (3d) 1, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 187 D.L.R. (4th) 231, [2000] 4 F.C. 426, 2000 CarswellNat 3271, 182 F.T.R. 284 (note), [2000] F.C.J. No. 732 (Fed. C.A.) — followed Sierra Club of Canada v. Canada (Minister of Finance) (2002), 287 N.R. 203, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 18 C.P.R. (4th) 1, 44 C.E.L.R. (N.S.) 161, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Can- ada) 211 D.L.R. (4th) 193, 223 F.T.R. 137 (note), 20 C.P.C. (5th) 1, 40 Admin. L.R. (3d) 1, 2002 SCC 41, 2002 CarswellNat 822, 2002 CarswellNat 823, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 93 C.R.R. (2d) 219, [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, REJB 2002-30902 (S.C.C.) — followed Statutes considered: Immigration Act, 1976, S.C. 1976-77, c. 52 s. 32(6) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(2)(f) — referred to s. 25 — referred to s. 25(1) — referred to s. 112(3)(b) — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 151 — considered R. 152 — referred to

APPLICATION for judicial review of decision of Case Management Branch of Citizen- ship and Immigration Canada denying application for permanent residence on humanitarian and compassionate grounds.

Paul S. Crampton J.:

1 The Applicant is a citizen of Guyana. He was granted permanent resident status in Canada in May 1992. In February 1996, he was charged with manslaughter in connection with his infant son’s death. In August 2002, he was convicted on that charge and sentenced to six years of imprisonment, with credit for 17 months of pre-trial custody. In April 2003, he was convicted of assaulting his wife and was sentenced to three months of imprisonment to be served concur- rently with his manslaughter sentence. 2 After he was subsequently found to be inadmissible to Canada, he submitted an application for permanent residence on humanitarian and compassionate (H&C) grounds under section 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Katwaru v. Canada Paul S. Crampton J. 69

3 In February 2010, his application was rejected by the Director, Case Deter- mination, of the Case Management Branch of Citizenship and Immigration Canada. 4 Mr. Katwaru seeks to have the Director’s decision set aside on the basis that the Director erred by: a. placing undue weight on one factor to the exclusion of all others in her assessment; b. applying the wrong test in her assessment; and c. unreasonably assessing the evidence before her. 5 For the reasons that follow, this application is dismissed.

I. Background 6 In August 1995, Mr. Katwaru and his former wife had a son who was born premature. After a four-month stay in the hospital, he was discharged. Following the receipt of information from his former wife that he was handling the child “in a rough manner,” an investigation was commenced with the Children’s Aid Society. A High Risk Infant Care Nurse was then assigned to the family. How- ever, the intervention of professionals who regularly visited the home was not sufficient to stop Mr. Katwaru’s systematic abuse of his son. In February 1996, at the age of five months, his son died. 7 It was later determined that the cause of death was very severe swelling of the brain, likely caused by being severely shaken back and forth or his head and neck being rotated. There were also bruises to the baby’s brain that were consistent with the baby having been “swung against something or hit with something.” In addition, there were injuries that were consistent with repeated abuse. 8 Mr. Katwaru was initially convicted of manslaughter in 1998. He was also initially convicted around that time of uttering threats and assault upon his former wife. After those convictions were set aside as a result of erroneous jury instructions, he was again convicted of manslaughter in 2002 and of assault in 2003. 9 In April 2003, he was found to be inadmissible on grounds of criminality. A removal order was issued against him, however, it was stayed pending the completion of his sentence. 10 In January 2005, he submitted his H&C application. This was followed in June 2005 with an application for a pre-removal risk assessment (PRRA). Pursu- ant to paragraph 112(3)(b), he was found to be ineligible for a PRRA, on grounds of serious criminality. In May 2006, this Court dismissed his application for judicial review of that decision. 11 On February 1, 2007, Mr. Katwaru was arrested and detained for a removal to Guyana that was scheduled to take place on February 10, 2007. The following 70 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

day, an officer with the Canadian Border Services Agency (CBSA) refused to defer his removal. A stay of removal was then granted by this Court pending the determination of his application for leave and for judicial review of that decision. 12 In September 2008, Mr. Katwaru’s application for judicial review of the CBSA Officer’s refusal to defer his removal was granted.

II. The Decision under Review 13 In February 2010, Mr. Katwaru was informed that the Director had made a negative decision on his H&C application. 14 In the first five pages of her lengthy decision, the Director reviewed the background and circumstances of Mr. Katwaru’s immigration file, the circumstances surrounding his son’s death and his subsequent convictions, and the evidence regarding his rehabilitation. 15 The Director then turned to her assessment of the relevant H&C considerations. The Director began this assessment by quoting a number of passages from the 2008 decision of Justice Heneghan to grant judicial review in respect of the CBSA officer’s refusal to defer Mr. Katwaru’s removal, in February 2007. These passages included Justice Heneghan’s conclusion that the CBSA officer had failed to fully consider all of the evidence before her, including Mr. Katwaru’s fears of being at risk if returned to Guyana. 16 The Director then discussed at length Mr. Katwaru’s family ties in Canada and the adverse impact that his removal would have on them, particularly on his current wife, who depends on him financially, emotionally and physically. 17 In addition, the Director discussed Mr. Katwaru’s degree of establishment in Canada and concluded that he is well established financially and in the community in which he lives. 18 The Director then turned to a detailed assessment of the risks that Mr. Katwaru alleged he would face if required to return to Guyana. These risks were grouped into the following four categories: a. his ex-wife’s parents/family, who remain in Guyana, will target him for ill-treatment to avenge the death of their grandchild; b. the Guyanese public will target him for ill-treatment based on the negative media coverage of his crime; c. the Guyanese government will target him because of his status as a criminal deportee; and d. he would face various generalized risks, due to the high rate of crime in Guyana, his particular vulnerability as a returning citizen from abroad, Katwaru v. Canada Paul S. Crampton J. 71

the insufficiency of state protection, and tensions between the Indo- and Afro-Guyanese ethnic communities. 19 After taking note of Mr. Katwaru’s written submissions and a statutory declaration that he provided detailing reports from his uncle regarding death threats being made against Mr. Katwaru in Guyana, the Director quoted a sworn statement from Mr. Katwaru’s friend that elaborated upon the threats that he had personally heard being made towards Mr. Katwaru. She observed that this statement was vague and not supported by corroborative evidence. Ultimately, she concluded that there was insufficient evidence that (i) Mr. Katwaru’s ex-wife’s family would carry out any threats made against him should he return to Guyana; or (ii) he would even be known or recognized should he establish himself in another part of Guyana. 20 As to the Guyanese public, the Director gave little weight to various anonymous comments that had been posted on the Internet. She determined that there was no support for Mr. Katwaru’s claim that they were posted by persons in Guyana and she gave the comments little weight as evidence that the Guyanese public would be in any way galvanized into actively tracking his case and following through with any vigilante acts of street justice. She also observed that it would be open to Mr. Katwaru to bring a motion for confidentiality pursuant to Rule 151 of the Federal Court Rules, if he could demonstrate a need for confidentiality, notwithstanding the public interest in open and accessible court proceedings. In concluding this part of her assessment, the Director stated that she was satisfied that there was insufficient evidence that the media attention Mr. Katwaru has received to date would jeopardize his safety should he now be returned to Guyana. 21 With respect to his status as a criminal deportee, the Director acknowledged his counsel’s submissions that there is legislation in Guyana that would allow the police to monitor him and that the broad powers in that legislation are open to abuse by those who enforce them. However, she found that the reported possibility of such abuse was speculative and that Amnesty International’s subsequent reports make no mention of those broad powers actually having been abused. She also noted that in more recent open source country condition materials there was little evidence of any police monitoring of criminal deportees. After quoting a U.S. article regarding the treatment of criminal deportees in Guyana, the Director concluded that there was not sufficient evidence to demonstrate that Mr. Katwaru would be monitored or, if monitored, that he would be inappropriately treated by Guyanese authorities upon his return. 22 In summary, regarding Mr. Katwaru’s claimed personal risks, the Director concluded that there was not sufficient evidence that he would face any such risks if he returned to Guyana. 23 Turning to the generalized risks that were alleged by Mr. Katwaru, the Di- rector noted that Indo-Guyanese people make up half the population, and that 72 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

documentary evidence indicated that while many Indo-Guyanese people claim that they are not adequately protected by Afro-Guyanese police officers, Afro- Guyanese officers claim that the police carry out the agenda of the primarily Indo-Guyanese government. 24 The Director then found that the risks alleged by Mr. Katwaru in respect of high rates of crime, inadequate policing, and racial tensions are inconveniences experienced by all residents of Guyana, and are not specific to Mr. Katwaru. She quoted from the travel advisories produced by Mr. Katwaru, and determined that there was insufficient evidence to demonstrate that these factors would directly impact Mr. Katwaru, especially if he is quick to readopt Guyanese habits as outlined in the travel advisories. 25 In concluding, the Director identified the following factors as positive considerations in favour of granting his H&C application: “the strong family connections Mr. Katwaru has in Canada, the length of his residency in Canada and his commendable efforts to rehabilitate himself and improve his education.” She also found that he does not represent a danger to the public and he appears to be unlikely to re-offend. 26 However, she proceeded to state that “the crime he committed weighs heavily in the balance against these positive factors. A child’s death was caused by Mr. Katwaru. The record demonstrates that he was warned of the consequences of shaking a baby but that this did not stop him from continuing to abuse the baby.” 27 She also noted that Mr. Katwaru is unlikely to face any real risks to his person if returned to Guyana, and that the possibility remains that his wife may accompany him to Guyana and that his other family members may visit him in Guyana. 28 Finally, she noted that Mr. Katwaru will be eligible to apply for a pardon in the normal manner as of March 2012, and if granted a pardon, his wife could sponsor him as a spouse and he would be eligible to return to Canada. 29 Based on the foregoing, the Director concluded that there are insufficient H & C considerations to warrant granting a waiver of Mr. Katwaru’s criminal inadmissibility. She added that she was equally satisfied that the issuance of a Temporary Resident Permit is not justified in the circumstances.

III. Standard of review 30 The issues that have been raised by Mr. Katwaru are reviewable on a standard of reasonableness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at paras. 51-56; Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.), at para. 18). In short, the Director’s decision to reject his H&C application will stand unless it is not within the “range of possible, acceptable outcomes which are defensible Katwaru v. Canada Paul S. Crampton J. 73

in respect of the facts and law” (Dunsmuir, at para. 47). In this regard, “as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome” (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), at para. 59).

IV. Motion for Confidentiality 31 On November 2, 2010, Mr. Katwaru filed a motion for an order sealing the Court record in this case pursuant to Rules 151 and 152 of the Federal Courts Rules, SOR/98-106. In the alternative, Mr. Katwaru has requested that his name in the style of cause be varied to “X.X.” 32 Rule 151 provides as follows: Motion for order of confidentiality 151. (1) On motion, the Court may order that material to be filed shall be treated as confidential. Demonstrated need for confidentiality (2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings. Requête en confidentialité 151. (1) La Cour peut, sur requête, ordonner que des documents ou el´´ ements matériels qui seront déposés soient considérés comme confidentiels. Circonstances justifiant la confidentialité (2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit etreˆ convaincue de la nécessité de considérer les documents ou el´´ ements matériels comme confidentiels, etant´ donné l’intérêt du public a` la publicité des débats judiciaires. 33 Mr. Katwaru acknowledges that (i) a confidentiality order will not be granted unless it can be justified, and (ii) the onus is on him to provide such justification. 34 He states that a confidentiality order in this case is justified because there is clear and cogent evidence of the death threats that were made against him from persons in Guyana, as a result of the publication of Justice Heneghan’s 2008 decision mentioned above. 35 He asserts that if the Court record in respect of this application is not sealed and kept confidential, or, in the alternative, if his name is disclosed in the full decision rendered in this application, he will face death threats and reprisals once again. 74 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

36 In support of his motion, Mr. Katwaru provided copies of news articles published in newspapers that are circulated in Guyana. Those articles were published over the period October 5, 2008 to October 9, 2008, following Justice Heneghan’s decision. They simply reported the facts with respect to Mr. Katwaru’s convictions and Justice Heneghan’s disposition of his application. 37 Mr. Katwaru also provided Internet postings anonymously made during the period October 6, 2008 to October 13, 2008. It is not immediately apparent to me that any of those postings were made by persons located in Guyana. It is evident that many of them were made by persons in Canada and the U.S. That said, it is possible that some of them were made by persons in Guyana. How- ever, it would be purely speculative to infer, based on the content of those postings, that Mr. Katwaru would face an increased risk to his personal safety if his motion were not granted and if he is ultimately removed to Guyana. 38 The two-prong test applicable to a motion for an order of confidentiality pursuant to Rule 151 of the Rules was established by the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (S.C.C.), at 543 -545. There, the Supreme Court stated that confidentiality orders under Rule 151 should only be granted when: (i) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (ii) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. With respect to the first prong of the test, the Supreme Court added that: (i) the risk in question must be real and substantial, in that the risk is well grounded in the evidence, and poses a serious threat to the commercial interest in question; (ii) in order to qualify as an “important commercial interest”, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in maintaining confidentiality; and (iii) the Court must consider not only whether reasonable alternatives to a confidentiality order are available, but must also restrict the order as much as is reasonably possible while preserving the commercial interest in question. 39 I am satisfied that Mr. Katwaru fails both prongs of the Sierra Club test. As to the first prong, Mr. Katwaru has not demonstrated that the risk alleged is real and substantial. Far from being well grounded in the evidence and involving a Katwaru v. Canada Paul S. Crampton J. 75

serious threat to his interest in his personal safety, the evidence that he adduced in support of this motion is extremely weak and purely speculative in nature. In addition, I am unable to identify any public interest in maintaining the confidentiality of the entire Court file in this proceeding, particularly given that the information in question is already in the public domain, or in granting his alternative request to substitute his name in the style of cause to “X.X.” 40 As to the second prong of the test, it follows from the foregoing that the salutary effects that would be associated with granting the confidentiality order sought by Mr. Katwaru would be minimal, at best. They are not sufficient to outweigh the deleterious effects that would be associated with granting the order, including the effects that the order would have on the right to free expression, which in this context includes the public interest in open and accessible court proceedings (Sierra Club, above, at 550-551). 41 The confidentiality order sought by Mr. Katwaru also would not meet a number of the important pre-conditions to the granting of such an order that were identified by Robertson J.A. in Sierra Club of Canada v. Canada (Minister of Finance), [2000] 4 F.C. 426 (Fed. C.A.), at para.13, when he stated: In my opinion the following criteria can be reasonably viewed as conditions precedent to the issuance of a confidentiality order in cases where a party is seeking to prevent the disclosure of information: (1) the information is of a confidential nature as opposed to facts which one would like to keep confidential; (2) the information for which confidentiality is sought is not already in the public domain; (3) on a balance of probabilities the party seeking the confidentiality order would suffer irreparable harm if the information were made public; (4) the information is relevant to the legal issues raised in the case; (5) correlatively, the information is “necessary” to the resolution of those issues; (6) the granting of a confidentiality order does not unduly prejudice the opposing party; and (7) the public interest in open court proceedings does not override the private interests of the party seeking the confidentiality order. The onus in establishing that criteria one to six are met is on the party seeking the confidentiality order. 42 The first two conditions in the foregoing list are not met because the alleged harmful information, namely, Mr. Katwaru’s conviction for manslaughter and the circumstances surrounding the death of his son, is not of a confidential nature and has been in the public domain since 1998, when Mr. Katwaru was first convicted for manslaughter. The third condition in the foregoing list is also not met because, as discussed above, Mr. Katwaru has not established that he will suffer irreparable harm if the order he seeks is not granted. Indeed, essentially the same risks were considered and rejected by the PRRA Officer who rejected his PRRA application in 2005. In 2006, this Court dismissed Mr. Katwaru’s application for judicial review of that decision. Finally, as noted above, the public interest in open court proceedings outweighs the weak private interests that Mr. Katwaru is seeking to protect. 76 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

43 Accordingly, Mr. Katwaru has not satisfied the tests established by the Su- preme Court of Canada and by Robertson J.A. for the granting of a confidentiality order under Rule 151. Mr. Katwaru’s motion will therefore be dismissed.

V. Analysis A. Did the Director err by placing undue weight on one factor to the exclusion of all others? 44 Mr. Katwaru submits that the Director erred by overemphasizing his criminality. He asserts that his application should be distinguished from those made by persons who have never received permanent resident status in Canada. In this case, he states that he was applying for equitable relief, and that therefore different factors are relevant to the assessment. In particular, he submits that the factors to be considered are those that were established in Ribic v. Canada (Minister of Employment & Immigration) (1986), [1985] I.A.B.D. No. 4 (Imm. App. Bd.), at para. 4, which were endorsed by the Federal Court of Appeal in Chieu v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 1 F.C. 605 (Fed. C.A.), at para. 18. Those factors are: 1) the seriousness of the offence leading to the deportation order; 2) the possibility of rehabilitation and the risk of re-offending; 3) the length of time spent in Canada and the degree to which the applicant is established; 4) the family in Canada and the dislocation to family that would be caused by deportation; 5) the support available to the applicant within the family and the community; and 6) the degree of hardship that would be caused to the applicant by his return to the country of nationality. 45 Mr. Katwaru further notes that in Chieu, above, the remorsefulness of the applicant was identified as another relevant factor to consider. 46 In addition, he submits that section 11.4 of Immigration Manual IP-5, entitled Immigrant Applications in Canada made on Humanitarian or Compassion- ate Grounds (“IP-5”), issued by Citizenship and Immigration Canada (CIC), identifies additional factors to be considered when dealing with known inadmissibility on grounds such as a prior criminal conviction. Such factors include the type of criminal conviction, the length of time since the conviction, the sentence received, whether the conviction was the result of an isolated incident, and any other pertinent information about the circumstances of the crime. 47 In this case, Mr. Katwaru submits that the Director identified several positive factors that weighed in favour of granting his application. These included: “the strong family connections Mr. Katwaru has in Canada, the length of his Katwaru v. Canada Paul S. Crampton J. 77

residency in Canada and his commendable efforts to rehabilitate himself and improve his education.” In addition, the Director found that he does not represent a danger to the public and appears to be unlikely to re-offend. She also acknowledged Mr. Katwaru’s strong familial bonds in Canada and the adverse impact that his removal would have on his family, particularly his current wife, who depends on him financially, emotionally and physically. Moreover, she acknowledged his submissions with respect to the high rate of crime, inadequate policing and racial tensions in Guyana. 48 Against all of the above-mentioned considerations that weighed in favour of granting his application, Mr. Katwaru asserts that the only negative factors identified by the Director were the nature of the crime he committed and her conclusion that he would not likely face any real risk to his person if returned to Guyana. 49 Based on the foregoing, he submits that the Director was unduly influenced by his past conviction. 50 Mr. Katwaru acknowledges the seriousness of the offence. However, he notes that the offence occurred over 14 years ago, that he has served his sentence, that he has rehabilitated himself, that he is unlikely to re-offend, that he has close ties in Canada, and that he is a productive member of society. He submits that if his application is to be refused, he is entitled to an explanation as to why it should be refused, other than the mere existence of the offence. 51 Mr. Katwaru asserts that the Director was given discretion in this manner, and discretion would not have been given if there were not circumstances in which it can be exercised positively, despite the existence of criminality. Rely- ing on Pushpanathan v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 380 (Fed. T.D.), at paras. 11-16, and Lau v. Canada (Minister of Employment & Immigration), [1984] 1 F.C. 434 (Fed. C.A.), he submits that to base a decision solely on his prior criminality, to the exclusion of all other factors, is to give undue influence to that single factor and thereby commit a reviewable error. 52 I disagree with Mr. Katwaru’s position. 53 In Pushpanathan, above, at para. 15, Sharlow J. (as she then was) determined that the adverse decision on the applicant’s appeal from his deportation order had been erroneously based on “the single fact of the commission of the offence.” In that case, the offence involved drugs and the applicant was sentenced to eight years imprisonment in 1988 and released on parole in 1991. In Lau, above, which involved the issuance of a deportation order on other grounds, the Federal Court of Appeal held that if Parliament had intended the breach of the Immigration Act, 1976, S.C. 1976-77, c. 52, to be a dominating and determining factor, then there would have been no point in conferring discretion on the decision-maker pursuant to subsection 32(6) of that legislation. 78 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

54 In the case at bar, the facts are distinguishable. The Director did not rely solely on the single fact of the commission of an offence described in the IRPA. Rather, she relied on the fact that Mr. Katwaru was convicted of manslaughter in connection with a child’s death, after having been “warned of the consequences of shaking a baby.” She further noted that “this did not stop him from continuing to abuse the baby.” Earlier in her decision, she quoted additional aggravating circumstances that were identified by Justice LaForme in his Reasons for Sen- tence. Those circumstances included the fact that the case involved “systematic abuse that finally ended up with this tragic event of baby shaking death,” as opposed to a single impulsive act. After describing the brutality of that systematic abuse, Justice LaForme called the offence “one of the most serious crimes under our laws against one of the most vulnerable members of our society.” 55 In the presence of these aggravating circumstances, it was entirely open to the Director to exercise her discretion to reject Mr. Katwaru’s application on the basis that there were insufficient humanitarian and compassionate considerations to warrant granting a waiver of his criminal inadmissibility. 56 Indeed, this conclusion was further supported by her determination that “Mr. Katwaru is unlikely to face any real risks to his person if returned to Guyana.” 57 Regarding the six factors identified in Ribic, above, while four weighed in favour of granting Mr. Katwaru’s application, the first and sixth supported the conclusion reached by the Director. As I have noted above, there were also serious aggravating circumstances, some of which are contemplated by section 11.4 of IP-5. 58 Given the “highly discretionary and fact-based nature” of the balancing process contemplated by s. 25 of the IRPA (Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), at para. 61), the Di- rector’s decision should be accorded “considerable deference” (Baker, at para. 62). 59 Having identified and assessed the various factors weighing in favour of Mr. Katwaru’s application, it was reasonably open to the Director to conclude that the seriousness of the offence and the aggravating circumstances that she identified, either directly or indirectly in passages quoted in her decision, were such that there were insufficient H&C considerations to warrant granting a waiver of his criminal inadmissibility. It is not the role of the courts to re-examine the weight given to different factors by the Minister or his delegates under s. 25 of the IRPA (Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125 (Fed. C.A.), at para. 11). 60 In my view, the Director’s decision was certainly well within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above at para. 47), particularly given the “highly discretionary and fact-based nature” of the decision (Baker, above, at para. 61). For the rea- Katwaru v. Canada Paul S. Crampton J. 79

sons I have explained, that decision also was transparent, intelligible and appropriately justified. 61 There may well be situations in which the factors favouring a positive decision under s. 25 of the IRPA may outweigh the seriousness of the offence that led to the deportation order in question. Conversely, there may well be situations in which the seriousness of the offence in question, in and of itself, will outweigh the positive factors identified by the applicant and accepted by the Min- ister or his delegate. Indeed, had there not been additional aggravating circumstances in this case, it may have been a good example of the latter type of situation. 62 Ultimately, a decision made on an H&C application will depend on the weight attributed to the positive and negative factors, rather than on the number of those factors, having regard to the priority given to security in paragraph 3(2)(f) of the IRPA, and to the fact that “[T]his objective is given effect by ... removing applicants with [criminal] records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada” (Medovarski v. Canada (Minister of Citizenship & Immigration), [2005] 2 S.C.R. 539 (S.C.C.), at para. 10). As the Federal Court of Appeal observed in Cha v. Canada (Minister of Citizenship & Immigration), 2006 FCA 126 (F.C.A.), at para. 24, “Parliament has made it clear that criminality of non-citizens is a major concern.” The decisions in both Medovarski and Cha postdate the decisions relied upon by Mr. Katwaru. 63 In the case at bar, there were a significant number of factors that weighed in favour of a positive determination of Mr. Katwaru’s H&C application. However, on the whole, they were not materially different from the types of factors that are routinely identified by applicants in the H&C cases that come before this Court. Given the seriousness of the offence and the aggravating factors identified or recognized by the Director, it was not unreasonable for the Director to reject Mr. Katwaru’s application, particularly having regard to the objectives of the IRPA, as discussed in Medovarski and Cha, above. 64 The standard to be met to obtain a grant of exemption from the requirement to apply for permanent residence from outside of Canada is a high threshold. The applicant bears the onus of meeting that threshold (Bui v. Canada (Minister of Citizenship & Immigration), 2005 FC 816 (F.C.), at paras. 11 and 12). In this case, Mr. Katwaru failed to do so.

B. Did the Director err by applying the wrong test in assessing the H&C application? 65 Mr. Katwaru submits that the Director erred in her assessment by applying a “real risk to life” test, as opposed to one of “unusual and undeserved, or disproportionate hardship.” He further asserts that while generalized risk cannot be considered in a PRRA assessment, it is appropriate to consider such risk in as- 80 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

sessing an H&C application. Relying on Ramirez v. Canada (Minister of Citizenship & Immigration), 2006 FC 1404 (F.C.), at para. 5, he maintains that there may well be risk considerations that are relevant to an H&C application, which fall below the higher threshold of risk to life or cruel and unusual treatment or punishment, which is the focus in a PRRA application. The implication is that the Director did not consider such general or lower risk considerations in her assessment. 66 On a close reading of the Director’s decision, I am unable to agree that she applied the wrong test in her assessment. I recognize that, in articulating her decision, she did not explicitly refer to the established test of “unusual and undeserved, or disproportionate, hardship.” However, she explicitly addressed and assessed the factors that are typically evaluated in H&C applications, namely, the extent to which Mr. Katwaru has become established in Canada; his family and other social ties in Canada; the interests of his child relatives (he doesn’t have any children of his own); and the impact that being deported would have on him and his family. In addition, she explicitly acknowledged the “hardship” that Mr. Katwaru’s wife would likely suffer, emotionally, physically and financially, should she be parted from Mr. Katwaru. She also explicitly acknowledged the “hardship of a permanent separation from family members,” which he would face if deported from Canada. 67 With respect to the general risks identified by Mr. Katwaru, the Director did in fact explicitly address those risks over the course of almost two pages of her decision. Ultimately, she concluded: “No doubt these factors represent serious inconveniences, but there is insufficient evidence before me to demonstrate that these factors would directly impact Mr. Katwaru especially if he is quick to readopt Guyanese habits as outlined in the travel advisories.” In my view, this conclusion is simply another way of stating that these general risks would not likely present any hardship for Mr. Katwaru, let alone “unusual and undeserved, or disproportionate” hardship. 68 Regarding the personalized risks identified by Mr. Katwaru, the Director concluded that there was not “sufficient evidence that Mr. Katwaru would face any personalized risks if he returned to Guyana, based on being a criminal deportee, because of the media coverage of his criminal case in Guyana, or at the hands of his ex-wife’s family.” Once again, in my view, this is simply another way of stating that these personalized risks would not likely present any hardship for Mr. Katwaru. 69 In short, it is clear from a contextualized reading of the Director’s decision that she reached “the conclusion that the Applicant would not suffer unusual and undeserving, or disproportionate hardship since there was no objective evidence of personal risk” (Pannu v. Canada (Minister of Citizenship & Immigration), 2006 FC 1356 (F.C.), at para. 37; Akinbowale v. Canada (Minister of Citizenship & Immigration), 2007 FC 1221 (F.C.), at para. 21; El Doukhi v. Katwaru v. Canada Paul S. Crampton J. 81

Canada (Minister of Citizenship & Immigration), 2006 FC 1464 (F.C.), at para. 27). 70 In my view, the Director did not err by applying the wrong test in her assessment. Her failure to explicitly articulate her conclusion in terms of “unusual and undeserved, or disproportionate, hardship” was not unreasonable. 71 The Director’s use of the terms “risk” and “personalized risk,” rather than the term “hardship,” in various places appears to have simply resulted from an attempt to use terms employed in “the updated risk submissions” dated May 11, 2007 and October 28, 2008, submitted by Mr. Katwaru and referred to in his letter to PRRA Officer A. Dello, dated January 5, 2010, in which a number of those alleged “risks” were repeated.

C. Did the Director err by unreasonably assessing the evidence? 72 Mr. Katwaru also submits that the Director erred by making a number of unreasonable assessments of the evidence before her. 73 Specifically, Mr. Katwaru notes that the Director found that his friend’s account of threats that he received regarding the Applicant were vague, lacked detail, and were not supported by the evidence. He asserts that this conclusion ignored his statutory declaration that he had received threats and ignored his uncle’s statement that his former mother-in-law had made threats against him. 74 I disagree. At page 9 of her decision, the Director explicitly quoted from Mr. Katwaru’s statutory declaration with respect to those threats. After then quoting at length from his friend’s sworn statement, she reasonably concluded that the statement provided few details, was vague and was not supported by corroborative evidence. In my view, it was entirely reasonable for the Director to conclude that the statement from Mr. Singh did not provide “sufficient substantia- tion for the contention that Mr. Katwaru would be threatened or targeted by his ex-wife’s family or other unknown individuals.” 75 Mr. Katwaru further submits that it was unreasonable for the Director to conclude that he could establish himself elsewhere in Guyana. He asserts that the Director essentially concluded that he had an internal flight alternative (IFA) in Guyana, but she failed to specify where he could relocate within Guyana. 76 In my view, it was not unreasonable for the Director to make this observation on the facts of this particular case, particularly given that she explicitly concluded that there was insufficient evidence that (i) he would face any personalized risks if he return to Guyana, or (ii) that the generalized risks identified by him would represent more than serious inconveniences. 77 Mr. Katwaru also submits that the Director trivialized the seriousness of his situation when she stated that she had given “the anonymous comments [in the Internet postings] little weight as evidence that the Guyanese public would be in any way galvanized into actively tracking his case, keeping the photo of Mr. 82 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Katwaru handy should he be deported and following through with any vigilante acts of street justice.” 78 I disagree. The Director was simply drawing a reasonable conclusion, based on the content of those postings and the fact that it is not immediately apparent whether any of those postings were made by people from within Guyana. In- deed, as I have noted above, many of those postings appear to have been made by people in Canada and the United States. 79 Next, Mr. Katwaru submitted that the Director’s conclusion that CIC and the CBSA are prevented by privacy legislation from making public any developments is erroneous. He notes that CIC and CBSA have issued press releases regarding certain people’s deportations in the past. In my view, this comment did not render the Director’s decision unreasonable, particularly given the significant publicity that has already been given to Mr. Katwaru’s conviction and the circumstances surrounding his son’s death. 80 In addition, Mr. Katwaru submits that the Director improperly found that he could avoid generalized risks if he adopted “Guyanese habits as outlined in the travel advisories.” He submits that it was perverse for the Director to apply pre- cautions meant for tourists to a person who would be residing there permanently. 81 In my view, this observation did not materially impact on the Director’s conclusion that the generalized risks identified by Mr. Katwaru would represent more than serious inconveniences. As reflected in the observations made by the Director in the same paragraph in which she made her concluding statement on generalized risks, that conclusion was reached based on (i) the fact that there was insufficient evidence to demonstrate that those risks would directly impact upon Mr. Katwaru; and (ii) the evidence that Mr. Katwaru and his family members have made trips back to Guyana, thereby suggesting that they felt that conditions in Guyana are not as risky as he suggested in his H&C application. 82 Finally, Mr. Katwaru submits that the Director erred by suggesting that his wife could accompany him to Guyana. He asserts that this decision was made without consideration of his wife’s medical condition and her need for ongoing treatment. 83 That comment by the Director was made after she had summarized the positive and negative considerations that provided the basis for her decision. The comment was made in the context of discussing a possible partial solution to reduce the “certainty of the hardship” that the Director found would be experienced by Mr. Katwaru, his wife and his other family members, should he be returned to Guyana. In this context, I am satisfied that this comment did not render her decision, as a whole, unreasonable. 84 In summary, I am satisfied that the various conclusions, findings and observations made by the Director and alleged to have been unreasonable by Mr. Katwaru v. Canada Paul S. Crampton J. 83

Katwaru were not, individually, or collectively, unreasonable. As previously noted, I am satisfied that the decision reached by the Director was well within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para. 47). For the reasons I have explained, that decision also was transparent, intelligible and appropriately justified.

VI. Conclusion 85 The application for judicial review is dismissed. 86 There is no question for certification.

Judgment THIS COURT ORDERS AND ADJUDGES that this application for judicial review, as well as the Applicant’s motion for a confidentiality order pursuant to Rule 151 of the Federal Courts Rules, are dismissed. Application dismissed. 84 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Hasan v. Canada (Minister of Citizenship & Immigration)] Syed Imam Hasan, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Douglas R. Campbell J. Heard: October 19, 2010 Judgment: November 30, 2010 Docket: IMM-6455-09, 2010 FC 1206 Mr. Ian R.J. Wong, for Applicant Ms Nicole Rahaman, for Respondent Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Education –––– Applicant was citizen of Bangladesh and applied for permanent residency in Canada as federal skilled worker — Application rejected by visa officer at Canadian High Commission in Singapore because applicant was three points shy of required minimum — Applicant appealed to federal court — Appeal allowed — Lack of clarity in Immigration and Refugee Protection Regulations had led visa officers to adopt self-help approach when awarding points for education that may not have been lawful — Failure to consider correct application of Regulations constituted error of law — Decision set aside and referred back for re-determination by different visa officer — Question certified for consideration by Federal Court of Appeal regarding points for education credentials. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Miscellaneous issues –––– Applicant was citizen of Bangladesh and applied for permanent residency in Canada as federal skilled worker — Application rejected by visa officer at Canadian High Commission in Singapore because applicant was three points shy of required minimum — Applicant appealed to federal court — Appeal allowed — Lack of clarity in Immigration and Refugee Protection Regulations had led visa officers to adopt self-help approach when awarding points for education that may not have been lawful — Failure to consider correct application of Regulations constituted error of law — Decision set aside and referred back for re-determination by different visa officer — Question certified for consideration by Federal Court of Appeal regarding points for education credentials. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division –––– Applicant was citizen of Bangladesh and applied for permanent residency in Canada as federal skilled worker — Application rejected by visa officer at Canadian High Commis- sion in Singapore because applicant was three points shy of required minimum — Appli- cant appealed to federal court — Appeal allowed — Lack of clarity in Immigration and Refugee Protection Regulations had led visa officers to adopt self-help approach when Hasan v. Canada Douglas R. Campbell J. 85

awarding points for education that may not have been lawful — Failure to consider correct application of Regulations constituted error of law — Decision set aside and referred back for re-determination by different visa officer — Question certified for consideration by Federal Court of Appeal regarding points for education credentials. Cases considered by Douglas R. Campbell J.: Almrei v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 3223, 2007 FC 1025, 2007 CF 1025, 2007 CarswellNat 5184, 316 F.T.R. 49 (Eng.), [2007] F.C.J. No. 1292, [2007] A.C.F. No. 1292 (F.C.) — referred to Bhuiya v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 878, 2008 CarswellNat 2554, [2008] F.C.J. No. 1110 (F.C.) — considered Healey v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 891, 2009 FC 355, 80 Imm. L.R. (3d) 138, 342 F.T.R. 61 (Eng.), [2009] F.C.J. No. 439 (F.C.) — considered Kabir v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3710, 2010 FC 995, 2010 CarswellNat 4424, 2010 CF 995 (F.C.) — considered Khan v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 983, 2010 CarswellNat 3641, 2010 CarswellNat 4423, 2010 CF 983 (F.C.) — considered McLachlan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 975, 2009 CarswellNat 5869, 354 F.T.R. 176 (Eng.), 2009 CarswellNat 2936, 2009 FC 975, 85 Imm. L.R. (3d) 90 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12(2) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 73 — considered s. 75 — referred to s. 76 — referred to s. 78 — considered s. 78(2)(e) — considered s. 78(2)(f) — considered s. 78(3)(a) — considered s. 78(3)(b)(i) — considered

APPEAL from decision of visa officer dismissing application for permanent residency as federal skilled worker.

Douglas R. Campbell J.:

1 The present Application concerns the correct interpretation of the regulations that a visa officer is required to apply in determining the “education” component 86 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

of a person’s application to become a permanent resident of Canada as a “Fed- eral Skilled Worker”. Most recently, two decisions of the Court on this issue have been placed before the Federal Court of Appeal on the same certified question and which, it is agreed by Counsel in the present Application, express a majority of opinion in previously decided cases. However, upon hearing the present Application, and considering the regulations in question in their full context, I am strongly of the opinion that the existing majority view in the jurisprudence is not a precedent for determining the present Application. 2 With respect to the cardinal principle of comity that substantially similar decisions rendered by Judges of the Court should be followed in the interest of advancing certainty in the law, I find an exception in the present circumstances. In my opinion, the two decisions on which certified questions have been posed, and which are representative of many others with respect to the interpretation of the education component of the Federal Skilled Worker category, fail to consider the correct application of a particular provision of the Regulations which, in the circumstances presently under consideration, would have, in my opinion, produced a different result (see: Almrei v. Canada (Minister of Citizenship & Immigration), 2007 FC 1025 (F.C.) at paras. 61 - 62). 3 To settle the interpretation question, I believe that the Federal Court of Ap- peal should have the benefit of this, a different perspective, on the certified questions already placed before it.

I. Introduction 4 The Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (SOR/2002-227) (Regulations) provide the possibility of permanent residency in Canada to a category of applicants known as the Federal Skilled Worker Class (IRPA: s. 12(2)). The Federal Skilled Worker category is “prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec” (Regulations: s. 75 and s. 76). 5 In April 2009, the Applicant, Syed Imam Hasan, a citizen of Bangladesh, submitted an application for permanent residency in Canada as a Federal Skilled Worker. Federal Skilled Worker applicants are required to obtain or exceed a total of 67 points allocated in the categories of age, education, official language proficiency, experience, arranged employment, and adaptability. In October 2009, Mr. Hasan’s application was rejected by a Visa Officer at the Canadian High Commission in Singapore who awarded him only a total of 64 points, three points short of the 67 point threshold. 6 In the present Application, Mr. Hasan challenges the Visa Officer’s decision, the principal focus being on the points awarded in the education category; Mr. Hasan was awarded only 22 out of a possible 25 points. Mr. Hasan possesses Hasan v. Canada Douglas R. Campbell J. 87

three university degrees, being a Bachelor of Commerce degree awarded in April 1993, a Master of Commerce in Management degree awarded in August 1998, and an Executive Master of Business Administration in Marketing degree awarded in December 2008, and argues that, based on his last degree and the fact that he has completed in excess of 18 years of full-time education studies, he is entitled to be awarded the full 25 points. 7 The success of Mr. Hasan’s argument is based on the correct interpretation of the Regulations which apply to the education category. For the purposes of the present Application, the critical elements of the Regulations are s. 73 and s. 78 which are quoted in the “Addendum” to these reasons.

II. The Visa Officer’s Decision 8 In the decision rendered, the Visa Officer made the following finding: You obtained 22 points for education based on the evidence that your highest credential is a Master’s degree with the equivalent of 16 years of full-time education leading up to the completion of your highest degree (your 2 Mas- ters [sic] degrees separately), in a recognized post-secondary institution. Note that you cannot cumulate more years of education by having 2 credentials at the same level. [Emphasis added] (Application Record, p. 6) 9 This finding is elaborated upon in the Visa Officer’s affidavit, dated Febru- ary 11, 2010, filed unopposed in the present Application: I considered the applicant’s education history and concluded that none of his two Masters [sic] Degrees (commerce and business administration) was in the line of progression towards the other. I therefore awarded the maximum points for the years of study leading up to his highest university credential (any of his two Masters [sic] Degrees taken separately) which is 16 years of full time education and I awarded 22 points for education. In addition, in the affidavit the Visa Officer quotes from computer generated notes to substantiate the conclusion that either of Mr. Hasan’s two Master’s degrees take 16 years of study to complete: Information found on UNESCO’s website confirms that under the Ban- gladesh educational system, a Master’s degree level studies amounts to the equivalent of 16 years of full education. (Affidavit, p. 1 and p. 3) 10 With respect to Mr. Hasan’s “highest university credential”, Counsel for Mr. Hasan agrees that each of his two Master’s degrees are equivalent in the sense that each takes two years to complete and that the commerce degree is not a requisite to the business administration degree. However, what is contested is the Visa Officer’s choice of awarding points with respect to the commerce degree rather than the business administration degree. It is this choice that is the 88 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

subject matter of the statutory interpretation question at the heart of the present Application.

III. Statutory Interpretation 11 The statutory interpretation question is whether the factors of attaining a Master’s or Doctoral degree and completing the requisite full time studies stated in s. 78(2)(f) of the Regulations should be read conjunctively or disjunctively. The Visa Officer decided on the former interpretation. With the exception of Justice Mandamin’s decision in McLachlan v. Canada (Minister of Citizenship & Immigration), 2009 FC 975 (F.C.), this conclusion conforms with the opinion expressed in previously decided cases of the Court, the most recent of which are Justice Heneghan’s decisions in Khan v. Canada (Minister of Citizenship & Im- migration), 2010 FC 983 (F.C.), and Kabir v. Canada (Minister of Citizenship & Immigration), 2010 FC 995 (F.C.). Because these decisions concern applicants who offered two Master’s degrees as credentials, they are central to the analysis which follows. 12 The interpretation of the Regulations adopted in Khan and Kabir, and applied by the Visa Officer in the present case, is based on emphasis placed on the words of s. 78(3)(a) that education points “shall not be awarded cumulatively on the basis of more than one single educational credential”. As the reasoning goes behind not awarding “double points” because an applicant has two Master’s degrees, if it takes only 16 years to attain a first Master’s degree and this degree is not a prerequisite to a further Master’s degree attained, points are to be awarded on the basis of only the first Master’s degree with no consideration being given to the second Master’s degree. Justice Heneghan’s finding in Khan at paragraph 14 emphasizes the point: The language of subsection 78(3) is clear. No points can be awarded for two Master’s degrees. The Applicant completed 19 years of full-time studies but only 16 years were required in Bangladesh in order to obtain a Master’s degree. He falls within the scope of paragraph 78(2)(e). No reviewable error was committed by the Officer. This case is parallel to the decision in Bhuiya v. Canada (Minister of Citizenship and Immigration) 2008 FC 878. In Kabir at paragraph 14, Justice Heneghan makes a similar statement. The Visa Officer in the decision presently under review came to the same conclusion by awarding only 22 points and not the full 25 points pursuant to s. 78(2)(f). Coun- sel for the Respondent explains that, as a matter of practice, the 22 points awarded to Mr. Hasan is based on the application of the “OP6 - Federal Skilled Workers Manual” which visa officers consult: if under s. 78(2)(f) a person has a Master’s degree but only the imputed 16 years of education to obtain it, points Hasan v. Canada Douglas R. Campbell J. 89

are awarded according to the next highest category being s. 78(2)(e) (Respon- dent’s Further Memorandum of Argument, paras. 12 and 13). 13 Since Justice Heneghan specifically relies on Justice Mactavish’s decision in Bhuiya v. Canada (Minister of Citizenship & Immigration) [2008 CarswellNat 2554 (F.C.)], I find a comment is necessary about the evidence of legislative intention relied upon to reach the conclusion in that case. 14 The education component of Ms. Bhuiya’s application for permanent residence as a Skilled Worker was a Master’s degree in Commerce which took 16 years to attain and a diploma in personnel management which took a year to attain. Justice Mactavish applied s. 78(3)(b)(i) to conclude that the credential that results in the highest number of points is the Master’s degree which took 16 years to complete and points were awarded accordingly. Because he has two Master’s degrees, the factual matrix of Mr. Hasan’s application presently under consideration is more complex from that presented by Ms. Bhuiya, and, as a result, the factual finding in her case is not a precedent to guide the outcome of his case. However, the decision is cited as precedent for its conclusion on legislative intention. 15 In Bhuiya, Justice Mactavish refers to the Regulatory Impact Assessment Statement (RIAS) relating to the Regulations and makes this finding at paragraphs 17 to 19: In this case, a review of the RIAS discloses that the reason for requiring that a candidate have both a particular degree and a specified number of years of education was to promote consistent standards in the assessment of a candidate’s education and training, given the range of education and formal training systems around the world. The RIAS uses a Master’s degree as an example, noting that to qualify for the maximum number of points for a Master’s the candidate must also have 17 years of education. In other words, the years of education requirement is clearly intended to establish minimum standards for each type of degree. The fact that Ms. Bhuiya may have spent one additional year in school after obtaining her Master’s degree does not turn her 16 year Master’s degree into a 17 year Master’s degree. [Emphasis added] 16 The RIAS that Justice Mactavish is referring to is quoted by Justice Russell in Healey v. Canada (Minister of Citizenship & Immigration), 2009 FC 355 (F.C.) at paragraph 35 as follows: ...Another change to the Education factor is the manner in which points will be allocated for each credential level. The applicant is allocated points for education on the basis of having both a credential (such as a diploma, degree, or apprenticeship certificate) and a minimum number of years of education and formal training. For example, for a Master’s degree, an applicant must also have completed a total of at least 17 years of full-time or full-time 90 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

equivalent studies. Given the range of educational and formal training systems around the world, this mechanism will serve to promote consistent standards in the assessment of education and training while still placing emphasis on the essentials - a credential as well as relevant minimum levels of education and formal training. [Emphasis added] 17 With respect, it is not at all clear that the comment in the RIAS with respect to completing 17 years of full-time studies refers just to the Master’s degree or generally to the applicant’s complete study history. There is no clear statement in the IRPA or the Regulations, or in the RIAS for that matter, that when two Master’s degrees are presented as credentials by an applicant, the complete study history of the applicant cannot be considered. This point is made by Jus- tice Mandamin in McLachlan at paragraph 30: “in my view the whole of section 78 of the IRPA Regulations is directed at assessment of educational accomplishment”. 18 In my opinion, the lack of clarity in the Regulations has caused visa officers to adopt a self-help approach. The importation of the non-legislative notion of “line of progression” seems to be an attempt to bring clarity to the unclear. It might bring clarity and certainty to the decision-making of visa officers under the Regulations, but that is not the point. The question is whether it is lawful to do so. 19 Counsel for Mr. Hasan argues that the decisions in Khan and Kabir neglect to address the operation of s. 78(3)(b)(i) which states that points are to be awarded, including under s. 78(2)(f), “on the basis of the single educational credential that results in the highest number of points”. As the argument goes, in order for this legislative intention to operate to provide a benefit to an applicant with two Master’s degrees, the factors named in s. 78(2)(f) must be read disjunctively. That is, if an applicant such as Mr. Hasan has two Master’s degrees and a total of 17 years or more of full-time studies in his or her complete academic history, the last of the degrees must be assessed together with the applicant’s complete academic history. In my opinion, this is the correct approach. 20 It is important to note that in both Khan and Kabir, the quotation of the Regulations provided includes a citation of s. s. 78(3)(b)(i), but no critical analysis is provided regarding the impact of the provision on the circumstances under consideration. Accordingly, I find that Khan and Kabir are not precedents to apply in the present case.

IV. Result 21 I agree with Counsel for the Applicant that the failure to consider the correct application of s. 78(3)(b)(i) of the Regulations by the Visa Officer in the present case constitutes an error of law which warrants setting the decision aside and the certifying of a question for consideration by the Federal Court of Appeal. Hasan v. Canada Douglas R. Campbell J. 91

Order THIS COURT ORDERS that the decision under review is set aside and the matter is referred back for re-determination by a different visa officer. By the consent of Counsel for Mr. Hasan and the Respondent, because it is of general importance and determinative of the present Application, I certify the same question for consideration by the Federal Court of Appeal as that certified in Khan and Kabir: In assessing points for education under s. 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full- time equivalent studies that did not contribute to obtaining the educational credential being assessed? Appeal allowed.

Addendum

Sections 73 and 78 of the Regulations set out the procedure by which points are to be awarded in the education category. “Educational credential” is defined in s. 73 of the Regulations as follows: “educational credential” « diplôme » “educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue. « diplôme » “educational credential” « diplôme » Tout diplôme, certificat de compétence ou certificat d’apprentissage obtenu conséquemment a` la réussite d’un programme d’études ou d’un cours de formation offert par un etablissement´ d’enseignement ou de formation reconnu par les autorités chargées d’enregistrer, d’accréditer, de superviser et de réglementer les etablissements´ d’enseignement dans le pays de délivrance de ce diplôme ou certificat. Section 78 of the Regulations reads as follows: Selection Grid Definitions 78. (1) The definitions in this subsection apply in this section. “full-time” « temps plein » 92 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

“full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the workplace that forms part of the course of instruction. “full-time equivalent” « equivalent´ temps plein » “full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full- time basis. Education (25 points) (2) A maximum of 25 points shall be awarded for a skilled worker’s education as follows: (a) 5 points for a secondary school educational credential; (b) 12 points for a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 12 years of completed full-time or full-time equivalent studies; (c) 15 points for (i) a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 13 years of completed full-time or full-time equivalent studies, or (ii) a one-year university educational credential at the bachelor’s level and a total of at least 13 years of completed full- time or full-time equivalent studies; (d) 20 points for (i) a two-year post-secondary educational credential, other than a university educational credential, and a total of at least 14 years of completed full-time or full-time equivalent studies, or (ii) a two-year university educational credential at the bachelor’s level and a total of at least 14 years of completed full- time or full-time equivalent studies; (e) 22 points for (i) a three-year post-secondary educational credential, other than a university educational credential, and a total of at least 15 years of completed full-time or full-time equivalent studies, or (ii) two or more university educational credentials at the bachelor’s level and a total of at least 15 years of completed full- time or full-time equivalent studies; and Hasan v. Canada Douglas R. Campbell J. 93

(f) 25 points for a university educational credential at the master’s or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies. Multiple educational achievements (3) For the purposes of subsection (2), points (a) shall not be awarded cumulatively on the basis of more than one single educational credential; and (b) shall be awarded (i) for the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of the single educational credential that results in the highest number of points, and (ii) for the purposes of subparagraph (2)(e)(ii), on the basis of the combined educational credentials referred to in that paragraph. Special circumstances (4) For the purposes of subsection (2), if a skilled worker has an educational credential referred to in paragraph (2)(b), subparagraph (2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or paragraph (2)(f), but not the total number of years of full-time or full-time equivalent studies required by that paragraph or subparagraph, the skilled worker shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph. [Emphasis added] Grille de sélection Définitions 78. (1) Les définitions qui suivent s’appliquent au présent article. « equivalent´ temps plein » “full-time equivalent” « equivalent´ temps plein » Par rapport a` tel nombre d’années d’études a` temps plein, le nombre d’années d’études a` temps partiel ou d’études ac- célérées qui auraient et´´ e nécessaires pour compléter des etudes´ equivalentes.´ « temps plein » “full-time” « temps plein » A` l’égard d’un programme d’études qui conduit a` l’obtention d’un diplôme, correspond a` quinze heures de cours par semaine pendant l’année scolaire, et comprend toute période de formation donnée en milieu de travail et faisant partie du programme. 94 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Etudes´ (25 points) (2) Un maximum de 25 points d’appréciation sont attribués pour les etudes´ du travailleur qualifié selon la grille suivante: a) 5 points, s’il a obtenu un diplôme d’études secondaires; b) 12 points, s’il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire — nécessitant une année d’études et a ac- cumulé un total d’au moins douze années d’études a` temps plein complètes ou l’équivalent temps plein; c) 15 points, si, selon le cas: (i) il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire — nécessitant une année d’études et a accumulé un total de treize années d’études a` temps plein complètes ou l’équivalent temps plein, (ii) il a obtenu un diplôme universitaire de premier cycle néces- sitant une année d’études et a accumulé un total d’au moins treize années d’études a` temps plein complètes ou l’équivalent temps plein; d) 20 points, si, selon le cas: (i) il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire — nécessitant deux années d’études et a accumulé un total de quatorze années d’études a` temps plein complètes ou l’équivalent temps plein, (ii) il a obtenu un diplôme universitaire de premier cycle néces- sitant deux années d’études et a accumulé un total d’au moins quatorze années d’études a` temps plein complètes ou l’équivalent temps plein; e) 22 points, si, selon le cas: (i) il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire — nécessitant trois années d’études et a accumulé un total de quinze années d’études a` temps plein complètes ou l’équivalent temps plein, (ii) il a obtenu au moins deux diplômes universitaires de premier cycle et a accumulé un total d’au moins quinze années d’études a` temps plein complètes ou l’équivalent temps plein; f) 25 points, s’il a obtenu un diplôme universitaire de deuxième ou de troisième cycle et a accumulé un total d’au moins dix-sept années d’études a` temps plein complètes ou l’équivalent temps plein. Résultats (3) Pour l’application du paragraphe (2), les points sont accumulés de la fa¸con suivante: Hasan v. Canada Douglas R. Campbell J. 95

a) ils ne peuvent etreˆ additionnés les uns aux autres du fait que le travailleur qualifié possède plus d’un diplôme; b) ils sont attribués: (i) pour l’application des alinéas (2)a) a` d), du sous-alinéa (2)e)(i) et de l’alinéa (2)f), en fonction du diplôme qui pro- cure le plus de points selon la grille, (ii) pour l’application du sous-alinéa (2)e)(ii), en fonction de l’ensemble des diplômes visés a` ce sous-alinéa. Circonstances spéciales (4) Pour l’application du paragraphe (2), si le travailleur qualifié est titulaire d’un diplôme visé a` l’un des alinéas (2)b), des sous-alinéas (2)c)(i) et (ii), (2)d)(i) et (ii) et (2)e)(i) et (ii) ou a` l’alinéa (2)f) mais n’a pas accumulé le nombre d’années d’études a` temps plein ou l’équivalent temps plein prévu a` l’un de ces alinéas ou sous-alinéas, il obtient le nombre de points cor- respondant au nombre d’années d’études a` temps plein complètes — ou leur equivalent´ temps plein — mentionné dans ces dispositions. 96 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Minhas v. Canada (Minister of Citizenship & Immigration)] Raj Rani Minhas, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Michael L. Phelan J. Heard: October 21, 2010 Judgment: November 15, 2010 Docket: IMM-1637-10, 2010 FC 1143 Mr. Richard Kurland, for Applicant Ms Susan Jane Bennett, for Respondent Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer –––– Applicant was citizen of India who applied for permanent residence status based on skilled worker status — Visa officer did not accept that applicant had family member in Canada due to discrepancy in birth dates on documents provided with respect to brother-in-law — Ap- plication denied due to insufficient points — Applicant applied for judicial review of decision — Application granted — Applicant was entitled to know that officer had concerns regarding accuracy and/or genuineness of Matriculation Examination Certificate provided with respect to birth date of applicant’s brother-in-law — Fairness was at root of officer’s obligation to applicant and failure to inform applicant about birth date discrepancy was unfair — Was profoundly unfair to deny application based on what could have been easily-addressed typographical error. Cases considered by Michael L. Phelan J.: Baybazarov v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 665, 2010 CF 665, 2010 CarswellNat 2427, 2010 CarswellNat 2428 (F.C.) — considered Wai v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 780, 348 F.T.R. 85 (Eng.), 2009 CarswellNat 2481, [2009] F.C.J. No. 1015 (F.C.) — referred to

APPLICATION for judicial review of decision of visa officer denying permanent residence status as skilled worker.

Michael L. Phelan J.: I. Introduction 1 The Applicant, Raj Rani Minhas, was denied permanent residence status as a skilled worker because she had not earned sufficient “points” in the immigration criteria. The Applicant would have had sufficient points if the Visa Officer had accepted that she had a relative (her husband’s brother) in Canada. This is the judicial review of the Visa Officer’s decision. Minhas v. Canada Michael L. Phelan J. 97

II. Background 2 The Applicant, a citizen of India, applied for a permanent resident visa as a skilled worker based on her profession as a secondary school teacher. Her husband was included in her application. 3 Her application was refused because she received 64 points whereas the required number was 67. She was awarded 0 points for having a relative in Canada. 4 The Applicant claimed that her evidence of her brother-in-law’s Canadian citizenship, submitted as part of her application, included copies of Mr. Ranjit Singh Minhas’ (Ranjit Singh) (the alleged brother-in-law) Record of Landing, Alberta Personal Health Card, his Social Insurance Number and Canadian Pass- port. She also submitted as proof of the fraternal relationship with her husband Ranjit Singh’s Ministry of Defence Junior Air Certificate Examination and his 1981 Matriculation Examination Certificate. 5 The Visa Officer’s affidavit in this matter attests to her having received as updated information only the Matriculation Examination Certificate as proof of fraternal relationship and only the Canadian passport as evidence of Ranjit Singh’s citizenship. In addition, the Visa Officer had already received copies of Ranjit Singh’s Citizenship Card and his Income Tax Return. 6 The Visa Officer found a discrepancy between the birth dates on Ranjit Singh’s Canadian passport and his 1981 Matriculation Examination Certificate. One indicated a date of birth of August 26, 1963, and the other February 6, 1964. 7 The Visa Officer, on the basis of this discrepancy alone, concluded that there was insufficient proof that the Applicant had a relative in Canada. 8 After the Visa Officer’s decision, the Applicant submitted additional documents trying to show the relationship between her husband and Ranjit Singh. The Visa Officer attests to considering one of the new documents, an Indian land document showing Ranjit Singh owned property (it had no date of birth information) but she apparently refused to have regard to the other documents being a power of attorney to the Applicant’s husband to manage Ranjit Singh’s properties, a family tree showing the respective brothers’ shareholdings and the mother’s death certificate. 9 The controlling issue in this judicial review is the Visa Officer’s consideration of the discrepancy between Ranjit Singh’s date of birth on his Canadian passport and that on his high school leaving document.

III. Analysis 10 Both parties accept reasonableness as the standard of review for the Visa Officer’s decision (Wai v. Canada (Minister of Citizenship & Immigration), 98 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

2009 FC 780 (F.C.)) with the Respondent contending that considerable deference is owed. 11 The parties are correct as to the standard of review of the decision. The attempt to elevate deference cannot be used to move the “reasonableness” standard back to the previously unmanageable “patent unreasonableness” standard under the guise of deference. The focus remains on “justification, transparency and intelligibility within the decision making process” and in the result on a range of possible acceptable outcomes defensible in respect of the facts and law. 12 The Applicant also raises the issue of procedural fairness in not confronting the Applicant with the date of birth discrepancy prior to the decision. To the extent that this is a live issue, it must be reviewed on a correctness standard. 13 Assuming that fairness did not, in these unusual circumstances, dictate that the Visa Officer raise her concerns about the inconsistent documents, the question is whether this was a reasonable decision. 14 Contrary to the Applicant’s position, this is not a case of preferring one date of birth over another. It is evident that the Matriculation Examination Certificate was the only document before the Visa Officer which was used to establish the link between the alleged brothers. 15 If the Certificate was accurate, then the Visa Officer’s conclusion would have been reasonable. It would have meant that the Canadian citizen with a birth date of August 26, 1963 could not be the same person as the Indian citizen born February 6, 1964. The other, and less likely conclusion, is that Ranjit Singh had false documentation to secure his Canadian passport. 16 Therefore, everything turns on the veracity of the Matriculation Examination Certificate because it flies in the face of the weight of the evidence about Ranjit Singh. 17 Therefore, this case turns, not on the sufficiency of evidence as argued by the Respondent, but on the credibility, accuracy or genuineness of the evidence. 18 This Court has held that visa officers are not required to advise applicants about concerns of adequacy, completeness or sufficiency of documents. How- ever, this Court has held that where accuracy or genuineness of information is at issue, an applicant is entitled to know that a visa officer has these concerns. 19 Justice Snider in Baybazarov v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 665 (F.C.), summarized the state of the law at paragraphs 11-12 as follows: 11 First and foremost, applicants have the burden to establish entitlement to a visa. Applicants bear the responsibility to produce relevant information to assist their application. There is no obligation on officers to apprise an applicant of concerns that arise directly from statutory requirements. Officers are also not required to give applicants a “running score” of weaknesses in applications. See Rukmangathan, above, at paragraph 23; Nabin v. Canada (Min- Minhas v. Canada Michael L. Phelan J. 99

ister of Citizenship and Immigration), 2008 FC 200, [2008] F.C.J. No. 250at paragraph 7; Rahim v. Canada (Minister of Citizenship and Immigration), 2006 FC 1252, 58 Imm. L.R. (3d) 80 at paragraph 14. 12 Second, officers have a duty to notify applicants where: a) concerns arise about credibility, accuracy or genuineness of the information submitted (see Nabin, above, at para. 8); or b) the officer has relied on extrinsic evidence (see Rukmangathan, above, at para. 22; Nabin, above, at para. 8; Mekonen, above, at para. 4). The purpose of this duty is to allow applicants a fair and reasonable opportunity to know the case against them and to respond to concerns. 20 The Visa Officer’s concerns fell within the exception to the rule that notice of evidentiary concerns need not be given. (See Nabin, above.) 21 It would be profoundly unfair to decide against an applicant on the basis of a typographical or clerical error which could easily be addressed. Fairness is at the root of the Visa Officer’s obligation to have given the Applicant notice that the discrepancy in dates of birth was not addressed and was highly relevant. No such notice was given.

IV. Conclusion 22 Therefore, this judicial review will be granted, the decision of the Visa Of- ficer quashed and the matter referred to a different visa officer for a new consideration including affording the Applicant an opportunity to address the matters raised in this judicial review. 23 There is no question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted, the decision of the Visa Officer is quashed and the matter is to be referred to a different visa officer for a new consideration including affording the Applicant an opportunity to address the matters raised in this judicial review. Application granted. 100 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Shaikh v. Canada (Minister of Citizenship & Immigration)] Hafiz Jameel Ahmed Shaikh, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court John A. O’Keefe J. Heard: September 9, 2010 Judgment: December 8, 2010 Docket: T-1167-09, 2010 FC 1254 Philip Varickanickal, for Applicant Neeta Logsetty, for Respondent Immigration and citizenship –––– Citizenship — Application for grant of or reten- tion of citizenship — Powers and duties of citizenship judge –––– Applicant was permanent resident in Canada from November 11, 2002, but returned to Pakistan to care for ill parents-in-law for most of 2007 — Applicant applied for citizenship — Applicant alleged that previous passports were respectively lost in Pakistan and replaced by government of Pakistan in favour of machine readable passport — Citizenship judge dismissed application for citizenship — Applicant appealed — Appeal dismissed — Applicant did not provide sufficient evidence of his physical presence in Canada — Only passport submitted by applicant was issued only six months prior to application — Tenancy information indicated that he was occupant in brother’s apartment, but did not provide evidence when he was physically present in Canada — Tax documents also did not establish physical presence in Canada — Ministry of Health and Long-Term Care indicated that there were no medical claims processed for applicant between November 1, 2002 and Decem- ber 2, 2008 — It was reasonable for citizenship judge to conclude that he could not verify any amount of time that applicant was present in Canada and could not approve citizenship application — Reasons provided to applicant clearly indicated that applicant failed to provide satisfactory proof of residence in Canada and so citizenship judge was unable to verify all his absences — Citizenship judge’s decision was transparent, intelligible and justified — There was insufficient evidence presented to citizenship judge to allow him to make recommendation for use of discretion under s. 5(4) of Citizenship Act. Cases considered by John A. O’Keefe J.: Canada (Minister of Citizenship & Immigration) v. Arastu (2008), 2008 FC 1222, 2008 CarswellNat 4106, 2008 CF 1222, 2008 CarswellNat 5030, [2008] F.C.J. No. 1561 (F.C.) — referred to Farrokhyar v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 697, 2007 CarswellNat 4541, 2007 CarswellNat 1913, 2007 CF 697, [2007] F.C.J. No. 946, [2007] A.C.F. No. 946 (F.C.) — considered Shaikh v. Canada John A. O’Keefe J. 101

Johar v. Canada (Minister of Citizenship & Immigration) (2009), 366 F.T.R. 1 (Eng.), 2009 CarswellNat 5643, 2009 CF 1015, 83 Imm. L.R. (3d) 299, 2009 CarswellNat 3278, 2009 FC 1015 (F.C.) — considered Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — considered Maharatnam v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 592, [2000] F.C.J. No. 405 (Fed. T.D.) — referred to Malevsky c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2002), 2002 CFPI 1148, 2002 CarswellNat 3274, 2002 FCT 1148, 2002 CarswellNat 3984, [2002] F.C.J. No. 1554 (Fed. T.D.) — 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 Bruns- wick) 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 Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — referred to Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — considered Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 2(1) “citizenship” — considered s. 5(1)(c) — considered s. 5(4) — referred to s. 14(5) — pursuant to s. 16 — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 21 — pursuant to Rules considered: Federal Courts Rules, SOR/98-106 R. 57 — considered

APPEAL by applicant from decision of citizenship judge, denying application for citizenship.

John A. O’Keefe J.:

1 This is an appeal under section 21 of the Federal Courts Act, R.S.C. 1985, c. F-7 and subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, of a decision dated May 20, 2009 of a Citizenship Judge wherein the applicant’s applica- 102 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

tion for Canadian citizenship was denied on the basis that he had not met the residency requirements under paragraph 5(1)(c) of the Citizenship Act. 2 The applicant requests that the decision of the Citizenship and Immigration Canada (CIC) Citizenship Judge be set aside and the matter referred back to a different Citizenship Judge for re-determination.

Background 3 Hafiz Jameel Ahmed Shaikh (the applicant) is a citizen of Pakistan. He has been a permanent resident in Canada since November 11, 2002. 4 In January 2007, the applicant went to Pakistan to care for his ill parents-in- law and attend to personal affairs. He returned to Canada in October 2007. 5 Following his return from Pakistan, the applicant filed for citizenship on No- vember 9, 2007. In his application, he calculated that he had been absent from Canada 286 days since he became a permanent resident. 6 The applicant failed to attend the following scheduled appointments: 1. Citizenship Test, April 18, 2008; 2. First Hearing, June 3, 2008; and 3. Final Hearing, August 18, 2008. 7 On August 12, 2008, CIC received a letter from an immigration consulting agency which stated that the applicant was unable to attend his hearing due to the hospitalization and severe illness of his father and mother-in-law. 8 The applicant attended a hearing with a Citizenship Judge on December 5, 2008. He was requested to provide at the hearing, copies of all of his passports and copies of rental agreements for the years 2004 to 2007. 9 The applicant alleged that he lost his previous passport numbered J797282. He submitted a police report dated April 16, 2007, which indicated that he reported this to the police in Karachi, Pakistan. 10 The copy of the passport provided to the Citizenship Judge by the applicant was passport number AZ[Number omitted]. This passport was issued May 3, 2007. It indicates that the previous passport was numbered KE139458. The applicant alleges that this previous passport was replaced by the government of Pakistan with a machine readable passport and that he no longer possesses the previous passport. 11 The applicant provided the Citizenship Judge with a tenancy application in his brother’s name, dated October 10, 2002, which indicated that the applicant was an occupant. He also provided a letter from the landlord acknowledging that the applicant is an occupant of the apartment in this tenancy agreement. This letter was dated November 5, 2007. 12 The applicant further provided T4 forms and notices of assessment from the Canada Revenue Agency for each year of 2002 to 2007 inclusive. However, Shaikh v. Canada John A. O’Keefe J. 103

these forms do not indicate when he earned this salary during each year. In addition, the total income earned in each of the documents varies from $1,400 one year to $9,600 another year. 13 A letter from the Minister of Health and Long-Term Care indicated that no medical claims had been processed for the applicant between November 1, 2002 and December 5, 2008. 14 The Citizenship Judge declined to approve the citizenship application and the applicant appealed to this Court.

Citizenship Judge’s Decision 15 The Citizenship Judge found that the onus was on the applicant to satisfy him that he fulfilled the requirements of the Citizenship Act. The Citizenship Judge found that the applicant did not prove that he met the residence requirement of paragraph 5(1)(c) of the Citizenship Act and his application was not approved. 16 The applicant had been requested to provide a copy of all his passports and a copy of rental agreements for 2004 to 2007, which he did not provide. Since the applicant did not provide a copy of his previous passport number KE13948 (the actual passport number was KE139458), the Citizenship Judge held that he was unable to verify all of the applicant’s absences from Canada. 17 The Citizenship Judge found that the Federal Court jurisprudence does not require physical presence for the entire 1,095 days when there are special circumstances. However, he stated that too long of an absence from Canada during the minimum period was contrary to the purpose of the residence requirement of the Citizenship Act. 18 In addition, the Citizenship Judge noted that the applicant did not file any material in support of the use of his discretion to issue a favourable recommendation. As such, the Citizenship Judge declined to make such a recommendation.

Issues 19 The applicant submitted the following issues for consideration: 1. Did the tribunal err in rejecting cogent evidence? 2. Did the tribunal ignore uncontradicted evidence? 3. Did the tribunal improperly decline to exercise its jurisdiction for discretion? 20 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the Citizenship Judge err in determining that the applicant did not meet the residence requirement under paragraph 5(1)(c) of the Citizen- ship Act? 104 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

3. Did the tribunal improperly decline to exercise its jurisdiction for discretion?

Applicant’s Written Submissions 21 The applicant submits that the Citizenship Judge did not consider the evidence in front of him. 22 The applicant submits that he provided a reasonable explanation for why he did not produce the residential tenancy agreements for the years 2004 to 2007: that he is in a continuing tenancy where a new agreement is not signed every year. He also submits that he provided evidence, by way of a police report, that his previous passport was lost and therefore could not be produced. Since the evidence he presented was uncontradicted, the Citizenship Judge had a duty to make a decision based on a reasonable assessment of the evidence as a whole. 23 The applicant further submits that the materials, explanations and excuses provided by him at the citizenship hearing should have been considered by the Citizenship Judge in deciding to use his discretion to make a favourable recommendation. 24 The applicant submits that there was a duty to provide reasons for rejecting the applicant’s application in clear and unmistakable terms.

Respondent’s Written Submissions 25 The respondent submits that the determination of whether a candidate meets the residency requirement should be assessed on the standard of reasonableness. 26 The respondent submits that notwithstanding the different formulations of the residency test, applicants for citizenship must objectively demonstrate that they have established residence in Canada and that they have maintained their established residence throughout the period of at least three years preceding their application. 27 The applicant did not meet the burden of proof for establishing residence on a balance of probabilities. The applicant was requested to produce all passports and previous rental agreements for the years 2004 to 2007. However, he did not produce his previous passports, his record of landing or his residential tenancy agreements for some of the period in question. Without these, the respondent submits, it was reasonable for the Citizenship Judge to find that there was inadequate evidence to assist him in verifying the applicant’s absences from Canada.

Analysis and Decision 28 I would note that this matter should have proceeded by way of a notice of appeal as the applicant has a right to appeal pursuant to subsection 14(5) of the Citizenship Act. I will therefore apply Rule 57 of the Federal Court Rules, SOR/98-106 and convert the application for judicial review into an appeal. Shaikh v. Canada John A. O’Keefe J. 105

Issue 1 What is the appropriate standard of review? 29 A standard of review analysis need not be conducted in every case. Where the standard of review applicable to a particular issue before the court is determined in a satisfactory manner by previous jurisprudence, the reviewing court may adopt that standard of review (see New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 30 The jurisprudence is settled that a determination about whether an applicant meets the residency requirement of the Citizenship Act is one of mixed fact and law and is reviewable on a standard of reasonableness (see Johar v. Canada (Minister of Citizenship & Immigration), 2009 FC 1015, 83 Imm. L.R. (3d) 299 (F.C.) at paragraphs 17 and 18; Canada (Minister of Citizenship & Immigration) v. Arastu, 2008 FC 1222 (F.C.) at paragraphs 16 and17).

Issue 2 Did the Citizenship Judge err in determining that the applicant did not meet the residence requirement under paragraph 5(1)(c) of the Citizenship Act? 31 The applicant bears the burden of proof to show that he meets requirements of the Citizenship Act on a balance of probabilities (see Maharatnam v. Canada (Minister of Citizenship & Immigration) (2000), 96 A.C.W.S. (3d) 198, [2000] F.C.J. No. 405 at paragraph 5; Malevsky c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2002 FCT 1148 (Fed. T.D.) at paragraph 7). 32 This includes proving the requirements of residency: 5.(1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accu- mulated at least three years of residence in Canada calculated in the following manner: ... 5.(1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: ... c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: ... 106 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

33 The term residence is not expressly defined under subsection 2(1) of the Cit- izenship Act. Consequently, decision-makers must look to the jurisprudence of the Federal Court to understand the parameters of residency. In addition, since the Citizenship Act precludes appeals to the Federal Court of Appeal through section 16 and thus limits appellate review, there exist three concurrent tests for residency found in the cases of: Papadogiorgakis, Re (1978), 88 D.L.R. (3d) 243, [1978] F.C.J. No. 31 (Fed. T.D.) at paragraphs 15 to 17; Pourghasemi, Re (1993), 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.); Koo, Re (1992), [1993] 1 F.C. 286 (Fed. T.D.) at paragraph 10. The central difference between these tests is the manner in which residency is measured. One test counts the exact number of days physically present in Canada, while the others look at physical presence as well as quality of attachment to Canada and the location of an individual’s central mode of existence. However, with each test, the applicant must be able to objectively show that he was physically present in Canada for some period of time in addition to providing supplementary information for the tests of Koo, Re and Papadogiorgakis, Re above. 34 The applicant did not provide sufficient evidence to verify when he was absent from Canada. The only passport he submitted was issued on May 3, 2007, only six months before he applied for citizenship. The tenancy applications he submitted indicate that he was an occupant in his brother’s apartment from 2002 to 2007 but do not provide evidence of when he was physically present in Can- ada. The same is true of the Canada Revenue Agency documents he submitted. Finally, the Minister of Health letter indicates that there were no claims processed for the applicant in the six year period of November 1, 2002 and De- cember 5, 2008. 35 It was reasonable for the Citizenship Judge to conclude that he was unable to verify any amount of time that the applicant was present in Canada and could not approve the citizenship application. Previous case law confirms that a Citi- zenship Judge may deny a citizenship application if he or she must rely on “information regarding absences from Canada that cannot be verified by a passport examination” (Johar above, at paragraph 37). 36 Specifically, in Farrokhyar v. Canada (Minister of Citizenship & Immigra- tion), 2007 FC 697, 158 A.C.W.S. (3d) 878 (F.C.) at paragraph 18, Madam Jus- tice Dani`ele Tremblay-Lamer held that: In the present case, the Judge was not able to confirm the applicant’s asser- tions regarding the number of days he was present in Canada, given the inad- equacy of his evidence. Consequently, she could not logically make a determination of the exact number of days he spent in Canada, and cannot be faulted for her failure to do so. 37 The reasons provided to the applicant for the decision clearly indicate that because the applicant failed to provide satisfactory proof of residence in Canada, Shaikh v. Canada John A. O’Keefe J. 107

the Citizenship Judge was unable to verify all of his absences. This fulfills the duty to provide reasons. 38 In my view, the Citizenship Judge’s decision was transparent, intelligible and justified, and a possible outcome in view of the facts and the law.

Issue 3 Did the tribunal improperly decline to exercise its jurisdiction for discretion? 39 The applicant claims that the Citizenship Judge erred by not recommending the exercise of discretion pursuant to subsection 5(4) of the Citizenship Act. I have reviewed the Citizenship Judge’s reasons and the file materials and I agree with his decision. There was insufficient evidence presented to him to allow him to make a recommendation for the use of discretion. 40 For the above reasons, the applicant’s appeal is dismissed.

Judgment 41 IT IS ORDERED that: 1. The applicant’s application for judicial review is converted into an appeal. 2. The applicant’s appeal is dismissed. Appeal dismissed.

Annex Relevant Statutory Provisions Citizenship Act, R.S.C. 1985, c. C-29 5.(1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accu- mulated at least three years of residence in Canada calculated in the following manner: ... (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction. 14.(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which 108 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

(a) the citizenship judge approved the application under subsection (2); or (b) notice was mailed or otherwise given under subsection (3) with respect to the application. ... 16. Notwithstanding section 28 of the Federal Courts Act, the Federal Court of Appeal does not have jurisdiction to hear and determine an application to review and set aside a decision made under this Act if the decision may be appealed under section 14 of this Act. 5.(1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: ... c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: ... (4) Afin de remédier a` une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d’ordonner au ministre d’attribuer la citoyenneté a` toute personne qu’il désigne; le ministre procède alors sans délai a` l’attribution. 14.(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas: a) de l’approbation de la demande; b) de la communication, par courrier ou tout autre moyen, de la déci- sion de rejet. ... 16. Nonobstant l’article 28 de la Loi sur les Cours fédérales, la Cour d’appel fédérale n’a pas compétence pour entendre et juger une demande de révision et d’annulation d’une décision rendue sous le régime de la présente loi et susceptible d’appel en vertu de l’article 14. Federal Courts Act, R.S., 1985, c. F-7 21. The Federal Court has exclusive jurisdiction to hear and determine all appeals that may be brought under subsection 14(5) of the Citizenship Act. 21. La Cour fédérale a compétence exclusive en matière d’appels interjetés au titre du paragraphe 14(5) de la Loi sur la citoyenneté. Gurshomov v. Canada 109

[Indexed as: Gurshomov v. Canada (Minister of Public Safety & Emergency Preparedness)] Liana Gurshomov, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Michael L. Phelan J. Heard: November 17, 2010 Judgment: December 1, 2010 Docket: IMM-1937-10, 2010 FC 1212 Ms Jennifer Egsgard, Ms Aviva Basman, for Applicant Mr. Laden Shahrooz, for Respondent Immigration and citizenship –––– Exclusion and removal — Removal from Can- ada — Inquiries — Powers and duties of immigration officer –––– Applicant was citizen of Israel living in Canada and had submitted application for humanitarian and compassionate consideration — Through administrative error, applicant was led to believe application was proceeding when it had been denied; order for deportation was later issued — Applicant submitted request for deferral of removal, which was denied — Appli- cant granted stay and applied for judicial review of deferral decision — Application granted — Decision not to defer quashed; applicant able to file another request at her choosing — Officer failed to address Ministry’s error regarding application when considering request for deferral — Officer ignored relevant information by failing to address errors of Canadian government, which constituted error of law. Cases considered by Michael L. Phelan J.: Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 596, 2009 FCA 81, 387 N.R. 278, 79 Imm. L.R. (3d) 157, [2010] 2 F.C.R. 311, 2009 CAF 81, 2009 CarswellNat 5135, 309 D.L.R. (4th) 411, [2009] F.C.J. No. 314 (F.C.A.) — considered Kolosovs v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 165, 2008 CarswellNat 745, 2008 FC 165, 2008 CarswellNat 281, 323 F.T.R. 181 (Eng.), [2008] F.C.J. No. 211 (F.C.) — referred to Simoes v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 141, 2000 CarswellNat 1328, 187 F.T.R. 219, [2000] A.C.F. No. 936, [2000] F.C.J. No. 936 (Fed. T.D.) — referred to

APPLICATION for judicial review of decision of removal officer denying deferral of removal request. 110 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Michael L. Phelan J.: I. Introduction 1 The Applicant is an Israeli citizen living in Canada with her three children. After what can only be considered an unmitigated administrative error (in which she was induced to believe that her H&C application was proceeding when in fact it had been denied), the Applicant was ordered to be deported. Her deferral of removal request was denied. A stay was granted and this is the judicial review of the refusal to defer.

II. Background 2 The Applicant entered Canada in late 2003 with her husband (the couple are still married but separated) and their children. After their refugee claim was denied, the Applicant’s husband filed an H&C application (1st H&C) on May 28, 2004 which was based on his circumstances. 3 In January 2008 the Applicant and her husband separated. As a consequence, the Applicant filed her own H&C application (2nd H&C) on May 27, 2008. 4 As matters turned out, the 2nd H&C was denied on February 5, 2009 and the 1st H&C, filed five years previously, was denied on March 9, 2009. The 2nd H&C denial was given to the Applicant at the same time as receiving her negative PRRA. She contends that she did not appreciate that her H&C was denied and her subsequent conduct is consistent with her contention. 5 On April 7, 2009 the Applicant’s counsel checked the CIC website which indicated that one H&C was pending. Counsel and the Applicant assumed that it was the 2nd H&C that was pending. 6 CIC confirmed to counsel that the 2nd H&C was pending and that additional fees were required. The Applicant paid the additional fees and made further submissions on May 8, 2009. These further submissions were augmented by additional submissions on May 28, 2009 and July 22, 2009, all in the belief that the 2nd H&C had not been decided. This H&C addressed, in part, the Applicant’s concerns for her and her children’s safety. 7 On July 24, 2009, two days after the last set of submissions, the Applicant requested deferral of any removal on the basis of the “pending” 2nd H&C. That deferral request was granted by CIC on August 14, 2009. 8 It was on March 25, 2010 that the Applicant became aware that the 2nd H&C had been dismissed back in February 2009. The Applicant learned of the cir- cumstance because she had just been informed of her removal itinerary. 9 The next day the Applicant filed a third H&C (3rd H&C) application incor- porating all of the materials filed in respect of the 2nd H&C. 10 By March 31, 2010 the Applicant was notified of the latest travel arrangements; she immediately requested a deferral of removal which was denied. Gurshomov v. Canada Michael L. Phelan J. 111

11 In the refusal to defer the Removals Officer noted that the 3rd H&C decision was not imminent and that two earlier H&C decisions had been made. 12 The Officer discounted any risk to the Applicant by virtue of a return to Israel where her abusive husband now lived. The Officer’s attention with respect to the “best interests of the children” was directed primarily at their ability to adjust to a new locale. No attention was paid to the Ontario custody order in favour entirely of the Applicant nor to the evidence, however weak it may have been, that Israel would not respect the Ontario order.

III. Analysis 13 The overarching standard of review for deferral cases is reasonableness (Baron v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FCA 81 (F.C.A.)). Issues of procedural fairness are subject to the correctness standard. Finally, a best interests of the children analysis is subject to the reasonableness standard of review (Kolosovs v. Canada (Minister of Citizenship & Im- migration), 2008 FC 165 (F.C.)). 14 The pivotal point in this judicial review is the confusion surrounding the 2nd H&C — a confusion caused by the Respondent and experienced by both parties. 15 The Court is cognizant of the limited jurisdiction of a removals officer to address the consequences of the 2nd H&C error. However, the status of an H&C, and its timeliness, can be factors in a deferral decision. ... With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. Baron, above, at para. 51. 16 In only addressing the timing of the Applicant’s pending 3rd H&C application, the Officer failed to address the substantive element — the reason for what, on its face, is a late H&C. The real reason for the late H&C application was the actions of another branch of the Canadian government which led the Applicant to believe that her 2nd H&C was under active consideration. 17 In addition, the 2nd H&C raised issues of personal safety which had never been addressed. 18 Therefore, the Court concludes that this is one of those instances where the Removals Officer failed to properly address a relevant consideration (see Simoes v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 936 (Fed. T.D.)), thus constituting an error of law and one where “special considerations”, as mentioned in Baron, above, are present.

IV. Conclusion 19 This judicial review is granted, and the decision not to defer is quashed. The Applicant may file another deferral request if she deems it necessary. 112 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

20 There is no question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted, and the decision not to defer is quashed. The Applicant may file another deferral request if she deems it necessary. Application granted.

[Indexed as: Bors c. Canada (Ministre de la Citoyennet´e & de l’Immigration)] Karolyne Bors, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Michel M.J. Shore J. Heard: October 5, 2010 Judgment: October 12, 2010 Docket: IMM-1899-10, 2010 CF 1004, 2010 FC 1004 Serban Mihai Tismanariu, for Applicant Alain Langlois, Patricia Nobl, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Changes in country conditions –––– Applicant and her family were members of Roma minority from Hungary — Applicant arrived in Canada with her family in February 2001 and claimed refugee status — In October 2001 applicant and her family returned to Hungary, then came back to Canada in December 2001 and resubmitted their refugee claim — In July 2002 Refugee Protection Division allowed refugee claim of applicant and her family — In February 2004 applicant and her family returned to Hungary where applicant’s son was gravely ill and needed urgent care — In June 2004 applicant and her family lost their refugee status on basis that they had returned to Hungary — Since their return to Hungary applicant alleged that she and her family had been victims of violent physical attacks and insults from skinheads — Applicant returned to Canada in October 2009 with her grandson and his spouse and child, where they were held to be ineligible because of prior claim — Applicant and her grandson filed unsuccessful pre-removal risk assessment (PRRA) claim — Applicant brought application for judicial review of PRRA decision — Applica- tion granted — PRRA officer erred in her review of contradictory documentary evidence in record — It was unreasonable for PRRA officer to find that attacks against Roma had stopped in Hungary without explaining how she reached that finding — In order to find change in circumstances it was not sufficient to show changes and improvements in Hun- Bors c. Canada 113 garian state without proving that those changes had been effectively implemented in practice. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Evidence — General principles –––– Applicant and her family were members of Roma minority from Hungary — Applicant arrived in Canada with her family in February 2001 and claimed refugee status — In October 2001 applicant and her family returned to Hungary, then came back to Canada in December 2001 and resubmitted their refugee claim — In July 2002 Refugee Protection Division allowed refugee claim of applicant and her family — In February 2004 applicant and her family returned to Hungary where applicant’s son was gravely ill and needed urgent care — In June 2004 applicant and her family lost their refugee status on basis that they had returned to Hungary — Since their return to Hungary applicant alleged that she and her family had been victims of violent physical attacks and insults from skinheads — Applicant returned to Canada in October 2009 with her grandson and his spouse and child, where they were held to be ineligible because of prior claim — Applicant and her grandson filed unsuccessful pre-removal risk assessment (PRRA) claim — Applicant brought application for judicial review of PRRA decision — Application granted — PRRA officer did not provide any justification for ignoring applicant’s testimony other than to say that application could have sought state protection — PRRA officer did not satisfactorily show her assessment of evidence in its entirety. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — What constituting persecution — Miscellaneous issues –––– Applicant and her family were members of Roma minority from Hungary — Applicant arrived in Canada with her family in February 2001 and claimed refugee status — In October 2001 applicant and her family returned to Hungary, then came back to Canada in December 2001 and resubmitted their refugee claim — In July 2002 Refugee Protection Division allowed refugee claim of applicant and her family — In February 2004 applicant and her family returned to Hungary where applicant’s son was gravely ill and needed urgent care — In June 2004 applicant and her family lost their refugee status on basis that they had returned to Hungary — Since their return to Hungary applicant alleged that she and her family had been victims of violent physical attacks and insults from skinheads — Applicant returned to Canada in October 2009 with her grandson and his spouse and child, where they were held to be ineligible because of prior claim — Applicant and her grandson filed unsuccessful pre-removal risk assessment (PRRA) claim — Applicant brought application for judicial review of PRRA decision — Applica- tion granted — Given that the PRRA officer’s decision dealt mainly with issue of state’s ability to protect applicant, her analysis in relation to persecution appeared to be nonexistent — Applicant’s house was burned down and she and her son were injured and required hospitalization — PRRA officer should have analyzed and assessed concept of persecution in reasons for her decision; situation experienced by Roma as supported in documentary evidence had to be weighed with evidence of the applicant’s personal situation — PRRA officer did not assess applicant’s evidence in conjunction with documentary evidence to determine whether facts established that she was persecuted because of her race and whether Hungarian state was able to protect her. 114 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Cases considered by Michel M.J. Shore J.: Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 Car- swellNat 635, 2006 CF 359, 2006 FC 359, 2006 CarswellNat 4738, (sub 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 Babai v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CF 1341, 2004 CarswellNat 5100, 2004 FC 1341, 2004 CarswellNat 3439, [2004] F.C.J. No. 1614 (F.C.) — considered Balogh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 809, 2002 CarswellNat 2970, 2002 CarswellNat 1842, 2002 FCT 809, 22 Imm. L.R. (3d) 93, 221 F.T.R. 203, [2002] F.C.J. No. 1080 (Fed. T.D.) — 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 Car- swellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — considered Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Chan v. Canada (Minister of Employment & Immigration) (1995), 128 D.L.R. (4th) 213, 187 N.R. 321, [1995] 3 S.C.R. 593, 1995 CarswellNat 1276, 1995 CarswellNat 1277, [1995] S.C.J. No. 78 (S.C.C.) — followed Gorzsas v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 458, 2009 CarswellNat 1212, 346 F.T.R. 169 (Eng.) (F.C.) — considered Mohacsi v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 429, 2003 CarswellNat 941, 231 F.T.R. 276, 2003 CarswellNat 4886, [2003] 4 F.C. 771, 27 Imm. L.R. (3d) 91, 2003 CFPI 429, [2003] F.C.J. No. 586 (Fed. T.D.) — considered Pareja c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), 2008 CF 1333, 2008 CarswellNat 4601, 2008 CarswellNat 6034, 2008 FC 1333, [2008] F.C.J. No. 1705, [2008] A.C.F. No. 1705 (F.C.) — considered Streanga v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 792, 2007 CarswellNat 2342, 2007 CF 792, 2007 CarswellNat 5661 (F.C.) — 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 CarswellNat 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 s. 72(1) — pursuant to s. 96 — considered s. 97 — considered s. 101(1)(c) — considered

APPLICATION for judicial review of negative pre-removal risk assessment decision. Bors c. Canada Michel M.J. Shore J. 115

Michel M.J. Shore J.:

[UNREVISED CERTIFIED ENGLISH TRANSLATION]

I. Preliminary 1 Jurisprudence is evaluated throughout history in the manner it treats the human condition, as is a country judged in the manner it treats its minorities (summary of the writings of Emile Zola (1840-1902) on the system of justice and his cry of conscience for a voice of the voiceless). La jurisprudence est evalu´´ ee a` travers l’histoire par la manière qu’elle traite la condition humaine, comme un pays est jugé par la manière qu’il traite ses minorités (résumé de l’œuvre d’Emile´ Zola (1840-1902) a` l’égard du système de justice et son cri de conscience qui evoque´ la voix de ceux qui sont sans voix).

II. Introduction 2 This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision by the pre-removal risk assessment (PRRA) officer, rendered on February 17, 2010, that the applicant would not be subject to a risk of persecution or to a risk to her life if she were to be removed to her country of nationality within the meaning of sections 96 and 97 of the IRPA. 3 The applicant and her family members are Roma and their ethnicity and their credibility were not disputed.

Situation of the Roma - History (Prior to the 21st century — based in large part on an article from the Cour- rier international, entitled [TRANSLATION] “Abandoned on the side of the road,” dated November 12, 2009, as quoted by the respondent before the PRRA officer) 4 It was approximately in the year 1000 that the Roma left India, where they were from originally, to go to Persia. (And, in a number of countries, as a result of a historical error, they were called gypsies because they were thought to have come from Egypt. This is as incorrect as the Aboriginal people of Canada being called Indians as a result of Christopher Columbus’s error.) In the Balkans, the Roma were called by a name originally given to a sect of Manichean monks, Athiganoi or Atsiganos, from which came another group of names - Zingaro (in Italian), Tsigane (in French), Zigeuner (in German), Ciganie (in Slavic languages) and Cikani (in Czech). 5 The question “who are the Roma?” was answered by chance in 1763 by a Hungarian theology student named Stefan Vali, who met several Indians, Malabars, in Leyden, Holland, where they were studying medicine. Vali was 116 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

intrigued by their similarity to the Roma he had known in Hungary. He continued beyond these external similarities, writing down more than a thousand Mal- abar words they used, along with their meanings. When he returned to Hungary and discovered the meanings of the words among the Roma, he was surprised at the similarity of the two languages. Afterwards, linguists, historians and ethnol- ogists confirmed the Indian origins of the Roma. 6 The Roma reached the Balkans in around the 14th century. In dispersing throughout Europe, they adopted the religion of the majority of the European population. It was in Western Europe that their largest wave of migration occurred in the 16th century, from where some countries deported them to the African and American colonies. 7 Up until the 19th century, the Roma were considered, in the Eastern Euro- pean countries, to be people without freedom, often treated as slaves. 8 Starting in 1930, they were victims of the racial policies of the Nazis by extermination and genocide. Of the 700,000 Roma living in Europe, 250,000 to 500,000 were deported and killed in gas chambers. For the Roma, this period is called Samudaripen, i.e. “the murder of all” in the Romani language. 9 In 1982, Germany officially recognized its responsibilities toward the Roma. In France, in 1997, the President of the Republic referred to their situation in a ceremony in memory of the victims of the deportation. 10 The documents, directly quoted in the list of 19 documents submitted to the PRRA officer, as listed by the respondent in his supplementary memorandum, show whether the situation has changed over recent years (this evidence is quoted by the Court below, as part of the analysis of the evidence). 11 A Macleans article from September 10, 2009, elaborates: Hungary’s Roma population is so afraid of attacks by right-wing groups that they have started protecting their neighbourhoods through nighttime patrols. Their fear is justified: six Roma have been murdered in violent assaults since last November. After a huge police investigation, four men, alleged Roma haters who carefully planned their crimes, were detained for the deadly attacks in late August. One of the worst attacks occurred in Tat´arszentgy¨orgy last February. Erz- sebet Csorba woke up to the sound of gunfire outside her house. She discovered her mortally wounded son not far from his firebombed house. Her grandson was nearby. “His whole small body was full with holes from the bullets,” she told Voice of America. The child soon died. Many fear the violence directed at the nation’s 660.000 Roma will continue, despite the arrests. For the poor ethnic minority, segregation and discrimination increased after the fall of Communism when unskilled and unemployed Roma tended to concentrate in rural villages. Life was cheaper than the cit- ies, but with little chance of work. Bors c. Canada Michel M.J. Shore J. 117

Tomás Polgár, a popular right-wing blogger, voices a common refrain among Hungarians: “They are criminals and they are a threat to us, the majority. They make more children, they’re taking over.” Ominously, he states, “It’s a war.” In June, Jobbik, a far-right party with a platform of getting tough on “Gypsy criminality,” captured 15 per cent of the vote in European elections. The intimidation can be frightening. Viktória Mohácsi, a former Roma Euro- pean politician, receives countless email threats. “I feel like I’m in a war,” she told a Dutch newspaper. While she isn’t sure if patrols of Roma areas are a good idea, she concedes there are few alternatives: “We can either set up an army or flee.” 12 A Reuters article, entitled “As crisis deepens, Roma a powderkeg in Hun- gary,” from Wednesday, August 12, 2009, reports: ... But in Hungary, both the crisis and the violence are particularly drastic. The country was the first nation in the European Union to turn to the IMF for help last year, and faces deep recession and mounting unemployment. The economic slowdown has especially hurt the Roma, who account for 6 to 7 percent of the population and find it hard getting jobs even in prosperous times. The crisis has reinforced social tensions, and the recent brutal attacks on the Roma have brought the country to the brink of open conflict, according to its president. “We know that the situation is tense to the point of explosion,” Laszlo Solyom told a news conference this week, urging Hungarians to feel compassion for Roma, or gypsies: more than half a dozen, including children, have died in recent violent attacks. ... “Employers seal the gates,” said Istvan Szirmai, an official at Hungary’s La- bour Ministry. “They have the right to choose ... and they do not accept Gypsies.” ... [Emphasis added.] 13 As regards state protection for the Roma in Hungary, it was reported as ineffective throughout the documentation submitted; according to the “Amnesty In- ternational Report 2009 — Hungary”: Legal, constitutional or institutional developments In June, the Constitutional Court rejected amendments to the civil code and penal code passed by parliament in November 2007 and February 2008 respectively. The amendments represented the fourth attempt by parliament since 1992 to change the law on hate speech. They would have criminalized incitement targeted against a minority group and allowed a maximum two- year prison sentence for anyone using inflammatory expressions about specific ethnic groups or offending their dignity. The Court considered these 118 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

amendments to be unconstitutional as they would curtail freedom of expression. 14 Furthermore, the article entitled “Racist Crime Wave - Hungary’s Roma Bear Brunt of Downturn,” dated February 24, 2009, explains: ... ERRC director Kushen says that while the Hungarian government has made some efforts to address the issues of the social marginalization suffered by the Roma, not enough has been done and whatever programs are in place are not sufficiently funded. “It is a failure of political will to introduce programs that require a higher level of investment,” he says, adding that officials are often unwilling to take the heat for supporting unpopular measures. On Tuesday Hungary’s ombudsman on minority affairs, Erno Kallai, took the unprecedented step of addressing the national parliament about the spate of attacks on Roma families. “I strongly urge you to come up with an ethnic peace plan,” he said. “Not hollow statements but concrete measures that can be implemented immediately and understood by the whole of society.” He also criticized the police for failing to catch the perpetrators of Monday’s murders. ...

III. Facts 15 The applicant, Karolyne Bors, was born on February 18, 1943, and is a citizen of Hungary. 16 She is a widow with four children, one of whom died in 1987 and the other three live in Hungary. Two of her children have tried to obtain refugee status in Canada, namely, her daughter Erzsébet Kalànyos and her son Jànos Bors. Her grandsons are Christopher Rolland Nagy, Reno Nico Nagy and Gabor Kovacs. 17 The applicant and her family are members of the Roma ethnic group. 18 The applicant arrived in Canada with her family in February 2001. At that time she claimed refugee status with her family members. 19 In October 2001, she returned to Hungary with her family members. 20 In December 2001, the applicant returned to Canada and the family re-submitted their refugee claim. 21 On July 17, 2002, the Refugee Protection Division (RPD) allowed the refugee claim of the applicant and her family. 22 On February 10, 2004, the applicant and her family appeared before Citizen- ship and Immigration Canada (CIC) to show their intention of leaving Canada. Her daughter, Erzsébet Kalànyos, explained that her son, Reno Nico Nagy, was ill and that she wanted to have him treated in Hungary. 23 On February 23, 2004, the applicant returned to Hungary. Also, the applicant alleges that her family had decided to return to Hungary to accompany her son, Bors c. Canada Michel M.J. Shore J. 119

Jànos Bors, whose refugee claim had been rejected. Mr. Bors was gravely ill and, according to the family, he needed urgent care. 24 On April 7, 2004, an application to cease refugee protection was filed with the RPD. The basis of the application was that the applicant and her family had again returned to Hungary. 25 On June 28, 2004, the RPD allowed the application, resulting in the loss of refugee status for the applicant and her family members. 26 Since their return to Hungary in 2004, the applicant alleges that she and her family have been the victims of violent physical attacks and insults from skinheads. 27 The skinheads allegedly beat Jànos Bors a number of times. He purportedly fell into a coma after an attack by skinheads who allegedly set fire to his house by throwing Molotov cocktails at it. They also apparently shot at the house. 28 The applicant was also apparently injured when the skinheads allegedly broke into her home and beat her. She was allegedly seriously injured while trying to defend her son. She was then purportedly hospitalized and had to have surgery. 29 The applicant alleged that she could not return to Canada earlier because of her precarious state of health following the attacks by skinheads and because of financial difficulties. 30 On October 29, 2009, the applicant returned to Canada with her grandson, Gabor Kovacs, her grandson’s spouse and their minor child. She filed a refugee claim. 31 The same day, the applicant’s claim for refugee protection was determined to be ineligible under paragraph 101(1)(c) of the IRPA because of her prior claim with the RPD. The applicant and her grandson had to file a PRRA application. 32 The negative PRRA decision was rendered on February 17, 2010. The officer found that the applicant had not discharged her burden of establishing that the state of Hungary was unable to protect her. 33 The applicant filed a motion to stay her removal, which was scheduled for April 15, 2010. The motion was stapled to the application for leave and judicial review. The motion for a stay was granted by Justice Danièle Tremblay-Lamer on April 12, 2010.

IV. The impugned decision 34 After analyzing all of the evidence, the PRRA officer found that there was no reasonable possibility of the applicant’s persecution were she to return to Hungary. 120 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

35 The PRRA officer found that the applicant had not discharged her burden of rebutting the presumption of state protection in her country. On this point, part of the PRRA officer’s decision reads as follows: [TRANSLATION] In this case, the significance of the discrimination against the “Roma,” the presence of an extreme right group called the “Hungarian guards” and the marked increase of violence toward this community between January 2008 and September 2009 are not in dispute. The objective and recent documentary evidence such as was submitted by the applicant’s representative shows the existence of these problems within Hungarian society. Despite the lack of evidence to establish that the applicant was a victim of violence and attacks because of her “Roma” ethnicity, the documentary evidence shows that, even so, she could have obtained state protection, although this protection may be imperfect. As set out in Ward, except in situations of complete breakdown of the state apparatus, the claimant must provide clear and convincing evidence that the state is unable to protect her. The applicant has not discharged her burden of proof. Hungary is a democratic country, a member of the European Union, which has a functioning judicial system and takes the necessary measures to protect its citizens, including its “Roma” minority. (PRRA officer’s decision, p. 5)

V. Issues 36 (1) Did the PRRA officer err in her assessment of the documentary evidence on the protection of people from the Roma ethnic group in Hungary? (2) Did the PRRA officer err in ignoring the evidence or failing to properly assess it? (3) In the circumstances, does the discrimination against the applicant amount to persecution?

VI. The relevant legislative provisions and their interpretation 37 The UN High Commissioner for Refugees (HCR) published a book entitled Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Reedited, Geneva, January 1992) (Handbook). This Handbook provides, among other things, guidance on the interpretation of section 96 of the IRPA. The Su- preme Court itself emphasized the importance of the Handbook as an instrument for interpreting the Convention: [27] ...While not formally binding on signatory states, the Handbook has been endorsed by the states which are members of the Executive Committee of the UNHCR, including Canada, and has been relied upon by the courts of signatory states.... Bors c. Canada Michel M.J. Shore J. 121

(Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 (S.C.C.)) 38 In Chan v. Canada (Minister of Employment & Immigration), [1995] 3 S.C.R. 593, 128 D.L.R. (4th) 213 (S.C.C.), the Supreme Court referred to the Handbook in its analysis relating to the admission of a refugee: [46] ... Instead, as I noted, I believe the appellant is entitled to have his claim reheard before a Refugee Board in accordance with the guidelines of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, the “UNHCR Handbook.” As I noted in Ward, at pp. 713-14, while not formally binding upon signatory states such as Canada, the UNHCR Handbook has been formed from the cumulative knowledge available concerning the refugee admission procedures and criteria of signatory states. This much-cited guide has been endorsed by the Executive Committee of the UNHCR, including Canada, and has been relied upon for guidance by the courts of signatory nations. Accord- ingly, the UNHCR Handbook must be treated as a highly relevant authority in considering refugee admission practices. This, of course, applies not only to the Board but also to a reviewing court. [Emphasis added.] 39 Recently, the Handbook was adopted and used formally by the Federal Court in Gorzsas v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 458, 346 F.T.R. 169 (Eng.) (F.C.). 40 The following paragraphs of the Handbook are relevant: Persecution ... 52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. 53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general at- mosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”. Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circum- 122 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

stances, including the particular geographical, historical and ethnological context. (c) Discrimination 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. 55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved. [Emphasis added.]

VII. Parties’ allegations 41 The respondent submits that the applicant did not show that the PRRA officer erred in fact or in law. He submits that the decision is reasonable and that the documents filed by the applicant in support of her application do not raise any serious grounds that would warrant this Court’s intervention in this case so as to set aside the PRRA officer’s decision. 42 The applicant submits that the PRRA officer erred in finding that there was insufficient evidence without giving weight to the testimonial evidence and without considering all the documentary evidence submitted for her attention to the effect that the Hungarian state does not provide effective protection to the Romani people.

VIII. Standard of review 43 The standard of review applicable in this case is reasonableness. As explained by Justice Maurice Lagac´e in Pareja c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), 2008 CF 1333, [2008] A.C.F. No. 1705 (F.C.), the PRRA officer, in determining his or her findings on the pre- removal risks, essentially conducts an analysis of the facts submitted to him or her. Great deference is owed to these findings of fact: [12] The pre-removal risk assessment of the PRRA officer rests essentially on an assessment of the facts to which this Court must afford great defer- Bors c. Canada Michel M.J. Shore J. 123

ence. Accordingly, the standard of “unreasonableness” applies to the PRRA officer’s findings of fact, and indeed the applicant does not dispute the appropriate standard (Dunsmuir v. New Brunswick, 2008 SCC 9). 44 Therefore, this Court cannot intervene unless the PRRA officer’s decision is unreasonable.

IX. Analysis 45 The PRRA officer’s decision involved two specific points: the lack of corroborative evidence in the record and the effectiveness of state protection in Hungary. On this basis, the PRRA officer found that there was no risk if the applicant were to return to her country of nationality.

(1) Did the PRRA officer err in her assessment of the documentary evidence on the protection of people from the Roma ethnic group in Hungary? Portrait of the Roma in Hungary (The following five paragraphs, including the contents as seen in the document submitted to the PRRA officer “Hungary: Treatment of Roma; state protection efforts (2006-September 2009)” dated October 15, 2009, shows the official data describing the prevailing climate toward the Roma, supported by the 19 documents submitted directly and also for the attention of the PRRA officer by the applicant, as quoted by the respondent in his supplementary memorandum.) 46 The Roma ethnic community is a large ethnic minority in Hungary: According to the Director of the Auton´omia Foundation, NGOs such as the Roma Civil Rights Foundation (RPA), the Legal Defence Bureau for Na- tional and Ethnic Minorities (NEKI) and the Legal Counselling Office of the Roma Parliament have a better reputation than government organizations for assisting Romani victims of discrimination (22 Aug. 2009).). NGOs with legal expertise also provide anti-discrimination training for members of the ju- diciary (UN 4 Jan. para. 49). According to the HHC, organizations like NEKI and the RPA have “limited financial and human resources,” which restricts the number of cases that they can take per year (HHC June 2009, 3). As of June 2009, a coalition of NGOs funded by the OSI was reportedly in the process of establishing a legal aid program for victims of hate crimes (ibid.).... 47 Hungarian data protection laws prohibit the gathering of data disaggregated on an ethnic basis. Thus, concrete statistics on racially motivated violence specifically targeting the Roma are unavailable. According to Amnesty Interna- tional (quoted in the document above), the increasing number of attacks against Romani individuals and their homes has created a climate of fear and intimidation in that community. 124 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

The Roma and the police 48 According to a report from the European Commission Against Racism and Intolerance (ECRI) of the Council of Europe, Romani victims of violence are reluctant to report attacks directed against them for a variety of reasons, such as shame, fear of retribution or the perception that their complaint will not lead to positive action. 49 Reports from the Council of Europe noted that there have been a number of cases of police brutality against the Roma. In 2008, an independent board of five legal experts was created by the Hungarian Parliament to provide recommenda- tions to improve the work of the police. 50 Similarly, the Hungarian government has taken a number of legal and institutional measures to improve the situation of the Roma. However, a May 2008 document published by the State Audit Office of Hungary indicated that resources “routinely failed to reach the groups with the greatest needs.” It is in this climate that the incidents involving the Roma occurred, which were revealed in the evidence given to the PRRA officer.

Standard of state protection 51 In her decision, the PRRA officer found that even in the event that the applicant had been persecuted, [TRANSLATION] “she could have obtained state protection, although this protection may be imperfect” (PRRA officer’s decision, p. 5). The officer pointed out that there are a number of measures in the Hungarian system to specifically protect the Romani community. The measures outlined by the officer include the arrest of four suspects following murders committed in the Romani community, the state of Hungary’s general awareness of the climate of violence, the increasing number of police investigations, and police involvement in relation to the violence toward the Roma. 52 As set out in Ward, above, the burden is on the applicant to rebut the presumption of the state’s protection of its nationals by demonstrating that the applicant could not have obtained state protection. In Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CAF 94, 165 A.C.W.S. (3d) 146 (F.C.A.), the Federal Court of Appeal explained that evidence of an allegation that the state’s protection of one of its citizens is inadequate or non-existent requires that the refugee: [38] ... bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities and there is no requirement of a higher degree of probability than what that standard usually requires. As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidence that the state protection is inadequate or non-existent. Bors c. Canada Michel M.J. Shore J. 125

53 In support of her allegation that the state protection is inadequate, the PRRA officer had considerable documentary evidence filed, including a letter signed by Dezsö Nömös, Vice Chair of the Roma minority council of Szigetvár, dated October 27, 2009, which attests to the violent incidents that the Roma were victims of at that time. 54 The PRRA officer has no obligation to mention or rebut each piece of evidence in her decision. It is within the PRRA officer’s jurisdiction to give more weight to one part of the documentary evidence than to another. The decision must nevertheless reflect that this evidence was considered. In Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] A.C.F. no. 1425, 157 F.T.R. 35 (Fed. T.D.), the Federal Court states that: [15] The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency...... [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the op- posite conclusion; it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. 55 In her review of the documentary evidence in relation to the actions taken by the authorities to protect the Roma, the PRRA officer selectively cited the following evidence only: an article from Macleans magazine, a short excerpt from a 2009 Amnesty International report, along with an article that appeared in Time magazine, and a BBC News article. The PRRA officer relied only on this evidence, comprising selective excerpts, to find on two occasions that after the arrest of suspects in August 2009, [TRANSLATION] “the attacks have apparently stopped” (PRRA officer’s decision, p. 5) and that [TRANSLATION] “since these arrests in August 2009, the documentary evidence does not mention that such attacks took place” (PRRA officer’s decision, p. 6). 56 This finding, reiterated twice by the PRRA officer, shows an error in her review of the contradictory documentary evidence in the record. 126 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

57 In light of the scope of the evidence as a whole, the PRRA officer could not have reasonably found that no other attack was committed against the Roma in Hungary after the period of January 2008 to August 2009. Nor does she explain why she rejected or failed to consider the contents of the letter from Mr. N¨om¨os, dated October 2009, which states that [TRANSLATION] “... the Gypsies live in terror, they are afraid of attacks and murder. They no longer dare to go out” (Letter, translated from Hungarian, p. 2). On the date of the decision, it seemed premature, on the basis of the documentary evidence, to find that the incidents from January 2008 to August 2009 were a momentary and temporary increase in violence against the Roma. 58 The PRRA officer must at least assess the meaningful evidence concerning the deterioration of living conditions for the Romani people. It was unreasonable for the PRRA officer to find that the attacks against the Roma have stopped in Hungary without explaining how she reached that finding. This finding is pivotal to making the decision, because a PRRA decision is used to determine whether there is a risk in removing an individual to his or her country of nationality and not whether there was a risk at the time he or she left for Canada.

Change in circumstances 59 The PRRA officer stated that the applicant could have obtained state protection, even if this protection is imperfect. In listing the desired changes in the state of Hungary during the past few years, the PRRA officer seems to find that the circumstances in Hungary had changed. In his book, The Law of Refugee Status, Professor James Hathaway sets out the three conditions for there to be a finding of change in circumstances in a given country: the change in circumstances must be substantial, effective and durable, as specified by the applicant in his memorandum (James Hathaway, The Law of Refugee Status, But- terworths, Toronto, 1991, pp. 199 and following). 60 In Streanga v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 792, 2007 CarswellNat 2342 (F.C.), this Court dealt with state protection in the context of a PRRA application and the standard to meet for there to be effective protection in a given state: [15] The Applicant submits that the PRRA Officer has erred in viewing the legal test as one of “serious measures”. The Federal Court in Elcock v. Can- ada (MCI), [1999] F.C.J. No. 1438 (T.D.) (QL), at paragraph 15, established, that for adequate state protection to exist, a government must have both the will and the capacity to effectively implement its legislation and programs: ... Ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the will to effectively implement that framework. [Emphasis added.] Bors c. Canada Michel M.J. Shore J. 127

61 In a context similar to the situation facing the Roma in Hungary, Justice Yvon Pinard, in Balogh v. Canada (Minister of Citizenship & Immigration), 2002 CFPI 809, 221 F.T.R. 203 (Fed. T.D.), pointed out that the evidence of improvement and progress made by the state is not proof that the current measures amount to effective protection: [37] ... I am of the view the tribunal erred when it suggested a willingness to address the situation of the Roma minority in Hungary can be equated to adequate state protection.... 62 In Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CF 359, 295 F.T.R. 35 (Eng.) (F.C.), Justice Luc Martineau also addressed the issue of state protection: [27] In order to determine whether a refugee protection claimant has discharged his burden of proof, the Board must undertake a proper analysis of the situation in the country and the particular reasons why the protection claimant submits that he is “unable or, because of that risk, unwilling to avail [himself] of the protection” of his country of nationality or habitual residence (paragraphs 96(a) and (b) and subparagraph 97(1)(b)(i) of the Act). The Board must consider not only whether the state is actually capable of providing protection but also whether it is willing to act. In this regard, the legislation and procedures which the applicant may use to obtain state protection may reflect the will of the state. However, they do not suffice in themselves to establish the reality of protection unless they are given effect in practice: see Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and Immigration), 2003 FCTD 429, [2003] 4 F.C. 771 (F.C.T.D.). [Emphasis added.] 63 Thus, it cannot be sufficient to show the changes and improvements in the Hungarian state, including a number of options for recourse and the possibility to obtain state protection. It still remains to be proven that the changes have been effectively implemented in practice. Proof of the state’s willingness to improve and its progress should not be, for the decision-maker, a decisive indication that the potential measures amount to effective protection in the country under consideration. As the case law above shows, willingness, as sincere as it may be, does not amount to action. 64 In Babai v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CF 1341, 2004 CarswellNat 3439 (F.C.), the decision-maker was required to assess the contradictory documentary evidence that indicated a risk for the applicant: [22] The applicant submits that it is open to the PRRA Officer to make her own assessment of state protection. However, the PRRA Officer erred by ignoring voluminous documentary evidence that is highly corroborative of 128 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

the applicant’s claim that he will face persecution without hope of state protection should he be forced to return to Hungary.... 65 In this case, the documentary evidence shows that the finding that Hungary’s state protection of the Roma is effective is not unanimous among international organizations. For example, in 2009, the article “Racist Crime Wave — Hun- gary’s Roma Bear Brunt of Downturn,” above, quoted the director of the Euro- pean Roma Rights Center (ERRC): ERRC director Kushen says that while the Hungarian government has made some efforts to address the issues of the social marginalization suffered by the Roma, not enough has been done and whatever programs are in place are not sufficiently funded. “It is a failure of political will to introduce programs that require a higher level of investment,” he says, adding that officials are often unwilling to take the heat for supporting unpopular measures. 66 In Ward, above, Justice Gerard V. La Forest stated that “it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection from a state, merely to demonstrate that ineffectiveness.” (para. 55) 67 The fact that the Hungarian state is making efforts to head toward improving the situation of the Roma is clear from the evidence. Nevertheless, in this case, the seriousness of the danger and the incidents of violence that the applicant and his family have had to face, the extremes to which the family has had to reduce itself by hiding, in addition to the frequency or continuation of the incidents and the span of time over which the incidents had to have taken place show that the state does not seem to have shown that it can effectively protect them. 68 The Court understands that, according to the evidence, the applicant or her family did not directly request police protection. Following uncontradicted incidents, including a house burned down by a Molotov cocktail, the use of firearms and the hospitalization of the applicant and her son with serious injuries, the applicant and her family could have considered that the police, or at least the state authorities in question, would have been aware of her family’s distress and their crisis situation. In addition, as discussed above, the documentary evidence shows how precarious the relationship of trust is between the police authorities and the Romani communities. As explained in the Handbook, fear of authorities may cause a lack of faith in the state apparatus as a result of past experiences that affected the individuals concerned (see para. 198 of the Handbook: “198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-`a-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.”). Bors c. Canada Michel M.J. Shore J. 129

(2) Did the PRRA officer err in ignoring the evidence or failing to properly assess it? 69 The PRRA officer deplored the lack of evidence in the record establishing the facts underlying the risk of returning the applicant to Hungary. In the PRRA decision, the only passage that deals with insufficient evidence is the following: [TRANSLATION] First, the absence of evidence in the record establishing the facts underlying the risk of return is noted. Thus, the applicant, who claims to have been the victim of a number of attacks following her return to Hungary and to have been hospitalized and had surgery as the result of the after-effects of these attacks, has not submitted any evidence establishing these facts. Other than the very brief mention that she and her family members were the victims of several attacks, we note the absence in the record of personal evidence such as a medical certificate or other health services evidence mentioning the type of injuries sustained, their seriousness and the medical care required. There is also an absence of evidence in the record, police reports or other documents, indicating that the applicant tried to obtain protection from the Hun- garian authorities. (PRRA officer’s decision, p. 4) 70 The Court is mindful of the fact that cases of police brutality toward the Roma have been so significant that the Hungarian authorities themselves have noted the seriousness of the situation. Therefore, in this particular case of the applicant, was it likely that she would have reported her difficulties to the authorities rather than to deal with the entire family’s fear? 71 The applicant submitted testimony on the incidents of violence against her and her family in Hungary. She bases her application on her statement contained in her Personal Information Form (PIF) and on the statement by her grandson, Gabor Kovacs, whose testimony corroborates the incidents of violence her family has been a victim of. 72 The subjective evidence in the applicant’s testimony is consistent with the objective documentary evidence as a whole, filed in the record, pertaining to the protection provided by Hungary. In this regard, the documentary evidence could corroborate the applicant’s narrative if the facts of this narrative had been considered as a whole by the decision-maker. The PRRA officer erred by not at least considering the facts in the applicant’s testimony. 73 The applicant’s deposition describing the abuse suffered by her and her family when they were in Hungary should have at least been considered by the PRRA officer. The PRRA officer does not provide any justification for ignoring the testimony other than to say that the applicant could have sought state protection, without having satisfactorily shown her assessment of the evidence in its entirety. 130 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

(3) In the circumstances, does the discrimination against the applicant amount to persecution? 74 Given that the PRRA officer’s decision deals mainly with the issue of the state’s ability to protect the applicant, the PRRA officer’s analysis in relation to persecution appears to be nonexistent considering the burned-down house and the serious physical attacks against the applicant and her son and their hospitalization; even following these uncontradicted events, there was no mention of action demonstrated by the authorities following the serious events. The documentary evidence gives an in-depth account of the background of the treatment of the Romani people and the circumstances they have experienced; the PRRA officer herself did not doubt [TRANSLATION] “the significance of the discrimination against the ‘Roma’” (PRRA decision, p. 5). 75 As for what constitutes persecution within the meaning of section 96 of the IRPA, the Handbook provides that adverse circumstances added to various measures, such as discrimination, can result in an applicant having a “fear of persecution on ‘cumulative grounds’” (para. 53 of the Handbook). Discrimination amounts to persecution when “measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned” (para. 54 of the Handbook), which, cumulatively, become persecution. 76 The evidence as a whole highlights all the circumstances of the case, such as the geographical, historical and ethnological context; the allegations of fear of persecution expressed by the applicant must be assessed by ensuring that the decision-maker has considered the documentary evidence. For that, the in-depth review of the documentary evidence, in itself, would have to demonstrate whether a possibility of persecution exists in this case. 77 The triers of fact are required to conduct an individual analysis, since state protection depends on the possibility for the state to provide effective protection to the person claiming protection in the case under review, according to the evidence, the legislation and the case law, on a case-by-case basis. 78 In Mohacsi v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CFPI 429, [2003] 4 F.C. 771 (Fed. T.D.), the application for judicial review of the Roma in question was allowed by the Court: [56] It is also wrong in law for the Board to adopt a “systemic” approach which may have the net effect of denying individual refugee claims on the sole ground that the documentary evidence generally shows the Hungarian government is making some efforts to protect Romas from persecution or discrimination by police authorities, housing authorities and other groups that have historically persecuted them. The existence of anti-discrimination provisions in itself is not proof that state protection is available in practice.... Therefore, a “reality check” with the claimants’ own experiences appears necessary in all cases. [Emphasis added.] Bors c. Canada Michel M.J. Shore J. 131

79 As with state protection, which had to be analyzed based on the existing facts, the risks to the applicant must also be assessed based on the evidence as a whole submitted to the decisionmaker. In this case, the uncontradicted evidence shows that the recurring acts reportedly targeted the applicant’s family with extreme violence, to the point where she was put in the hospital and the privacy of applicant’s family home had been seriously breached. The applicant’s testimony reflects that these are repeated incidents that put the lives of the applicant and her son in danger. 80 The officer should have analyzed and assessed the concept of persecution in the reasons for her decision. The situation experienced by the Roma as supported in documentary evidence must be weighed with the evidence of the applicant’s personal situation. In this case, the PRRA officer did not assess the applicant’s evidence in conjunction with the documentary evidence to determine whether the facts established that she was persecuted because of her race and whether the Hungarian state was able to protect her.

X. Conclusion 81 In light of these facts, the applicant seems to have shown that, in her situation, she is not protected and, therefore, the PRRA decision cannot be reasonable without a more in-depth analysis of the evidence as a whole. This case requires completely new consideration with a more carefully thought-out analysis to reach a conclusion in which the subjective evidence accorded with the objective evidence.

Judgment THE COURT ALLOWS the application for judicial review and refers the matter to another immigration officer for reconsideration. No question is certified.

Obiter The history of the Romani people’s past, even their recent past, is rife with ostracism, exclusion, marginalization, discrimination and, in some cases, persecution because of their race. The situation of the Roma requires that the decision-maker assess protection for each individual who claims protection based on the evidence of treatment suffered by nationals who claim state protection. Application granted. 132 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

[Indexed as: Fong v. Canada (Minister of Public Safety & Emergency Preparedness)] Chou Eng Fong, Appellant(s) The Minister of Public Safety and Emergency Preparedness, Respondent Immigration & Refugee Board (Appeal Division) Patricia E. DeGuire Member Heard: November 10, 2009 Judgment: February 22, 2010 Docket: TA8-11654 Marshall E. Drukarsh, for Appellant Jay Miller, for Minister Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was citizen of Sibu, Malaysia — Applicant became permanent resident of Canada and was landed on April 3, 1993 — In 2004, applicant was convicted of possession of child pornography, and in 2006, he was subsequently convicted of two counts of breach of probation — On June 4, 2008, immigration division issued deportation order against applicant because of his convictions — Applicant appealed — Appeal dismissed — Deportation order was valid in law and fact — Sufficient humanitarian and compassionate considerations did not exist to warrant special relief — Type of offences committed by applicant were very serious and were direct product of ensnaring children and youths — Applicant was on low end of spectrum of possibility of rehabilitation — Applicant’s conduct evinced blatant disregard for justice and correctional systems — Applicant did not supply enough evidence to demonstrate that he was indeed remorseful — Applicant was not aware of what caused him to act out criminally or to engage in inappropriate sexual behaviour — Applicant was also unable to demonstrate that he was capable of resisting or controlling his impulses — Applicant posed high risk to reoffend and high risk to public safety, especially children and youth. Immigration and citizenship –––– Exclusion and removal — Removal from Can- ada — Removal after admission — Deportation –––– Applicant was citizen of Sibu, Malaysia — Applicant became permanent resident of Canada and was landed on April 3, 1993 — In 2004, applicant was convicted of possession of child pornography, and in 2006, he was subsequently convicted of two counts of breach of probation — On June 4, 2008, immigration division issued deportation order against applicant because of his convictions — Applicant appealed — Appeal dismissed — Deportation order was valid in law and fact — Sufficient humanitarian and compassionate considerations did not exist to warrant special relief — Type of offences committed by applicant were very serious and were direct product of ensnaring children and youths — Applicant was on low end of spectrum of possibility of rehabilitation — Applicant’s conduct evinced blatant disregard for justice and correctional systems — Applicant did not supply enough evidence to demonstrate that he was indeed remorseful — Applicant was not aware of what caused him to act out criminally or to engage in inappropriate sexual behaviour — Applicant was Fong v. Canada 133 also unable to demonstrate that he was capable of resisting or controlling his impulses — Applicant posed high risk to reoffend and high risk to public safety, especially children and youth. Immigration and citizenship –––– Exclusion and removal — Removal from Can- ada — Appeals and judicial review — Immigration Appeal Division — Jurisdic- tion –––– Applicant was citizen of Sibu, Malaysia — Applicant became permanent resident of Canada and was landed on April 3, 1993 — In 2004, applicant was convicted of possession of child pornography, and in 2006, he was subsequently convicted of two counts of breach of probation — On June 4, 2008, immigration division issued deportation order against applicant because of his convictions — Applicant appealed — Appeal dismissed — Division had jurisdiction to hear this case — Both applicant’s convictions fell within rubric of s. 36(1)(a) of Immigration and Refugee Protection Act — By saying in effect that superior court of justice had imposed 34-month sentence, court of appeal was merely considering length of sentence, including 6 months that applicant would have been incarcerated if sentence was allowed to stand — Whether applicant received 16- month sentence or 12-month sentence, division maintained jurisdiction over this appeal. Evidence –––– Documentary evidence — Admission of documents — Miscellane- ous –––– Applicant was citizen of Sibu, Malaysia — Applicant became permanent resident of Canada and was landed on April 3, 1993 — In 2004, applicant was convicted of possession of child pornography, and in 2006, he was subsequently convicted of two counts of breach of probation — On June 4, 2008, immigration division issued deportation order against applicant because of his convictions — Applicant appealed — Appli- cant also brought motion to exclude specific parts of respondent’s disclosure — Appeal dismissed — Parts of document that were impugned were admitted into evidence — It was not intention of respondent to relitigate applicant’s acquittal — Only relevant and probative information from document was culled — It was necessary to admit documents to enhance credibility and effectiveness of hearing, as there was no other information about factual underpinning of criminal offences for which applicant was convicted. Cases considered by Patricia E. DeGuire Member: Akkawi v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CarswellNat 779, 2003 FCT 21, 2003 CarswellNat 74, 2003 CFPI 21 (Fed. T.D.) — considered Archibald v. Canada (Minister of Citizenship & Immigration) (1995), 1995 CarswellNat 356, 29 Imm. L.R. (2d) 259, 95 F.T.R. 308, [1995] F.C.J. No. 747 (Fed. T.D.) — considered Ariri v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CF 834, 2009 CarswellNat 5804, 2009 CarswellNat 2434, 2009 FC 834, 83 Imm. L.R. (3d) 162, [2009] F.C.J. No. 964 (F.C.) — considered Brown v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 FC 660, 2009 CarswellNat 1917, 81 Imm. L.R. (3d) 90, 2009 CF 660, 2009 Car- swellNat 4901 (F.C.) — considered C. (R.) v. McDougall (2008), [2008] 11 W.W.R. 414, 83 B.C.L.R. (4th) 1, (sub nom. F.H. v. McDougall) [2008] 3 S.C.R. 41, 2008 CarswellBC 2041, 2008 CarswellBC 2042, 2008 SCC 53, 60 C.C.L.T. (3d) 1, (sub nom. H. (F.) v. McDougall) 297 D.L.R. (4th) 193, 61 C.P.C. (6th) 1, 61 C.R. (6th) 1, (sub nom. F.H. v. McDougall) 380 N.R. 82, 134 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

(sub nom. F.H. v. McDougall) 439 W.A.C. 74, (sub nom. F.H. v. McDougall) 260 B.C.A.C. 74, [2008] S.C.J. No. 54 (S.C.C.) — considered Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 CarswellNat 18, 1992 CarswellNat 653, EYB 1992-67215, [1992] S.C.J. No. 27 (S.C.C.) — considered Chieu v. Canada (Minister of Citizenship & Immigration) (2002), 37 Admin. L.R. (3d) 252, [2002] 1 S.C.R. 84, 2002 SCC 3, 2002 CarswellNat 5, 2002 CarswellNat 6, 18 Imm. L.R. (3d) 93, 208 D.L.R. (4th) 107, 280 N.R. 268, [2002] S.C.J. No. 1, REJB 2002-27421 (S.C.C.) — considered Kwan v. Canada (Minister of Public Safety & Emergency Preparedness) (2006), 2006 CarswellNat 4107, 2006 CarswellNat 4108 (Imm. & Ref. Bd. (App. Div.)) — considered Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 2 S.C.R. 539, 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 339 N.R. 1, EYB 2005-95306, [2005] S.C.J. No. 31 (S.C.C.) — considered Nguyen v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CarswellNat 1687, [1999] F.C.J. No. 1343 (Fed. T.D.) — considered Ponce de Leon v. Canada (Minister of Citizenship & Immigration) (1998), 1998 Car- swellNat 2100, 159 F.T.R. 101, [1998] F.C.J. No. 1532 (Fed. T.D.) — considered Prata v. Canada (Minister of Manpower & Immigration) (1975), 1975 CarswellNat 377, 1975 CarswellNat 377F, [1976] 1 S.C.R. 376, 3 N.R. 484, 52 D.L.R. (3d) 383 (S.C.C.) — considered R. v. Alicandro (2009), 245 O.A.C. 357, 95 O.R. (3d) 173, 63 C.R. (6th) 330, 246 C.C.C. (3d) 1, 2009 ONCA 133, 2009 CarswellOnt 727, [2009] O.J. No. 571 (Ont. C.A.) — considered R. v. Clifford (1968), [1969] 1 O.R. 76, [1969] 2 C.C.C. 363, 1968 CarswellOnt 332 (Ont. C.A.) — considered R. v. Legare (2009), 2009 CarswellAlta 1958, 2009 CarswellAlta 1959, 2009 SCC 56, 469 A.R. 168, 470 W.A.C. 168, [2010] 1 W.W.R. 195, 70 C.R. (6th) 1, 14 Alta. L.R. (5th) 1, 249 C.C.C. (3d) 129, 313 D.L.R. (4th) 1, [2009] 3 S.C.R. 551, 396 N.R. 98 (S.C.C.) — considered R. c. Mathieu (2008), (sub nom. R. v. Mathieu) 292 D.L.R. (4th) 385, (sub nom. R. v. Mathieu) 231 C.C.C. (3d) 1, 2008 SCC 21, 2008 CarswellQue 3114, 2008 Carswell- Que 3115, (sub nom. R. v. Mathieu) 373 N.R. 370, 56 C.R. (6th) 1, (sub nom. R. v. Mathieu) [2008] 1 S.C.R. 723, [2008] S.C.J. No. 21 (S.C.C.) — considered R. v. Proulx (2000), 2000 SCC 5, 2000 CarswellMan 32, 2000 CarswellMan 33, [2000] 4 W.W.R. 21, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1, 182 D.L.R. (4th) 1, 249 N.R. 201, 140 C.C.C. (3d) 449, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 212 W.A.C. 161, [2000] S.C.J. No. 6 (S.C.C.) — considered R. v. Wu (2003), 113 C.R.R. (2d) 297, [2003] 3 S.C.R. 530, 2003 SCC 73, 2003 Cars- wellOnt 5099, 2003 CarswellOnt 5100, 182 O.A.C. 6, 16 C.R. (6th) 289, 180 C.C.C. (3d) 97, 313 N.R. 201, 234 D.L.R. (4th) 87, [2003] S.C.J. No. 78, REJB 2003-51514 (S.C.C.) — considered Ribic v. Canada (Minister of Employment & Immigration) (1986), 1986 CarswellNat 1357, [1985] I.A.B.D. No. 4, [1985] I.A.D.D. No. 4 (Imm. App. Bd.) — considered Fong v. Canada Patricia E. DeGuire Member 135

Sittampalam v. Canada (Minister of Citizenship & Immigration) (2006), 56 Imm. L.R. (3d) 161, 2006 CarswellNat 5109, 2006 CarswellNat 3236, 2006 FCA 326, 272 D.L.R. (4th) 1, [2007] 3 F.C.R. 198, 2006 CAF 326, 354 N.R. 34, [2006] F.C.J. No. 1512 (F.C.A.) — considered Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216, [2003] S.C.J. No. 64, REJB 2003-49439 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 151 — referred to s. 152 — referred to s. 163.1(4) [en. 1993, c. 46, s. 2] — referred to s. 733.1(1) [en. 1995, c. 22, s. 6] — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3 — referred to s. 3(1)(d) — referred to s. 3(1)(h) — referred to s. 36(1) — referred to s. 36(1)(a) — referred to s. 45(d) — referred to s. 63(3) — referred to s. 64 — referred to s. 67(1)(c) — referred to s. 68(1) — referred to Sex Offender Information Registration Act, S.C. 2004, c. 10 Generally — referred to

APPEAL by applicant from deportation order issued against him.

Patricia E. DeGuire Member:

1 Chou Eng FONG (the “Appellant”) brings this appeal under Section 63(3) of the Immigration and Refugee Protection Act (“IRPA”).1 On June 4, 2008, Mem- ber McCabe of the Immigration Division issued a Deportation Order against him

1Immigration and Refugee Protection Act, S.C. 2001, c.27 136 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

under Section 45(d) of IRPA.2 Member McCabe found that the Appellant is a person within the meaning of Section 36(1)(a) of IRPA. Specifically, he found that the Appellant is inadmissible because he was convicted of three offences: possession of child pornography contrary to Section 163.1(4) of the Criminal Code of Canada,3 and received a 16-month conditional sentence, and two counts of failure to comply with probation order contrary to Section 733.1(1) of the Criminal Code of Canada,4 for which a term of imprisonment for more than six months has been imposed. 2 The Minister of Public Safety and Emergency Preparedness (the “Respon- dent”) initially opposed the appeal. Later, the Respondent and the Appellant jointly recommended a stay for four years. The panel rejected their recommendation. These are the decision and reasons in the matter.

Issue 3 The Appellant’s initial position was that that the sentence was not over six months and the offence is not punishable by a maximum term of imprisonment of at least ten years. Thus, the matter was not within the rubrics of Section 36(1)(a) of IRPA. Therefore, the Immigration Appeal Division (“IAD”) has no jurisdiction over the matter. In the alternative, the Appellant argues that the De- portation Order is valid in law and fact, and asks the IAD to exercise its discretionary authority to grant him special relief. 4 Thus, the panel considers whether the IAD has jurisdiction to hear this matter and if so, whether the Deportation Order is valid in law and fact? The panel considers also whether sufficient humanitarian and compassionate considerations exist to warrant special relief, in all the circumstances of the case.5

Decision 5 The appeal is dismissed. The panel finds that the IAD has jurisdiction to hear this case. In addition, in the context of all the evidence in this case, on the balance of probabilities, the panel finds that the Deportation Order is valid in law and fact. Further, the panel finds that sufficient humanitarian and compassionate considerations do not exist to warrant special relief, in all the circumstances of this case, neither to allow the appeal nor stay the Deportation Order. The reasons are set out below.

2Record, pp. 18-25 3Criminal Code of Canada, R.S.C. 1985, c. C-46, as am 4Record, pp.22-23 5Sections 67(1)(c) and 68(1) of IRPA Fong v. Canada Patricia E. DeGuire Member 137

Background 6 The Appellant is a 31-year-old citizen of Sibu, Malaysia. He became a permanent resident of Canada and was landed on April 3, 1993. He was 13 years of age, and an accompanying dependent child of his parents. The Appellant is an only child. He completed high school and went to university in Canada. At the time of his initial offence, he had a few more credits to complete his degree. He testifies that he has completed a course in Brand Name Management and is currently taking courses toward a certificate in project management. He has a full- time and a part-time job. He lives with his parents.

Preliminary Considerations Motion to Exclude Disclosure 7 The Appellant’s counsel brings a motion to exclude specific parts of the Re- spondent’s disclosure, which the Respondent had filed and served, and sought to enter into evidence. The impugned document contains the police narrative and synopsis of the allegations of sexual assault against the Appellant, notably, charges for which he was indicted and acquitted after an extensive trial. The Appellant and Respondent had filed and served written submissions before the day of the hearing. 8 Briefly, in its October 29, 2009 submissions, the Appellant’s counsel argues that the documents contained “scurrilous accusations”, which would “overwhelmingly likely to prejudice the Appellant’s opportunity to receive a fair hearing”. Further, counsel submits that he did “not want a Board Member to...have the same human reaction that I had, and unfairly put my client on the defensive because of false allegations of misconduct by him which adds nothing to the case”. Counsel submits he is aware that the rules of evidence are not as strictly applied to appeal hearings before the IAD. Counsel recognises that the IAD may admit and rely on information submitted to it as long as it is credible or trustworthy. However, he argues that the contents of the impugned document will “undoubtedly” prejudice his client “if the Member arrives at that information in the context of the unwarranted scurrilous accusation of vile and despicable predator conduct ascribed to my client in pages 10, 11, 12 and 13 of the disclosure”. 9 The Respondent’s counsel argues that the impugned document contains information that relate to the same incident, which led to the Appellant’s two convictions for Failure to Comply with Probation. The document, he argues, should be admitted so that the Member would be able to consider all the circumstances of the case. Relying on the Federal Court of Appeal’s ruling in Sittampalam,6

6Sittampalam v. Canada (Minister of Citizenship & Immigration), 2006 FCA 326 (F.C.A.) 138 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

the Respondent’s counsel argues that the panel can consider evidence about charges that were dismissed or withdrawn, but the charges can not be used in and of itself, as evidence of an individual’s criminality. 10 After considering both counsel’s submissions, the panel ruled that the parts of the document that were impugned will be admitted into evidence. The panel would decide what weight, if any, ought to be given to the document, including the impugned parts. 11 Having considered the totality of the evidence, in the context of this case, the panel finds that the narratives as they relate to the Appellant’s conduct relevant to the sexual assault charges, has no probative value in the context of this case. Significantly, the Appellant was acquitted of sexual assault. Therefore, it would be an error in law to use the document to make any assessment about the Appel- lant’s criminality. 12 The panel is alert and alive to, and bound by the Supreme Court of Canada’s judgement in Toronto (City) v. C.U.P.E., Local 79.7 That case stands for the legal principle that, as a matter of law, an arbitrator is required to give full effect to an acquittal or a conviction or both. In law, the Appellant’s acquittal must stand, with all the attendant legal consequences and effects. Regardless of the motive of the party who seeks to re-litigate, it is improper to attempt to impeach a judicial finding by the “impermissible route” of re-litigation in a different fo- rum. It is clear that to admit the document to second guess the court’s determination on the sexual assault would be to re-litigate the criminal case. That in effect would invoke the doctrine of abuse of process and would be detrimental to the adjudicative process. That doctrine engages the inherent power of the court to prevent the misuse of its procedure, in a manner that would bring the administration of justice into disrepute. Further, it would violate the principles as judicial economy, consistency, finality and the integrity of the administration of justice. 13 The panel has noted that the Appellant’s counsel’s concerns about the contents of the document that the Respondent sought to adduce. He was concerned that the contents would “overwhelmingly likely to prejudice the Appellant’s opportunity to receive a fair hearing”. He had concerns that the panel would “have the same human reaction that [he] had, and unfairly put [his] client on the defensive because of false allegations of misconduct by him which add nothing to the case”. He opined that the contents of the documents will “undoubtedly” prejudice his client “if the Member arrives at that information in the context of the unwarranted scurrilous accusation of vile and despicable predator conduct ascribed to my client in pages 10, 11, 12 and 13 of the disclosure”.

7Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 (S.C.C.) Fong v. Canada Patricia E. DeGuire Member 139

14 The panel does not share the Appellant’s counsel concerns. With respect, counsel’s characterisation of the contents of the document has no probative value. And, like the ordinary layperson on a jury, ably instructed to ignore prejudicial evidence, the panel is satisfied that it has the capacity to cull and has culled only the relevant and probative information from the document. Support for the panel’s findings may be found in Leon.8 15 Having read the Respondent’s submissions, the panel concludes that it was not the intention of the Respondent to re-litigate the Appellant’s acquittal. In admitting the document, the panel does not cast doubt on the validity of the Appellant’s acquittal. Rather, the panel focuses on the hearing process, and concludes that, in the circumstances of this case, where there is no other information before it about the factual underpinning of the criminal offences for which the Appellant was convicted, it is necessary to admit the documents to enhance the credibility and the effectiveness of the adjudicative process of the hearing, as a whole. Consistent with this legal principle, the panel uses the Respondent’s impugned documentary evidence only to appreciate the factual underpinning of the two breaches of the probation order and why the Superior Court of Justice and the Ontario Court of Appeal determined that the Appellant’s “breaches were serious and a jail term was required”9 to the extent that a relatively long custodial sentence was imposed. Therefore, to the extent that the narratives in the police report are relevant and sufficient to meet the ingredients of the offences, the panel accepts the document into evidence.

Whether the IAD has Jurisdiction in this Case 16 In the admissibility hearing and again in this appeal hearing, the Appellant’s counsel took the position that the sentence imposed on the Appellant for breach of probation, did not bring the Appellant within the meaning of Section 36(1)(a) of IRPA. The Respondent contends that the sentence for breach of probation bring the matter within the meaning of the provision. Specifically, counsel argues that the sentence imposed by the Ontario Court of Appeal computes to a twelve-month sentence. Therefore, the IAD has jurisdiction over the matter. The panel agrees that the IAD has jurisdiction, but does not agree with either counsel’s computation of the sentence. 17 During the appeal hearing, the panel heard submissions from both counsel on this issue and specifically what each perceives the sentence to be, in particular, the sentence for the two counts of breach of probation. The panel had reserved its decision on the issue. It is apposite to state that even if the Appellant’s

8Ponce de Leon v. Canada (Minister of Citizenship & Immigration) [1998 CarswellNat 2100 (Fed. T.D.)] (F.C.T.D., no. IMM-5124-97) Rothstein J., October 23, 1998 9Record, p.34 140 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

counsel is correct, the breach of probation and the circumstances of the breach are relevant considerations in this appeal. 18 The IAD has jurisdiction to hear this matter because both convictions fall within the rubric of Section 36(1)(a) of IRPA. The Respondent’s delegate referred the Appellant for an inadmissibility hearing because he was convicted of three offences: possession of child pornography contrary to Section 163.1(4) of the Criminal Code of Canada for which he was sentenced to 16 months conditional sentence;10 and two counts of breach of probation order, which the crown proceeded by indictment and the Appellant received a custodial sentence. The Superior Court of Justice imposed a sentence of “time served” (14 months pre- trial custody), plus six months gaol. The judge had refused to grant 2:1 credit for time served. Upon appeal, the Ontario Court of Appeal imposed a sentence of time served and gave credit of 2:1 for six months of the pre-trial custody. More so, it is the latter sentence that the Appellant’s counsel argues give rise to the question of the IAD’s jurisdiction. 19 It is clear that a conditional sentence is a sentence of imprisonment.11 The term “conditional sentence” is defined in the Criminal Code of Canada as a sentence of imprisonment. A conditional sentence is a custodial sentence served in the community.12 The Newmarket Court had imposed a 16-month conditional sentence and 18 months probation on the Appellant. Therefore, the sentence imposed for the possession of child pornography fell within the meaning of Section 36(1)(a) of IRPA. 20 In reviewing this case, in particular the Endorsement of the Ontario Court of Appeal, the appeal from sentencing, the question about the jurisdiction of the IAD becomes apparent. Does Section 64 of IRPA apply to oust the jurisdiction of the IAD to hear this appeal? 21 Flowing from an International Police Investigation, the Appellant was arrested in November 2003, and charged with possession of child pornography. He was identified as a subscriber to an Internet site and had purchased child pornographic material four times. He pled guilty on May 31, 2004. The New- market Court imposed a sentenced of 16 months Conditional Sentence and an 18-month probation order; the latter came into force on October 1, 2005. A condition of the probation order was that the Appellant was: “Not to be found in the

10Record, pp.21-23 and 36; see also Exhibit R-1, p.1 11R. v. Proulx, [2000] 1 S.C.R. 61 (S.C.C.), at p.29; R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73 (S.C.C.), para. 25; Kwan v. Canada (Minister of Public Safety & Emergency Preparedness) [2006 CarswellNat 4107 (Imm. & Ref. Bd. (App. Div.))] (IAD - TA4- 14805), Sangmuah, May 25, 2006 12R. v. Proulx, [2000] 1 S.C.R. 61 (S.C.C.), at p.29; R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73 (S.C.C.), para. 25 Fong v. Canada Patricia E. DeGuire Member 141

company of someone under the age of 18 years unless in the company of someone over the age of 21 years of age”.13 The Appellant was charged with, among other offences, two counts of breach of the probation order in that, during the period from and including March 4, 2006, to and including March 14, 2006, while bound by a probation order, had communicated with a person under the age of 18 and no one over the age of 21 was in his company. 22 On May 4, 2007, a judge of the Superior Court of Justice imposed a sentence of “6 month in jail in addition to 14 months time served in pre-trial custody: two years probation with conditions. (Credit not granted)”.14 The trial judge had refused to give double credit for pre-trial custody. Therefore, the original sentence imposed was 20 months. The Appellant appealed his sentence. 23 On September 20, 2007, the Court of Appeal for Ontario allowed the appeal and reduced the sentence to “time served”. The panel parses the Appeal Book Endorsement to determine the intention of the Court about the sentence imposed by the Superior Court of Justice, and the length of the sentence imposed by the Court of Appeal. In the Endorsement the Court states: This Court Orders that the appeal is allowed and the sentence is reduced to time served. The record should reflect that the appellant was given credit for 6 months pre-trial custody on a 2:1 basis. The probation order will stand.15 24 Specifically speaking to the Superior Court of Justice’s sentence, the Court ruled: [1] In our view, this sentence was manifestly excessive. The trial judge in effect imposed a 34-month sentence, given the pre-sentence custody... [2] These breaches were serious and a jail term was required but in our view a sentence in the range of 3 - 6 months would have been appropriate. [3] Accordingly, the appeal is allowed and the sentence is reduced to time served. The record should reflect that the appellant was given credit for 6 months pre-trial custody on a 2:1 basis. The probation order will stand. [Emphasis added]16 25 With respect, as a matter of law, there is no such sentence as “time served”. It is clear, however, that the effect and intent of the Court of Appeal’s order was to terminate the sentence as at the date of its decision: (September 20, 2007).

13Record, p.27 14Record, p.31 15Record, p.33 16Record, p.34 142 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Accordingly, the sentence was terminated after approximately four months and 16 days. The Court of Appeal effectively made the sentence one of four months and 16 days in addition to pre-trial custody. Thus, the time served, without giving the 2:1 credit, was 18 months 16 days: (14 months pre-sentence custody and four months and 16 days gaol). The amount of credit for pre-trial custody is of importance here. For immigration purposes, it is now clear that the sentence includes pre-trial custody as long as the court specifically says so.17 The Superior Court of Justice turned its mind to the question whether to give double-time for 14-month pre-trial custody. The Court refused. If double-time credit is given to enough of the pre-trial custody, for immigration purposes, the sentence may become greater than two years. The tribunal would have no jurisdiction. 26 The Court of Appeal held that the Record must show that a 2:1 credit had been given for six months of the 14 months pre-trial custody. The comments of the Court of Appeal raise a concern about what the imposed sentence ought to be. Taken literally, this means that six of the 14 months should be treated as a 12-month sentence and the remaining eight months should be treated as single credit. In effect, the result is a 24-month sentence: (6 × 2 + 8 + 4 months and 16 days). If so interpreted, this tribunal has no jurisdiction to hear this appeal. That is an arguable interpretation, but it is not tenable because in effect that interpretation increases the sentence and invokes other legal concerns. 27 For the following reasons, the Court of Appeal’s reasons should not be interpreted literally. Primarily, the Court’s Endorsement must be considered within the context of the Court’s intention, the effect of its ruling and the law. To iterate, as a matter of law, there is no such sentence as “time served”. At least one day gaol must be added to the time served for the sentence to have legal effect. Further, Court of Appeal could not have intended to increase the sentence because it can not do so unless the Crown appealed the sentence or the Crown gave notice of intent to seek an increased sentence: Clifford.18 There is no evidence before the panel that either is the case. In this case, the original sentence was 20 months: six months imposed at trial, in addition to 14 months pre-trial custody. The Court of Appeal can not say or do anything to change the nature of the original sentence imposed. The remedy open to the Court is to allow or dismiss the appeal. If the Court allows the appeal, it can impose a sentence that is fit.

17Ariri v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 FC 834 (F.C.); R. c. Mathieu, 2008 SCC 21 (S.C.C.) 18R. v. Clifford (1968), [1969] 2 C.C.C. 363 (Ont. C.A.). In that case the Ontario Court of Appeal made it clear that the jurisdiction to increase sentence, if the Crown does not appeal the sentence, must be based on such a notice of intent. In that case, even where the Crown provided such notice, it was precluded from obtaining an increase of sentence because the Appellant had abandoned the appeal. Fong v. Canada Patricia E. DeGuire Member 143

28 The Court’s sentence ought not to be interpreted as an increase of the sentence. This interpretation is inconsistent with the Court of Appeal’s finding that Justice Hamilton’s sentence was “manifestly excessive”.19 The main issue before that Court was whether the Appellant’s incarceration should cease as at the day of the appeal. The intent of the Ontario Court of Appeal was to terminate the sentence on the hearing day; supported by its ruling, “time served”. The comments about credit for pre-trial custody must be considered from that perspective. The Court of Appeal’s is clear; it would have imposed a jail sentence of three to six months in addition to appropriate credit for time served. The Court did not think that it was appropriate to increase the sentence, but, manifestly appropriate to reduce it. Further, it should be considered that the Court of Appeal generally is not concerned about dead time for immigration purposes. The fact that the Court of Appeal would have given more credit than the Supe- rior Court of Justice gave is meant to be an illustration of the excessive sentence imposed by the Superior Court of Justice. 29 The Court of Appeal is essentially saying that, in light of the pre-trial custody, it would have imposed “time served” at first instance, with six months of pre-trial custody credited with double time. The Court is saying that the Appel- lant should have received a three to six month sentence but already served effectively 20 months. The Court recognised that it can not turn back the clock. The Appellant has already been in jail for 14 months and then more than four months after the sentencing. By reducing the sentence to “time served”, the Court of Appeal is essentially saying that the Appellant has already done too much time in jail. By saying that it would have given 2:1 for six months, it is setting the appropriate portion of pre-trial custody that ought to have been at the first instance. Thus, the sentence ought to have been six months at 2:1, plus three to six months, that is a sentence of 15 to 18 months, plus one day, would have been the appropriate sentence at first instance. 30 By saying that in effect the Superior Court of Justice had imposed a 34- month sentence, the Court of Appeal was merely considering the length of sentence, including six months that the Appellant would been incarcerated if the sentence was allowed to stand. The Court was clear about giving credit for part of the pre-sentence custody.20 The manifestly excessive was referenced to the 14 months (34 - 20) sentence the Appellant would have been serving technically because the Superior Court of Justice had imposed a six-month sentence and had refused to give any credit for time served. The appropriate sentence is 16 months custody. The sentence was neither six months nor 12 months. Whether the Ap-

19Record, p.34 20Brown v. Canada (Minister of Public Safety & Emergency Preparedness) (F.C., no. IMM-2455-08) Phelan, June 23, 2009; 2009 FC 660 (F.C.) re: IAD TA5-16389) 144 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

pellant received a 16-month sentence (6 × 2 + 4) or 12-month sentence (six months at 2:1), this tribunal maintains jurisdiction over this appeal. Section 64 of IRPA does not apply; both sentences are within the purview of Section 36(1)(a) of IRPA.

Analysis and Findings of Fact 31 In taking its decision and giving reasons in this appeal, the panel assesses all the evidence before it. The evidence includes the Record (the transcript of the Appellant’s inadmissibility hearing and the Member’s reasons for decision, and the Exhibits filed at that hearing); the Appellant’s oral testimony; the Appel- lant’s documentary evidence, which includes a forensic psychologist report and letters of support from the Appellant’s relatives and friends; and the Respon- dent’s documentary evidence, which includes the Appellant’s history of convictions and Synopsis for a Guilty Plea; and counsel’s joint submissions delivered by the Appellant’s counsel.

Guiding Principles 32 In its assessment of the evidence and making findings, the panel is guided by many legal principles enunciated in the jurisprudence of the IAD, the Federal Courts, the Federal Court of Appeal, the Supreme Court of Canada and the common law. Some of those principles are set out below. 33 An appellant subject to a lawful removal order seeks to obtain a discretionary privilege.21 The broad discretion conferred on the IAD allows a permanent resident facing removal to remain in Canada only if it would be equitable to do so.22 34 By enacting Section 68(1) of IRPA, Parliament has decided that, in appropriate cases, certain permanent residents, ordered deported for serious criminality, nevertheless, should be allowed to remain in Canada. The IAD, however, “must be satisfied” that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. In considering whether to exercise its statutory authority to grant special relief within the meaning of Sections 67(1)(c) or 68(1) of IRPA, the panel is guided by the greatest possible factors, first enunciated in Ribic23 and endorsed by the Supreme Court

21Prata v. Canada (Minister of Manpower & Immigration), 1975 CanLII 7, [1976] 1 S.C.R. 376 (S.C.C.), at p. 380 22Chieu v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 84 (S.C.C.) 23Ribic v. Canada (Minister of Employment & Immigration) (1986), [1985] I.A.B.D. No. 4 (Imm. App. Bd.). These factors include: the length of time the Appellant has been in Canada; his degree of establishment in Canada; the seriousness of his criminal convictions; the possibility of his rehabilitation; the impact the Appellant’s removal from Can- Fong v. Canada Patricia E. DeGuire Member 145

of Canada’s decision in Chieu.24 These factors are not exhaustive, but are help- ful in determining where sufficient humanitarian and compassionate considerations exist in this case. As the factors vary, so too the weight given to each factor may vary. 35 In addition, the panel is guided by the provision under which the sanction was imposed and its place in the overall scheme of IRPA; the objective of IRPA, and Parliament’s intent both in enacting the IRPA as a whole, and in enacting the particular provision at issue; the legislative objectives to see that families are reunited in Canada;25 to protect the health and safety of Canadians, and to maintain the security of Canadian society;26 and the credibility of the Appellant and the reliability of his evidence.

Onus and Standard of Proof 36 The Appellant bears the onus to establish why he should be allowed to remain in Canada.27 The Appellant must prove, on the balance of probabilities that sufficient humanitarian and compassionate considerations exist to warrant the exercise of such extraordinary relief. To meet that onus, the Appellant is required to give sufficiently clear, cogent and convincing evidence on material issues.28 If the Appellant fails to meet the onus, he or she must be removed. That is because a non-citizen, who is ordered to be removed lawfully from Can- ada does not have a right to remain in Canada.29 Generally, immigration is a privilege not a right, and it is clear in case law that the removal of a person from Canada is not contrary to the principles of fundamental justice and that the en-

ada would have on members of the Appellant’s family; family and community support available to the Appellant; and the hardship the Appellant would face in the country to which he would likely be removed. 24Chieu v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 84 (S.C.C.), 2002 3 CanLII. paras. 57, 66, 90 and 91. The Court set out three other principles on the scope of conducting an appeal. 25Section 3(1)(d) of IRPA. 26Section 3(1)(h) of IRPA 27Chieu v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 84 (S.C.C.), 2002 3 CanLII. paras. 57, 66, 90 and 91. The Court set out three other principles on the scope of conducting an appeal. 28C. (R.) v. McDougall, 2008 SCC 53 (S.C.C.), para. 46 29Chiarelli v. Canada (Minister of Employment & Immigration), 1992 CanLII 87, [1992] 1 S.C.R. 711 (S.C.C.), pp.733-735 146 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

forcement of a deportation order is not contrary to the Charter.30 The panel uses the Ribic factors as a guide and structure in its evaluation and weighing of the evidence.

Rejection of the Joint Submission 37 Before turning to the evaluation of the evidence properly before it and the weighing of the factors, it is apposite to deal with the counsel’s joint recommendation for a Stay that was proffered to the panel and was rejected. After the Appellant had given evidence, and after a 15-minute break the Appellant’s counsel informed the panel that it was ready to make a joint submission to recommend a stay with conditions to dispose of the appeal. The panel was caught off- guard not only because it expected to hear more evidence regarding the possibility of rehabilitation, including the Appellant’s rehabilitation plan for going forward, but also because the Appellant’s counsel had indicated that he wished to call four other witnesses: the Appellant’s parents and two pastors. The panel was open to receiving more evidence because up to that juncture, it had not been satisfied with the evidence it had heard, particularly about the first three Ribic factors. This appeal necessarily raised the question whether there are sufficient humanitarian and compassionate considerations to warrant special relief. In making a joint submission, it is incumbent on those who make the recommend to ensure that there are sufficiently clear, cogent and convincing evidence to address the Ribic factors, especially the first three factors. 38 To be clear, the panel always welcomes and actively seeks mediated or negotiated resolutions; the panel did not welcome the task of refusing the joint submission.31 In the panel’s continuous assessment and analysis of the oral evidence as it was presented, however, the panel concluded that the submission was not carefully thought out or negotiated given the seriousness of the case.32 The panel’s view then and now is that sufficiently clear, convincing and cogent evidence had not been adduced to address the Ribic factors, in particular the first three factors. More particularly, the panel was not satisfied then and is not satisfied now that the Appellant had adduced sufficiently clear and cogent evidence

30See, e.g., Chiarelli v. Canada (Minister of Employment & Immigration), 1992 CanLII 87, [1992] 1 S.C.R. 711 (S.C.C.), pp. 733-735; and Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (S.C.C.) at para. 46 31Nguyen v. Canada (Minister of Citizenship & Immigration) [1999 CarswellNat 1687 (Fed. T.D.)] (F.C.T.D., no. IMM-567-99), Lemieux, November 3, 2000 re: IAD T98- 02935 32Akkawi v. Canada (Minister of Citizenship & Immigration) (F.C.T.D., no. IMM-741- 02) Pinard, January 21, 2003; 2003 FCT 21 (Fed. T.D.) re: IAD V98-04552. The court held that not even a joint recommendation can bind the tribunal, as long as it explains why it is not following Nguyen. Fong v. Canada Patricia E. DeGuire Member 147

to satisfy the panel that he had reached a level of the possibility of rehabilitation to satisfy the panel that this was not a marked negative factor. As the panel evaluates the evidence and weighs the factors, the rationale for refusing the joint submission will be manifested. In assessing the evidence and from observing the Appellant at the appeal hearing, it becomes clear that he either has little or no insight into the triggers for his pattern of criminal conduct, or he is not forthcoming about what motivates act criminally out or both. The panel is not satisfied that sufficient humanitarian and compassionate considerations exist to warrant a stay. Based on his past conduct, likely, a stay would be merely setting him up for failure. To paraphrase his forensic psychologist, the best indicator of future conduct is past conduct. Dismissal of the appeal is an appropriate remedy. The factual underpinnings for the panel’s findings will be evinced as the panel makes findings about several factors.

Synopsis of Disposition and Reasons 39 Having considered all the oral evidence, the submissions of the Appellant and the Respondent’s counsel, in the context of this case, on the balance of probabilities, the panel would dismiss the appeal. The panel finds that the type of offences committed by the Appellant are very serious and are the direct product of ensnaring the most vulnerable members of our community: children and youths. The sanction for the breaches is the loss of freedom and that was not sufficient to deter the Appellant. The panel has no confidence that he will comply with a stay and find on the balance of probabilities, in the context of all the evidence in this case, the Appellant is not a candidate for a Stay. In assessing the evidence and from observing the Appellant at the appeal hearing, it becomes clear that the Appellant either has little or no insight into the triggers for his pattern of criminal conduct, or he is not forthcoming about what motivated him to act out or both. He has not persuaded the panel that sufficient humanitarian and compassionate considerations exist to warrant a stay. Based on his past conduct, likely, a stay would be merely setting him up for failure. To paraphrase his forensic psychologist, the best indicator of future conduct is past conduct. Given the seriousness of the offences, the panel is not satisfied that there is sufficiently clear, convincing and cogent evidence to show that the Appellant reaches the level on the spectrum of possibility of rehabilitation, together with the other factors, to satisfy the granting of a Stay. In the context of all the evidence, the seriousness of these offences weighs heavily against granting a Stay. Dismissal of the appeal is the appropriate remedy. The panel turns to give more expansive reasons for its decision, using the Ribic factors as a guide.

Seriousness of the Offence leading up to the Deportation 40 As noted above, the Appellant’s conviction of possession of child pornography and two counts of breach of probation were the offences that were the impe- 148 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

tus for the Canada Border Services Agency decision to conduct a Report 44(1) investigation on him and subsequently, the recommendation to hold an admissibility hearing. The Appellant was arrested in November 2003 for down-loading child pornography in July 1999. In cross-examination, he admits that he had downloaded child pornographic material, including video, on four separate occasions and had viewed them less than ten times “in a year” from 1998 to 2002. He pled guilty on May 31, 2004; the court imposed a 16-month conditional sentence and an 18-month probation order. A significant condition of the probation order was a condition prohibiting the Appellant from being in the company of anyone under 18 years of age unless in the company of someone over 21 years of age. 41 The gravamen of this offence, which is a serious aggravating factor, is that the Appellant admits that he knew that the youth was 15 years old before he met her and had engaged in coition with her. The Superior Court and the Court of Appeal evinced or articulated the seriousness of the Appellant’s criminal conduct. First, by inference, the long custodial sentence for the breaches of the probation order and the sentencing judge’s refusal to give any credit for time served, having acquitted the Appellant on the substantive offences of sexual assault. Second, the Court of appeal, only giving partial credit for time served, and stating that the “breaches were serious and a jail term was required”.33 And, even though it concluded that it’s computed sentence, 34 months, was “manifestly excessive”,34 it felt that 15 to 18 months gaol was appropriate.35 42 An aggravating factor is the Appellant’s recidivistic conduct; he showed a degree of reckless disregard for Court, when he ought to have known doing so would cause him to lose his liberty. He was manipulative and sophisticated in his conduct. The panel notes that the Appellant’s re-offending was not identical to the substantive offence. There are, however, some similarities to the substantive offence. The Appellant had engaged in coition with a 15-year old minor, albeit consensual, whom he encountered on the Internet, in the light of a probation order forbidding him from being in the company of anyone under 18 years of age unless in the company of someone over 21 years of age. He had used these Internet interactions to establish a romantic relationship with the youth before he met her face to face on two separate occasions. That is the most telling conduct that reinforces the panel’s conclusion that the Appellant is not a candidate for the type of independent supervision that is extended to persons on stays. 43 The Appellant’s counsel was specific to ask the Appellant in direct examination whether at any time the Appellant’s forensic psychologist informed him that

33Record, p.34 34Record, p.34 35Record, p.34 Fong v. Canada Patricia E. DeGuire Member 149

he was a paedophile. The panel infers that question was an attempt to address the potential risk the Appellant poses to public safety. That view feeds into the inaccurate stereotype about people who commit Internet sex crimes against minors. The forensic psychologist notes that the “public and the media link the use of child pornography to paedophilia”36. Essentially, he dispels the prevalent im- age of Internet sex crimes against minors, as strangers who have strong paedophilic propensities and who deceive and ensnare unwary children into situations to abduct them or sexually assault them. He avers that in the few dozen cases he has seen of men charged with possession of Internet child pornography and that the majority are not paedophilic or acted out with children. He states that among the men who were arrested, the “curious adolescent was also among the individuals charged by the police for possession of child pornography”.37 That might be true, but that is not cogent evidence to assuage the panel that people who view these images, including the “curious adolescents” are not at- tracted to children and at some point in their lives, they will not become interested to the extent that they physically act it out. Nor does it assuage the panel that because the perpetrators are not paedophilic, the harm and attendant ills to its victims reduce the seriousness of possession of child pornography and that its victimisation of children and youths are diminished. Whether done by paedophile or the curious adolescence or the curious adult, child pornography is a very serious offence. It victimised children and youth whose images appear in the pornography. 44 The consumption of child pornography helps to create a perpetual and lucra- tive market for predatory adults, who generally, for sexual gratification troll or use the Internet to ply their trade. Simply put, for child pornography to exist, a child is being sexually abused. Child pornography is the act of someone taking a picture of another adult abusing a child. It is online child exploitation. That possession of child pornography may seem to some as a crime without a victim or an inchoate offence, does not diminish the severity of it and its enormous impact on the lives of the children whose images appear in the material. 45 Internet child pornography is a sexual offence of national and international concern. Its seriousness is more profound because it is difficult to control. This crime is even more serious because of its inherent nature: an international sex industry that sustained by ubiquitous Internet access and the attendant jurisdic- tional gaps, which makes it unwieldy to enforce. Parliament has enacted laws to deal with the challenges of child pornography in Cyberspace. Recognising the ubiquitousness, evil and serious threat of the Internet in sexual offences, Fish J.

36Exhibit A-1, p.7 37Exhibit A-1, p.7 150 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

commenced his judgement in Legare,38 a case about the sexual luring of a child, “The Internet is an open door to knowledge, entertainment, communication - and exploitation.39 Doherty J.A. echoes the same view in Alicandro:40 for those who are inclined to use the computers as a tool to achieve criminal ends, the Internet provides a vast, rapid and inexpensive way to facilitate the commission of unlawful acts. While these decisions were in specific reference to “luring” offences, it applies equally to this case. 46 Because of the prevalence and seriousness of child pornography, on the international scene, several institutions and a number of international instruments have been created to protect children and youths and to curb the proliferation of it. Such protection include: the Convention on the Rights of the Child - Article 2(c);41 the World Congress Against the Commercial Sexual Exploitation of Children, Stockholm, 1996; International Conference on Combating Child Por- nography on the Internet, Vienna, 1999; Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (adopted in 2000 and entered into force in 2002; the Council of Eu- rope Convention on Cybercrime (adopted in 2001, and entered into force in 2004; and the Council Framework Decision on combating the sexual exploitation of children and child pornography adopted in December 2003. 47 The Appellant used the Internet to initiate the second two offences. The Ap- pellant breached the condition of his probation order several times, but was convicted of two offences. In these Internet-initiated crimes, generally, he did not deceive the youth about being an older adult who was interested in sexual relationships. He did not use force or coercion to engage in sexually activities with the youth. She agreed to meet him, being aware of his sexual interests. They were engaged in coition and other sexual activity on multiple occasions. By the time they met, the Appellant was not a “stranger” to the youth because they had communicated extensively both online and off before they met in person. He had used these interactions to establish romantic relationships before he met the youth in person, tactically to perpetrate this crime. 48 One may be argue that the lack of violence and the consent of the youth diminish the seriousness of these offences. That argument is not tenable for two reasons. In the panel’s view, it reinforces the vulnerability of the victims and the seriousness of the offences. The consent of the youth, a 15-year-old, in this case

38R. v. Legare, 2009 SCC 56 (S.C.C.), December 3, 2009 39R. v. Legare, 2009 SCC 56 (S.C.C.), para. 1, [Emphasis in original] 40R. v. Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1 (Ont. C.A.), p.36 41Article 2(c) defines the term “child pornography” to mean any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes. Fong v. Canada Patricia E. DeGuire Member 151

does not negate the Court’s order nor seriousness with which the Courts viewed his conduct. Essentially, in the Appellant’s probation order, the Court had increased the bar to statutory consent from below 14 years of age (as stipulated in Section 151 and 152 of the Criminal Code of Canada), to 18 years of age. The condition in the probation order created an inchoate crime specific to the Appel- lant; to not to communicate in any way, including by computer or Internet, with anyone under 18 years was an offence. Implicitly, one purpose of the prohibition was to protect people in that age range from the predatory conduct of the Appel- lant and to prevent the facilitation of committing sexual offences on people within that age range. To iterate, the panel’s view is supported by the sentence both courts imposed for the breaches. 49 There are several aggravating factors. The Appellant admits that he had turned his mind to the fact that the youth was 15 years of age and that he was bound by a probation order. Yet, he heedlessly decided to meet with her on two occasions. The panel finds that even before the youth told the Appellant that she was 15 years (the age the Appellant recounted to his psychologist, not 16 as he claims at the hearing), the Appellant was wilfully blind or reckless to the age of the youth. This is based on his evidence. His testimony is that before he had agreed to meet the youth, she told him that she was in Grade 12. They spoke about family, their personality, March break, her interests (music, books, food, travelling), to name a few topics, but he did ask the youth her age. Given the probation order, it is reasonable to expect anyone so bound, would have asked the youth her age, especially when she mentioned that she was in Grade 12 and had told him she did not want her parents to know that she was meeting him. 50 Another aggravating factor is that the Appellant had engaged in coition with the youth being alert and alive to the consciousness that she was 15 years of age and further, that it was taboo in her culture to engage in such conduct. Further, the Appellant had used his interactions with the youth on the Internet to establish a romantic relationship before he met the youth face-to-face. It is remarka- ble that according to the Appellant’s testimony, he had only spent a total of 48 hours over a period of one to one-and-a-half weeks before he was able to engage the youth in coition. When asked why he still decided to meet the youth on two occasions and engaged in improper sexual conduct, he replies that he was “really, really tempted”. Essentially, the Appellant admits that he did not resist his impulses even though he knew that the likely risk of not resisting was the loss of his liberty. 51 Implicitly, in the objectives enunciated in Section 3 of IRPA, Parliament in- tends to give priority to the objective “to protect the health and safety of Canadi- 152 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

ans and to maintain the security of Canadian society.42 Consistent with that priority and objectives scheme, Parliament created a new statutory scheme where persons sentenced to more than six months in prison are inadmissible.43 In the context of all the evidence in this case, the seriousness of the offence, including the aggravating factors weigh very heavy against the granting of special relief. Against that backdrop, the Appellant has a markedly high hurdle to overcome, to motivate the panel to exercise its authority to grant special relief.

Possibility of Rehabilitation and Signs of Remorse 52 In the wake of all the evidence in the context of this case, the level of the Appellant’s possibility of rehabilitation does not weigh positively in favour of granting special relief. The importance of possibility of rehabilitation goes directly to the seriousness of the offence. The more serious the offences, the more significant and practical must be the inventory of rehabilitative tools and demon- strable higher degree of the possibility of rehabilitation. The level of the Appel- lant’s possibility of rehabilitation must be commensurate with the seriousness of the offences. The Appellant’s criminal history is short, beginning in 2004, but the offences are very serious. The breaches of probation were committed in March 2006. He had been in some form of detention or custodial sentence from May 2004 to September 2007. He had re-offended within a year of the completion of a 16-month conditional sentence and five months after the commence- ment of his probation order. While the re-offences are not child pornography, they involved inappropriate sexual conduct with someone within the prohibited age a court had proscribed. His criminal conduct has escalated in severity of offences, a different approach (a direct malignant frequency and persistency) that was absent in his first offence. The Appellant’s conduct evinces a blatant disregard for the justice and correctional systems. 53 The panel is not satisfied with what the Appellant has done in the way of rehabilitating himself. Using the sparse and impractical evidence the Appellant adduces for this factor, the panel finds that he is on the low end of the spectrum of the possibility of rehabilitation. In direct examination, he was asked if he had anything to “give [him] strength in the future”. In response, he claims that he can rely on people who know his past: his parents, his church and his friends. He avers that he relies on the “Word of God”. He claims that he definitely wants to walk in the “path of love”, and wants to be “humble”. Counsel asks what had helped him to identify that he was on the wrong path and what was his turning point. He claims that at the time he was arrested, he was self-centred; everything

42Medovarski v. Canada (Minister of Citizenship & Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51 (S.C.C.) 43Section 36 (1) of the IRPA Fong v. Canada Patricia E. DeGuire Member 153

was “me, me, me”. He was “proud and cocky”, he was not kind to his girlfriends and he was “insensitive because of [his] pride”. He avers that after the arrest, he “began to think of others”. He is a “better person” now, and, he has to say he is “proud of himself. He claims that he has made new friends at school and church; is active in sports and he does not “hang around too much”. In response to his counsel’s question about what he is doing in his life currently, the Appellant claims that he has two jobs, he is trying to finish a certificate at a school of continuing studies in project management; he lives with his parents. The Appel- lant lived with his parents when was arrested for breaches of probation. 54 During direct evidence, when asked to comment on the seriousness of his offences, the Appellant states that they are “definitely serious” and “it was clearly wrong”. It is not clear whether he was referring to the substantive conviction or the breaches or both. The panel finds that is not enough to satisfy the panel that he was indeed remorseful, especially because it is a general statement uttered when asked. In his response to his counsel’s question, how could he rec- oncile the breaches of probation when he knew the youth was under 18 years and he was under a prohibition, he claims that he “was stupid and very tempted”. He claims that just before he was arrested, he was in a “band” got a lot of attention from friends and after he was arrested he realised that he was “missing out on things”. In the context of all the evidence in this case, the panel finds that these are not elements enough to satisfy the panel that the Appellant is aware of what causes him to act out criminally, to engage in inappropriate sexual behaviour and that he is capable of resisting or controlling his impulses or has a structure to help him to resist such conduct in the future. The indicia of rehabilitation include “credible expressions of remorse, articulation of genuine understanding as to the nature and consequences of criminal behaviour and de- monstrable efforts to address the factors that give rise to such behaviour.”44 The panel is troubled by his past attempts of rehabilitation and what he proffers for the future. 55 Before the Appellant was sentenced for the possession (consumption) of child pornography, his defence counsel had a forensic psychologist prepare a report for the court likely to be used at sentencing. In perusing that report, the panel makes several observations. The doctor opined that the Appellant “presented as shy anxious and he looked younger than his stated age”. In commenting on the tests results, the psychologist remarked that the Appellant “does not suffer from a psychotic mental illness or personality disorder. He stated that the Appellant was “curious about the child pornography, but he did not find it eroti-

44Ramirez Martinez, Jose Mauricio (a.k.a. Jose Mauricio Ramirez), (IAD T95-06569), Bartley, January 31, 1997 [Emphasis added] 154 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

cally gratifying and [the Appellant] denied having erotic interest in children”.45 One conclusion is that the Appellant appeared to be “shy and very anxious during [phallometric] testing and his responses were too small for diagnostic purposes”.46 He “scored in the very superior range on speed of processing information”.47 In his opinion about the examination of risk of aggression and inappropriate sexual behaviour, the forensic psychologist concluded that on the Violent Risk Appraisal Guide (VRAG) and the risk of sexual aggression (SORAG), the Appellant “is a low risk for future aggression” and “a low risk for future sexual offense”.48 56 The psychologist concluded that the Appellant did not try to manipulate the phallometric test. He states that the Appellant denied suffering from impotence or a medical condition, which might have affected his ability to have erection. “However, he did appear to be shy and very anxious during the testing and his responses were too small for diagnostic purposes.”49 After hearing his testimony about whom he was before he was arrested, for example, that he “was “proud and cocky”, “getting accolades”, “winning contests”, not being kind to his girlfriends and he was “insensitive because of [his] pride”, he was asked what the doctor’s report did not capture, about him that he thinks he was at that time of the assessment. His response is that the doctor had described him as “shy”, but that is not accurate. He is “definitely not shy”; he is “very social”, quiet and likes to listen, which is different from being shy. 57 When asked about his curiosity in down-loading child pornographic material and viewing them more than once, up to then times, if he did not find them sexually arousing, he claims that even though he had consumed adult pornography, it led him back to child pornography that is because he was still interested in finding out why he was engaged in consuming child pornography. He claims that he “did not try to find someone to engage in such act”. His testimony is that he is not denying that at the time he was not curious or wanted to find out about it, but he “did not do anything to satisfy his curiosity”. In cross-examination, when asked what he expected to find on the website from which he had culled the child pornographic material, he avers that he did not know, but he “expected to find something hot”, but after he downloaded it, it was not what he expected. He claims that he was “pretty shocked” when he saw the images because he was used to adult pornographic images. He claims that his expression of it was, “Wow!” His testimony is that at first he had deleted the images, but on the sec-

45Exhibit A-1, p.8 46Exhibit A-1, p.8 47Exhibit A-1, p.8 48Exhibit A-1, p.9 49Exhibit A-1, p.5 Fong v. Canada Patricia E. DeGuire Member 155

ond or the third time he found that his curiosity “got the better” of him and he decided to keep them. When asked, the Appellant was not forthcoming about whether he was aroused. His response is that after watching the child pornographic images “long enough”, he had “a sense of arousal”. When asked to explain his response, he claims that he had arousals, but it was not to the extent as when he looked at adult images, which would lead him to masturbation or ejacu- lation. When asked why he had kept the images for four years, up to the time of his arrest, his response is that as he had said at the beginning, he “was curious and later got interested in it to find out what it really is”. His testimony is that he was still “interested”, the “feeling was still there”. 58 The Appellant claims that he had undergone some form of rehabilitation close to the time of his sentencing for the substantive offence. He had been counselled once per week, for four to five months, by someone who had showed him the statistics about “guys”, from what age they masturbated and told him that he had looked at child pornography because it was something different. His testimony is that he had seen other counsellors who counselled him about “life, relationships” toward women and “trying to see if he was on the right path”, and counselling about “values in life” to see if he is a risk to society. The Appellant claims that he had seen two psychiatrists, but he could not explain to the panel the specific expertise of those psychiatrists or what his counselling was about. That was before he was sentenced for possession of child pornography. 59 The Appellant seems to put much stock in his religiosity for rehabilitation. His testimony that “through religion and through God” he has learned life in a different way. He has been counselled by his church pastor in the Christian faith. He knows now how to help people in the community, to volunteer and making donations; he did not do these things before. He claims that he reads the Bible, almost exclusively. Candidly, the panel dare not challenge the Appellant’s religiosity or the benefits he gains from reading the scriptures. However, his almost exclusive reliance on his Christian faith and counselling and reading the Bible is not adequate enough or practical to assess where on the spectrum of the possibility of rehabilitation the Appellant is. The panel does not question his religiosity, but based on his evidence, the panel finds that the Appellant does not have sufficient insight into his conduct and what causes him to think and act out criminally. 60 Today, the information before the panel is that the Appellant committed a sexual offence, in that he was prohibited by a Court to have any contact with youths. In the wake of that order, he had coition with a 15-year-old youth, having confronted himself about the prohibition and the likely penalty. He had heedlessly breached the order because he refused to resist his impulses. To iterate, that the act was consensual does not detract from the fact that the act was an inappropriate sexual act that was proscribed by the Court. The Appellant displayed this conduct just after two years of this prognosis, less than a year after 156 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

his conditional sentence ended, but less than six months after the probation order had commenced. 61 The panel gives little weight to the forensic psychologist report, which was prepared for sentencing in the child pornography conviction. Neither that report nor the Appellant’s evidence gives any insight into what cause him to act out criminally. The Appellant states that he pled guilty to the breaches, perhaps wishing to show remorse and thus, an element of rehabilitation. In the criminal justice system, pleading guilty in lieu of a trial may be perceived as an indication of remorse. Pleading guilty after intentionally deciding to disregard a Court’s order is not, in the panel’s view, enough to conclude that this purported remorse constitutes rehabilitation. Nor did the Superior Court or the Court of Appeal. 62 Another troubling aspect for the panel is, when asked about the Appellant being registered in Canada’s National Sex Offender Registry, the Appellant’s counsel admits that he had no knowledge about the SOIRA designation. The Record shows50 that the Appellant was registered under the Sex Offender Infor- mation Registration Act.51 Parliament had introduced this legislation in April 1, 2004. It came into force on December 15, 2004. The stated purpose of the legislation was to enhance public safety by helping the police to identify possible suspects. The offender’s movement is monitored. For instance, if the offender is absent from his home address for longer than 15 days continuously, he must notify the registration centre. There is no cogent evidence before the panel about the Appellant’s term of registration. This is information that should be adduced at the hearing because it may be relevant to a Ribic factor, especially in joint recommendation submissions. 63 The Appellant has the onus to adduce sufficiently clear, cogent and convincing evidence to show whether he is sufficiently on the spectrum of the possibility of his rehabilitation. On the spectrum of rehabilitation, the possibility of rehabilitation always exists. What is determinative in this assessment is where the Appellant is on the spectrum. The panel is not satisfied that the Appellant has a practical and functional level of rehabilitative inventory. The panel notes the involvement of his pastors and church community, he is more religious and he reads the Bible. He was always been the only son of his parents. There is no cogent evidence before the panel that he did not always have their support. That has not effectively prevented his recidivism. Notwithstanding the opinion of the forensic psychologist, the panel concludes that the Appellant poses a high risk to re-offend and a high risk to public safety, especially children and youth. He has not addressed that critical issue satisfactorily. Given his past criminal conduct,

50Record, p.37, Report 44(1), Criminal Inadmissibility, December 5, 2007 51Sex Offender Information Registration Act, S.C. 2004, c.10 Fong v. Canada Patricia E. DeGuire Member 157

especially in light of the stated legislative objective to protect the public safety, the panel concludes that this factor weighs heavily against the exercise of discretionary relief.

Likelihood of Re-offending 64 The Appellant’s last criminal conviction is recent and his behaviour continues to evince a disregard for community supervision. He does not present a sufficiently clear, convincing and cogent rehabilitation structure or inventory for going forward. His criminal acting out has evolved in type, frequency and seriousness. Having concluded that the Appellant is a high risk to public safety, and that the extent of the possibility of rehabilitation if very negative, the panel concludes that the Appellant’s likelihood of re-offending is high.

The Degree of the Appellant’s Establishment in Canada 65 Having assessed and weighed the clear, convincing and cogent factual underpinning of this factor, the panel finds that there is humanitarian and compassionate considerations, but not sufficient to overcome other negative factors. In determining the degree of the Appellant’s establishment in Canada, the panel considers the length of time the Appellant has spent in Canada and his economic and social factors.52 The elements of establishment should include: • length of residence in Canada; • the age at which one comes to Canada; • length of residence elsewhere; • frequency of trips abroad and the quality of contacts with people there; • where one is educated, particularly in adolescence and later years; • where one’s immediate family is; • where one’s nuclear family lives and the ties that members of the nuclear family have with the local community; • where the individual lives; • where his friends are; • the existence of professional or employment qualifications which tie one to a place; and • the existence of employment contracts. 66 In determining whether this ought to be deemed a positive factor, it is appropriate to consider also the extent to which the permanent resident has success-

52Archibald v. Canada (Minister of Citizenship & Immigration) (1995), 29 Imm. L.R. (2d) 259 (Fed. T.D.) 158 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

fully integrated into Canada, including whether he or she has contribution to the economic and social development of Canada.

Length of Time Spent in Canada 67 The Appellant became landed in April 1993. He was a 13-year-old accompanying dependent child at that time. He is now 31 years old. From part of his formative years to currently, he has been educated in Canada. He has attained a Bachelor of Science degree (BSc.) from university and has taken certificate courses toward brand management and project management. Based on the totality of the evidence, this is a positive element towards the establishment factor.

Economic and Social Establishment 68 The Appellant has two jobs: part-time and full-time. At the hearing he was enrolled in continuing education towards project management. His joint salary from both jobs is enough to sustain him financially according to Statistic Can- ada’s guidelines. He lives with his parents, but does not and is not required to contribute financially to the family’s well being. The Appellant is developing skills in the marketing area. The Appellant has a high level of education; graduate from university with a BSc. degree. He has minimum savings, but no real property, no automobile or other assets. This element of establishment is positive. 69 There are positive humanitarian and compassionate considerations on the social element. The Appellant is an only child. It seems that his parents have always been in his life. It is clear that his criminal conduct has taken its toll on the family. His parents were present at the hearing and were ready, willing and able to give evidence in support of their son. His pastors from his church were also present at the hearing and ready, willing and able to give support evidence. There are letters of support from them and a letter of support from the Appel- lant’s great aunt, which the panel has assessed and weighed.53 70 In sum, on balance, the panel concludes that the extent of the Appellant’s establishment in Canada is a positive factor. This positive factor, plus other positive factors weigh moderately in the Appellant’s favour yet, they are not sufficient to overcome the totality of the weight of the first three factors.

Family and Community Support in Canada and Impact on them if Removed 71 The panel concludes that there would be an impact on the Appellant’s parents and great aunt, and his friends if he is removed from Canada. The Appellant testifies that the greater impact would be on his parents. The panel agrees. The impact is likely disproportionate. The impact would be more of an emotional

53Exhibit A-1, pp.7-12 Fong v. Canada Patricia E. DeGuire Member 159

impact since there is no cogent evidence before the panel that the Appellant’s parents depend on him financially. The Appellant claims that his parents are getting old and he would like to help them in their older years. The Appellant has community support: his church members. The impact on them is not disproportionate. The panel concludes that this factor weighs moderately in the Appel- lant’s favour.

Hardship if Returned to His Country or Country to which he could be sent 72 The panel concludes based on all the evidence, in the context of this case that this factor weighs minimally in the Appellant’s favour. Indeed, the Appel- lant will experience some hardship, but the panel is not satisfied that the hardship will be disproportionate. The Appellant was born and partially raised in Pacific Rim. He has lived in Canada for over 17 years, where he concluded his raising and education. He is an ethnic native fluent in Mandarin and English. He admits that the skills he attained in Canada are transferable in a global economy. In giving evidence, he avers that because of the dominant religion in Malaysia he might face persecution. One of his supporters echoed this view is echoed in a letter.54 Further, the Appellant claims that the government may strike against the ethnic group to which he belongs. He adduces no sufficiently clear, cogent and convincing evidence to satisfy the panel that this is more than speculation. In assessing possible hardship, the IAD does not engage in refugee claims. 73 Economic or social dislocation or both, including separation from family, friends and loved ones are some attendant hardships that ensue from immigration, voluntary or forced. Thus, the hardship that warrants humanitarian and compassionate considerations must be disproportionate. An attendant impact if sent back to his country in the Pacific Rim is that the Appellant would not have his parents, if they choose to stay in Canada, and his friends. Likely, he would face challenges in settling down. He would have, however, a Canadian education and transferable skills in an area of the world that is now becoming the largest economy. He might not have the free health care, but there is no compelling evidence before the panel that he has any serious illness that necessitates continual and special health services that are not available in that region. There is no sufficiently clear, coherent and compelling evidence before the panel that if deported to Malaysia, the Appellant will face undue hardship. In addition, the Appellant was born and raised in that region, speaks two of the languages used in that country, and is aware of the culture. The panel concludes based on all the evidence in the context of this case that this factor weighs moderately in the Appellant’s favour.

54Exhibit A-1, pp.11-12 160 IMMIGRATION LAW REPORTER 94 Imm. L.R. (3d)

Best Interests of a Child 74 The panel is satisfied that there is no child who will be affected directly by this decision.

Conclusion 75 The panel finds, after considering all of the evidence in the context of this case, that on the balance of probabilities, the deportation order is valid in law and fact. 76 Having weighed the evidence, and balanced the factors for granting such special relief, the panel is satisfied that sufficient humanitarian and compassionate considerations do not exist to warrant special relief, in light of all the circumstances of this case. The joint recommendation by counsel was not appropriate. A Stay is not an appropriate disposition in all the circumstances of this case. Therefore, the panel dismissed the appeal. 77 For all the reasons given above the appeal is dismissed.

Notice of Decision The appeal is dismissed. Appeal dismissed.