IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 31 (Cited 31 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 31 (Cited 31 Imm. L.R. (4th))

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[Indexed as: Najafi v. Canada (Minister of Public Safety and Emergency Preparedness)] Behzad Najafi, Appellant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court of Appeal Docket: A-281-13 2014 FCA 262 J.D. Denis Pelletier, Johanne Gauthier, D.J. Near JJ.A. Heard: April 1, 2014 Judgment: November 7, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Spies and subversives –––– Applicant was citizen of Iran of Kurdish ethnicity — Applicant’s refugee claim was accepted in 1995 — Permanent resident status was denied because Minister brought declaration of inadmissibility on security grounds — Minister claimed applicant was member of Kurdish Democratic Party of Iran (KDPI) and sought to have applicant declared inadmissible due to involvement in party — Immigration Division of Im- migration and Refugee Protection Board (IRB) ruled that applicant was inadmissible under s. 24(1) of Immigration and Refugee Protection Act (Act), and issued deportation order — Applicant brought application for judicial review on grounds that decision violated his freedom of expression and association under Canadian Charter of Rights and Freedoms (Charter) — Application dismissed — Applicant appealed — Appeal dismissed — Canada’s immigration law obligations did not require IRB, in interpreting s. 34(1)(b) of Act, to exclude from admissibility those who participated in organization that used force in attempt to subvert government in furtherance of oppressed people’s claimed right to self-determination — Words of s. 34(1)(b) of Act were clear and unambiguous — Words “subversion by force of any government” did not, on face, imply qualification with respect to government — It could not be concluded from overall legal context that s. 34(1)(b) of Act should be construed as encompassing only use of force that was not legitimate or lawful pursuant to international law — IRBs interpretation was reasonable — Using modern approach to statu- 2 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th) tory interpretation, IRB could not reasonably construe word “organization” in s. 34(1)(f) of Act as excluding organization operating in Canada whose activities were lawful in Canada and which did not engage in any illicit activities abroad of kind set out in s. 34(1)(b) of Act while person was member. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of expression — Miscellaneous –––– Applicant was citizen of Iran of Kurdish ethnicity — Applicant’s refugee claim was accepted in 1995 — Permanent resident status was denied because Minister brought declaration of inadmissibility on security grounds — Minister claimed applicant was member of Kurdish Democratic Party of Iran (KDPI) and sought to have applicant declared inadmissible due to involvement in party — Immigra- tion Division of Immigration and Refugee Protection Board (IRB) ruled that applicant was inadmissible under s. 24(1) of Immigration and Refugee Protection Act (Act), and issued deportation order — Applicant brought application for judicial review on grounds that decision violated his freedom of expression and association under Canadian Charter of Rights and Freedoms (Charter) — Appli- cation dismissed — Applicant appealed — Appeal dismissed — Canada’s immigration law obligations did not require IRB, in interpreting s. 34(1)(b) of Act, to exclude from admissibility those who participated in organization that used force in attempt to subvert government in furtherance of oppressed people’s claimed right to self-determination — Words of s. 34(1)(b) of Act were clear and unambiguous — Words “subversion by force of any government” did not, on face, imply qualification with respect to government — It could not be concluded from overall legal context that s. 34(1)(b) of Act should be construed as encompassing only use of force that was not legitimate or lawful pursuant to international law — IRBs interpretation was reasonable — Using modern approach to statutory interpretation, IRB could not reasonably construe word “organization” in s. 34(1)(f) of Act as excluding organization operating in Canada whose activities were lawful in Canada and which did not engage in any illicit activities abroad of kind set out in s. 34(1)(b) of Act while person was member. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of association –––– Applicant was citizen of Iran of Kurdish ethnicity — Applicant’s refugee claim was accepted in 1995 — Perma- nent resident status was denied because Minister brought declaration of inadmissibility on security grounds — Minister claimed applicant was member of Kurd- ish Democratic Party of Iran (KDPI) and sought to have applicant declared inadmissible due to involvement in party — Immigration Division of Immigra- tion and Refugee Protection Board (IRB) ruled that applicant was inadmissible under s. 24(1) of Immigration and Refugee Protection Act (Act), and issued deportation order — Applicant brought application for judicial review on grounds that decision violated his freedom of expression and association under Canadian Charter of Rights and Freedoms (Charter) — Application dismissed — Appli- Najafi v. Canada (Min. of Public Safety) 3 cant appealed — Appeal dismissed — Canada’s immigration law obligations did not require IRB, in interpreting s. 34(1)(b) of Act, to exclude from admissibility those who participated in organization that used force in attempt to subvert government in furtherance of oppressed people’s claimed right to self-determination — Words of s. 34(1)(b) of Act were clear and unambiguous — Words “subversion by force of any government” did not, on face, imply qualification with respect to government — It could not be concluded from overall legal context that s. 34(1)(b) of Act should be construed as encompassing only use of force that was not legitimate or lawful pursuant to international law — IRBs interpretation was reasonable — Using modern approach to statutory interpretation, IRB could not reasonably construe word “organization” in s. 34(1)(f) of Act as excluding organization operating in Canada whose activities were lawful in Can- ada and which did not engage in any illicit activities abroad of kind set out in s. 34(1)(b) of Act while person was member. The applicant was a citizen of Iran with Kurdish ethnicity. The applicant’s refugee claim was accepted in 1995, however, permanent resident status was denied because the Minister brought declaration of inadmissibility on security grounds namely, that the applicant was a member of the Kurdish Democratic Party of Iran (KDPI). The Immigration Division of Immigration and Refugee Protection Board (IRB) ruled that the applicant was inadmissible under s. 24(1) of Immi- gration and Refugee Protection Act (Act), and issued a deportation order. The applicant argued that the IRB’s decision violated his freedom of expression and association under the Canadian Charter of Rights and Freedoms (Charter) and applied for judicial review of the decision. His application was dismissed. The applicant appealed. The judge certified the question of whether Canada’s immigration law obligations required the IRB, in interpreting s. 34(1)(b) of the Act, to exclude from admissibility those who participated in an organization that used force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination. Held: The appeal was dismissed. Per Gauthier J.A. (Pelletier and Near JJ.A. concurring): International law was generally used as an aid in interpreting domestic legislation. The presumption that the legislator intended to comply with Canada’s international law obligations was rebuttable. There was no basis for displacing the presumption that deference should be afforded to the IRB’s interpretation of its home statute. The judge chose the appropriate standard of review of reasonableness. In order to determine if the judge applied the standard appropriately, the court must assess whether on the appropriate contextual and purposive analysis of s. 34(1)(b), the IRB’s interpretation was within the range of possible, acceptable outcomes. 4 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

International law was only one factor to consider in applying the modern approach to statutory interpretation. Relevant international law should ideally be taken into account prior to concluding whether or not a text is clear or ambiguous. However, the modern approach was contextual and there was no single way to apply it. The legislator did not have to expressly state in the provision in issue that its international obligations should be overcome. In the provision at issue the word “subversion” must be read in the context of the expression “subversion by force of any government”. The interpretative issue raised by the facts was whether the word “government” was limited to “democratically elected government” or some other formula that designated a government whose legitimacy was not in issue or whether it applied to any government, even if it was oppressive and racist. The words of s. 34(1)(b) were clear and unambiguous. The words “subversion by force of any government” did not, on their face, imply a qualification with respect to the government. Parlia- ment intended to prioritize security when it enacted s. 34(1)(b). The focus of the provision was on the right of the government to control its frontier and to deny entry to persons who might be a threat to its security. It could not be concluded from the overall legal context that s. 34(1)(b) of the Act should be construed as encompassing only the use of force that was not legitimate or lawful pursuant to international law. The IRB’s interpretation was reasonable. Canada’s immigration law obligations did not require the IRB, in interpreting s. 34(1)(b) of the Act, to exclude from admissibility those who participated in an organization that used force in an attempt to subvert a government in furtherance of an oppressed people’s right to self-determination. No notice of constitutional question was required. Using the modern approach to statutory interpretation, considering the words of s. 34(1)(f) of the Act in their entire context, including s. 34(2), and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision and the intention of Parliament to comply with the Charter, the IRB could not reasonably construe the word “organization” as excluding an organization operating in Canada whose activities were lawful in Canada and which did not engage in any illicit activities abroad of the kind set out in s. 34(1)(b) while the person was a member. To do so would rewrite the provision to such an extent that could not be done in the absence of a constitutional challenge to the validity of the provision. Where there was no ambiguity, the Charter could not be used as an interpretative tool to give the legislation a meaning that Parliament did not intend. Cases considered by Johanne Gauthier J.A.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Najafi v. Canada (Min. of Public Safety) 5

Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — referred to Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — followed British Columbia (Securities Commission) v. McLean (2013), (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Ad- min. L.R. (5th) 237, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 2013 SCC 67, [2014] 2 W.W.R. 415, 366 D.L.R. (4th) 30, (sub nom. McLean v. British Columbia Securities Commission) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67 (S.C.C.) — referred to B010 v. Canada (Minister of Citizenship and Immigration) (2013), 2013 Car- swellNat 2611, 2013 CAF 87, 359 D.L.R. (4th) 730, 16 Imm. L.R. (4th) 227, 2013 FCA 87, 2013 CarswellNat 650, 443 N.R. 1, 8 A.L.R. Int’l 691, [2013] F.C.J. No. 322 (F.C.A.) — referred to Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, (sub nom. Doré v. Barreau du Québec) 255 C.R.R. (2d) 289, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12 (S.C.C.) — followed Dunmore v. Ontario (Attorney General) (2001), 2001 SCC 94, 2001 Carswell- Ont 4434, 2001 CarswellOnt 4435, 13 C.C.E.L. (3d) 1, 207 D.L.R. (4th) 193, 2002 C.L.L.C. 220-004, 279 N.R. 201, 154 O.A.C. 201, 89 C.R.R. (2d) 189, [2001] 3 S.C.R. 1016, 2001 CSC 94, [2001] S.C.J. No. 87, REJB 2001- 27200 (S.C.C.) — referred to Gebreab v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 CarswellNat 5085, 2010 CAF 274, 2010 FCA 274, 2010 Car- swellNat 4040, 93 Imm. L.R. (3d) 28, 409 N.R. 196, [2010] F.C.J. No. 1312 (F.C.A.) — considered Health Services & Support-Facilities Subsector Bargaining Assn. v. British Co- lumbia (2007), 2007 C.L.L.C. 220-035, 363 N.R. 226, 400 W.A.C. 1, 157 C.R.R. (2d) 21, [2007] 7 W.W.R. 191, D.T.E. 2007T-507, 65 B.C.L.R. (4th) 201, 283 D.L.R. (4th) 40, 137 C.L.R.B.R. (2d) 166, 242 B.C.A.C. 1, 164 L.A.C. (4th) 1, 2007 SCC 27, 2007 CarswellBC 1289, 2007 CarswellBC 1290, [2007] 2 S.C.R. 391, [2007] S.C.J. No. 27 (S.C.C.) — referred to 6 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (2014), 2014 SCC 68, 2014 CSC 68, 2014 CarswellNat 4175, 2014 CarswellNat 4176, 376 D.L.R. (4th) 387 (S.C.C.) — followed Németh c. Canada (Ministre de la Justice) (2010), (sub nom. Németh v. Canada (Minister of Justice)) 263 C.C.C. (3d) 434, (sub nom. Németh v. Canada (Minister of Justice)) [2010] 3 S.C.R. 281, 5 A.L.R. Int’l 801, 11 Admin. L.R. (5th) 159, (sub nom. Németh v. Canada (Minister of Justice)) 408 N.R. 198, (sub nom. Nemeth v. Canada (Minister of Justice)) 328 D.L.R. (4th) 431, (sub nom. Németh v. Canada (Minister of Justice)) 221 C.R.R. (2d) 6, 2010 SCC 56, 2010 CarswellQue 11954, 2010 CarswellQue 11955, 91 Imm. L.R. (3d) 165, [2010] S.C.J. No. 56 (S.C.C.) — followed Qu v. Canada (Minister of Citizenship & Immigration) (2000), [2000] 4 F.C. 71, 188 F.T.R. 226, 2000 CarswellNat 705, 5 Imm. L.R. (3d) 129, 2000 Car- swellNat 3263, [2000] F.C.J. No. 518 (Fed. T.D.) — considered Qu v. Canada (Minister of Citizenship & Immigration) (2001), 2001 FCA 399, 284 N.R. 201, 2001 CarswellNat 2977, 2001 CarswellNat 3593, 18 Imm. L.R. (3d) 288, 217 F.T.R. 198 (note), [2002] 3 F.C. 3, [2001] F.C.J. No. 1945 (Fed. C.A.) — referred to Reference re Secession of Quebec (1998), 228 N.R. 203, 1998 CarswellNat 1300, 161 D.L.R. (4th) 385, 1998 CarswellNat 1299, 55 C.R.R. (2d) 1, [1998] 2 S.C.R. 217, 51 C.R.R. (2d) 1, [1998] S.C.J. No. 61 (S.C.C.) — referred to Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, 2002 CSC 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — followed Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — referred to s. 2(d) — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 57 — referred to Geneva Conventions Act, R.S.C. 1985, c. G-3 s. 9 — referred to Najafi v. Canada (Min. of Public Safety) 7

Immigration Act, R.S.C. 1927, c. 93 Generally — referred to Immigration Act, S.C. 1952, c. 42 Generallt — referred to s. 5(m) — considered s. 5(n) — considered s. 9(c) — referred to Immigration Act, R.S.C. 1985, c. I-2 s. 19 — referred to s. 19(1)(e) [rep. & sub. 1992, c. 49, s. 11(2)] — considered s. 19(1)(f) [rep. & sub. 1992, c. 49, s. 11(2)] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1) — referred to s. 3(1)(h) — considered s. 3(3)(d) — considered s. 25 — referred to s. 34 — considered s. 34(1) — considered s. 34(1)(a) — considered s. 34(1)(b) — considered s. 34(1)(e) — referred to s. 34(1)(f) — considered s. 34(2) — considered s. 42.1(1) [en. 2013, c. 16, s. 18] — considered s. 42.1(2) [en. 2013, c. 16, s. 18] — considered s. 44(1) — referred to s. 74(d) — considered s. 115 — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to Protocol Additional to the Geneva Conventions, and Relating to the Protection of the Victims of International Armed Conflicts, 1977, C.T.S. 1991/2,2.1; 1125 U.N.T.S. 3; 16 I.L.M. 1391 Generally — referred to Preamble — considered Article 4 — considered Vienna Convention on the Law of Treaties, 1969, C.T.S. 1980/37; 1155 U.N.T.S. 331; (1969) 63 A.J.I.L. 875 Article 31 — referred to 8 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Article 32 — referred to

APPEAL by applicant from judgment reported at Najafi v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 FC 876, 2013 Car- swellNat 3289, 19 Imm. L.R. (4th) 122, 2013 CF 876, 2013 CarswellNat 4797, 62 Admin. L.R. (5th) 147, 438 F.T.R. 135 (Eng.) (F.C.), dismissing his application for judicial review of Immigration Division of Immigration and Review Board’s decision declaring him inadmissible pursuant to ss. 34(1)(b) and (f) of Immigration and Refugee Protection Act.

Lorne Waldman, Clare Crummey, for Appellant David Cranton, Sofia Karantonis, for Respondent

Johanne Gauthier J.A.:

1 This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government. 2 The judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination? 3 In this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)). 4 For the reasons that follow, I propose that this appeal be dismissed. Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 9

I. Facts 5 Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Can- ada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI. 6 The Minister of Public Safety and Emergency Preparedness (the Min- ister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA. 7 During the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Can- ada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self- determination.

II. The decision of the Immigration Division of the Immigration and Refugee Board 8 First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in constru- ing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied. 9 With respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision). 10 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

10 The Division rejected the argument that the KDPI had two rival fac- tions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision). 11 Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision). 12 The Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision). 13 In view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing — although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision). 14 Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a dem- Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 11

ocratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reac- tionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision). 15 The Division then reviewed the KDPI’s methods. After acknowledg- ing that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision). 16 The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision). 17 The Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision). 18 The Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision). 19 The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has 12 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).

III. The Federal Court decision 20 The judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (F.C.) (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed.

(i) Paragraph 34(1)(b) and International law 21 In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law. 22 After summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 13

iii) If so, does international law mandate the interpretation Mr. Najafi advances? 23 In respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Minister of Citizenship and Immigration), 2013 FCA 87 (F.C.A.) [B010] (paragraphs 58 to 60 of the Reasons). 24 The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons). 25 Turning to the second issue under this heading — did the Division err in not considering international law — the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons). 26 The judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73). 27 The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74-79 of the 14 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “con- tinuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons).

(ii) Section 2(d) of the Charter 28 In paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter. 29 The Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right. 30 On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.) applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case — when the Min- ister is exercising his statutory discretion — that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons). 31 In respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 (S.C.C.), and Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (S.C.C.), to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi). Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 15

32 The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship & Immi- gration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.) [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds. 33 The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran. 34 Having satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.

IV. Legislation 35 At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 16 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

(h) to protect public health and safety and to maintain the security of Canadian society; (3) This Act is to be construed and applied in a manner that (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; (f) complies with international human rights instruments to which Canada is signatory. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013). 3. (1) En matière d’immigration, la présente loi a pour objet: h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet: d) d’assurer que les décisions prises en vertu de la présente loi sont conformes a` la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 17

d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du fran¸cais et de l’anglais a` titre de langues officielles du Canada; f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire. 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants: a)etre ˆ l’auteur d’actes d’espionnage ou se livrer a` la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; b)etre ˆ l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; c) se livrer au terrorisme; d) constituer un danger pour la sécurité du Canada; e)etre ˆ l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; f)etre ˆ membre d’une organisation dont il y a des motifs raison- nables de croire qu’elle est, a et´´ e ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable a` l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a et´´ e abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).

V. The Issues 36 The judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge. 37 Mr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? 18 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government? 38 Also, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA. 39 Mr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.

VI. Analysis A. The Certified Question and paragraph 34(1)(b) of the IRPA (1) Preliminary comments 40 It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.) at paragraph 11). 41 It is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination? 42 At paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 19

are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA. 43 These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable. 44 This may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above). 45 That said, the judge’s intent becomes clear when one considers her comments in context — both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b). 46 From this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?

B. The international law in issue: preliminary comments 47 In this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”). 48 It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war). 20 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

49 The international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.). 50 Rather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, Ren´e Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law. 51 Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example Ren´e Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b). 52 I do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Pro- tocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision. 53 Hence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions. 54 This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status — refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention. Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 21

C. The standard of review 55 In this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at paragraphs 45 to 47 [Agraira]). 56 Turning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (A.T.A. v. Alberta (Information & Privacy Com- missioner), 2011 SCC 61 (S.C.C.) at paragraph 34, Agraira at paragraph 50, British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.) at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA. 57 This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Di- vision is within the range of possible, acceptable outcomes.

D. Interpretation of paragraph 34(1)(b) 58 Before embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi. 59 First, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93). 60 With respect to the first question, it is clear that like any decision- maker tasked with statutory interpretation, the Division must apply the 22 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 61 International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite. 62 That said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Can- ada is a signatory, or does not involve a particularly well established rule of customary international law. 63 Moreover, recently, the Supreme Court of Canada in Németh c. Canada (Ministre de la Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 (S.C.C.) [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereaf- ter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35). 64 Turning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Can- ada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 23

section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way. 65 As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing ... the government”) is very much in line with the ordinary meaning of the French text (« actes visant au renversement d’un gouvernement »). Al- though in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts. 66 I note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship & Immigration), [2000] 4 F.C. 71 (Fed. T.D.), rev’d in 2001 FCA 399 (Fed. C.A.), the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal. 67 In the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”. 68 While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed. 24 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

69 The notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism. 70 This is why the judge put as much emphasis as she did on the imme- diate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question. 71 Although the IRPA has many objectives listed in section 3(1), Parlia- ment indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security. 72 Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Govern- ment of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: « les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas a` un gouvernement organisé et s’y opposent... »). 73 It was in 1952 that the word “subversion” was first used in the Immi- gration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or ... are likely to engage in or advocate subversion by force or other means of democratic government...” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocrati- ques... ». A new paragraph, 5(n), was also included to prohibit the entry of “persons ... likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 25

(in French: « les personnes qui ... sont susceptibles de se livrer a` l’espionnage, au sabotage ou a` tout autre activité subversive dirigée contre le Canada ou préjudiciable a` sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada. 74 The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above. 75 With the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above). 76 I note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue. 77 It is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine). 78 There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution — that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application. 79 The comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected govern- 26 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

ment” in paragraph 34(1)(b) before the Standing Committee on Citizen- ship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision. 80 Obviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Min- ister’s own initiative). 81 This mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Can- ada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad. 82 It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state. 83 At this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear. 84 As in N´emeth, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I. 85 In Hernandez Febles v. Canada (Minister of Citizenship and Immi- gration), 2014 SCC 68 (S.C.C.) [Hernandez Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Con- Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 27

vention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation. 86 The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Ge- neva Conventions of 12 August 1949 can be construed as legitimiz- ing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Par- ties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question. 87 I also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authori- ties, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement. 88 That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage. 89 Even if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law. 28 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

90 Like the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative. 91 In reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Ca- nadian Armed Forces based on his or her actions as a Canadian soldier.

E. Paragraph 34(1)(f) and section 2(d) of the Charter (a) Notice of Constitutional Question 92 Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter. 93 Despite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue. 94 In a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI. Najafi v. Canada (Min. of Public Safety) Johanne Gauthier J.A. 29

95 Again, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply. 96 I agree. In such a case, no notice of constitutional question is required. 97 That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).

(b) Reading down paragraph 34(1)(f) 98 The judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right. 99 With the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy. 100 I will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision. 101 The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FCA 274 (F.C.A.), that no temporal connection is required between the 30 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal. 102 Mr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b). 103 At the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada. 104 In my view, this is too wide. It would offend the holding of the Su- preme Court of Canada in Suresh. 105 In Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member. 106 Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Dor´e made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection. 107 Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not rea- Najafi v. Canada (Min. of Public Safety) D.J. Near J.A. 31

sonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewrit- ing the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Hernandez Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Char- ter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”. 108 Given that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to vio- late section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.

VII. Conclusion 109 In view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative.

J.D. Denis Pelletier J.A.:

I agree

D.J. Near J.A.:

I agree Appeal dismissed. 32 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Kazi v. Canada (Minister of Citizenship and Immigration)] Mohmed Sufian Kazi, Appellant(s) The Minister of Citizenship and Immigration, Respondent Immigration and Refugee Board of Canada (Immigration Appeal Division) Docket: TB2-12377 D.J.T. Mungovan Member Heard: March 3, 2014; April 23, 2014 Judgment: June 24, 2014 Immigration and citizenship –––– Admission — Immigrants — Family class — Marriage for immigration purposes — Genuineness of marriage –––– Sponsor was born in India, and was Canadian citizen — While residing in Canada, sponsor entered into proxy marriage with applicant in India — Sponsor and applicant exchanged vows by telephonic transmission followed by sponsor’s proxy in India signing marriage contract with sponsor — Applicant’s application for permanent resident visa as member of family class and sponsored by sponsor was refused — Visa officer determined that marriage was not validly performed under Indian law, was not genuine and was entered into primarily for purpose of acquiring status under Immigration and Refugee Protection Act — Sponsor appealed — Appeal dismissed — Marriage was not genuine and was entered into primarily for immigration purposes — There were many material inconsistencies in evidence and dishonesty displayed by sponsor and applicant at hearing — Failure on part of sponsor and applicant to plan future together in event applicant was unable to come to Canada was inconsistent with depth of planning which would be expected in genuine spousal relationship where visa was needed for applicant to live with sponsor in Canada and visa post had refused to grant one for applicant. Cases considered by D.J.T. Mungovan Member: Ahmad v. Canada (Minister of Citizenship and Immigration) (July 28, 2008), Doc. TA6-15053, [2008] I.A.D.D. No. 1835 (Imm. & Ref. Bd. (App. Div.)) — referred to Amapali v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 CarswellNat 3801, 2010 CarswellNat 3802 (Imm. & Ref. Bd. (App. Div.)) — considered Amini v. Canada (Minister of Citizenship and Immigration) (June 10, 2010), Doc. TA8-06430, [2010] I.A.D.D. No. 959 (Imm. & Ref. Bd. (App. Div.)) — considered Kazi v. Canada (MCI) 33

Apt v. Apt (1948), [1948] P. 83 (Eng. P.D.A.) — referred to Arfaoui v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 549, 2010 CarswellNat 2924, 2010 CarswellNat 1419, 2010 FC 549, [2010] F.C.J. No. 653 (F.C.) — referred to Aryan v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 4026, 2004 CF 254, 247 F.T.R. 271, 2004 FC 254, 2004 Car- swellNat 547, 36 Imm. L.R. (3d) 300, [2004] F.C.J. No. 334 (F.C.) — referred to Bolentiru v. Radulescu (2004), 10 R.F.L. (6th) 258, [2004] O.T.C. 698, 2004 CarswellOnt 3292, [2004] O.J. No. 3325 (Ont. S.C.J.) — considered Canada (Minister of Employment & Immigration) v. Narwal (1990), 10 Imm. L.R. (2d) 183, [1990] 2 F.C. 385, 111 N.R. 316, 1990 CarswellNat 27, 1990 CarswellNat 681, 26 R.F.L. (3d) 95 (Fed. C.A.) — considered Canada (Ministre de la Citoyennet´e & de l’immigration) c. Oyema (2011), 2011 CF 454, 2011 CarswellNat 1211, 2011 CarswellNat 2214, 2011 FC 454 (F.C.) — considered Chavez v. Canada (Minister of Citizenship & Immigration) (February 17, 2005), Doc. TA3-24409 (Imm. & Ref. Bd. (App. Div.)) — considered Cheikhna c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2012), 2012 FC 1135, 2012 CarswellNat 3777, 2012 CarswellNat 4498, 2012 CF 1135, 16 Imm. L.R. (4th) 113 (F.C.) — referred to Cheni (Rodriguez) v. Cheni (1962), [1965] P. 85, [1962] 3 All E.R. 873, [1963] 2 W.L.R. 17 (Eng. P.D.A.) — considered Dalumay v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1179, 2012 CarswellNat 3947, 2012 CarswellNat 4818, 2012 CF 1179, 420 F.T.R. 1 (Eng.) (F.C.) — considered Devos v. Devos (1970), [1970] 2 O.R. 323, 10 D.L.R. (3d) 603, 1970 Carswell- Ont 593 (Ont. C.A.) — considered Elahi v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 2727, 2011 CF 858, 2011 CarswellNat 3657, 99 Imm. L.R. (3d) 298, 2011 FC 858, 394 F.T.R. 90 (Eng.), [2011] F.C.J. No. 1068 (F.C.) — followed Etler v. Kertesz (1960), 26 D.L.R. (2d) 209, [1960] O.R. 672, 1960 CarswellOnt 128 (Ont. C.A.) — considered Feiner v. Demkowicz (1973), 14 R.F.L. 27, 42 D.L.R. (3d) 165, 1973 Carswell- Ont 191, 2 O.R. (2d) 121 (Ont. H.C.) — considered Gill v. Canada (Minister of Citizenship and Immigration) (2012), 13 Imm. L.R. (4th) 153, 2012 FC 1522, 2012 CarswellNat 5162, 2012 CF 1522, 2012 Car- swellNat 5538, 424 F.T.R. 40 (Eng.), 61 Admin. L.R. (5th) 80, (sub nom. Kaur Gill v. Canada (Citizenship and Immigration)) [2014] 2 F.C.R. 442, [2012] F.C.J. No. 1643, [2012] A.C.F. No. 1643 (F.C.) — followed 34 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Haque v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1638, 2011 CF 315, 2011 FC 315, 2011 CarswellNat 626, [2011] F.C.J. No. 394 (F.C.) — considered Iantsis (Papatheodorou) v. Papatheodorou (1970), 1970 CarswellOnt 154, [1971] 1 O.R. 245, 15 D.L.R. (3d) 53, 3 R.F.L. 158, [1970] O.J. No. 1642 (Ont. C.A.) — considered Ipala c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 FC 472, 2005 CarswellNat 5607, 2005 CarswellNat 898, 2005 CF 472, [2005] F.C.J. No. 583 (F.C.) — referred to Jasen v. Karassik (2009), 2009 ONCA 245, 2009 CarswellOnt 1507, 95 O.R. (3d) 430, 62 R.F.L. (6th) 63, 306 D.L.R. (4th) 723, 248 O.A.C. 5, [2009] O.J. No. 1175 (Ont. C.A.) — considered Kamara v. Canada (Minister of Citizenship & Immigration) (2011), 97 Imm. L.R. (3d) 272, 2011 CF 243, 2011 CarswellNat 1326, 385 F.T.R. 122 (Eng.), 2011 CarswellNat 654, 2011 FC 243 (F.C.) — referred to Kaur v. Canada (Minister of Employment & Immigration) (1990), 1990 Car- swellNat 62, 12 Imm. L.R. (2d) 1, 129 N.R. 387, [1990] F.C.J. No. 922 (Fed. C.A.) — considered KC v. City of Westminster Social & Community Services Department (2008), [2008] 2 F.L.R. 267, [2009] Fam. 11, [2008] Fam. Law 517, [2009] 2 W.L.R. 185, [2008] EWCA Civ 198 (Eng. & Wales C.A. (Civil)) — considered Kuqo v. Canada (Minister of Citizenship and Immigration) (May 3, 2011), Doc. TB0-06772, 5326-8240, [2011] I.A.D.D. No. 2012 (Imm. & Ref. Bd. (App. Div.)) — referred to Mahmoudian v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1162, 2008 FC 508, 2008 CarswellNat 2427, 2008 CF 508 (F.C.) — referred to Marriage Legislation in Canada, Re (1912), C.R. [1912] 1 A.C. 126, 46 S.C.R. 132, 6 D.L.R. 588, 1912 CarswellNat 74 (S.C.C.) — considered Mukhtar v. Canada (Minister of Citizenship and Immigration) (August 18, 2004), Doc. VA3-01448, [2004] I.A.D.D. No. 1888 (Imm. & Ref. Bd. (App. Div.)) — followed Muscutt v. Courcelles (2002), 213 D.L.R. (4th) 577, 2002 CarswellOnt 1756, 160 O.A.C. 1, 60 O.R. (3d) 20, 26 C.P.C. (5th) 206, 13 C.C.L.T. (3d) 161, [2002] O.T.C. 509, [2002] O.J. No. 2128 (Ont. C.A.) — considered Mustafa v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1322, 2008 FC 564, 2008 CarswellNat 6471, 2008 CF 564, [2008] F.C.J. No. 717 (F.C.) — referred to Quao v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 1682, 2000 CarswellNat 5860, [2000] F.C.J. No. 1283, [2000] A.C.F. No. 1283 (Fed. T.D.) — referred to Kazi v. Canada (MCI) 35

Ramalingam v. Canada (Minister of Citizenship & Immigration) (1998), 1998 CarswellNat 35, 1998 CarswellNat 4213, [1998] F.C.J. No. 10 (Fed. T.D.) — referred to Rehman v. Canada (Minister of Citizenship and Immigration) (August 31, 2007), Doc. TA7-02155, [2007] I.A.D.D. No. 2208 (Imm. & Ref. Bd. (App. Div.)) — considered Said v. Canada (Minister of Citizenship and Immigration) (April 21, 2010), Doc. VA9-04392, [2010] I.A.D.D. No. 756 (Imm. & Ref. Bd. (App. Div.)) — considered Sangi v. Sangi (2011), 2 R.F.L. (7th) 59, 2011 CarswellBC 1019, 2011 BCSC 523 (B.C. S.C.) — considered Sarmiento v. Villarico (2014), 2014 BCSC 455, 2014 CarswellBC 707, 63 B.C.L.R. (5th) 358 (B.C. S.C.) — considered Sharma v. Canada (Minister of Citizenship and Immigration) (January 8, 2009), Doc. MA8-07131, [2009] I.A.D.D. No. 190 (Imm. & Ref. Bd. (App. Div.)) — considered Torfehnejad v. Salimi (2006), 32 R.F.L. (6th) 115, 2006 CarswellOnt 7275, 276 D.L.R. (4th) 733, [2006] O.J. No. 4633 (Ont. S.C.J.) — considered Statutes considered: Code civil du Qu´ebec, L.Q. 1991, c. 64 art. 3-6 — referred to art. 8 — referred to art. 376 — referred to Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 s. 91 ¶ 26 — considered s. 92 ¶ 12 — considered Hindu Marriage Act, 1955, No. 25 s. 3(g) “degrees of prohibited relationship” (iv) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Marriage Act, R.S.A. 2000, c. M-5 s. 10(1) — referred to Marriage Act, R.S.B.C. 1996, c. 282 Generally — referred to s. 9(1) — referred to Marriage Act, R.S.M. 1987, c. M50 s. 7(3) — referred to Marriage Act, R.S.N.B. 2011, c. 188 s. 26 — referred to Marriage Act, S.N.L. 2009, c M-1.02 s. 10 — referred to 36 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Marriage Act (Nunavut), nun-R.S.N.W.T. 1988, c. M-4 s. 10 — referred to Marriage Act, R.S.O. 1990, c. M.3 Generally — referred to s. 5 — considered s. 25 — considered Marriage Act, R.S.P.E.I. 1988, c. M-3 s. 10 — referred to Marriage Act, 1995, S.S. 1995, c. M-4.1 Generally — referred to Marriage Act, R.S.Y. 2002, c. 146 s. 10 — referred to s. 13 — referred to Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46 Generally — referred to Solemnization of Marriage Act, R.S.N.S. 1989, c. 436 s. 22 — referred to s. 23 — referred to s. 24 — referred to Rules considered: Célébration du mariage civil, Règles sur la, RLRQ 1981, CCQ, r. 3 Generally — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 2 “marriage” — referred to s. 4 — considered s. 4(1) — considered s. 4(1)(a) — considered s. 4(1)(b) — considered s. 4.1 [en. SOR/2004-167] — considered s. 5 — considered s. 125(1)(a) — referred to s. 125(1)(c) — referred to

APPEAL by sponsor from decision by visa officer refusing applicant’s application for permanent residence under family class.

Jacqueline Swaisland, for Appellant Erin Franklin, for Minister Kazi v. Canada (MCI) D.J.T. Mungovan Member 37

D.J.T. Mungovan Member: Introduction 1 No one is permitted to marry in Canada by proxy. And, yet, the parties to this appeal are agreed that Canadian law permits a person while residing in Canada to enter into a proxy marriage with a person in another country. In 2007 in the case of Rehman v. Canada (Minister of Citizenship and Immigration) [(August 31, 2007), Doc. TA7-02155 (Imm. & Ref. Bd. (App. Div.))],1 a Member of the Immigration Appeal Division (IAD) assumed without analysis that a telephonic transmission marriage was lawful. An issue raised in this appeal is whether the appellant lawfully married the applicant in circumstances where they purported to do so by exchanging vows by telephonic transmission followed by the appellant’s proxy in India signing a marriage contract with the applicant. 2 The appellant, Mohmed Sufian Kazi, appeals from the refusal of an application for a permanent resident visa made by the applicant, Sabiha Mohmed Sufian Kazi, as a member of the family class and sponsored by the appellant. The application was refused because a visa officer determined that the marriage was not validly performed under Indian law, is not genuine and was entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (the “IRPA”).2 This appeal also involves both parties to the marriage having misrepresented to Canadian immigration authorities why they purported to enter into a marriage.

Issues and Decision 3 On appeal the respondent took the position that the marriage was lawful in India but contends it is not genuine and was entered into primarily for immigration purposes. Notwithstanding the position adopted by the respondent, I indicated at the opening of the hearing that written submissions include the validity of this form of marriage. 4 I note with interest that contrary to the position taken by the respondent in this appeal, the respondent in Mukhtar v. Canada (Minister of Citizenship and Immigration) [(August 18, 2004), Doc. VA3-01448

12007, CanLII 70786. 2S.C. 2001, c. 27, as amended. 38 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

(Imm. & Ref. Bd. (App. Div.))]3 sought, but was not permitted because of the lateness in making the request, to add as a ground of refusal that the proxy marriage was unlawful under the Marriage Act of British Co- lumbia.4 In Amapali v. Canada (Minister of Public Safety & Emergency Preparedness) [2010 CarswellNat 3801 (Imm. & Ref. Bd. (App. Div.))]5 and in Rehman v. Canada (Minister of Citizenship and Immigration)6 which is discussed later in these reasons, the two presiding Members of the IAD assumed in obiter dicta and without reference to any authorities that the IAD had accepted the notion of proxy marriages. Consequently, the validity of those proxy marriages did not form a part of the reasoning in those decisions. 5 Having considered the evidence and submissions of the parties, I find that the marriage is not valid and, furthermore, the appellant has not met the burden of proof in respect of the tests provided for in former section 4 and current section 4(1) of the Immigration and Refugee Protection Regulations7 (Regulations). As a result, I also find that the marriage was entered into primarily for immigration purposes and is not genuine. Ac- cordingly, the appeal is dismissed.

Background 6 Born in Gujarat, India, the appellant is 28 years old and a Canadian citizen. The applicant is 22 years old. She was born in Ankdod, India and is a citizen of India. The appellant and the applicant are first cousins. Their respective mothers are sisters. Being children of two sisters does not offend provincial and federal laws in Canada, however, they come within one of the degrees of prohibited relationships set out in section 3(g)(iv) of the Hindu Marriage Act, 1955 which provides as follows: 3(g) “Degrees of prohibited relationship” — two persons are said to be within the “degrees of prohibited relationship” — (iv) if the two are...children of brother and sister or of two brothers or of two sisters.

3(IAD no. VA3-01448), Munro, August 18, 2004. 4RBSC chapter 282, as amended. 5(IAD No. TA5-07352), Ross, June 25, 2010; 2010 CanLII 55007. 6(IAD No. TA7-02155), Waters, August 31, 2007. 7SOR/2002-227, as amended. Kazi v. Canada (MCI) D.J.T. Mungovan Member 39

Analysis 7 The Immigration Officer in New Delhi had the following concerns: • The marriage was not performed in accordance with the requisite formalities of a Muslim marriage in that with respect to the solemnization of the marriage the appellant could not get permission from his boss to attend the marriage in person so a proxy phone marriage was held by way of the applicant’s maternal grandfather’s cousin taking the appellant’s vows over the phone and re- laying them. However, words of proposal and acceptance must be uttered by the contracting parties or their agents (Vakils) in each other’s presence and hearing and in the presence and hearing of two male, or one male and two female witnesses who must be sane and adult Muslims and the whole transaction must be completed at one meeting but no formalities by way of religious ceremony or writing are at all necessary; • The applicant changed her version regarding why the wedding could not be postponed from her maternal grandfather was not keeping well, and was going to get bladder surgery so he wanted the applicant to get married as soon as possible to him having had his bladder surgery 2 years earlier but he was not keeping well and wanted the applicant to get married as soon as possible; • The applicant at first claimed the wedding could not be held at an earlier date because the proxy contract had been drafted and then switched to claim pre-wedding shopping as the reason; • The applicant presented a letter dated August 5, 2012 signed by Mohammed Mohammedy as the Health Manager of Healthy Planet. The period during which the appellant was allegedly needed by his boss to open a new store was stated in the letter to be April 2012 to July 2012 whereas the wedding took place in June 2011 and the dates of the year were scribbled over in handwriting to show the year as 2011 then 2012 was written in the margin again by hand. However, the marriage was in June 2011; • It was not credible the appellant could not attend the wedding because he was needed by his boss to open the doors of the new employer store as key holder and attend to customers; • The appellant did not visit the applicant until August 9, 2012 which was the first time the applicant saw the appellant since 2002 and her interview was scheduled for August 28, 2012; 40 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

• It is not logical that a large reception for 400 people was held in 2011 when the appellant could not be present but when he went to India in August 2012 a small reception with 70 people was held; and • Suggesting giving food and drinks is not the equivalent of a reception was merely playing with words. 8 The evidence consisted of the appellant and his brother, Rayhan Kazi (Rayhan), testifying in person and the applicant by teleconference. Docu- mentation included, among other things, the Record, photographs stated to have been taken during the appellant’s trips to India, telephone records, money transfer receipts, medical records of Rayhan, Indian nursing home records and travel records.

Proxy marriages have garnered little recent judicial analysis in Canada 9 There are decisions of the IAD such as in Said v. Canada (Minister of Citizenship and Immigration) [(April 21, 2010), Doc. VA9-04392 (Imm. & Ref. Bd. (App. Div.))],8 Sharma v. Canada (Minister of Citizenship and Immigration) [ (January 8, 2009), Doc. MA8-07131 (Imm. & Ref. Bd. (App. Div.))]9 and Amini v. Canada (Minister of Citizenship and Im- migration) [(June 10, 2010), Doc. TA8-06430 (Imm. & Ref. Bd. (App. Div.))]10 where the presiding Members upheld proxy marriages but in those cases no consideration was given to the essential validity of the solemnization of those marriages or to the meaning of “Canadian law” as that term is used in section 2 of the Regulations. There are also IAD decisions in which the broad statement is made without reference to any authority and without any analysis to the effect that foreign proxy marriages are recognized in Canada: see Amapali v. Canada (Minister of Public Safety & Emergency Preparedness);11 and Kuqo v. Canada (Minister of Citizenship and Immigration) [(May 3, 2011), Doc. TB0- 06772, 5326-8240 (Imm. & Ref. Bd. (App. Div.))].12 10 Likewise the refusal of recognition of the proxy marriage is not easily illustrated in the authorities. I have considered cases in which the Federal

8(IAD no. VA9-04392), Kingma, April 21, 2010. 9(IAD no. MA8-07131), Fecteau, January 8, 2009. 10(IAD No. TA8-06430), Paul, June 10, 2010. 11Supra, footnote 5. 122011 CanLII 89386. Kazi v. Canada (MCI) D.J.T. Mungovan Member 41

Court of Canada had before it the validity of proxy marriages. In all of those cases I have been able to access, the Court was not asked to consider whether the proxy marriages were celebrated in Canada nor for that matter were they decided on the basis that they did not contravene section 2 of the Regulations which requires marriages held outside Canada to be valid under “Canadian law”: see Canada (Ministre de la Citoyenneté & de l’immigration) c. Oyema;13 Mahmoudian v. Canada (Minister of Citizenship & Immigration);14 Arfaoui v. Canada (Minister of Citizenship & Immigration)15 (proxy marriage not recognized by Ca- nadian border authorities); Kamara v. Canada (Minister of Citizenship & Immigration);16 Kamara v. Canada (Minister of Citizenship & Immigra- tion);17 Quao v. Canada (Minister of Citizenship & Immigration) [2000 CarswellNat 1682 (Fed. T.D.)];18 Mustafa v. Canada (Minister of Citizenship & Immigration);19 Ipala c. Canada (Ministre de la Citoyenneté & de l’Immigration);20 Cheikhna c. Canada (Ministre de la Citoyenneté et de l’Immigration);21 and Aryan v. Canada (Minister of Citizenship & Immigration).22 Not only does this mean that the principles upon which the choice of law with respect to proxy marriages depends are undeveloped, but it is particularly regrettable that the internal law of Canada should be deprived of its control over the married status. 11 Some sixty five years ago in England the Privy Council upheld a marriage celebrated by proxy in Argentina between a man and a woman resident in Argentina and England, respectively, since Argentina law considered such marriages valid.23 That there is a move in England away from recognizing such marriages at least in the case of telephonic marriages is

132011 FC 454 (F.C.). 142008 FC 508 (F.C.). 152010 FC 549 (F.C.). 162011 FC 243 (F.C.). 172011 FC 243 (F.C.). 182000 CanLII 15954. 192008 FC 564 (F.C.). 202005 FC 472 (F.C.). 212012 FC 1135 (F.C.). 222004 FC 254 (F.C.). 23Apt v. Apt, [1948] P. 83 (Eng. P.D.A.). 42 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

illustrated in the recent and troubling case of KC v. City of Westminster Social & Community Services Department,24 a telephonic marriage between a severely mentally challenged adult in the UK and a woman in Bangladesh was declared invalid as against English public policy with the result that the English Court of Appeal refused to give effect to the law of Bangladesh and Sharia law. In the course of delivering his judgment, Lord Justice Thorpe announced that but for the capacity issue important questions of law and public policy otherwise could have arisen in that case regarding where such marriages take place. Lord Justice Thorpe wrote: 40. In the case of marriages contracted by a trans-national telephone call the ascertaining of the place of celebration is likely to involve difficult problems of great legal significance. There are public policy issues. The French Civil Code was amended in 1993 to add a new Article 146(1): “The marriage of a French person, even where contracted in a foreign country, requires his presence.” The reason for this was to deal with problems arising from marriages of convenience celebrated by proxy in Morocco and Algeria. 41. One obvious reason why the place of celebration may be legally significant is that one contracting party may escape the rules as to the formation of marriage applicable in that jurisdiction. More than 60 years ago it was decided that recognition of a marriage by proxy in a foreign country was not contrary to English public policy: Apt v Apt [1948] P 83 (CA). But these courts have not had to consider a marriage by telephone with one spouse in country A and the other in country B. It is for English law to determine where is the place of celebration. It may be in country A, or in country B. Some foreign authors suggest, in the case of proxy marriages, that it should be regarded as celebrated in both countries, thus requiring compliance with the formalities of each: Rabel, Conflict of Laws, 2nd ed. 1958, vol 1, pp 243-244. 12 There is a body of opinion that such matters as employment commit- ments make personal participation in a marriage ceremony impossible or impracticable and thus justify proxy marriages using modern technology such as the Internet and telephone. The proponents of relaxing the prohibition against this form of marriage however fail to address the discon-

24[2008] EWCA Civ 198, [2009] 2 W.L.R. 185, [2008] Fam. Law 517 (Eng. & Wales C.A. (Civil)). Kazi v. Canada (MCI) D.J.T. Mungovan Member 43

nection between a couple beginning their lives apart in what is supposed to be the start of life together. 13 Not as often discussed but perhaps more realistic is that proxy marriages raise the potential for marriages of convenience, already a challenge for immigration authorities, in order to obtain permanent resident status and eventually citizenship in Canada. It is not only that the parties may, for instance, connive so as to get a family member into Canada but also a Canadian may be abused by a deceitful foreigner seeking permanent residency instead of a life-long partner. Such proxy marriages could also involve involuntary marriages of women and children. They could also be employed by sex traffickers to bring in women who then unsus- pectingly find themselves involved in sex work in Canada.

Compliance with the law of solemnization specified in the jurisdiction where the marriage is celebrated is essential to the validity of the solemnization of marriage 14 At issue in this appeal, among other things, is the essential validity of the solemnization of the marriage. Not long after the beginning of the last century, in In Marriage Legislation in Canada, Re,25 the Supreme Court of Canada provided advice upon the power of Parliament to give effect to the proposed enactment of a Bill attempting, in its first section, to validate by Dominion legislation marriages solemnized by or before a person having only a limited provincial authority to solemnize marriages in cases where such person has ignored such limitations and attempted to solemnize a marriage beyond the powers given him or her by a provincial legislature. In advising that Parliament did not have authority to en- act such a provision, the Chief Justice stated at page 335 that in Canada if the formalities of marriage are not adhered to there is no marriage. Whatever may be, with respect to the capacity of the parties, the authority over marriage which is vested by section 91 [of the British North America Act, 1867] in the Dominion Parliament, there can be no doubt, in my opinion: — 1st. That a marriage is not valid and can produce no civil effects until solemnized. 2nd. That solemnization, which includes the form and ceremony of marriage, is, by virtue of section 92 of the “British North America

25(1912), 46 S.C.R. 132 (S.C.C.). 44 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Act,” within the exclusive legislative competency of the different provincial legislatures. 3rd. That there is no marriage within a province where all the legal formalities prescribed by the legislature of that province are not observed. 4th. That Parliament has no power or authority to remedy any omission or defect or to dispense with any of the requirements with respect to form or ceremony which are prescribed by the legislature of the province within which the marriage is solemnized.26

Ascertaining the jurisdiction whose law is applicable to the essential validity of the solemnization of the telephonic exchange of marriage vows between one party in one country and the other in a different country 15 As a first step in determining the law that governs the formalities of the marriage, that is to say the rites and ceremonies proper or indispensa- ble for its due celebration, one starts with an examination of the evidence relating to the process in which the spouses took part. The applicant informed the immigration officer who interviewed her at the visa post in New Delhi that before the wedding a letter was received (presumably by her family) from the Pickering Islamic Center in Ontario dated May 22, 2011. She said it indicated the appellant wished to have a proxy marriage with her. The document she refers to is headed “Proxy Certificate of Marriage”. It names the appellant as the person by whom and the person to whom the proxy is given to perform the Nikah (Islamic marriage contract) and fixes the Mehar (payment to the applicant) at 300 Canadian dollars to be paid upon demand. It is signed by the appellant and wit- nessed in Ontario. 16 The applicant told the officer the proxy marriage was conducted on June 19, 2011 through the telephone and that the appellant’s maternal grandfather’s cousin took the appellant’s vows over the telephone and repeated them to the applicant in Ankdod, Gujarat, India then relayed her vows over the telephone to the appellant in Ontario. The marriage certificate appears to have been issued in India by someone with the same surname as the appellant and signed by a person purportedly authorized to solemnize the marriage and by three witnesses (presumably to the execu-

26Ibid., p. 270. Kazi v. Canada (MCI) D.J.T. Mungovan Member 45

tion of the marriage certificate not the vows as there was no suggestion they were on the telephone call). 17 Curiously, the proxy certificate of marriage does not identify the appellant by his surname. Also, the proxy is shown as having been given to “Usman Dawood Kazi”. Strangely, he is not listed in the sponsor questionnaire as a family member the applicant met. In reality what we have in the present case is a telephonic marriage dressed up as a proxy marriage. 18 A Certificate of Registration of the Marriage under seal was issued on July 2, 2011 with respect to the registration of the appellant’s and applicant’s marriage with the Government of Gujarat at Ankdod. This marriage certificate cannot be taken to be determinative of the law governing the formalities of the marriage as it is no more than rebuttable evidence of a marriage: see Ramalingam v. Canada (Minister of Citizenship & Im- migration) [1998 CarswellNat 35 (Fed. T.D.)].27 Thus, it remains to be determined what law applies with respect to the solemnity of the marriage. 19 The following passage in Canadian Conflict of Laws (4th ed.) J. G. Castel, which was quoted with approval by Greer J. in Torfehnejad v. Salimi [2006 CarswellOnt 7275 (Ont. S.C.J.)],28 establishes that there must be conformity with the law where the marriage is celebrated. The law of the place of celebration of a marriage governs all the formalities surrounding the actual ceremony of marriage itself, including such questions as whether a religious ceremony is necessary or sufficient, whether a marriage may be constituted per verba da praesenti, that is by an informal exchange of consent, or whether a marriage may be celebrated by proxy. The Court of the domicile has, however, jurisdiction over the legality of the marriage and may determine whether that marriage may be annulled. Salvesen [Or Von Lorang v. Administer of Austrian Property, [1927] A.C. 641 (H.L.)] stands for the principle that the Court in Ontario is entitled to use the evidence of Rouhi and statements in Islamic texts, to inform itself of the law in Iran at the time the ceremony took place.

271998 CanLII 7241 at paragraph 5. 282006 CanLII 38882 at p. 354. 46 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

20 The jurisdiction of the place where marriage is celebrated, the lex loci celebrationis, is not usually difficult to identify. This is because both parties are present at the ceremony. However, in the context of a telephonic exchange of marriage vows between one party in one country and the other in a different country discovering the place where such marriage occurred is not so easy. 21 It cannot be that the jurisdiction in which the certificate by which the marriage was evidenced was executed by the applicant and the appellant’s proxy and registered governs as those acts are not required for there to be a marriage in India. Furthermore, where the expressed intention is to live in the domicile of the spouse who is a permanent resident or citizen of Canada then it seems artificial to apply the law of the place where a marriage certificate is registered or even where the formalities are conducted. 22 In determining the validity of proxy marriages courts rightly have been alert that they do not unwittingly fail to respect mores practiced elsewhere. Cheni (Rodriguez) v. Cheni29 contains a passage that speaks eloquently to this concern. In that case uncle and niece, who later became domiciled in England, married in Cairo in accordance with Jewish rites. Both intended to enter into a monogamous marriage. The marriage was valid by Jewish and Egyptian law, albeit that it was potentially polygamous because Egyptian law allowed polygamy. However, it became ir- revocably monogamous on the birth of a child. Much later, the wife took proceedings in England to annul the marriage on the ground of consanguinity, and the question for the President, Sir Jocelyn Simon P (as he then was), was whether or not the court had jurisdiction to adjudicate on a marriage which, at its inception, was potentially polygamous and where there had been a child born of that union. In the course of deciding as he did, the President said: If domestic public policy were the test, it seems to me that the arguments on behalf of the husband, founded on such inferences as one can draw from the scope of the English criminal law, prevail. Moreo- ver, they weigh with me when I come to apply what I believe to be the true test, namely, whether the marriage is so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law. In deciding that question the court will seek to exercise common sense, good manners and a rea-

29(1962), [1965] P. 85 (Eng. P.D.A.). Kazi v. Canada (MCI) D.J.T. Mungovan Member 47

sonable tolerance. In my view it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation. Nor do I think that I am bound to consider such marriages merely as a generality. On the contrary, I must have regard to this particular marriage, which, valid by the religious law of the parties’ common faith and by the municipal law of their common domicile, has stood unquestioned for 35 years. I must bear in mind that I am asked to declare unmarried the parents of a child who is unquestionably legitimate in the eyes of the law.

Marriage is a contract and a status 23 As the jurisdiction of the place where a telephonic marriage is celebrated is not readily identifiable so as to establish the law that applies to the formalities essential to the validity of such a marriage, the starting point for ascertaining the proper law of the marriage is to consider what constitutes a marriage. It seems undeniable that at its core it exists as a contract. Davies J. writing for the majority of the Supreme Court of Can- ada in In Marriage Legislation in Canada, Re made it abundantly clear that in many respects marriage is a contract and that compliance with the legislated formalities of the province where the marriage is celebrated is essential to the validity of its solemnization, the breach of which renders the marriage void. At pages 340 and 341, His Lordship expressed the concept of marriage in terms of a contract: The subject-matter, “the, solemnization of marriage in the province,” covers and aptly expresses, in my judgment, every manner or mode in which competent parties, intending to contract marriage with each other, might validly so contract. No limitation was placed upon the power of the legislatures to which that subject-matter was assigned.... If apt and proper language is used in provincial legislation, making any form of solemnization or the presence of any designated person or any person of a designated class, religious or civil, essential to the validity of the solemnization of a marriage and such requisite is disregarded and ignored, the marriage is ipso facto void and cannot be validated by the Dominion Parliament. 24 Schroeder, J.A., in Iantsis (Papatheodorou) v. Papatheodorou,30 took a more expansive view of marriage holding it “is something more than a

30(1970), [1971] 1 O.R. 245 (Ont. C.A.) at p. 248, (1970), 15 D.L.R. (3d) 53 (Ont. C.A.) at p. 56, (1970), 3 R.F.L. 158 (Ont. C.A.). 48 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

contract. It creates mutual rights and obligations as all contracts do, but beyond that it confers a status. In its essence it may be defined as the voluntary union for life of one man and one woman to the exclusion of all others: Hyde v. Hyde L.R. 1 P.D. 130; Robb v. Robb 20 O.R. 591.” 25 Under the Regulations to qualify as a spouse a foreign national must not be in a polygamous marriage.31 Accordingly, to be considered a spouse under the IRPA and the Regulations, the marriage as a minimum must consist of a contract entered into with the appropriate formalities whereby the spouses agree to lifetime loyalty and faithfulness to the exclusion of all others. It follows that the validity of a telephonic marriage turns on the proper law of the marriage. 26 The appellant has presented what purports to be legal opinions regarding the validity of telephonic marriages. A careful scrutiny of those opinions however reveals they go no further than to opine that proxy marriages are lawful in accordance with Sharia law as it is applied in India. This is not surprising given all unmarried women need a guardian and also the common appearance of child brides. However, these opinions do not consider the issue I have to decide which is what is the proper law of the marriage where the spouses are domiciled in different countries and exchange vows over the telephone.

The solemnization of a telephonic marriage must accord with the laws of the jurisdiction with the closest and most real connection to the marriage 27 In considering the few cases that discuss the issue of formal validity of a marriage, it is important to distinguish between “marriage” and “marriage contract” as that expression is used in those cases. Generally, by “marriage contracts” is meant contracts made before and during marriage and after separation. Nevertheless, the cases with respect to marriage contracts provide some assistance in determining the proper law to apply to establish the validity of the formality of marriage. 28 In England two schools of thought have emerged. Some commenta- tors have argued in favour of requiring compliance with the rules on contracts made over the phone. Wolff, for example, uses the written corre-

31See sections 2, 5 and 125(1)(a) and (c) of the Regulations. Kazi v. Canada (MCI) D.J.T. Mungovan Member 49

spondence to make his point but equally his reasoning should apply to telephonic communications. He states: The contract is completed when the acceptance of the offer of marriage is dispatched. Can it be inferred from this that it suffices if the law of the place where the acceptance was dispatched permits marriage by correspondence? Certainly not. The marriage contract de- mands two valid declarations; it is therefore necessary that marriage by correspondence should also be admitted by the law of the place where the offerer is staying at the time when he sends his offer.32 29 Dicey & Morris are somewhat less definite. They consider that the English courts: [P]robably ... would require to be satisfied that a marriage could be concluded in this manner by the laws of each of the two countries; but it is just possible that they might apply the rules as to contracts made by correspondence or over the telephone.33 30 In a somewhat outmoded decision in Devos v. Devos,34 Schroeder J.A. writing for an unanimous Ontario Court of Appeal determined that the proper law of a contract entered into between spouses before the marriage was the law of the husband’s domicile at the time of the marriage. He wrote: It is settled in English law that where there is a marriage contract, the terms of the contract govern the mutual rights of husband and wife in respect of the property affected by the contract which may be then possessed or afterwards acquired. The marriage contract will be construed with reference to the proper law of the contract, i.e., in the absence of reason to the contrary, by the law of the husband’s actual domicile at the time of the marriage, and not the domicile which the spouses may have intended to acquire and did acquire immediately after the marriage. If this be a correct statement of the law, then the fact that the husband and wife emigrated to Canada less than three

32Wolff, PIL 344. See also the Law Reform Commission Report On Private In- ternational Law Aspects Of Capacity To Marry And Choice Of Law In Proceed- ings For Nullity Of Marriage In Ireland (LRC 19-1985) where this passage is quoted. 33Dicey & Morris, 9th ed., 1973 at p. 265. See also the English Law Commis- sion Working Paper No. 89 and the Scottish Law Commission Consultative Memorandum No. 64, para 2.38 (1985). 34[1970] 2 O.R. 323 (Ont. C.A.). 50 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

months after the execution of the marriage contract and the celebration of the marriage is without significance. 31 The Supreme Court of British Colombia in Sangi v. Sangi35 accepted the argument that the presumption set out in Devos that it is the husband’s domicile that applies for determining the proper law of a marriage contract is sexist and consequently wrong. Madam Justice Gray was of the view that where the domicile of the spouses does not assist in determining the proper law it is the system of law with which the transaction has its closest connection that applies. The Court wrote at paras 210 to 214: [210] This presumption [set out in Devos] has been challenged as sexist: see Lawrence Collins, ed., Dicey and Morris on The Conflict of Laws, 14th ed. (London: Sweet and Maxwell, 2006), vol. 2 at 1263, commenting that, [D]espite the authorities in favour of the traditional rule, it is no longer acceptable for the law to discriminate on the grounds of sex [footnotes omitted]. ... If the husband and wife [are not domiciled in the same country], it is suggested that the applicable law should be that of the country with which the parties and the marriage have the closest connections, equal weight being given to connections with each party. [211] Furthermore, in applying the common law, Canadian courts must ensure that it conforms with the values set out in the 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. One such principle is that of equality between men and women which is enshrined in s. 15: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Hill v. Church of Scientology of To- ronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; and Casavant v. Cash Money Cheque Cashing Inc., 2008 BCSC 1556 (CanLII), 2008 BCSC 1556. Therefore, any consideration of domicile by a Canadian court would have to look to the domicile of both spouses. [212] If the domicile of the parties is not helpful in determining the proper law of contract, the court may instead determine the law of the contract by looking at the contract objectively. The law in connection with ordinary contracts sets out a number of factors to consider in determining the implied proper law of a contract.

352011 BCSC 523 (B.C. S.C.). Kazi v. Canada (MCI) D.J.T. Mungovan Member 51

[213] As stated by Steyn L.J. in concurring reasons in Star Shipping A.S. v. China National Foreign Trade Transportation Corporation (The “STAR TEXAS”), [1993] 2 Lloyd’s L.R. 445at 451 (C.A.): In the absence of an express choice of law, the first question is whether an appropriate implied intention can be gathered from the terms of the contract and the circumstances of the case. If no such implied intention is established, the contract is governed by the system of law with which the transaction has its closest connection. [214] In Imperial Life Assurance Company of Canada v. Segundo Casteleiro Y Colmenares, 1967 CanLII 7 (SCC), [1967] S.C.R. 443 at 448, Ritchie J. cited the factors that the court should consider to determine the “closest and most substantial connection” between a contract and the law governing it: The many factors which have been taken into consideration in various decided cases in determining the proper law to be applied are described in the following passage from Cheshire on Private International Law, 7th ed., p. 190: The court must take into account, for instance, the following matters: the domicile and even the residence of the parties; the national character of a corporation and the place where its principal place of business is situated; the place where the contract is made and the place where it is to be performed; the style in which the contract is drafted, as, for instance, whether the language is appropriate to one system of law, but inappropriate to another; the fact that a certain stipulation is valid under one law but void under another; ... the economic connexion of the contract with some other transaction; ... the nature of the subject matter or its situs; the head office of an insurance company, whose activities range over many countries; and, in short, any other fact which serves to localize the contract. 32 As a general rule, marriage contracts do not contain a choice of law or forum selection provision. Courts in Ontario have frequently been called upon to ascertain the proper law of such contracts. In Etler v. 52 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Kertesz,36 the Ontario Court of Appeal held that in seeking to ascertain the intention of the parties as to the proper law of the contract in the absence of any expressed intention it should be determined as the one with which the transaction has its closest and most real connection. And, in Jasen v. Karassik,37 the Ontario Court of Appeal was asked to construe a separation agreement that was made at the time between a person domiciled in New York and a person domiciled in Ontario. In that case the contract did not contain a choice of law or forum selection provision. One of the reasons the Court asserted jurisdiction against the party in New York was based on its decision in Muscutt v. Courcelles38 in that Ontario had a real and substantial connection to the matter being litigated and service ex juris has been properly effected. 33 In determining the law with which the formalities of marriage has the most “real and substantial” connection, normally the law of each party’s domicile governs. This view is based on the notion that the community to which each party belongs is most interested in his or her status. In Bolentiru v. Radulescu,39 where the husband was domiciled in Canada and the wife was domiciled in Romania, the Court found it had the jurisdiction to annul a marriage that took place with both parties attending a ceremony in Romania, and did so. The grounds for annulment were that Romanian law required evidence of the termination of husband’s prior marriage. The husband had not and could not provide such evidence because on the day of the Romanian marriage the divorce of his first wife had not yet been finalized. Ontario Superior Court Justice Sills wrote at para 26: Where a Canadian court is asked to determine validity of a foreign marriage, judicial authority generally supports the view that formalities of marriage are governed by the law of each party’s domicile at the time of marriage, which would include Romania in this case. (See for example Schwebel v. Ungar (1964), 42 D.L.R. (2d) 622 (Ont.C.A.), aff’d (1965), 48 D.L.R. (2d) 644 (S.C.C.), Feiner v. Demkowicz (1973), 42 D.L.R. (3d) 165 (Ont. H.C. J.); Uppal v. Min- ister of Employment and Immigration (1968), 73 N.R. 140 (F.C.A.).

36[1960] O.R. 672 (Ont. C.A.). 372009 ONCA 245 (Ont. C.A.). 38(2002), 60 O.R. (3d) 20 (Ont. C.A.), at paras 19-20. 39[2004] O.T.C. 698, 10 R.F.L. (6th) 258 (Ont. S.C.J.). Kazi v. Canada (MCI) D.J.T. Mungovan Member 53

34 The intended matrimonial home doctrine is another theory found in cases dealing with the capacity to marry that also could apply to establish the proper law pertaining to the formalities of marriage. In Sarmiento v. Villarico,40 Justice Voith at para 32 quoted with approval a passage in Janet Walker, Castel & Walker Canadian Conflict of Laws, 6 ed., loose- leaf (Markham, Ont.: LexisNexis Canada, 2005), in which the authors succinctly state the following with respect to capacity to marry at para 16.4: In Canada, judicial authority generally supports the view that capacity to marry is governed by the law of each party’s antenuptial domicile. However, Canadian courts have sometimes referred to the intended matrimonial home doctrine, which recognizes that the community in which the parties plan to live together as husband and wife is the one primarily interested in the validity of their marriage. On occasion, it has been held that capacity to marry is governed by the intended matrimonial home even where that intention had not been carried out and, in the circumstances, could not be carried out unless the marriage was first recognized as valid. The law governing capacity to marry determines such matters as whether a person lacks capacity due to his or her age or a prior sub- sisting marriage. [Footnotes omitted.] 35 The principle underlying the intended matrimonial home approach is that it is the place where the parties choose to make their home that has the greatest interest in whether their union should continue, and this approach best gives effect to the parties’ reasonable expectations. An objection to this approach is that the issue of status is uncertain at the time the ceremony takes place, and it is of necessity retrospective in its application. Thus, this approach was commented on but not endorsed in Feiner v. Demkowicz,41 and was not applied in 1990 by the Federal Court of Appeal in Canada (Minister of Employment & Immigration) v. Narwal.42 36 In Narwal, the Federal Court of Appeal was asked to consider an issue regarding the essential validity of the marriage. I underscore that the Court was not asked to consider the marriage from the point of view of

402014 BCSC 455 (B.C. S.C.). 41(1973), 2 O.R. (2d) 121 (Ont. H.C.). 42[1990] 2 F.C. 385 (Fed. C.A.). 54 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

its essential formality. In that case, the applicant, domiciled in India, and the sponsor, domiciled in Canada, each travelled to the United Kingdom (U.K.), a third country, and married. It was accepted by the parties in the Narwal case that the marriage in the U.K. would not have been prohibited in Canada. After the marriage, the applicant returned to India and filed an application for permanent residence in Canada, thinking that this had to be done in his homeland. The sponsor returned to Canada. The Court Federal Court of Appeal found that the parties, at all times, intended to make Canada their future home and that the U.K. marriage, on balance, was judged valid with respect to its essential validity within the context of Canadian immigration law. As in the present case, the parties in the Narwal case fell within the prohibited degrees of relationship under Indian law because the marriage was between a woman and her former husband’s brother. Even so, the Court concluded that the validity of the marriage was governed by the law of the intended matrimonial home of both parties, in that case, Canada, and the marriage was ad- judged valid. 37 However, in Kaur v. Canada (Minister of Employment & Immigra- tion),43 the Federal Court of Appeal indicated that the law of the intended matrimonial home is to be applied exceptionally in determining the essential validity of the marriage, and only in “very special circumstances” such as those that existed in Narwal where the marriage had been celebrated in a third country, there was no doubt about the good faith of the spouses, and the spouses had a “clear and indefeasible” intention to live in Canada immediately and definitely”. The Federal Court of Appeal in Narjinder Kaur was not prepared to apply the law of the intended matrimonial home where the visa officer did not believe the marriage was bona fide and no effect could be given to the intention of the spouses to live in Canada because the applicant had been previously de- ported and was prohibited from coming into Canada without a Minister’s permit. Accordingly, the law of the prenuptial domicile was applied. 38 Whether one applies the law of the domicile of each party at the time of the marriage or the law of the place of the intended matrimonial home the result in the present case is the same. Under the “dual domicile” theory, if the solemnization of the marriage was not essentially valid under the law of each party’s prenuptial domicile, then applying the advice of

43(1990), 12 Imm. L.R. (2d) 1 (Fed. C.A.) [hereinafter Narjinder Kaur]. Kazi v. Canada (MCI) D.J.T. Mungovan Member 55

the Supreme Court of Canada in Marriage Legislation in Canada, Re there is no marriage.

Solemnization of telephonic marriage where one party is domiciled in Ontario, which is also the intended matrimonial home, and the other is outside Canada must accord with the laws of Ontario 39 Canada is divided into two jurisdictions. The Government of Canada has exclusive authority governing marriage and divorce in Canada under section 91(26) of the Constitution Act, 186744 (the “Act”). But, section 92(12) of the Act extracted from the federal government’s jurisdiction over marriage and gave to the provinces the power to pass laws regulat- ing the solemnization of marriage. Thus, rules governing solemnization of this marriage are determined by the laws of the province of Ontario where the appellant was domiciled and which is also the intended matrimonial home for the spouses. Those laws are codified in the Marriage Act.45 40 In Ontario, this marriage is not lawful because it purportedly was entered into in breach of section 25 of the Marriages Act,46 which requires the parties be present at the solemnization. Section 25 provides: Attendance of parties and witnesses 25. Every marriage shall be solemnized in the presence of the parties and at least two witnesses who shall affix their names as witnesses to the entry in the register made under section 28. R.S.O. 1990, c. M.3, s. 25.

Section 2 of the Regulations does not apply because a telephonic marriage cannot be said to have taken place outside Canada. Alternatively, by virtue of section 25 of Ontario’s Marriages Act this marriage is not lawful for the reasons stated above 41 Parliament of Canada requires that in order for a foreign national applying as a spouse to be considered a member of the family class or a family member, the foreign national’s marriage that took place outside Canada must meet the definition of marriage as set out in section 2 of the

4430 &31 Victoria, c. 3, Victoria (UK). 45RSO 1990, c. M-3, as amended. 46RSO 1990, c. M-3, as amended. 56 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Immigration and Refugee Protection Regulations (Regulations)47 and must not be excluded by virtue of sections 4, 4.1, or 5 of the Regulations. Section 2 is as follows: “marriage”, in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law. 42 Unfortunately, the impact of section 2 on the law in Canada relating to the formal validity of a proxy marriage has not been the focus of judicial consideration up until now so I am without authoritative guidance in this regard. A plain, literal reading of section 2 leaves no doubt that it only applies to a marriage that took place outside Canada. As I have found it cannot be said with any degree of certainty where this telephonic marriage between the appellant and the applicant took place, section 2 can have no application. 43 Although it is sometimes asserted that in Canada the rules concerning the formalities of a marriage vary from province to province that is not correct in the case of proxy marriages as every province and territory in Canada prohibits them.48 Citizenship and Immigration Canada (CIC) in- structs its officers to apply provincial law where the proxy marriage is performed at a foreign mission in Canada. Section 5.30 in OP 2 - Processing Members of the Family Class (OP 2) at section 5.30 states: If a proxy marriage occurs at a foreign mission in Canada (the proxy is given by the foreign national and the Canadian resident is present at the mission for the ceremony), the marriage must meet the legal requirements of Canada (federal and provincial) in order to be legally

47SOR /2002-227, as amended. 48Alberta, Marriage Act, RSA 2000, c M-5 as amended, section 10(1); British Columbia, Marriage Act [RSBC] Chapter 282 as amended, section 9(1); Mani- toba, Marriage Act, CCSM, c M50, as amended, section 7(3); New Brunswick, RSNB 2011, c 188, as amended, section 26; Newfoundland and Labrador, Mar- riage Act, SNL 2009, c M-1.02, as amended, section 10; Northwest Territories, Marriage Act, RSY 2002, c 146, as amended, sections 10 and 13; Nova Scotia, Solemnization of Marriage Act, RSNS 1989, c 436, as amended, sections 22, 23 and 24; Nunavut, Marriage Act, RSNWT (NU) 1988, c M-4, as amended, section 10; Prince Edward Island, Marriage Act, RSPEI 1988, c M-3, as amended, section 10; Quebec, Rules Respecting the solemnization of civil marriages and civil unions, RRQ, c CCQ, r 3 Civil Code art. 376 as amended, sections 3 to 6 and 8; Saskatchewan, Marriage Act, 1995, SS 1995, c M-4.1, as amended, section 7(3); and Yukon, Marriage Act, RSY 2002, c 146, as amended, section 10. Kazi v. Canada (MCI) D.J.T. Mungovan Member 57

valid. At this time, no provinces permit proxy marriages; therefore, these marriages are invalid. 44 Foreign missions enjoy extraterritorial status in the broad sense that they are afforded special privileges such as immunity from the host country’s laws and host countries require permission to enter them. Thus, a proxy marriage at a foreign mission in Canada is really no different than a foreign proxy marriage in that when the formalities of the marriage are conducted both parties are celebrating their marriage in the foreign country, although one party is domiciled in Canada and the other is domiciled in the foreign country. Thus, it is unclear why CIC treats the celebration of such a marriage as occurring in a province or territory of Canada or at least there must be compliance with the laws of the province or territory unless it is because the law of each party’s antenuptial domicile or the law of the intended matrimonial home of both parties governs the validity of the solemnization of the marriage. 45 Remarkably, CIC’s direction to its officers regarding a proxy marriage where one party is domiciled in Canada and the other is in a foreign country and no foreign mission is involved is for them to disregard provincial and territorial law of Canada. Thus, section 6.0 of OP 2 provides: At a proxy marriage one of the participants is not present and has named a proxy to represent him or her. If the law of the country in which the marriage ceremony was performed permits proxy marriages, they are legal marriages for immigration purposes, provided they are legal under Canadian federal law. 46 Clearly recognizing that the language of section 2 of the Regulations lends itself to being interpreted to require that a marriage where one party is domiciled in Canada and the other is in a foreign country must be valid under both Canada’s federal and its provincial law, section 6.0 of OP 2 was crafted so that it goes beyond what is the language used in section 2 of the Regulations by adding thereto the word “federal” so as to restrict its application to federally enacted laws. Thus, the direction reads that foreign marriages of this type need only be valid under “Canadian federal law” when in fact section 2 simply provides such a marriage must be valid under “Canadian law”. 47 Although it is sometimes said that eligibility to marry is determined by Canadian federal laws that include the Marriage (Prohibited Degrees) Act49 which prohibits a person from marrying another person if, for in-

49S.C. 1990, c. 46, as amended. 58 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

stance, they are related lineally by consanguinity or adoption; or as brother and sister by consanguinity, whether by the whole blood or by the half-blood; or as brother and sister by adoption,50 this is not entirely correct. For example, if one is 14 years old and marries while out of the country it is widely recognized that the marriage is not valid and the foreign national is not considered a spouse. That is because the law of the provinces and territories, which in the case of Ontario is in the form of section 5 of the Marriage Act, bars such a minor from marrying when under 16 years of age: see for example Ahmad v. Canada (Minister of Citizenship and Immigration) [(July 28, 2008), Doc. TA6-15053 (Imm. & Ref. Bd. (App. Div.))].51 Thus, it is not the case that a proxy marriage that contravenes Canadian provincial law nevertheless is recognized in Canada as valid merely because it is performed in accordance with the laws of the country where it is celebrated. 48 Furthermore, had Parliament wished to limit members of the family class only to those who are in compliance with federal law irrespective of whether they are acting in accordance with provincial law where both jurisdictions have the authority to legislate regarding the eligibility to marry one would expect it would have done so by using appropriate language. 49 In the present case, I have previously concluded that it cannot be said that this telephonic marriage took place outside Canada. Accordingly, section 2 of the Regulations has no application. The applicant whose marriage was not solemnized in accordance with the law of Ontario is therefore inadmissible to Canada because she is not validly married and thus not a member of the family class. For these reasons the appeal should be dismissed.

Bona fides of the marriage 50 If I am wrong in this and the marriage was validly solemnized then I am required to consider the bona fides of the marriage. At the time of the refusal section 4 Regulations read as follows: 4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partner-

50Ibid., section 2(2). 51(IAD No. TA6-15053), Ahlfeld, July 28, 2008. Kazi v. Canada (MCI) D.J.T. Mungovan Member 59

ship, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.52 51 Effective September 30, 2010, section 4 of the Regulations was amended and section 4(1) is the new provision dealing with “bad faith” marriages, common-law partnerships and conjugal partnerships. It reads as follows: 4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, or a conjugal partner if the marriage, common-law partnership, conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) is not genuine.53 52 Thus, under section 4(1) of the Regulations as it reads at the time of this hearing before IAD, to succeed on appeal the appellant has to prove that the marriage was not entered into primarily for the purpose of the applicant gaining any status or privilege under the IRPA and that it is genuine. To dismiss the appeal, I must find that the marriage was entered into primarily for the purpose of acquiring any status or privilege under the IRPA or that it is not genuine. I have considered the decision of the Federal Court in Elahi v. Canada (Minister of Citizenship & Immigra- tion),54 which applied former section 4 of the Regulations, but in that case the decision of the IAD was made before September 30, 2010, and the referral back to the IAD as a result of a judicial review properly required that the former section 4 of the Regulations continue to apply to that proceeding. In the present case, the hearing before the IAD is subsequent to the enactment of subsection 4(1) of the Regulations and the Fed- eral Court in Dalumay v. Canada (Minister of Citizenship and Immigra- tion)55 held section 4(1) should apply to appeals heard after September 2010, as IAD hearings are de novo appeals falling under the Regulations. As well, I note the Federal Court in Gill v. Canada (Minister of

52SOR/2004-167, s. 3. 53SOR/2010-208, s.1. 542011 FC 858 (F.C.). 552012 FC 1179 (F.C.). 60 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Citizenship and Immigration)56 has taken the view that the version of the Regulations that is applicable to a determination by the IAD of a spon- sorship appeal is the version that was in force at the time the parties made their submissions to the IAD. 53 With regard to the test under subsection 4(1)(b) of the Regulations, genuineness may be assessed by reviewing a number of factors.57 How- ever, each appeal is unique and the importance of individual factors will vary. The test under subsection 4(1)(a) is self-explanatory. Generally, the advantage sought in spousal cases is the entry into Canada of the applicant as a member of the family class. 54 The appellant testified he met the applicant when he was seven or eight years old. The applicant wrote in her sponsored spouse questionnaire that she and the appellant grew up together and they have known each other since childhood. Their families lived in the same village and on the same street. Curiously, the appellant did not list in his sponsor questionnaire his brothers in Canada as members of his family who had met the applicant. 55 The applicant wrote in her sponsored spouse questionnaire that the proposal of marriage was made on March 22, 2011 by the appellant’s

562012 FC 1522 (F.C.). 57See Chavez v. Canada (Minister of Citizenship & Immigration) [(February 17, 2005), Doc. TA3-24409 (Imm. & Ref. Bd. (App. Div.))], Hoare, February 17, 2005, where the following indicia were suggested: • intent of the parties to the marriage; • length of the relationship; • amount of time spent together; • conduct at the time of meeting, at the time of engagement and/or the wedding; • behaviour subsequent to the wedding; • level of knowledge of each other’s relationship histories; • levels of continuing contact and communication; • provision of financial support; • knowledge of and sharing of responsibility for the care of children brought into the marriage; • knowledge of and contact with extended families of the parties; and • knowledge of each other’s daily lives. Kazi v. Canada (MCI) D.J.T. Mungovan Member 61

mother calling by telephone from Toronto. The appellant said it was done this way because he did not want to tell the other family members he was in love with the applicant and wanted to marry her. 56 On the other hand, in his examination-in-chief and repeated on re- examination, the appellant also said he proposed to the applicant in 2008. According to the applicant’s sponsored spouse questionnaire at that time the applicant would have been 16 or 17 years old and in her second year boarding at a high school hostel. However in re-examination, the applicant said she was in either grade 11 or 12 at that time. The appellant was then 23 years of age. 57 The appellant went on to qualify his assertion that he proposed in 2008 by stating in re-examination the 2008 proposal he made was not “official” because the parents did not do it together and announce it in the community. He said the sisters (his mother and the applicant’s mother) talked at that time of the appellant and the applicant getting married but it was when his mother went to India in 2009 and told her sister (the applicant’s mother) that the appellant wanted to marry the applicant that the marriage was then agreed. 58 On re-examination of the applicant, she agreed to the suggestion that there was another reason they did not get married in 2008 aside from their respective mothers not having reached a firm agreement. She said it was also because she was studying. 59 The applicant wrote in her sponsored spouse questionnaire that when the appellant expressed his desire to get married his mother suggested her name to him and he and the applicant then began to contact each other by phone with the result that their relationship took a new turn. The implication of this statement is that until his mother suggested the applicant’s name, the appellant had not considered the applicant as a lifelong partner. 60 Pressed by appellant’s counsel to state when it was that the appellant’s mother told the applicant’s mother about the appellant’s intentions, the applicant responded vaguely that she was told just over the phone that “my son wants to marry her daughter”. 61 Under cross-examination the applicant claimed without precision that when she was about 10 years old her family and the appellant’s family talked, not formally but within themselves, of their getting married. 62 The applicant said the appellant proposed in 2008. She said she liked him and he liked her. She liked his nature which was very nice. She said 62 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

they had known each other since they were children (ignoring she was just 16 years old at that time) and the families knew each other. She continued that when the appellant went to Canada (in 2002) she and the appellant talked over the Internet on Skype. She would speak to the appellant on Skype when she came home from her high school boarding hostel but she was vague about when that occurred. It was evident from the testimony of the appellant and the applicant that they were both straining to push back in time the date when their romantic relationship began. 63 The applicant stated the appellant and she decided they should proceed (with marriage) and that is what the appellant told his mother. The applicant did not answer directly whether the appellant told his mother he wanted to marry the applicant before or after 2009. She said in re- sponse to that question that in 2008 the appellant and the applicant proposed to each other that they would like to get married and in 2009 the appellant’s mother came over to India but there was no discussion about marriage. She said the purpose of the meeting in 2009 was because the appellant’s mother wanted to meet the applicant’s family. The applicant said the appellant’s mother went back (to Canada) and subsequently the appellant told his mother he wanted to get married. Then, the appellant’s mother told the applicant’s mother over the telephone on March 15, 2011 and thereafter the decision was made. 64 On the other hand, the appellant painted a much different picture regarding the beginning of his romantic relationship with the applicant and its development. He testified that by 2002 the applicant and he were best friends, having gone to school and enjoyed family time together. The appellant stated that subsequent to landing in Canada on March 7, 2002 he called the applicant once per week or once per month as they were best friends. He said by 2008 the relationship had developed into a romantic one as by then they were mature enough and had been talking for a long time. He said he understood that the appellant was generous, cares about people and about him and he had developed the feeling that he wanted to spend the rest of his life with her. He pointed out that they have the same background, both religious and cultural. 65 Thus, according to the testimony of the appellant and contrary to what the applicant wrote in her sponsored spouse questionnaire, it was not the appellant’s mother suggesting the applicant’s name to him that started contact between the applicant and the appellant; rather it was the appellant on his own initiative who launched their connection without his mother’s involvement. I find the stark difference between the versions of Kazi v. Canada (MCI) D.J.T. Mungovan Member 63

the appellant and the applicant regarding the genesis of their alleged romantic relationship also undermines the genuineness of their marriage and is a good indication the primary purpose for entering into the marriage was for the applicant to gain status under the IRPA. 66 Furthermore, I find the vague manner the applicant adopted in re- sponding to specific questions relating to the details of the progression of the relationship between her and the appellant also undercuts the reliabil- ity of her testimony. 67 The applicant initially said the appellant did not tell anyone in his family about the proposal in 2008. Then she said her mother knew a little bit. She added that her mother and the appellant’s brother knew they were having conversations on the phone. 68 The applicant attempted to avoid answering why they waited until 2011 to marry. At first, she said in 2009 a celebration took place. This statement contradicts the applicant’s testimony that marriage was not discussed when the appellant’s parents went to India in 2009. Later in her testimony the applicant said there was no specific reason for the delay other than they did not think they should get married immediately. In re- examination, however, the applicant responded positively to the suggestion they did not marry in 2008 because she was studying in grade 11 or 12. 69 As to who decided the date when they should get married, the applicant at first said they all decided. After stating the marriage date was June 19, 2011, the applicant said the appellant’s family and her family decided. She said she told the appellant over the telephone this was the date they were leaning towards. She said they had talked about it and the fact that he was planning on attending the wedding. She added they held a reception in Canada on May 22, 2011 and thereafter they told us the appellant would not be able to come. 70 Next, she said when she asked the appellant if he and others would come, the appellant told her he would not. The applicant had been hope- ful the appellant would come to India but he told her he had something important to do at his job. Asked twice if that was the real reason he did not come for the marriage, the applicant finally said when the appellant came to India for her interview (August 2012) he had a big problem with respect to his leg muscles and that was why he could not come for the wedding. 71 However, in her sponsored spouse questionnaire and in her interview the applicant was consistent in falsely representing why the appellant had 64 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

not been at their wedding in person. She wrote in her sponsored spouse questionnaire that the appellant was not present during the marriage ceremony because after all of the arrangements had been made and all of the guests had been invited, he could not travel because of some last-minute emergency at his workplace. In her interview, the applicant told the officer the appellant’s boss wanted to open a new store in Pickering and wanted the appellant, who has lots of experience and responsibilities, to open the store and be present. In addition, the applicant said the appellant had been working for five years and his boss really needed him to look after the store opening, though the appellant’s employer was aware that the appellant had planned a wedding. 72 In addition, the applicant told the interviewing officer that the wedding could not be postponed because her maternal grandfather was not keeping well, was 80, and going to get bladder surgery so he wanted the applicant to get married as soon as possible. Pressed by the officer to identify when her grandfather was scheduled to get his surgery, the applicant then changed her answer and stated that he had had his surgery two years before but he was not keeping well and wanted her to get married soon. She asserted in that interview that the reason she changed her answer was because she did not explain herself well. 73 Like the visa officer, I am not satisfied with this explanation as it is obvious the applicant was caught having to provide a date of her grandfather’s scheduled surgery which could not be independently verified with the result that she likely would have been forced to reveal she had been untruthful. 74 As stated, the marriage proposal was recorded in the sponsored spouse questionnaire as having occurred on March 15, 2011. The applicant was asked in her interview to explain why they did not hold the wedding on a date before the store opening so that her grandfather would not have to wait. The applicant said that was not done because the proxy letter had already been drafted. After it was pointed out that the proxy letter was not drafted until May 22, 2011, the applicant was asked again to explain why the wedding was not fixed for an earlier date such as in April. The applicant provided the lame excuse that it was because of pre- wedding shopping, etc. In so doing, the applicant reinforced my finding she is not credible, the marriage is not genuine and it was entered into primarily for immigration purposes. 75 The applicant presented to the visa post a typewritten letter dated Au- gust 5, 2012 on the letterhead of the appellant’s employer, Healthy Kazi v. Canada (MCI) D.J.T. Mungovan Member 65

Planet, addressed to itself that confirmed the appellant was denied a holi- day leave for the period from the month of April 1, 2011 to July 31, 2011. Those dates were written over in handwriting showing the period covered was from April 1, 2012 to July 31, 2012. And, by a handwritten note in the margin there was written the year “2011”. The letter went on to recite that a Healthy Planet store in Pickering was recently opened where an experienced employee was needed to stabilize the daily occurring task which the appellant gave them. It continued that the appellant set up the store and also trained new employees and got them acquainted with Healthy Planet internal system. The author of the letter, Mohammed Mohammedy, allegedly Healthy Planet’s manager, listed seven duties of the appellant as reasons for denying granting him holidays, namely, recently opened site in Pickering; appellant is the key holder — opens the store; does the bank deposits frequently; make purchase orders; receiver of the inventory; inventory control; and help customers extensively. 76 Not only are the contents of this letter admittedly a complete fabrication, but the appellant also admitted that the author’s name and signature was a forgery. He said it was his brother who created the letter. Despite his admission the letter is a forgery and riddled with falsehoods, under cross-examination the appellant kept up his deceit. He said his boss did not want him to go to his wedding; it was not the case that he would not let him go. Accordingly, I find that the appellant is not accurate, honest, reliable, and credible generally. 77 The appellant testified that the real reason he did not visit the applicant or, indeed, India up to and including his marriage in 2011 was because he has contracted muscular dystrophy. He said he was ashamed to go to India because he has a hard time running and moving. For the same reason he did not attend his wedding. He said had he done so he would have had to attend at a mosque where there are huge steps that he cannot climb without support with the result that the focus of attention would have been on him not only doing that but also when he went to the stage to sit with the applicant. He charged that in India there are narrow- minded people who make fun of those with disabilities. He knows all the people there and they would talk about him and how he walks. His brother testified people in India look at a person with a physical disabil- ity in a weird way as though you are from a different planet. 78 Indeed, the appellant made the astounding claim that because of his embarrassment with his physical handicap he did not inform the applicant of his impairment before he married her preferring instead to lie to 66 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

her about why he would not be at his wedding in person. He said he decided in May 2011 not to go to the wedding. He alleged he did not want to make her sad. One would reasonably expect that if a couple were genuinely in love and one of them contracted a serious illness he would feel duty bound to disclose this to his love one. The fact that the appellant did not do so undermines the genuineness of the marriage and supports a finding that the marriage was entered into primarily for immigration purposes. 79 The appellant also claimed the date of the wedding was firmed up in June 2011. The applicant told the interviewing officer however the date of the marriage was picked 2 months before they married on June 19, 2011. The appellant offered as an explanation for this inconsistency that the applicant forgot when the date of the marriage was fixed and allowed as he thought small details should not matter. 80 Knowing by the time of this hearing that the appellant’s stated reason why he had not attended his wedding, which was because he was embar- rassed as a result of his muscular dystrophy, nevertheless, the applicant initially testified in her examination-in-chief the appellant did not attend the wedding because his job was important and he could not make it. She added because of his job he needed to stay. Asked by the appellant’s counsel to state the real reason why the appellant was not at the wedding, the applicant contradicted herself and said the appellant’s mother came in 2009 and said the appellant has some problem with his legs. She said her mother was told by the appellant’s mother the appellant’s two brothers have the same illness and the appellant has it as well. She said in 2011 the appellant would have to walk and climb stairs with help in front of the community. She also stated in the village people will make fun of him. 81 The appellant’s brother, Rayhan, said his father sent his twin brother to India in 2007 where he was diagnosed with muscular dystrophy and in 2009 he, too, went to India and was also diagnosed with muscular dystrophy. He said he advised the appellant not to be diagnosed in Canada because he has the same symptoms and Canada was unable to diagnose his twin brother. He said there is no medication for their illness in Canada whereas in India homeopathic treatment is available. 82 The applicant was asked whether the appellant told her before or after her interview at the visa post about his illness to which she responded it was the very day of the interview. She then changed what she said and stated it was the next day the appellant told her. She followed that answer Kazi v. Canada (MCI) D.J.T. Mungovan Member 67

up with a further change. She stated they had a conversation the day before the interview at which time the appellant told her. Whether it was the day before or the day of or the day after her interview that the applicant was told about the appellant’s illness, the applicant would have one believe the appellant’s illness was kept secret from her until long after they married. It defies reason that a major life event would not be shared between the appellant and the applicant if they were in a genuine marital relationship rather than being kept secret from the applicant with the result that it allegedly kept them apart for more than one year after the marriage. 83 In addition, the applicant said she was compelled to put a false reason on her immigration form in order to avoid revealing to the other uncles the appellant’s illness. This evidence however contradicts the applicant’s testimony that she was not told about the appellant’s illness until on or about the day of her interview. 84 Furthermore, there was no good reason suggested as to why the applicant’s mother would not pass on to the applicant that the appellant probably had the same illness as his brothers if her mother knew this by as early as 2009. I find it beyond belief that if the applicant’s mother had learned of the appellant’s illness as early as 2009 she would not have discussed it with her daughter. Consequently, I am satisfied the applicant is continuing to try to mislead regarding why the appellant was not present at the marriage. 85 The applicant said she and her mother knew the appellant’s brother had a similar problem but she did not ask about it as she thought when the appellant comes to India she will ask him. Asked to explain why she waited to ask, the applicant offered that that problem could have come after her marriage and she followed up by asking rhetorically what could she have done about it. I find the applicant’s position is absurd. It goes without saying there were a great many choices available for the applicant, not the least of which was to put an end to the marriage, particularly having regard to the fact the appellant allegedly deliberately kept her in the dark about his illness. 86 The applicant said she trusted the appellant not to tell her a lie but to tell her only the truth. However, when it was put to her in cross-examination that the appellant had lied to her about the reason he was not at their wedding, astonishingly, she repeated his lie as though it was the truth. She said the appellant had asked for time off and his boss replied that he would not give him time off right then. 68 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

87 Contrary to the applicant’s testimony, the appellant said his mother told her sister (the applicant’s mother) in 2007 and 2009 about his medical issues and they were the only ones to know before the wedding. In- deed, the appellant asserted his grandparents do not know to this day. Again, I find it defies reason that a major life event affecting the appellant would not be shared between the applicant and her mother if they were in a genuine marital relationship rather than being kept secret from the applicant. 88 The appellant said his father was with him when he filled out his immigration forms and as he had not told his father about his earlier proposal he made to the applicant, he chose to show in his form that the match was arranged by family as is the custom. He said he did not think specific details mattered (presumably not matter to Citizenship and Immi- gration Canada) and he did not want to hurt his father. I am not satisfied with this explanation as there was no evidence the final forms submitted to Canadian immigration authorities would have been in the control of the appellant’s father or why it was necessary for the appellant’s father to be so involved with them. The appellant and applicant must be taken to know they were obliged to make truthful representations when they signed and delivered the immigration forms. The appellant’s father’s sen- sitivities do not create an excuse for false representations and reliance on them by the appellant undermines his credibility. 89 The applicant sought to explain why she lied at her interview regarding her reasons for the appellant not attending his wedding. She said the interpreter she had hired for the interview at the visa post came to her house and told all of them the Canadian immigration authorities would not consider the appellant’s work commitment was a valid reason and the applicant had to hide it. The applicant said she thought of her grandfather’s surgery 2 to 3 months before the marriage and told that to the interpreter who suggested she show that as the reason for the appellant staying away, which she did. 90 The applicant claimed she was trapped into lying at her interview because her whole family was there and therefore she could not provide a reason, by which I took her to mean she could not tell the truth. Asked if the whole family was with her at the interview, the applicant tried to evade answering by reverting to an earlier time when the interpreter was with her and the whole family before her interview. When the question was repeated the applicant said she was alone at her interview and limited her reliance on the interpreter’s advice because the interpreter repre- Kazi v. Canada (MCI) D.J.T. Mungovan Member 69

sented she had many years of experience. The applicant said the reason she should be believed now is because she is thinking about the Al- mighty up there. 91 There was no reliable evidence to corroborate the bad advice the applicant alleged she received from the interpreter in front of her mother, her mother-in-law, the appellant’s younger brother, her cousin, and her uncle and aunt. Furthermore, in Haque v. Canada (Minister of Citizenship & Immigration),58 the Federal Court in an often quoted decision had before it a judicial review of the decision refusing the applicant’s application for a permanent resident visa on the ground that he was inadmissible to Canada for having omitted and misrepresented certain information in his application. The applicant blamed his consultant for not disclosing he lived and studied in the United States of America for more than one year and for providing the wrong reason for not having done so to the immigration authorities. He also blamed his consultant for the misrepresentation of details regarding his places of residence, his ed- ucation and his employment history. The Federal Court stated at para 15: [15] Mr. Haque has attempted to attribute blame to his consultant for improperly filling out his application. Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para. 31 of Cao, supra: The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as sim- ple as that. 92 In the present case, I find the applicant’s argument that she gave false answers to the visa officer because of advice from her interpreter does not stand. 93 I also find it too farfetched to be true that with the way the appellant’s illness manifests itself, it could be kept from the applicant’s family members. Eventually, they would likely see his symptoms if, indeed, he has muscular dystrophy so whether the illness was disclosed to family members at the time its symptoms presented or later would not seem to be significant. And, there was no suggestion family members would make fun of the appellant for his illness. Indeed, the appellant said family members did not treat him differently in front of him.

582011 FC 315 (F.C.). 70 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

94 The appellant stated that before he left India in 2002 he was fit but contracted muscular dystrophy in 2007-8. He has never been diagnosed with this illness by a medical doctor. However, he is sure he has the illness because both of his twin brothers were diagnosed with it in India when they were 24 years old as doctors in Canada could not figure out their problem. The appellant asserts proof of his having this illness is provided by his having gone to India and undergone homeopathic treatment at an Ayurveda facility and there is a note from Dr. Chang that the appellant seems to have similar symptoms to those of his brother who Dr. Chang is treating. 95 Currently, the appellant’s illness is self-diagnosed. There seems to be no good reason for that even if it was not detected in Canada with regard to his brother. As the appellant is not accurate, reliable, honest and credible, I am not satisfied he suffers from muscular dystrophy. That said, I do not disagree with the submission of the appellant that he could have symptoms of an illness that embarrass him. However, the embarrassment written about Indian reaction to persons with disabilities in articles presented by the appellant is not that one is looked down upon as the appellant and his brother suggest but that instead of empathy disabled people are shown excessive sympathy.59 It was not suggested by the appellant that this was a valid reason to stay away from the wedding. 96 Although muscular dystrophy is caused by a genetic mutation that is particular to the many types of the disease and can be inherited,60 the appellant presented records of a diagnosis of muscular dystrophy from which his brother, Rayhan, suffers. Those records include a prescription in Canada on February 6, 2014 for compressive stockings and orthotic shoes for muscular dystrophy with ankle stiffness, an X-ray ordered in 2009 in India of knees of a patient whose name was changed to the appellant’s brother’s name on the covering note together with an X-ray of both ankles of the appellant and a recommendation for planter facia stretching exercises to heal. There are also 16 graphs of spontaneous activity of muscles and nerves and the like. 97 On February 25, 2014 the appellant obtained a note from his doctor at One-Stop Medical Centre authorizing him to have X-rays of his spine, pelvis and right femur but he has yet to have had this done. His doctor’s

59Exhibit A-2 at p. 56. 60Exhibit A-4, p. 8. Kazi v. Canada (MCI) D.J.T. Mungovan Member 71

note written that date states the appellant seems to have similar symptoms to that of his brothers who were treated by him previously for muscular dystrophy. The appellant said he has an appointment with an urologist. 98 During the course of her interview at the High Commission of Can- ada in New Delhi held on August 28, 2012, the applicant stated that the appellant went to India on August 9, 2012 and that was his first visit since 2002. 99 The appellant said in 2012 it was time for him to go to India. He said he went then because he did not face the problems he would have had for the wedding in that (a) he did not have to climb mosque steps which would have required him to hold onto the applicant’s shoulder for support and keep one hand in his pocket; (b) going to the washroom in the mosque is a challenge because one does not sit down on a toilet seat; and (c) it is part of the culture to be invited to people’s homes and the focus then would have been on him. The appellant testified under cross-examination that he did not return at that time to attend the applicant’s interview. He said he had other plans as well which were therapeutic treatment and to visit the applicant. The appellant testified he and the applicant went on a honeymoon for 4 or 5 days. 100 With respect to the mosque steps, the appellant said he was able avoid the problem in 2012 by going out of his town to a different mosque. It was not made evident why that was not a possibility for his wedding. 101 The applicant said they held a wedding reception on August 28, 2012 at which approximately 70 people attended. At her interview, the applicant sought to explain why it was that in 2011 when she married the appellant over the telephone a reception was held at which 400 people were invited but when the appellant was present a year later only 70 people were at the reception. The applicant purported to back away from her having had a wedding reception in 2011. She told the officer it was not really a reception but rather it was just giving food and drinks to the people who attended the wedding. The interviewing officer rightly considered the applicant to be making a distinction without a difference with the result that the applicant was unable to explain why it was that in 2011 when she married the appellant over the telephone a reception was held at which 400 people were invited but when the appellant was present a year later only 70 people were at the reception. On the other hand, the appellant testified he did not want a large number of people to know of 72 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

his illness so when he returned to India in 2012 they invited only 70 people to a reception and there was no climbing needed. 102 The appellant said Rayhan went to India 10 days after the appellant. Rayhan said it was one week afterwards. The appellant said after two days on August 28, 2012 he went to Delhi with his mother, brother, uncle and wife. He said they shopped and went to the Taj Mahal and took lots of pictures but did not bring any back to Canada. Rayhan said his brother gave up climbing the high steps of the Taj Mahal until the applicant helped him with his hand on her shoulder. Rayhan said it was heartwarming to see. Neither the appellant nor the applicant mentioned the appellant’s accomplishment in succeeding to climb those steps with the aid of the applicant when this impediment had allegedly operated as such a great a deterrent to his being at the wedding. Consequently, I am satisfied Rayhan made up this story to garner sympathy and to try to bolster the credibility of the appellant. 103 The appellant said he went to India on November 22, 2013 and the applicant met him. He said the applicant and he were out all the time. A booking reservation shows the appellant booked travel to India on that occasion for him and 5 other people with the same surname as his. There was his father and mother, Saberabibi Kazi, who both the appellant and the applicant indicated in their respective immigration forms is their aunt,61 and Muhammad Kazi and Zakariyyaa Kazi who was not identified.62 Among the invoices and receipts are tickets for 5 persons to the cinema in India on December 26, 2013. The sequential numbers of the tickets make it likely a copy of one additional ticket was not presented. 104 Prior to that trip there was an email exchange beginning on October 16, 2003 in which Leena Athparia located for the appellant an Ayurvedic hospital in Kerala, India where she wrote they do thorough treatments that involve a slow process of detoxification and restoration during which one has to get naked for the treatment and they put a loincloth on you to do the oil massage. It appears the appellant went there with his father as there is an electronic ticket showing he and his father travelled from Mumbai to Cochin by air on December 27, 2013. There are also

61The applicant shows in her additional family information form she has two half siblings living in Canada but neither of them was booked to depart Toronto and travel to India on November 21, 2013. 62Exhibit A-1 pp. 28a, b and c. Kazi v. Canada (MCI) D.J.T. Mungovan Member 73

invoices from a nursing home in Thrissur where the city of Kerala is located showing the appellant was admitted on December 27, 2013 and discharged on January 15, 2014. His flight to Toronto left Bombay on January 23, 2014. Thus, it can be seen a significant portion of that trip would seem to have been taken up with the appellant’s involvement in Ayurveda programs. 105 The appellant said he takes medication to detoxify his system. He works in an herbal products store and is treated by a naturopathic practitioner recommended by another naturopathic practitioner who works in his store. The appellant presented a declaration from a practitioner at a nursing home in India dated January 14, 2014 indicating he is one of their patients to whom they are sending Ayurveda medicines such as Kashayam, oils, and Choornam. 106 It would seem that with respect to each of the two trips the appellant has taken to India there were activities over and above just being with the applicant. On the first trip, the applicant had her interview at the visa post. Indeed, in her testimony she referred to the appellant’s purpose in going to India then was for her interview, though the appellant said that was not his purpose. On the second trip, the appellant spent much of the time at a homeopathic treatment lodge without the applicant. 107 With respect to the correspondence written by the appellant’s brother and his cousin, I find their letters particularly notable for the use of “maid and butler” dialogue in which one party writes to the other con- veying what they both know for no reason except to inform the audience. For instance, in Rayhan’s undated letter he writes of the time they went to visit the Taj Mahal when the applicant “gushed” over the topic of the history of the Taj Mahal and how the Great Ruler Sharjahan built such a monument in memory of his late beloved wife, Mumtaz, and the appellant told her, “Okay, Mumtaz. Calm down, maybe one day I’ll build one for you.” He also wrote, “She was so happy, and like I said, you guys make each other so happy as if it is effortless for you to put a smile onto each other’s faces as well as the people around you.” 108 The appellant’s cousin, Tasnim, also wrote a letter dated January 13, 2014 using the same trope. For instance, “You two share the bond like I have never experienced before.” And, “Oh my god, I still remember the weirdest, (sic) and most lame joke you have ever come up with. It was during the time we stayed at Surat...” and he continued to repeat the lame joke. Thus crafted, I put little weight on the written correspondence by 74 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

the appellant’s brother and cousin as it smacks of contrivance to bolster the appearance of a genuine marriage. 109 The appellant’s brother, Farhan Kazi, wrote about how likeable the applicant is and that the appellant worries about her. 110 Most of the applicant’s family resides in India. However, her two aunts, distant cousins, and father live in Canada. The appellant professed to know little about the applicant’s father other than that he bought the applicant a gift once. He said the applicant does not communicate with him and that her father would have found out about his marriage with the applicant through his town (presumably the townspeople in his father’s former town in India). He also was not sure if the applicant has a stepsis- ter and stepbrother in Canada. 111 The applicant said she had asked her father to sponsor her to Canada and he responded by saying she had to stay at her father’s place but she could go to her aunt’s house and she could talk to him. The applicant went on to explain that when she was 2 years old her father divorced her mother so her mother went to her mother’s father’s house and her father felt if he calls the applicant in India she should be living with her pater- nal grandmother at what is also his family’s place and thereafter he would sponsor her. The applicant evaded explaining why this was a condition for sponsoring the applicant. I had the distinct impression the applicant was making up her answers on the fly regarding why her father did not sponsor her. However, it is evident that for some time the applicant has wished to be in Canada. 112 The applicant claimed her father wanted her to marry someone in his family but he had not identified anyone in particular. She made no attempt to explain why the appellant was not suitable to her father. She said the last time she spoke to her father was by telephone in 2012 before the appellant went to India. 113 The appellant said the reason he sent money by wire transfer to the applicant’s mother and uncle and not the applicant, though the money was intended for her, was because her passport was in process. The appellant did not explain why the applicant needed a passport to receive money from him. He acknowledged that maybe his family has sent money to the applicant’s family in the past. 114 On the other hand, the applicant said the appellant was sending money to her mother and uncle because they are his aunt and uncle as well. On re-examination the applicant confirmed the money that was sent to her mother and uncle was for them to spend on themselves and added Kazi v. Canada (MCI) D.J.T. Mungovan Member 75

that it was not just the appellant who would send money, his family members did so as well. Indeed, she said money was sent before the proposal. Thus, little weight can be attributed to the record of money trans- fers as support for the genuineness of the marriage. 115 The applicant stated she had not thought about what to do if she cannot come to Canada. She also said she and the appellant have not talked about it. Nevertheless, she asserted in that event the appellant would go to India. I find that this failure to plan a future together in the event the applicant is unable to come to Canada is inconsistent with the depth of planning which would be expected in a genuine spousal relationship where a visa is needed for the applicant to live with the appellant in Can- ada and the visa post had refused to grant one for the applicant.

Conclusion 116 In view of the many material inconsistencies in the evidence and the dishonesty displayed by the appellant and the applicant at this hearing, I am satisfied their marriage is not genuine and was entered into primarily for immigration purposes. 117 The appeal is dismissed.

Notice of Decision The appeal is dismissed. Appeal dismissed. 76 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Bolivar v. Canada (Minister of Citizenship and Immigration)] William Leonardo Bolivar, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1933-13 2014 FC 973, 2014 CF 973 Douglas R. Campbell J. Heard: October 7, 2014 Judgment: October 14, 2014 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — General principles –––– Applicant’s application for citizenship was rejected by citizenship judge for sole reason that he failed to meet residency test — Applicant gave personal family reasons for failing to be physically present in Canada for 1095 days during period required by Citizenship Act — Citizenship judge did not take applicant’s reasons into consideration — Applicant brought application for judicial review — Application granted — Citizenship judge applied stringent test for residence instead of using more flexible approach that was available — Citi- zenship judge applied more rigid test without first considering all evidence applicant presented and without providing applicant with opportunity to persuade citizenship judge to apply more flexible test — Decision breached duty of fairness owed to applicant. Cases considered by Douglas R. Campbell J.: Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed 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.) — followed Seiffert v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1072, 2005 CarswellNat 2225, 277 F.T.R. 253 (Eng.), 2005 CarswellNat 4873, 2005 CF 1072, [2005] F.C.J. No. 1326 (F.C.) — followed Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to Bolivar v. Canada (MCI) Douglas R. Campbell J. 77

s. 5(1)(c) — pursuant to

APPEAL by applicant of refusal of application for Canadian citizenship.

Michael Crane, for Applicant Lorne McCleneghan, for Respondent

Douglas R. Campbell J.:

1 In the decision presently under review, dated October 31, 2013, the Applicant’s application for citizenship was rejected by a Citizenship Judge for the sole reason that he had failed to meet the residency test applied to his application pursuant to s. 5(1)(c) of the Citizenship Act, R.S. 1985, c. C-29 (Act). 2 In his application the Applicant gave personal family reasons for failing to be physically present in Canada for 1095 days during the period required by the Act. The Applicant’s reasons were not taken into consideration by the Citizenship Judge in rejecting the Applicant’s application according to the most stringent test for residence as follows: In deciding whether you satisfy the residence requirement under paragraph 5(1)(c) of the Act, I have chosen to adopt the analytical approach used by the Honourable Mr. Justice Muldoon in Re Pourghasemi. In Pourghasemi, [1993) F.C.J. No. 232 (T.D.), Mul- doon J. considered that it was necessary for a potential citizen to establish that he or she has been physically present in Canada for 1,095 days during the relevant four year period. 3 Counsel for the Applicant argues that, given the Applicant’s evidence that compelling reasons existed for the Applicant’s absence from Can- ada, the Citizenship Judge erred by failing to consider the more flexible approach to the residence requirement as stated in Koo, Re, [1992] F.C.J. No. 1107 (Fed. T.D.). 4 While it is well established that it was open to the Citizenship Judge to choose which test to apply to the Applicant’s application, I find that the decision under review does not conform with the standard set out in Seiffert v. Canada (Minister of Citizenship & Immigration), 2005 FC 1072 (F.C.) at paragraphs 16 - 17: As each case turns on its own merits, I find that no precedent will help me decide whether a denial of justice occurred in the present case. The question to be answered is whether the Applicant, both for himself and the members of his family, had a reasonable opportunity 78 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

during the interview to persuade the Citizenship Judge that the complex and extensive evidence before him warranted a positive citizenship decision. I have no hesitation in saying that the Applicant was not provided with this opportunity. It is very clear from the decision rendered, that the written material did not impress the Citizenship Judge sufficiently to give a positive determination. In such circumstances, it was critically important for the Citizenship Judge to give the Applicant a solid chance to use his powers of persuasion to change his mind. I agree with Counsel for the Applicant that the Citizenship Judge closed the door to this opportunity. Therefore, on the facts of the present case, I find that the failure to accord this meaningful opportunity to be heard is a denial of natural justice. 5 Thus, in the present case, because the Citizenship Judge applied the test in Pourghasemi, Re [1993 CarswellNat 77 (Fed. T.D.)] rather than that in Koo, without first considering all the evidence presented by the Applicant, and without providing the Applicant with an opportunity to persuade the Citizenship Judge to apply Koo rather than Pourghasemi, I find that the decision rendered was in breach of the duty of fairness owed to the Applicant. 6 As a result, I find the decision under review is made in reviewable error.

Order THIS COURT ORDERS that the decision under review is set aside and the matter is referred back for redetermination. I make no award as to costs. Appeal allowed. Bautista v. Canada (MCI) 79

[Indexed as: Bautista v. Canada (Minister of Citizenship and Immigration)] Alcemeba Bautista, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2673-13 2014 FC 1008, 2014 CF 1008 Alan S. Diner J. Heard: September 23, 2014 Judgment: October 22, 2014* Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Standard of review –––– Applicant was citizen of Philippines who lived in Toronto with her 10-year-old Canadian child — Appli- cant obtained permanent residency status as result of being sponsored by her former husband, from whom she separated in 2000 — In 2006, applicant married her current husband, a resident and citizen of Philippines — In course of attempting to sponsor her husband to come to Canada, applicant was directed to attend inadmissibility hearing before Immigration and Refugee Board where removal order was issued — Applicant submitted H&C application that stressed best interests of child (BIOC) — Child had spent her entire life in Canada where she grew up in close proximity to all relevant family members, and did not speak Tagalog fluently — Immigration officer denied applicant’s H&C application, concluding that child would be able to integrate into her new life in Philip- pines — Applicant applied for judicial review of officer’s decision — Applica- tion granted — In rejecting applicant’s H&C application, officer failed to give sufficient consideration to BIOC, and his decision was therefore unreasonable — Officer did not assess case from premise or framework that it was child that must be considered, first and foremost, in BIOC analysis, and that this would not favour removal of parent in all but exceptional circumstances — At best, officer took a neutral approach by looking at whether child could overcome obstacles in returning to Philippines. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Best interests of child –––– Applicant was citizen of Philippines who lived in Toronto with her 10-year-old Canadian child —

*A corrigendum issued by the court on November 3, 2014 has been incorporated herein. 80 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Applicant obtained permanent residency status as result of being sponsored by her former husband, from whom she separated in 2000 — In 2006, applicant married her current husband, a resident and citizen of Philippines — In course of attempting to sponsor her husband to come to Canada, applicant was directed to attend inadmissibility hearing before Immigration and Refugee Board where removal order was issued — Applicant submitted H&C application that stressed best interests of child (BIOC) — Child had spent her entire life in Canada where she grew up in close proximity to all relevant family members, and did not speak Tagalog fluently — Immigration officer denied applicant’s H&C application, concluding that child would be able to integrate into her new life in Philip- pines — Applicant applied for judicial review of officer’s decision — Applica- tion granted — In rejecting applicant’s H&C application, officer failed to give sufficient consideration to BIOC, and his decision was therefore unreasonable — Officer did not assess case from premise or framework that it was child that must be considered, first and foremost, in BIOC analysis, and that this would not favour removal of parent in all but exceptional circumstances — At best, officer took a neutral approach by looking at whether child could overcome obstacles in returning to Philippines. Cases considered by Alan S. Diner J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Chandidas v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 55 (Eng.), 2013 CF 258, 2013 CarswellNat 1765, 2013 FC 258, 2013 CarswellNat 505, 16 Imm. L.R. (4th) 78 (F.C.) — followed Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — followed Joseph v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 993, 2013 CarswellNat 3679, 2013 FC 993, 2013 CarswellNat 3954 (F.C.) — considered Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — followed Lin v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1639, 97 Imm. L.R. (3d) 150, 2011 CF 316, 2011 FC 316, 2011 CarswellNat 661, [2011] F.C.J. No. 395 (F.C.) — considered Mulholland v. Canada (Minister of Citizenship & Immigration) (2001), 15 Imm. L.R. (3d) 152, 2001 CarswellNat 2840, [2001] 4 F.C. 99, 206 F.T.R. 77, 2001 FCT 597, 2001 CarswellNat 1161 (Fed. T.D.) — followed Bautista v. Canada (MCI) Alan S. Diner J. 81

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, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 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 Owusu v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 38, 2004 CarswellNat 248, 2004 CAF 38, 2004 CarswellNat 1117, [2003] 4 F.C. ix, 318 N.R. 300, (sub nom. Owusu v. Canada) [2004] 2 F.C.R. 635, [2004] F.C.J. No. 158 (F.C.A.) — considered Sebbe v. Canada (Minister of Citizenship & Immigration) (2012), 414 F.T.R. 268 (Eng.), 2012 CarswellNat 2169, 2012 FC 813, 2012 CF 813, 2012 Car- swellNat 2911, 10 Imm. L.R. (4th) 321 (F.C.) — considered Toussaint v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FCA 208, 2011 CarswellNat 2311, (sub nom. Ndungu v. Canada (Minister of Citizenship & Immigration)) 423 N.R. 228, [2011] F.C.J. No. 933 (F.C.A.) — referred to Webb v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1060, 2012 CarswellNat 3387, 417 F.T.R. 306 (Eng.), 2012 CF 1060, 2012 CarswellNat 4142, [2012] F.C.J. No. 1147, [2012] A.C.F. No. 1147 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25(1) — considered s. 40(1)(a) — considered

APPLICATION for judicial review of immigration officer’s decision rejecting applicant’s application for permanent residence.

Anthony Navaneelan, for Applicant Khatidja Moloo-Alam, for Respondent

Alan S. Diner J.: I. Overview 1 Alcemeba Bautista [the Applicant] is a citizen of the Philippines bringing a judicial review for a decision rejecting her Application for permanent residence based on humanitarian and compassionate [H&C] 82 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

grounds made pursuant to subsection 25(1) of the Immigration and Refu- gee Protection Act (SC 2001, c 27) [IRPA]. 2 The Applicant is a single mother who lives in Toronto with her 10- year-old Canadian daughter, Renalyn Bautista. The Applicant arrived in Canada on December 12, 1999, obtaining permanent residency status as a result of being sponsored by her former husband, from whom she separated in 2000. 3 In 2006, the Applicant married her current husband, a resident and citizen of the Philippines. In the course of attempting to sponsor her spouse to come to Canada, she was directed to attend an inadmissibility hearing before the Immigration Division of the Immigration and Refugee Board of Canada. The result of this hearing was inadmissibility to Can- ada pursuant to section 40(1)(a) of IRPA for misrepresenting material facts in the course of her permanent residency application with her first husband, who had been in a separate common law relationship at the time. The Removal Order that resulted was upheld by the Immigration Appeal Division and was not appealed further because of deficiencies in the application for judicial review. 4 An H&C Application was submitted on September 15, 2011. The H&C Application stressed the best interests of her Canadian-born daughter, Renalyn. Many of Renalyn’s close personal connections live in Can- ada - her aunt and uncle (the Applicant’s sister) and her two cousins, whom she considers siblings, live on the same floor in her building. Renalyn’s grandmother (the Applicant’s mother) lives in the same building and her other aunt lives in Montr´eal. Her biological father also lives in Toronto, whom she sees on occasion throughout the year. Renalyn visited the Philippines twice as a child, but given that she was between 2- 3 years old at the time, she has no recollection of the trips. She has a rudimentary ability to speak Tagalog, but cannot read or write it. 5 The Applicant also emphasized her own personal and economic establishment in Canada, having lived in the country for over 12 years. Aside from her family connections mentioned above, Ms. Bautista co- owns a convenience store with her sister, owns her own cleaning business and is an active participant in her church. 6 Ms. Bautista’s H&C application was rejected on March 5, 2012 in a decision from an immigration officer in Citizenship and Immigration Canada’s Backlog Reduction Office in Niagara Falls (CIC BRO-NF). The Applicant subsequently sought Federal Court leave to judicially review the H&C refusal, which was granted on November 13, 2012. Just a Bautista v. Canada (MCI) Alan S. Diner J. 83

few days prior to the scheduled Court hearing, the Applicant settled the matter with the Department of Justice, agreeing to a re-determination by a different officer. 7 On March 25, 2013, another immigration officer in the same CIC BRO-NF office issued a decision denying Ms. Bautista’s second H&C application. On April 9, 2013, the Applicant filed a second Federal Court application for leave and judicial review of this new H&C decision [De- cision], and that forms the basis of these Reasons.

II. Decision 8 The Decision denied the H&C application, finding that the Appli- cant’s removal from Canada would not constitute unusual, undeserved or disproportionate hardship. With regard to the Applicant, the CIC BRO- NF officer [Officer] found that her experiences as a business owner would enable her to support herself if removed to the Philippines and the businesses in Canada would be able to continue without her, and that the Applicant has family in the Philippines who would be able to assist with her transition back. The Officer concluded that while leaving Canada would be difficult for the Applicant, she had not integrated herself into Canadian society to the extent that her departure would cause unusual, undeserved or disproportionate hardship. 9 In assessing the best interests of the child [BIOC], the Officer found that Renalyn would be able to integrate into the Filipino school system, in spite of her lack language skills. While separation from her family may be emotionally straining, the Officer found that these relationships could be maintained electronically and through occasional visits. Fur- thermore, the Officer found that while the quality of medical care would not be equivalent to Canada’s, the Applicant was unable to demonstrate that Renalyn had medical issues that either required treatment in Canada or same would be unavailable in the Philippines. The Officer concluded that the BIOC would not be served in the Philippines. The Officer also concluded that the decision of the Applicant to have Renalyn accompany her to the Philippines was a parental choice.

III. Issues 10 The Applicant raised the following issues in her written materials: 1. In rejecting the H&C, did the decision give sufficient consideration to the BIOC? 84 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

2. Did the Officer err in the assessment of the Applicant’s degree of establishment? 11 The hearing focused on the first issue, which raises serious concerns.

IV. Submissions of the Parties 12 First, the Applicant submits that the Officer failed to conform to the structure of conducting a BIOC analysis. The Officer did not, as per the guidance of the Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475 (Fed. C.A.), and Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.), first identify the best interests of the child and then determine the harm that would ensue, and/or apply the test in Chandidas v. Canada (Minister of Citizenship and Immigration), 2013 FC 258 (F.C.), which holds that in addition to the 2 steps above, the Officer must also determine the weight the BIOC factor plays in the ultimate balancing of factors in the application. The Applicant argues the Officer did not identify the best interests of Renalyn or balance various compelling factors in the overall analysis of the application. 13 Ultimately, the Applicant submits that the BIOC will not favour the removal of the parent in all but exceptional circumstances, per the jurisprudence. The Officer characterizes Renalyn’s potential relocation to the Philippines as a neutral factor but does not describe why this is an exceptional case where the BIOC would favour removal of the parent. In short, while the decision describes ways in which Renalyn could adapt to life in the Philippines, it does not provide reasons as to why this would be in her best interests. The Officer also erred by couching the matter of Renalyn’s relocation as a parental choice, in contradiction to the Federal Court of Appeal guidance in Hawthorne that a BIOC analysis includes the hardship that a child would suffer from the decision of a child to accompany a parent abroad. 14 Second, the Applicant contends that the Immigration Officer did not provide a cogent analysis of the Applicant’s establishment in Canada as per Lin v. Canada (Minister of Citizenship & Immigration), 2011 FC 316 (F.C.) at para. 2. The Officer spoke of the Applicant’s establishment in favourable light, but then came to the conclusion that her removal would not constitute unusual, undeserved or disproportionate hardship without corresponding reasons. 15 The Respondent, on the other hand, submits that the Officer’s BIOC analysis was reasonable. As stated in Webb v. Canada (Minister of Bautista v. Canada (MCI) Alan S. Diner J. 85

Citizenship and Immigration), 2012 FC 1060 (F.C.) at para. 13, the Wil- liams test advocated by the Applicant is a useful, but optional, guideline. There is no formal requirement as to the words that must be used or the approach that must be followed in H&C applications, as long as the Of- ficer was alert, alive and sensitive to the BIOC [Hawthorne at para. 7]. The Officer demonstrated this sensitivity by considering several factors, including Renalyn’s familial circumstances and her ability to adapt to Filipino society. The Respondent submits that the Officer, unlike the Ap- plicant contends, did not conclude that the BIOC favoured Ms. Bautista’s removal from Canada when finding that,”....the codification of the principle of “best interest of a child” in the Immigration and Refugee Protec- tion Act requires that it be given substantial weight in the assessment of an application however; it is only one of many important factors that must be considered.” 16 As for the Officer’s analysis of establishment, the Respondent re- minds the Court that H&C approval is an exceptional, discretionary measure: The process is not designed to eliminate hardship inherent in being asked to leave the country, but rather unusual, undeserved and disproportionate hardship. As the decision notes, leaving family and job is not unusual, undeserved and disproportionate hardship which in this case, was a consequence of staying on in Canada without proper status.

V. Analysis 17 The parties agreed that the standard of review with respect to this case is one of reasonableness, and hence, whether the decision was within the range of possible outcomes and evidenced transparency, justi- fication, and intelligibility: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.). 18 While highly deferential, the Dunsmuir test is often difficult for an applicant to meet in seeking redress, this Court finds the Applicant has done just that in this matter: the Officer made a clear error in its the BIOC assessment, and the framework used to undertake that analysis with respect to young Renalyn. 19 Case law, including from all three levels of the Canadian judiciary (i.e. the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), Federal Court of Appeal in Hawthorne and Kisana, and this Court in various cases including those discussed below), speaks to the primacy of the child in any BIOC examination, assuming that adequate evidence has been provided 86 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

for the Officer to look at the circumstances of the child in question. In this instance, the Applicant had provided significant evidence upon which the Officer could and should have focused in considering BIOC. 20 Otherwise stated, with facts such as in this case, it is the child that must, first and foremost, be considered when analyzing BIOC, rather than whether the child could adapt to life in another country, accompany parents, or otherwise fit what might be in someone else’s fate. It would be exceptional for relocation to be the better solution, as Justice Evans found for the Court of Appeal in Hawthorne: [5] The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the “child’s best interests” factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons, must, of course, be carefully examined by the officer. 21 The compelling BIOC facts of this case, as mentioned in paragraphs 4 and 20 above, which were before the Officer, are that all of Renalyn’s connections are to Canada: she was born in Canada, and has spent her entire life here (over 12 years). She has grown up in close proximity to all relevant family members, including her aunts, grandmother and cousins. She has only ever attended school in Canada, and all her friends are in this country. She has no meaningful contact or relationship with her father, or other relatives that are in the Philippines. She does not speak Tagalog fluently, and it is not obvious that she would be able in her ado- lescent years to cope with learning a new language, school system, and culture. This is especially so, given the fact that her mother has no particular ties or income stream in the Philippines that would provide for Renalyn, as she does in Canada. 22 Regarding parental “choice”, it was simply never a credible possibility that this single mother would abandon her daughter in Canada, no more than any responsible parent would abandon their child thousands of miles away. Bautista v. Canada (MCI) Alan S. Diner J. 87

23 The Federal Court of Appeal case law is clear that the BIOC will not favour the removal of the parent in all but exceptional circumstances (Hawthorne, Kisana, above). That is not the premise or framework from which the Officer assessed this case. Rather than working from the “non- exceptional” position that would as a starting proposition, have clearly favoured Renalyn remaining in Canada with her mother, the Officer took, at best, a neutral approach by looking at whether she could overcome obstacles in returning to the Philippines. Justice Annis in Joseph v. Canada (Minister of Citizenship and Immigration), 2013 FC 993 (F.C.) spoke to this flaw: [20] The officer’s conclusion in the present case, which describes the best interest for the children as simply remaining with their parents, fails to differentiate the best interests of the child being removed or not from Canada. Therefore, his decision does not state any conclusion on the best interests of the child remaining or parting depending upon the face removal of the parents, which is the essence of the BIOC test. 24 Similarly, Justice Kane in Chandidas v. Canada (Minister of Citizenship and Immigration), 2013 FC 258 (F.C.) found that the child’s best interests was remaining with the primary caregiver. Like in the ini- tial H&C review in this case, the Chandidas Officer was considering the BIOC of a 9 year old girl (as was the case in the first H&C decision): [69] The starting point is to identify what is the child’s best interest. The officer merely stated early in his reasons that it was in the best interests of the children (which means the best interest of Rhea since the two sons were over 18) to remain with their parents. That is an odd starting point given that a nine-year-old girl would never be expected to remain in Canada alone. 25 It should be noted that the instant Decision contains only one brief boilerplate-type reference of “BIOC” in 6 paragraphs, with no specific reference to Renalyn, or what her best interests might be. Rather, the focus of the Decision is all about the mother, Mrs. Bautista, with scant attention to the child. As stated recently in this Court by Justice Zinn in Sebbe v. Canada (Minister of Citizenship & Immigration), 2012 FC 813 (F.C.): [16] Undoubtedly placing a child in an environment where his or her basic needs are not met can never be said to be in that child’s best interest. However, to suggest that the child’s interest in remaining in Canada is balanced if the alternative provides a minimum standard of living is perverse. This approach completely fails to ask the question 88 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

the Officer is mandated to ask: What is in this child’s best interest? The Officer was required to first determine whether it was in Leticia’s best interests to go with her parents to Brazil, where she had never been before, or for her to remain in Canada where she had “better social and economic opportunities.” Only once he had clearly articulated what was in Leticia’s best interest could the Officer then weigh this against the other positive and negative elements in the H&C application. 26 Had the Applicant been the sole protagonist in the litigation before this Court, then the matter would be reviewed on an entirely different basis, and through an entirely different lens. However, the case law, the policy, and subsection 25(1) itself, all dictate that one has to pay equally close, if not more attention, to the young lives impacted in an H&C analysis. Children, amongst society’s most vulnerable citizens, cannot be said to be minor players on the immigration stage: their destiny must necessarily be front and center in any H&C analysis, so that they too are key protagonists in H&C applications. This Court has often held that officers must be “alert, alive and sensitive” to the BIOC. As Madame Justice L’Heureux-Dub´e wrote in Baker, where the decision below was deemed unreasonable because the Officer failed to be alert, alive and sensitive to the BIOC: The officer was completely dismissive of the interests of Ms. Baker’s children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer...... for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [Baker at paras. 65 and 75]. Bautista v. Canada (MCI) Alan S. Diner J. 89

27 Another decision of this Court encapsulated this requirement to view the H&C through the child’s lens, when the late Justice Blanchard found in Mulholland v. Canada (Minister of Citizenship & Immigration), 2001 FCT 597 (Fed. T.D.) at para. 30: [...] Where the Minister purports to remove from Canada a person who has dependent children, the Minister cannot ignore the fact that the practical consequence of her decision is to deprive the children of the benefit of subsection 4(2) of the Act. In those circumstances, is it not up to the Minister to rebut the conclusion that the presence of the children is a humanitarian factor justifying the exercise of discretion? Nothing in Baker would make such a presumption irrebuttable. No state can consistently excuse the misconduct of adults because of the effects on their children without creating a climate of irresponsibility both as to the adults’ conduct and as to the motives for having children. But the rebuttal must be based upon facts in relation to the parent which would weigh more heavily in the balance than the depen- dency of the children upon the parent and their statutory, if not constitutional right, to remain in Canada. The bald statement that the presence of the children is the result of a parental choice does not amount to rebuttal. 28 To see everything through the lens of whether one reasonably can overcome the inevitable hardships that accompany a new life, as the Of- ficer did in this case, resembles the H&C test that is applied to adults. Children are malleable - far more so than adults - and starting with the question of whether they can adapt will almost invariably predetermine the outcome of the script, namely that the child will indeed overcome the normal hardships of departure, and adjust to a new life, including learning a brand new language (Tagalog in this case). Undertaking the analysis through this lens renders the requirement to take into account the best interests of a child directly affected, as statutorily required in subsection 25(1) devoid of any meaning. 29 As the Court of Appeal state in Owusu v. Canada (Minister of Citizenship & Immigration), 2004 FCA 38 (F.C.A.): [5] An immigration officer considering an H & C application must be “alert, alive and sensitive” to, and must not “minimize”, the best interests of children who may be adversely affected by a parent’s deportation: Baker v. Canada (Minister of Citizenship and Immigra- tion) [1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in 90 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless. 30 The Officer in the present case had plenty of evidence about the impact of moving on the child herself, and failed to conduct an appropriate analysis given all the case law cited above, precisely by either failing to consider, and/or misunderstanding that which was relevant to the analysis of BIOC (see, for instance, Chandidas above at para. 47). 31 The conclusion on issue # 1 is that in rejecting the H&C, the Officer failed to give sufficient consideration to BIOC and the decision was therefore unreasonable. 32 Having found the first issue (BIOC) to be determinative, and having focused on that issue at the hearing, there is no need to rule on the second issue challenged by the Applicant (establishment). 33 Finally, it should be noted that the Court’s judicial resources should be reserved to litigate serious matters, as they arise. In this case, a judicial review of the first (March 2012) H&C decision was proceeding to litigation in this Court but was then settled approximately a week before the hearing, after the expenditure of significant preparation, lawyer time, court resources, and anxiety for the Applicant and her family. One would have expected that to result in a new H&C decision that acknowledged the settlement, rather than what is essentially a repetition of the earlier H&C decision in March 2013 a year later. The parties and Court once again went through all the preparatory stages and hearing for this judicial review in order to correct errors in the Officer’s approach to BIOC, that due to the file history were, in the Court’s view, entirely avoidable. As the Applicant states in her Affidavit: 31. I was very happy to reach a settlement with the Department of Justice. But at the same time, I was upset that they had waited until a week before my judicial review hearing and after I had spent thousands of dollars to admit their mistake. Unlike the Department of Justice, I am a single mother who does not have large sums of money to engage in litigation for its own sake. Nevertheless, the Department of Justice required that I not seek any costs against the respondent as a condition of the settlement. Accordingly, I felt I had no choice but to agree.[Applicant’s Record, pp. 24-25] 34 It is for this reason that the Court deems it fit to endorse the Cost Order agreed to by the parties which reflects the special circumstances of this case. The Costs are nominal, to acknowledge that this is still an ap- Bautista v. Canada (MCI) Alan S. Diner J. 91

plication that by definition involves an exemption from the normal requirements of the Act: Toussaint v. Canada (Minister of Citizenship & Immigration), 2011 FCA 208 (F.C.A.). 35 It is the Court’s sincere hope that the new Officer assigned to the matter properly considers the issue of BIOC, which has not been properly considered to date. 36 Neither party suggested any question for certification, nor is there any question deserving of certification.

Judgment THIS COURT’S JUDGMENT is that: 1. The judicial review is allowed and the matter is returned for reconsideration by a new Officer; 2. Costs are awarded to the Applicant on consent of the parties, as set out in the Order dated October 8, 2014; 3. There will be no question certified in this matter. Application granted; matter returned for reconsideration before new officer.

Annex A

Immigration and Refugee Protection Act (SC 2001, c 27) Section 25 25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. 92 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Almrei v. Canada (Minister of Citizenship and Immigration)] Hassan Almrei, Applicant and The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness, Respondents Federal Court Docket: IMM-5885-13 2014 FC 1002, 2014 CF 1002 Richard G. Mosley J. Heard: July 3, 2014 Judgment: October 23, 2014 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Applicant was citizen of Syria — Applicant was granted refugee status in 2000 — Appli- cant applied for permanent residence in 2000 and in 2001 security certificate was issued against him which was subsequently quashed — Applicant’s permanent residence application was terminated in 2002 without notice to him — In 2008, second security certificate was issued, which was quashed in 2009 — Ap- plicant had been held in detention for seven years — Applicant commenced fresh permanent residence application on humanitarian and compassionate grounds in 2010, which was accepted for processing from within Canada subject to completion of medical and security assessments — In 2012, applicant filed application for leave and for judicial review seeking order of mandamus to compel Minister of Citizenship and Immigration to make decision on his request for permanent residence — Leave was granted, and application was set down for hearing on September 10, 2013 — Procedural fairness letter was delivered by e- mail to applicant’s lawyer on September 6 2013 indicating that Minister was considering finding applicant inadmissible under paragraph 37(1)(b) of Immi- gration and Refugee Protection Act — Matter was adjourned sine die — Appli- cant commenced application for declaration that question of his inadmissibility was subject to doctrines of issue estoppel, res judicata and abuse of process — Applicant also sought injunction enjoining Minister of Citizenship and Immigra- tion from finding him inadmissible pursuant to ss. 34(1) and 37(1)(b) of Act on basis of any of allegations that were before court in second security certificate proceedings — Motion was granted staying determination of applicant’s admissibility and application for permanent residence in Canada until underlying application for judicial review in this matter had been decided — Minister of Citi- Almrei v. Canada (MCI) 93 zenship and Immigration and Minister of Public Safety and Emergency Preparedness brought motion for order that application for leave and for judicial review was premature — Motion dismissed — Stay issued in October 2013 was upheld, barring Ministers from proceeding with inadmissibility inquiry — This was one of rare cases where court should exercise its discretion to intervene before administrative decision has been rendered — Court was not satisfied that applicant had alternative remedy available to him that was adequate effective recourse to allegations against him under paragraph 37(1)(b) — Factors favouring intervention outweighed those that supported deference to administrative function — Exceptional circumstances pointing to finding of abuse of process met clear and obvious standard which warranted judicial intervention at this stage. Cases considered by Richard G. Mosley J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — referred to Air Canada v. Lorenz (1999), 175 F.T.R. 211, 1999 CarswellNat 3008, [2000] 1 F.C. 494, 1999 CarswellNat 1768, [1999] F.C.J. No. 1383 (Fed. T.D.) — followed Al Yamani v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 4143, 2003 FCA 482, 314 N.R. 347, 246 F.T.R. 320 (note), 2003 CarswellNat 4621, 2003 CAF 482, [2003] F.C.J. No. 1931 (F.C.A.) — considered Al Yamani v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 2827, 2004 CarswellNat 2828, 332 N.R. 396 (note), [2004] S.C.C.A. No. 62 (S.C.C.) — referred to Almrei, Re (2009), 2009 CF 1263, 2009 CarswellNat 4286, 2009 FC 1263, [2011] 1 F.C.R. 163, 355 F.T.R. 222 (Eng.), 2009 CarswellNat 5657, 86 Imm. L.R. (3d) 212, [2009] F.C.J. No. 1579, [2009] A.C.F. No. 1579 (F.C.) — referred to Beltran v. Canada (Minister of Citizenship & Immigration) (2011), 234 C.R.R. (2d) 145, 2011 CarswellNat 1437, 2011 FC 516, 2011 CarswellNat 2619, 2011 CF 516, [2011] F.C.J. No. 633 (F.C.) — considered Black v. Canada (Attorney General) (2013), 2013 FCA 201, 2013 CarswellNat 3386, 448 N.R. 196 (F.C.A.) — referred to 94 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, 2000 CSC 44, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — considered Boni c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 3493, 2006 FCA 68, 57 Imm. L.R. (3d) 4, 61 Admin. L.R. (4th) 21, 2006 CarswellNat 414, 2006 CAF 68, (sub nom. Boni v. Canada (Minister of Citizenship & Immigration)) 357 N.R. 326, [2006] F.C.J. No. 275 (F.C.A.) — referred to C.B. Powell Ltd. c. Canada (Agence des services frontaliers) (2010), 2010 Car- swellNat 1197, 2010 CAF 61, [2011] 2 F.C.R. 332, (sub nom. Powell (C.B.) Ltd. v. Canada Border Services Agency (President)) 400 N.R. 367, 2010 FCA 61, 2010 CarswellNat 391, [2010] F.C.J. No. 274 (F.C.A.) — considered C.B. Powell Ltd. v. Canada (Border Services Agency) (2011), 2011 CarswellNat 4395, 2011 CarswellNat 4396, (sub nom. Powell (C.B.) Ltd. v. Canada Border Services Agency (President)) 429 N.R. 396 (note), [2011] S.C.C.A. No. 267 (S.C.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Parekh (2010), 2010 FC 692, 2010 CarswellNat 1994, 372 F.T.R. 196 (Eng.), [2012] 1 F.C.R. 169, 2010 CF 692, 2010 CarswellNat 6193, [2010] F.C.J. No. 856 (F.C.) — referred to Canada (Solicitor General) v. Subhaschandran (2005), 2005 FCA 27, 2005 Car- swellNat 184, 2005 CarswellNat 1129, (sub nom. Subhaschandran v. Canada (Solicitor General)) 249 D.L.R. (4th) 269, 2005 CAF 27, 50 Imm. L.R. (3d) 119, 331 N.R. 182, (sub nom. Subhaschandran v. Canada (Solicitor General)) [2005] 3 F.C.R. 255, [2005] F.C.J. No. 107 (F.C.A.) — referred to Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 44 C.R. (4th) 1, 152 C.R.R. (2d) 18, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 CarswellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — considered Garrick v. Amnesty International Canada (2011), 2011 FC 1099, 2011 Car- swellNat 4759, 397 F.T.R. 213 (Eng.), 2011 CF 1099, 2011 CarswellNat 6454, [2013] 3 F.C.R. 146, [2011] F.C.J. No. 1609, [2011] A.C.F. No. 1609 (F.C.) — considered Almrei v. Canada (MCI) 95

Gwala v. Canada (Minister of Citizenship & Immigration) (1999), 167 F.T.R. 157 (note), 1999 CarswellNat 2035, 1999 CarswellNat 908, 3 Imm. L.R. (3d) 26, 68 C.R.R. (2d) 48, 242 N.R. 173, [1999] 3 F.C. 404, [1999] F.C.J. No. 792 (Fed. C.A.) — referred to Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (2012), 428 N.R. 107, 74 C.H.R.R. D/7, 2012 SCC 10, 2012 CarswellNS 124, 2012 CarswellNS 125, 31 Admin. L.R. (5th) 179, 316 N.S.R. (2d) 1, [2012] 1 S.C.R. 364, 343 D.L.R. (4th) 385, 94 M.P.L.R. (4th) 1, [2012] S.C.J. No. 10, [2012] A.C.S. No. 10 (S.C.C.) — followed John Doe v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 327, 2007 CarswellNat 718, 61 Imm. L.R. (3d) 134, 2007 CarswellNat 1933, 2007 CF 327, [2007] F.C.J. No. 456 (F.C.) — referred to JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue (2013), 2013 CarswellNat 3822, 2013 FCA 250, (sub nom. MNR v. JP Morgan Asset Management (Canada) Inc.) 2014 D.T.C. 5001 (Eng.), 450 N.R. 91, 367 D.L.R. (4th) 525, 2013 CAF 250, 2013 CarswellNat 6109, 62 Admin. L.R. (5th) 76, [2014] 2 C.T.C. 99, [2013] F.C.J. No. 1155 (F.C.A.) — referred to Kanagaratnam v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness) (August 28, 2013), Doc. Ottawa IMM-5387-13 (F.C.) — considered Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 113, 2014 CarswellNat 1435, 459 N.R. 367, 27 Imm. L.R. (4th) 1, 372 D.L.R. (4th) 539, [2014] F.C.J. No. 472 (F.C.A.) — referred to Moulton Contracting Ltd. v. British Columbia (2013), (sub nom. Behn v. Moulton Contracting Ltd.) [2013] 2 S.C.R. 227, 2013 SCC 26, 2013 Car- swellBC 1158, 2013 CarswellBC 1159, 357 D.L.R. (4th) 236, 43 B.C.L.R. (5th) 1, (sub nom. Behn v. Moulton Contracting Ltd.) [2013] 3 C.N.L.R. 125, 443 N.R. 303, [2013] 7 W.W.R. 1, 333 B.C.A.C. 34, 571 W.A.C. 34, [2011] S.C.C.A. No. 360 (S.C.C.) — followed P. (J.) v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 20 Imm. L.R. (4th) 199, 368 D.L.R. (4th) 524, 2013 CarswellNat 6398, 2013 CAF 262, 2013 FCA 262, 2013 CarswellNat 4158, 451 N.R. 278, 61 Admin. L.R. (5th) 1 (F.C.A.) — referred to P. (J.) v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 2014 CarswellNat 1086, 2014 CarswellNat 1087 (S.C.C.) — referred to Penner v. Niagara Regional Police Services Board (2013), 2013 CarswellOnt 3743, 2013 CarswellOnt 3744, 2013 SCC 19, 49 Admin. L.R. (5th) 1, 356 D.L.R. (4th) 595, [2013] 2 S.C.R. 125, 32 C.P.C. (7th) 223, 304 O.A.C. 106, (sub nom. Penner v. Niagara (Police Services Board)) 118 O.R. (3d) 800 (note), 442 N.R. 140, EYB 2013-220248, [2013] S.C.J. No. 19 (S.C.C.) — referred to 96 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Szczecka c. Canada (Ministre de l’Emploi & de l’Immigration) (1993), (sub nom. Szczecka v. Ministre de l’Emploi & de l’Immigration) 170 N.R. 58, 1993 CarswellNat 200, 1993 CarswellNat 2602, 25 Imm. L.R. (2d) 70, (sub nom. Szczecka v. Canada (Minister of Employment & Immigration)) 116 D.L.R. (4th) 333, [1993] F.C.J. No. 934 (Fed. C.A.) — considered Tursunbayev v. Canada (Minister of Public Safety and Emergency Prepared- ness) (2012), 2012 FC 532, [2012] F.C.J. No. 1700 (F.C.) — considered Valle Lopes v. Canada (Minister of Citizenship & Immigration) (2010), 367 F.T.R. 41 (Eng.), 2010 FC 403, 2010 CarswellNat 872, 6 Admin. L.R. (5th) 257, 88 Imm. L.R. (3d) 25, 2010 CF 403, 2010 CarswellNat 2631 (F.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to s. 34 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 34(1) — referred to s. 34(1)(c) — considered s. 34(1)(d) — considered s. 34(1)(f) — considered s. 37(1)(b) — considered s. 74 — considered s. 74(d) — considered Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — considered Federal Courts Rules, SOR/98-106 R. 400 — considered Treaties considered: Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2004 Generally — referred to Almrei v. Canada (MCI) Richard G. Mosley J. 97

United Nations Convention against Transnational Organized Crime, G.A. Res. 55/25; 40 I.L.M. 335 Generally — referred to

MOTION by Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness for order that applicant’s application for leave and for judicial review was premature.

Lorne Waldman, for Applicant Gregory George, Ada Mok, for Respondents

Richard G. Mosley J.:

1 This is a motion by the respondent Ministers for an order that the application for leave and for judicial review in this matter is premature. The motion is dismissed for the reasons that follow.

I. Background 2 The applicant, Hassan Almrei, a citizen of Syria, has been in Canada since January 1999. He was granted protection as a Convention Refugee in June 2000. In November 2000, Mr Almrei applied for permanent resident status. On October 19, 2001, a certificate was issued against him alleging that he was a risk to the security of Canada. The Federal Court upheld that certificate on November 21, 2001. Proceedings ensued in which Mr Almrei contested the legality of his continued detention, the reasonableness of danger opinions concerning the risk of return to Syria and the constitutionality of the security certificate procedure. In the course of these proceedings, Mr Almrei’s application for permanent residence was terminated in 2002 without notice to him. 3 The 2001 security certificate was quashed by the decision of the Su- preme Court of Canada in Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.), which held that the procedure then in place was constitutionally flawed. A second certificate, issued against the applicant on Feb- ruary 22, 2008, was quashed on December 19, 2009 by this Court on the ground that it was not reasonable: Almrei, Re, 2009 FC 1263, [2009] F.C.J. No. 1579 (F.C.). The government did not appeal that decision. During these events, Mr Almrei was held in detention for over seven years. 4 Following his release from custody and the conclusion of the certificate proceedings, Mr Almrei sought to determine the status of his 2000 98 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

application for permanent residence. Upon discovering that it had been rejected, Mr Almrei unsuccessfully sought judicial review of that decision. He then brought a fresh application for permanent residence on humanitarian and compassionate grounds on October 5, 2010. In February 2012, he was advised that the application had been accepted for processing from within Canada, subject to the completion of other requirements such as medical and security assessments. 5 In September 2012, after a series of communications with the Cana- dian Security and Intelligence Service and Citizenship and Immigration Canada regarding the status of his application, Mr Almrei filed an application for leave and for judicial review. He sought an order of mandamus to compel the respondent Minister of Citizenship and Immigration, or his officers, to make a decision on his request for permanent residence. Leave was granted in that matter, Court File IMM-9749-12, and the application was set down for hearing on Tuesday, September 10, 2013. 6 Through an email message late on the afternoon of Friday, September 6, 2013, counsel for Mr Almrei was provided with a copy of a “Procedu- ral Fairness” letter of the same date, to be delivered to his client on the Monday following. Written by a Delegate of the respondent Minister of Citizenship and Immigration, the letter stated that the Minister was considering finding the applicant inadmissible to Canada under paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. 7 Paragraph 37(1)(b) of the IRPA provides the following: Organized criminality 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for [...] (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. Activités de criminalité organisée 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants: [...] b) se livrer, dans le cadre de la criminalité transnationale, a` des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité Almrei v. Canada (MCI) Richard G. Mosley J. 99

8 Upon being advised of this development the day prior to the hearing, the applications judge, Madam Justice Snider, determined that it was not in the interests of justice to proceed with the hearing and adjourned the matter sine die. The applicant then brought the underlying application for declaratory and injunctive relief against the respondents that is presently before the Court. 9 Among other things, in the present application Mr Almrei seeks declarations from the Court that the question of his inadmissibility is subject to the doctrines of issue estoppel, res judicata and abuse of process. He also seeks an injunction enjoining the respondent Minister of Citizenship and Immigration from finding him inadmissible pursuant to subsection 34(1) and paragraph 37(1)(b) of the IRPA on the basis of any of the allegations that were before the Court in the second security certificate proceedings. 10 On October 18, 2013, Mr Justice Boivin (then a member of this Court) granted a motion staying the determination of the applicant’s admissibility and application for permanent residence in Canada until the underlying application for judicial review in this matter has been decided. In his reasons, Justice Boivin found that the alleged abuse of process was a serious issue, that the applicant would suffer irreparable harm if the admissibility determination proceeded and that the balance of convenience between the parties favoured the issuance of a stay. 11 The application for leave in this matter was brought before Mr Justice Simon Noël for determination. In case management discussions conducted by Justice Noël, the respondent Ministers took the position that the application is premature as a decision as to the applicant’s admissibility has yet to be made. In a Direction issued on April 8, 2014, Justice Noël indicated that leave would be granted pursuant to section 74 of the IRPA when all preliminary matters had been dealt with, and that the Chief Justice had referred those matters, and the application for judicial review, to the undersigned judge for determination. 12 Following a conference with counsel for the parties, additional written representations were submitted and a hearing was conducted to receive oral argument on the issue of prematurity. 100 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

II. The Procedural Fairness Letter 13 The September 6, 2013 Procedural Fairness letter states, among other things: In previous correspondence, you were informed that your request for an exemption to allow your application to be processed from within Canada was approved and that your application would continue to be processed to determine whether you meet all other statutory requirements of the Immigration and Refugee Protection Act, such as medical, security, passport, etc. New information suggests that your application for permanent residence under humanitarian and compassionate grounds may have to be refused as it appears you are a person described in subsection 37(1)(b) of the Immigration and Refugee Protection Act. Specifi- cally, an inadmissibility assessment from the Canadian Border Ser- vices Agency, which has been included with this letter, indicates that there are reasonable grounds to believe you are inadmissible on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. 14 The inadmissibility assessment from the Canadian Border Services Agency (CBSA) included with the Delegate’s letter is dated July 11, 2013. Stressing that the decision rested with the Minister’s Delegate, the following excerpts provide the basis for the CBSA’s recommendation that there are reasonable grounds to believe that the applicant is inadmissible under paragraph 37(1)(b): Executive Summary [...] (U) The applicant has acknowledged having arranged for the transfer of a false passport for financial gain. He has also acknowledged having participated in a plan to fraudulently obtain Ontario and Michi- gan drivers licences. [...] Topic-Specific Information (B) In a solemn declaration sworn on November 10, 2002, the applicant stated: ... I did help Nabil Al Marabh in obtaining a false Cana- dian passport. Nabil told me that he really wanted to see his mother, as she was ill. He said that he had not seen her for twelve years. I said that I would help him. An Arab man I knew gave me the number of a man in Montreal. I Almrei v. Canada (MCI) Richard G. Mosley J. 101

got Nabil the passport from the man in Montreal. I was not working with the man that made the passport for Nabil. I paid for it only with the money that Nabil gave me for it and I kept a share. (U) During testimony before the Federal Court of Canada, the applicant stated that he also provided Al Marabh with a citizenship card, driver’s licence, and SIN card. He indicated that he received $2000 for his part in the transaction. (U) Additionally, the applicant stated during testimony before the Federal Court that he “... participated in a scheme with Ibrahim Ishak to obtain valid Ontario driver’s licences for people who could not otherwise legally obtain them.” Justice Mosley summarized the activities as follows: “An Ontario GI permit would be taken to Michi- gan and exchanged for a Michigan license. They would then use those to obtain Ontario licenses with full driving privileges. They charged $500 for this service.” [“U” means “unclassified”; “B” is a reference to the “B” classifica- tion level.] 15 In addition to the CBSA assessment, the applicant was provided with several other documents including recent jurisprudence of this Court and the Federal Court of Appeal, excerpts from the IRPA and the Criminal Code of Canada, and copies of the United Nations Convention Against Transnational Organized Crime and the supplemental Protocol Against the Smuggling of Migrants by Land, Sea and Air. The applicant was advised that he had the opportunity to provide any information he would like to be considered before a decision was made, and he was given sixty days to provide additional documents and make further submissions. 16 According to counsel for the respondents, the Minister of Citizenship and Immigration has committed to making a decision within 45 days of receipt of the applicant’s additional documents and submissions.

III. Issues 17 The primary issue before the Court at this stage is whether the applicant’s request for relief is premature, in that a final decision on his application for permanent residence has not been made and will not be made until after he responds to the procedural fairness letter. Collateral to that is the question of whether the stay imposed by Justice Boivin should be vacated. 102 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

IV. Argument 18 The respondents argue that this application is premature because of the absence of exceptional circumstances warranting early recourse to the courts, the availability of alternative administrative remedies, the fragmentation of the process if the application goes ahead, waste, delay and the lack of the administrative decision-maker’s findings from which this Court might benefit. The respondents note that the Minister’s decision on the application for permanent residence would have been rendered by December 20, 2013, at the latest, had the applicant not sought to enjoin that process in this Court. 19 The respondents rely largely on the Federal Court of Appeal’s decision in C.B. Powell Ltd. c. Canada (Agence des services frontaliers), 2010 FCA 61, [2010] F.C.J. No. 274 (F.C.A.) at paras 31-33 [CB Pow- ell], leave to appeal to Supreme Court of Canada refused, [2011] S.C.C.A. No. 267 (S.C.C.): [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurca- tion of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway: see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater Moncton International Airport Authority v. Public Ser- vice Alliance of Canada, 2008 FCA 68 at paragraph 1; Ontario Col- lege of Art v. Ontario (Human Rights Commission) (1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the administra- Almrei v. Canada (MCI) Richard G. Mosley J. 103

tive process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated Maybrun, supra at paragraph 43; Delmas v. Vancouver Stock Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d (1995), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians (Ontario) (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge: New Brunswick (Board of Management) v Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 48. [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the “exceptional circumstances” exception. Little need be said about this exception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Ac- tion in Canada (loose-leaf) (Toronto: Canvasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 55 D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts. [Emphasis added] 20 The respondents also rely on Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 (S.C.C.) at paras 35-38 [Halifax]; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.) at 104 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

paras 23-24 [Alberta Teachers]; and Black v. Canada (Attorney Gen- eral), 2013 FCA 201, 232 A.C.W.S. (3d) 808 (F.C.A.) at paras 10-11. They submit that these authorities hold that the threshold for exceptionality is high, and that even concerns about procedural fairness, bias, jurisdictional error or the presence of an important legal or constitutional issue do not constitute exceptional circumstances permitting parties to bypass the administrative process where that process allows the issues to be raised and an effective remedy to be granted. 21 These decisions led my colleague Justice Yves de Montigny to conclude in Garrick v. Amnesty International Canada, 2011 FC 1099, [2011] F.C.J. No. 1609 (F.C.) at para 51, that circumstances that had previously been found to be exceptional may no longer qualify as exceptional if an internal administrative remedy was available. 22 More recently, the Federal Court of Appeal has indicated that, in the tax context, as long as an adequate effective recourse exists, premature intervention by way of judicial review before the Federal Court is not warranted, even if an abuse of process is present: JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue, 2013 FCA 250, [2013] F.C.J. No. 1155 (F.C.A.) at para 89. The Court of Appeal noted that whether the alternative remedy is actually an “adequate effective recourse” will depend upon the circumstances of the particular case. 23 Here, the respondents submit, the applicant has an adequate alternative remedy. The applicant can respond to the potential inadmissibility finding under paragraph 37(1)(b) of the IRPA. The Minister’s Delegate will then release a decision, which may render the issues of abuse of process and res judicata irrelevant. The applicant can also make submissions to the Delegate going to humanitarian and compassionate grounds, which could include the underlying facts of the abuse of process and res judicata arguments. If the Delegate determines that the applicant is inadmissible pursuant to paragraph 37(1)(b), she may nevertheless grant the application on humanitarian and compassionate grounds after considering all the circumstances. Finally, the applicant may challenge the Dele- gate’s decision by applying for leave and judicial review. 24 The respondents argue that as in Szczecka c. Canada (Ministre de l’Emploi & de l’Immigration), [1993] F.C.J. No. 934, 116 D.L.R. (4th) 333 (Fed. C.A.), the applicant has adequate alternative remedies and therefore there is no basis for judicial review. In Szczecka, the Federal Court of Appeal found that the availability of judicial review of the Refu- Almrei v. Canada (MCI) Richard G. Mosley J. 105

gee Division’s ultimate decision weighed against premature intervention to resolve a controversy over an interlocutory issue. 25 The applicant concedes the general principle of judicial non-interference with ongoing administrative processes. However, the applicant submits that contrary to the respondents’ arguments, the exceptional circumstances in the case at bar warrant a departure from the general principle. Specifically, the applicant submits that the Court has already made a final determination on the issue of his admissibility based on the facts that were presented to it during the certificate proceedings. To allow the Min- ister to consider these facts in relation to a new ground of inadmissibility that could have been raised earlier runs contrary to the principle of finality of judicial decisions, is barred by issue estoppel and would be an abuse of process. 26 The applicant argues that the case law on which the respondents rely merely sets out the general principle and can be distinguished from the case at bar, on the basis that those cases did not feature any exceptional circumstances which warranted a departure from that general principle. 27 The applicant acknowledges that both CB Powell, above, and Halifax, above, affirm the notion that judicial intervention in the administrative process should only occur in the clearest of cases. However, he argues that both are distinguishable. In this instance, the applicant is not seeking to prevent the inquiry from proceeding on jurisdictional grounds, as in CB Powell, or because of delay, as in Halifax. Rather he seeks to avoid an inefficient multiplicity of proceedings and delay by preventing the respondents from re-litigating the same allegations in a different forum more than 12 years after they were first brought to the respondents’ attention. 28 The test, the applicant submits, is set out by the Supreme Court in Halifax, above, at para 45: [45] In my view, the reviewing court should ask whether there was any reasonable basis on the law or the evidence for the Commis- sion’s decision to refer the complaint to a board of inquiry. This formulation seems to me to bring together the two aspects of the jurisprudence to ensure that both the decision and the process are treated with appropriate judicial deference. 29 In this matter, the applicant submits, there is no reasonable basis on the law or the evidence for the decision to consider an alternate ground of inadmissibility. The respondents chose to use the security certificate process to determine his admissibility on the same facts. They cannot 106 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

now seek to use a different administrative procedure, he argues, to re- litigate the same allegations raised in the security certificate proceedings because they are unhappy with the outcome. 30 The applicant rejects the assertion that he is delaying a decision on his application and argues that the Ministers are responsible for the delay, since they failed to bring forward the section 37 allegation during the security certificate proceedings. Further, they waited until two days before the scheduled hearing for his mandamus application to raise the allegation. This delay in raising the allegation based on information that was before this Court during the security certificate proceedings was noted by Justice Boivin in his decision granting the stay. 31 The applicant submits that he has no adequate alternative remedy. Re- quiring him to defend his admissibility a third time, as argued by the respondents, is not a remedy - it is an abuse. The applicant further submits that the doctrine of abuse of process constitutes a clear exception to the general principle that courts should defer to the administrative decision-making process. 32 The applicant cites several decisions of this Court in support of his argument: Beltran v. Canada (Minister of Citizenship & Immigration), 2011 FC 516, [2011] F.C.J. No. 633 (F.C.); Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 532, [2012] F.C.J. No. 1700 (F.C.); Kanagaratnam v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness) (August 28, 2013), Doc. Ottawa IMM-5387- 13 (F.C.); John Doe v. Canada (Minister of Citizenship & Immigration), 2007 FC 327, [2007] F.C.J. No. 456 (F.C.). 33 The applicant argues that in Beltran, above, the Court specifically rejected the respondents’ argument that the admissibility determination process should be allowed to continue because the Delegate may find in favour of the applicant. At issue in Beltran was whether an admissibility hearing should be permanently stayed on the basis that the Minister had been aware of all the relevant information for 22 years. At para 54, Jus- tice Harrington reached this conclusion: 54 It is a fundamental principle of natural justice and the rule of law under which we live that a person be given a fair opportunity to answer the case against him. That opportunity has been lost. It was abusive to issue an opinion in 2009 that Mr. Beltran is inadmissible considering that the authorities had been aware of his situation for 22 years. Almrei v. Canada (MCI) Richard G. Mosley J. 107

V. Analysis 34 In Air Canada v. Lorenz (1999), [2000] 1 F.C. 494, [1999] F.C.J. No. 1383 (Fed. T.D.) [Lorenz], Mr Justice John Evans affirmed the principle that absent “the most unusual and exceptional circumstances”, courts will not intervene in administrative proceedings before a final decision has been rendered. Justice Evans set out six factors to be considered in determining whether the Court should refuse relief on the ground of prematurity. These factors are: (1) hardship to the applicant, (2) waste, (3) delay, (4) fragmentation, (5) strength of the case and (6) the statutory context. 35 While I think it is unquestionable that the applicant has and is exper- iencing hardship due to the extraordinary circumstances in which this matter has arisen, that factor is not determinative: Lorenz, above, at para 20. Delay should be considered as a factor affecting the parties in the particular case, as well as the conduct of other administrative proceedings: Lorenz at paras 24-25. The exceptional circumstances alleged should be “clear and obvious”: Lorenz at para 32. Finally, the factors must be considered in light of the facts of the particular case as well as in the context of the statutory scheme from which the application for judicial review arises: Lorenz at para 33. 36 I note that unlike this matter which concerns a series of proceedings against the applicant, Lorenz, CB Powell, Halifax and Szczecka, above, all concerned a single administrative proceeding with no previous procedural history between the parties. 37 In Beltran, Justice Harrington considered the issues of delay and hardship in light of the overall procedural history between Mr Beltran and the respondent Minister of Citizenship and Immigration. He found the delay in that case to be inexcusable. See also Canada (Minister of Citizenship & Immigration) v. Parekh, 2010 FC 692, [2010] F.C.J. No. 856 (F.C.) at para 56. 38 In Tursunbayev, Justice Russell held that the applicant could bring abuse of process arguments at an early stage of the admissibility process, notwithstanding that a decision had not been made regarding his admissibility or deportation. This was in the context of disclosure issues over what was alleged to be a disguised extradition to accommodate the enforcement interests of a foreign jurisdiction. 39 In Kanagaratnam, Justice Manson granted an interim stay preventing the Delegate from deciding the applicant’s application until the judicial review seeking a declaration that the proceedings amounted to an abuse of process was heard. In doing so, Justice Manson rejected the respon- 108 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

dents’ arguments on prematurity and the availability of judicial review after the Delegate rendered a decision. 40 Justice Phelan granted a stay of proceedings in the middle of a judicial review hearing in the John Doe matter, above, finding that the process may have been abusive. The decision under review was arguably interlocutory, he found, but fundamental to the case. 41 This application for judicial review has delayed administrative proceedings which, according to the respondents, would otherwise have resulted in a decision in December 2013. However, contrary to the statement in the Procedural Fairness letter, there is no “new information” forming the basis of the fresh allegation of inadmissibility. As noted by Justice Boivin on the stay motion, the Ministers are responsible for the delay in bringing forward the allegation. The period of this delay is approximately 12 years. 42 Similarly, although the respondent argues that the fragmentation of the permanent residence application process and the additional costs in- curred through these proceedings militate against judicial intervention, this fragmentation and any related additional costs could have been avoided had the allegation of inadmissibility under paragraph 37(1)(b) been raised earlier. 43 For the purposes of this motion, I do not think it is necessary to determine the merits of the arguments that the ground of inadmissibility under paragraph 37 (1)(b) is subject to issue estoppel and res judicata. I would note that the question out of which the estoppel is said to arise must have been fundamental to the decision arrived at in the earlier proceeding. Moreover, it must concern material facts and conclusions of law or mixed fact and law that were necessarily determined in the earlier proceedings: Penner v. Niagara Regional Police Services Board, 2013 SCC 19, [2013] 2 S.C.R. 125 (S.C.C.) at para 24. 44 At first impression and without deciding the matter, based on the principles set out in the authorities cited, it is not obvious that these requirements can be met. However, I am satisfied that the arguments raised by the applicant are not frivolous: Al Yamani v. Canada (Minister of Citizenship & Immigration), 2003 FCA 482, [2003] F.C.J. No. 1931 (F.C.A.), leave to appeal refused, [2004] S.C.C.A. No. 62 (S.C.C.); P. (J.) v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 262, 368 D.L.R. (4th) 524 (F.C.A.), leave to appeal to SCC granted, 35677 (April 17, 2014) [2014 CarswellNat 1086 (S.C.C.)]. Almrei v. Canada (MCI) Richard G. Mosley J. 109

45 The Supreme Court of Canada recently addressed the doctrine of abuse of process in Moulton Contracting Ltd. v. British Columbia, 2013 SCC 26, [2013] 2 S.C.R. 227 (S.C.C.). As Justice LeBel noted at paras 39-41, the doctrine is characterized by its flexibility and is unencum- bered by specific requirements, unlike res judicata and issue estoppel. It has its roots in a judge’s inherent and residual power to prevent abuses of the court’s process. The doctrine evokes the public interest in a fair and just process and the proper administration of justice. One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to re-litigate a claim which the court has already determined. 46 The abuse of process doctrine may also extend to a case in which one party has been guilty of an unreasonable delay causing severe prejudice to the other, as the applicant contends has occurred here: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.); Valle Lopes v. Canada (Minister of Citizenship & Immigration), 2010 FC 403, 367 F.T.R. 41 (Eng.) (F.C.). 47 While the applicant has been undoubtedly prejudiced in having to un- dergo further proceedings and to incur additional costs in the determination of his application for permanent residence, the threshold for establishing abuse of process because of administrative delay is very high; as discussed in Blencoe at para 115: Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. ... 48 The public interest in proceeding to a determination on the allegations against the applicant was considered to be a significant factor in Lopes, at para 87, in which there was an allegation of a crime against humanity. Here, the paragraph 37(1)(b) allegations relating to the commission of passport and other document frauds do not amount to the same level of 110 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

criminality but are serious nonetheless. Uttering a false passport, for example, constituted an offence at the relevant time punishable by up to fourteen years of imprisonment: Criminal Code of Canada, RSC 1985, c C-46, s 57. The actual penalty that would be imposed for such an offence is, of course, likely to be much less, particularly for an offender without any prior criminal history in this country. 49 I note that in Yamani, above, at para 28, Justice Rothstein concluded that while subsequent proceedings could result in an abuse of process finding, it was not available in that particular case because of the wording of the statute. That conclusion was based on the wording of section 34 of the Immigration Act, RSC 1985, c I-2, which Justice Rothstein interpreted as permitting subsequent proceedings on the same facts. The section, as it read at that time, provided that: 34. No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103. 34. Les décisions rendues en application de la présente loi n’ont pas pour effet d’interdire la tenue d’une autre enquête par suite d’un autre rapport fait en vertu de l’alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d’une arrestation et d’une garde effectuées a` cette fin en vertu de l’article 103. 50 In practice, however, as explained in the explanatory notes provided to Parliament when the Bill enacting this version of section 34 was intro- duced, an inquiry would not be reopened to reverse a decision favourable to the person concerned but only to allow the presentation of additional evidence that could have the effect of reversing a negative decision, or to permit correction of a technical flaw such as issuance of the wrong kind of removal order: Explanatory Notes of an Office Consolidation of the Immigration Bill prepared by the Department of Manpower and Immi- gration, Canada, November 1976 (Library of Parliament). It is not clear whether this explanation was brought to the attention of Justice Rothstein in Yamani. 51 Once again, the general rule for intervention at an early stage in the proceedings, set out in CB Powell, above, at para 31, is that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. The threshold for exceptionality is high, and concerns relating to procedural fairness, bias or important constitutional or legal questions do not constitute exceptional circumstances Almrei v. Canada (MCI) Richard G. Mosley J. 111

where the administrative process allows the issues to be raised and an effective remedy to be granted: CB Powell at para 33. Nevertheless, in my view, the facts of this case qualify as exceptional. 52 On this motion, the respondents contend that the issues raised under section 37 were not resolved in either the first security certificate proceeding or the second dealt with in Almrei, Re, above. The first security certificate was issued and reviewed under the former Immigration Act. The second followed the enactment and implementation of the IRPA The questions addressed in the second certificate proceeding were whether the applicant constituted a danger to the security of Canada as set out in paragraph 34(1)(d) of the IRPA, had engaged in terrorism contrary to paragraph 34(1)(c), and was a member of an organization as described in paragraph 34(1)(f). These are substantially the same questions that were addressed under the predecessor legislation in the first certificate proceeding. 53 The issue now before the Minister’s Delegate is whether the applicant has engaged in transnational criminal activity contrary to paragraph 37(1)(b). While that, on its face, is a different ground and therefore does not for that reason invoke cause estoppel, I conclude that the question now before the Delegate arose collaterally or incidentally in the security certificate proceedings. At first impression, the applicant raises an arguable case that it is abusive to ask him to defend his admissibility for the third time in twelve years with respect to concerns arising from the same activities. 54 If the matter proceeds first to an administrative determination, it will not be open to the Minister’s Delegate to consider whether the question of the applicant’s inadmissibility is barred by reason of issue estoppel, res judicata or abuse of process. These are questions of law that the Delegate, as an administrative decision-maker, is not competent to determine: Gwala v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 792, [1999] 3 F.C. 404 (Fed. C.A.) at para 3. Those questions could only be addressed upon judicial review of the Delegate’s decision. 55 I recognize that it is open to the Delegate to consider the context and the facts that underlie the applicant’s arguments in reaching a decision on the humanitarian and compassionate factors favouring the grant of permanent resident status: Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, [2014] F.C.J. No. 472 (F.C.A.) at paras 69-71. That does not, in my view, serve as an adequate alternative remedy as it would be open to the parties to seek judicial review of the 112 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

decision and, in effect, litigate the question of Mr Almrei’s admissibility for the third time at this Court. Should he succeed in his application for judicial review that would be the end of the matter, subject to a decision by the Court to certify a question for appeal. 56 The information about the applicant’s unlawful dealing in identity documents was known to the immigration authorities when the decision was made to proceed against him on national security grounds. As was noted in Almrei, Re, above, at paras 494-495, steps could have been taken to seek the removal of the applicant prior to the issuance of the certificate. It is therefore surprising that the Delegate chose to character- ize that information as “new” in the Fairness Letter when it clearly was in the possession of the respondent Ministers for many years. What appears to be “new” is solely the decision to proceed against the applicant on the paragraph 37(1)(b) ground at a very late stage. 57 This case is therefore analogous to Beltran, above, where Justice Har- rington found that a delay was inexcusable because the Minister had failed to act despite having knowledge of relevant information for many years. Although the delay has been shorter in this matter, the respondents’ decision to raise the issue of inadmissibility at the last moment effectively pre-empted a judicial hearing on an application for mandamus that may have resulted in a positive remedy for the applicant in his ef- forts to obtain permanent resident status. 58 I think it relevant to consider as an exceptional circumstance the fact that the applicant was detained under strict custody for over seven years. This included periods in a maximum security institution and a provincial remand facility under harsh conditions and, following his release in 2008, under very strict limitations on his movements and contacts. The length of this detention exceeded that of any prison sentence that could reasonably have been expected had the applicant been criminally charged and convicted for the offences that are now said to serve as the basis for the CBSA recommendation that he is inadmissible under paragraph 37(1)(b). While detention for immigration enforcement purposes is not equivalent to imprisonment as part of a sentence for criminal offences, it is detention nonetheless and similarly engages the liberty interests of the individual under section 7 of the Charter, as the Supreme Court found in Charkaoui, above. 59 The applicant continues to face hardship resulting from the delay in dealing with his application for permanent residence and he presents an arguable case that a potential decision finding him inadmissible would Almrei v. Canada (MCI) Richard G. Mosley J. 113

constitute an abuse of process, or in the alternative would conflict with the principles of res judicata and issue estoppel. Any waste, delay or fragmentation that may result from proceeding with his application for judicial review before the inadmissibility decision is made is, in my view, attributable to the respondents’ conduct in this matter.

VI. Conclusion 60 I find that this is one of the rare cases where a court should exercise its discretion to intervene before an administrative decision has been rendered. I am not satisfied that the applicant has an alternative remedy available to him that is an “adequate effective recourse” to the allegations against him under paragraph 37(1)(b). The factors favouring intervention outweigh those that support deference to the administrative function. I find that the exceptional circumstances pointing to a finding of abuse of process meet the “clear and obvious” standard which warrants judicial intervention at this stage: Lorenz, above, at para 32. 61 In reaching this conclusion, I draw attention to the fact that Justice Boivin found that there was a serious issue to be tried in the underlying application and that the applicant would suffer irreparable harm if the situation was allowed to continue. I note also that Justice No¨el had indicated that leave would be granted for the application to be heard. In light of my colleagues’ findings, and my analysis of the relevant factors established by the jurisprudence, it is my view that this matter should proceed to a hearing on the merits sooner rather than later. 62 As a result, the respondents’ motion is dismissed and the Court up- holds the stay issued by Justice Boivin on October 18, 2013, which bars the respondent Ministers from proceeding with the inadmissibility inquiry. 63 As it can be assumed that leave will be granted for the application for judicial review to be heard, the parties shall provide the Court with a proposed schedule for completing the remaining steps required to proceed to a hearing.

VII. Costs 64 The applicant sought an order dismissing the motion with costs. Under Rule 22 of the Federal Courts Immigration and Refugee Protec- tion Rules, SOR/93-22, no costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial 114 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

review or an appeal under these Rules unless the Court, for special reasons, so orders. 65 The Court has full discretionary power over the amount and alloca- tion of costs and the determination of by to whom they are to be paid under Rule 400 of the Federal Courts Rules, SOR/98-106. In the particular circumstances of this matter, I consider that there are special reasons for awarding costs in favour of the applicant. 66 The present application for leave and for judicial review resulted from the delivery, at the eleventh hour prior to the hearing of a mandamus application, of notice of a new inquiry on grounds long known to the respondents. It was open to the respondents to allow the application for mandamus to proceed to a leave decision and a hearing on the merits. Their decision to bring this unsuccessful motion resulted in additional costs to the applicant. It should come at a price. I fix that price at a lump sum of $3000.00 inclusive of disbursements.

VIII. Certified Question 67 The respondents requested that the Court consider certifying the following question: Does an allegation of an abuse of process constitute “exceptional circumstances” justifying judicial review before the tribunal has rendered its final decision? 68 The jurisdiction to certify a question is set out in subsection 74(d) of the IRPA which permits appeals to the Federal Court of Appeal only where the judge of the Federal Court “in rendering judgment” certifies that a serious question of general importance is involved and states the question. 69 This does not, in my view, contemplate appeals from interlocutory questions, such as those which arise on this motion, absent a refusal by the applications judge to exercise jurisdiction: Canada (Solicitor General) v. Subhaschandran, 2005 FCA 27, [2005] F.C.J. No. 107 (F.C.A.). 70 In the event that I am wrong on the jurisdiction to certify a question under section 74 in these circumstances, I would decline to certify the question proposed. It is not a question that would lend itself to a generic approach leading to an answer of general application that transcends the particular context in which it arose: Boni c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FCA 68, [2006] F.C.J. No. 275 (F.C.A.) at para 10. As indicated by the jurisprudence discussed above, Almrei v. Canada (MCI) Richard G. Mosley J. 115 the question of whether an abuse of process justifies the intervention of the Court before the tribunal has rendered its final decision depends on the facts of each case.

Order THIS COURT ORDERS that 1. the motion is dismissed; 2. the stay issued by Justice Richard Boivin on October 18, 2013 to prevent the determination of the applicant’s inadmissibility and application for permanent residence in Canada until the underlying application for judicial review has been decided is maintained; 3. the parties shall provide the Court with a proposed schedule to complete the steps required to perfect the application; and 4. the applicant is granted the costs of this motion in the lump sum amount of $3000.00, disbursements included. Motion dismissed. 116 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Po v. Canada (Minister of Citizenship and Immigration)] Michelle Wong Ka Po, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2712-14 2014 FC 1012, 2014 CF 1012 Dani`ele Tremblay-Lamer J. Heard: October 22, 2014 Judgment: October 23, 2014 Immigration and citizenship –––– Admission — Temporary entry (visi- tors) — Students –––– Applicant was citizen of Malaysia — Applicant was studying business under student visa — Program included course work and hours of employment through co-op arrangement for which applicant had work permit — Applicant’s student visa expired during program — Minister refused to restore applicant’s study permit and co-op work permit — Minister was not satisfied that applicant met requirements as genuine student and co-op work permit, on basis of officer’s finding that work component exceeded 50 percent of programme, in violation of Minister’s policy — Applicant brought application for judicial review — Application granted — Matter was referred to different visa officer for redetermination — Officer’s failure to give applicant opportunity to respond to officer’s concerns amounted to breach of natural justice — Ex- emption reducing academic component from 50 percent to 45 percent or 46 percent of total did not stand out as manifest abuse of work-study scheme — Con- clusion that exemption changed very nature of programme required stronger basis in fact than officer provided — Officer should have sought explanation of exemption before drawing that conclusion. Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 205(c)(i) — considered

APPLICATION for judicial review of decision by Minister refusing to restore applicant’s study permit and co-op work permit.

Massood Joomratty, for Applicant Fran¸cois Paradis, for Respondent Po v. Canada (MCI) Dani`ele Tremblay-Lamer J. 117

Dani`ele Tremblay-Lamer J.:

1 The applicant seeks judicial review of the refusal by the respondent Minister of Citizenship and Immigration to restore her study permit and co-op work permit. 2 The applicant, a citizen of Malaysia, was studying business at Sprott Shaw College under a student visa. Her programme included 980 hours of coursework and 980 hours of employment through a co-op arrangement for which she held a work permit. 3 Her student visa expired during the programme. She made a timely application for its restoration. The Minister denied the application, giving only the following explanation from the examining officer: I’m not satisfied that you meet the requirements as a genuine student as per R183(1) and co-op work permit as per R205(c). 4 The officer’s notes show that the application was denied because the work component exceeded 50% of the programme, in violation of the Minister’s policy. Originally the work component was exactly 50%, but the student received an exemption from five courses. By the officer’s calculation, the academic component, excluding the exempted courses, totalled 802 or 826 hours, and the work component remained at 980 hours. Since work represented 54-55% of the programme, she found the applicant to be ineligible. 5 The sole issue is whether the officer breached the applicant’s right to procedural fairness by not offering the opportunity to address the officer’s concerns. 6 The Immigration and Refugee Protection Regulations, SOR/2002- 227, subparagraph 205(c)(i), allow for issuing a work permit “to a foreign national who intends to perform work that ... is designated by the Minister as being work that can be performed by a foreign national on the basis of [being] work that is related to a research, educational or training program”. 7 Citizenship and Immigration Canada’s Foreign Worker Manual FW 1 (29 January 2013) stipulates in s 5.37: The following academic or training programs and research activities are designated as work which can be performed by a foreign national based on the criteria listed in R205(c)(i), C30: 1. foreign students, (excluding those coming to work in medical residency or medical fellowship positions with the exception of those in the field of veterinary medicine), whose intended employment forms 118 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

an essential and integral part of their course of study in Canada and this employment has been certified as such by a responsible academic official of the training institution and where the employment practicum does not form more than 50% of the total program of study. 8 On its face, the officer’s calculation suggests that employment repre- sents more than the authorized 50% of the applicant’s time in the programme. However, the officer does not explain her conclusion that, solely because the applicant was exempted from five courses, “the program ha[d] been changed to a program with a Theoretical component of 802 hours and a co-op work component of 980 hours.” Academic institutions routinely offer exemptions for manifest mastery of the material. The exemptions do not change the programme itself; they merely waive coursework when the student has already fulfilled the requirement. 9 For example, a programme that required 168 hours of courses in basic French could reasonably exempt a francophone student from that requirement. He might then find himself with only 802 hours of coursework and a 980-hour co-op. Likewise, the applicant in the present situation might have won a sensible exemption from five courses by demonstrating mastery of the subject matter (“Computerized Accounting Principles”, “Database Applications”, “Critical Skills in Communica- tion”, “Business Writing”, and “Powerful Presentations”) through prior training, experience, or examination. If so, the visa should not have been denied solely because of the exemption. 10 I recognize that a raft of exemptions could suggest abuse, particularly if they minimized the academic component. The Minister enjoys discretion to deny visas for programmes that are nothing more than ruses to facilitate employment in Canada under the pretence of study. In the case at bar, however, an exemption reducing the academic component from 50% to 45% or 46% of the total does not stand out as a manifest abuse of the work-study scheme. The conclusion that the exemption changed the very nature of the programme requires a stronger basis in fact than the officer provided. In such a case, she should have sought an explanation of the exemption before drawing that conclusion. The officer’s failure to give the applicant an opportunity to respond to her concerns, on the facts of this case, amounted to a breach of natural justice. 11 For these reasons, the application for judicial review is allowed and the matter is referred to a different visa officer for redetermination. Po v. Canada (MCI) Dani`ele Tremblay-Lamer J. 119

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is allowed and the matter is referred to a different visa officer for redetermination. Application granted. 120 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Diarra v. Canada (Minister of Citizenship and Immigration)] Badra Aly Diarra, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1217-14 2014 FC 1009, 2014 CF 1009 Michel Beaudry J. Heard: October 21, 2014 Judgment: October 23, 2014* Immigration and citizenship –––– Refugee protection — Appeal or redetermination of claim — Standard of review –––– Applicant was citizen of Mali — Applicant arrived in Canada in 2009 on student visa — Coup d’état took place in Mali in 2012 with result that applicant’s family’s business was destroyed, family relocated to Netherlands, and applicant ceased to receive money from father for tuition fees — Applicant sought refugee protection in 2013 — Refugee Protection Division (RPD) found applicant lacked credibility and denied claim — After RPD’s decision, applicant received letter from father confirming his narrative — Applicant appealed RPD’s decision and submitted letter as new evidence — Applicant requested hearing before Refugee Appeal Division (RAD) pursuant to s. 110(6) of Immigration and Refugee Protection Act — RAD analyzed RPD’s findings pursuant to standard of reasonableness and confirmed RPD’s decision that applicant was not refugee or person in need of protection — Applicant brought application for judicial review — Applica- tion granted — By applying judicial review standard of reasonableness, RAD committed reviewable error. Cases considered by Michel Beaudry J.: Alvarez c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CF 702, 2014 CarswellNat 2620, 2014 CarswellNat 2863, 2014 FC 702 (F.C.) — followed Alyafi c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CF 952, 2014 CarswellNat 3842, 2014 FC 952, 2014 CarswellNat 4375 (F.C.) — followed

*A corrigendum issued by the court on November 17, 2014 has been incorporated herein. Diarra v. Canada (MCI) 121

Canadian Artists’ Representation / Le Front des artistes canadiens v. National Gallery of Canada (2014), 68 Admin. L.R. (5th) 1, 2014 CarswellNat 1904, 2014 CarswellNat 1905, 2014 SCC 42, 2014 CSC 42, (sub nom. National Gallery of Canada v. Canadian Artists’ Representation) 458 N.R. 233, 121 C.P.R. (4th) 1, 371 D.L.R. (4th) 383 (S.C.C.) — considered Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, 2002 CSC 33, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — followed Huruglica v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 799, 2014 CF 799, 2014 CarswellNat 3148, 2014 CarswellNat 3149, [2014] F.C.J. No. 845 (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, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 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 Njeukam c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CarswellNat 3710, 2014 FC 859, 2014 CF 859, 2014 CarswellNat 3429 (F.C.) — considered Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, [2008] 1 F.C.R. D-7, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — followed Spasoja c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CarswellNat 3617, 2014 CF 913 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 96 — considered s. 97 — considered s. 110(4) — considered s. 110(6) — referred to

APPLICATION for judicial review of decision by Refugee Appeal Division confirming Refugee Protection Division’s decision that applicant was not refugee or person in need of protection. 122 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Me Jessica Lipes, for Applicant Me Lynne Lazaroff, for Respondent

Michel Beaudry J.:

1 This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision by the Refugee Appeal Division [RAD] dated January 23, 2014. The RAD confirmed the Refugee Protection Division’s [RPD] decision dated September 25, 2013 that the Applicant was not a refugee, nor a person in need of protection. 2 The application for judicial review shall be allowed for the following reasons.

Background 3 The Applicant is a citizen of Mali. In 2009, he arrived in Canada on a student visa. 4 In March 2012, following a coup d’´etat in Mali, the Applicant’s family’s home and his stepfather’s business were ransacked by the military because of the business contracts the stepfather had with the Malian government. 5 According to the Applicant, his stepfather, a Dutch man, sent his wife and children to the Netherlands. The stepfather remained in Mali for a few months before joining his family there. 6 Because of his family’s departure from Mali, the Applicant ceased to receive money from his stepfather including payment for his tuition fees. 7 The Applicant sought refugee protection in July 2013. 8 The Applicant’s refugee application was heard by the RPD on Sep- tember 23, 2013. It issued its decision and reasons on September 25, 2013. In essence, the RPD did not question the alleged facts following the coup d’´etat in March 2012 but noted that general physical violence was present for a short period of time. It did not believe that the Appli- cant’s subsequent allegations were credible. The RPD also concluded that the Applicant had failed to establish that he was a refugee or a person in need of protection pursuant to sections 96 and 97 of the IRPA. 9 On September 24, 2013, the Applicant claims to have received a letter from his stepfather corroborating his narrative (page 40, Tribunal Record). Diarra v. Canada (MCI) Michel Beaudry J. 123

10 On September 27, 2013, the Applicant forwarded this letter to the RPD. However, the letter was returned to him as the RPD had already rendered its decision. 11 The Applicant appealed the RPD’s decision and submitted his stepfather’s letter as new evidence. Subsequently, the Applicant requested a hearing before the RAD pursuant to subsection 110(6) of the IRPA. 12 The RAD rendered its decision on January 23, 2014. 13 In its decision, the RAD noted that the admissibility of new evidence was governed by subsection 110(4) of the IRPA. It further mentioned that at the time of rendering its decision, there was no jurisprudence relating to the application of the above-mentioned subsection; therefore, it relied on the Federal Court of Appeal’s interpretation of a relevant IRPA provision, that is paragraph 113(a) relating to Pre-Removal Risk Assess- ment [PRRA] in the case of Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.) [Raza]. The RAD deemed paragraph 113(a) to be similar in its wording and effect as subsection 110(4). 14 Following the criteria set out in Raza, the RAD concluded that the stepfather’s letter failed to meet two criteria, namely credibility and materiality. This conclusion was reached by the RAD because the letter was not addressed specifically to the tribunal, nor did it provide an address for the stepfather. Also, the letter had not been notarized and it would not have altered the RPD’s decision had it been admitted as evidence prior to the tribunal reaching its decision to reject the Applicant’s application. 15 With that conclusion, the RAD considered that there was no need for a hearing of the Applicant’s appeal. 16 The RAD then proceeded to address the question of standard of review. It noted that the RAD does not perform a judicial review of the RPD’s decision. Rather, the matter before the RAD is similar to that of an appeal before a Court. However, given the absence of clear directions in the jurisprudence, the RAD applied the principles set out in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]. It determined that given that the matter involved questions of credibility, the standard of reasonableness was applicable in the present case. 17 The RAD proceeded to an analysis of the RPD’s findings having in mind the standard of reasonableness and confirmed that the decision was reasonable. 124 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

18 The Applicant raises numerous issues but only one is sufficient to return the matter for reconsideration which is the standard of review adopted by the RAD.

Parties positions 19 The question of the role of the RAD in appeal of the RPD is central here. In recent months, this Court has rendered decisions offering different approaches in determining the standard by which appeals to the RAD should be determined. 20 The first approach, which is advocated by the RAD in this case, is the use of judicial review principles using the standard of reasonableness in assessing the RPD’s decision. This approach has been rejected by this Court Alyafi c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 CF 952 (F.C.) at para 39 [Alyafi]. 21 The second approach uses the standard of review applicable to appellate courts set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.), which is the “palpable and overriding error”. Such an approach was used in Alvarez c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 702 (F.C.) [Alvarez]. 22 The third approach proposed by Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 (F.C.) [Huruglica], advo- cates for a hybrid form of appeal. 23 Initially arguing in favour of the standard of correctness, the Appli- cant, in light of recent decisions, submits that a hybrid form of appeal should be the approach used by the RAD in assessing appeals from the RPD. 24 On the other hand, the Respondent argues that the RAD did not err in reviewing the RPD’s credibility analysis on the reasonableness standard. In support of this position, the Respondent asks us to consider this Court’s decision in Njeukam c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 859 (F.C.), where Locke J. held that: [14] Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD: see Hurug- lica, at paras 37 and 55. The RAD has as much expertise as the RPD and maybe more with respect to the analysis of the relevant documents and the representations from the parties. [...] Diarra v. Canada (MCI) Michel Beaudry J. 125

[18] The issue of standard of review is not determinative in this case because the RPD’s dispositive finding concerns the applicant’s credibility. Therefore, even following Huruglica, the RAD was right to defer to the RPD’s findings. 25 Further, the Respondent argues that following the Supreme Court of Canada’s decision in Canadian Artists’ Representation / Le Front des artistes canadiens v. National Gallery of Canada, 2014 SCC 42 (S.C.C.), it was reasonable for the RAD to apply the standard of reasonableness in analyzing the RPD decision. 26 In any event, the Respondent argues that the decision should be upheld regardless of the standard of review applied by the RAD.

Analysis 27 In Alyafi, Martineau J. makes it clear that by applying the judicial review standard of reasonableness, the RAD committed a reviewable error, see para 46. The RAD does not sit in judicial review of the RPD’s decisions. In the present case, the RAD’s panel member acknowledged this fact in the contested reasons at paragraph 35, where he stated: Bien que la SAR ne procède pas a` un contrôle judiciaire des déci- sions de la SPR, mais qu’elle agisse plutôt en instance d’appel, au sein du même tribunal administratif qu’est la CISR, j’estime qu’à défaut d’indications plus directes des tribunaux supérieurs, il est possible d’appliquer a` la SAR les principes développés dans l’affaire Dunsmuir. 28 However, the panel member proceeded with a judicial review analysis of the RPD’s decision using the standard of reasonableness as set out in Dunsmuir. 29 Therefore, the RAD erred in its application of the standard of reasonableness and for that reason alone the matter should be referred back to the RAD. 30 Further, the Court notes that the same two questions have been certified in relation to the RAD’s role in considering appeals from the RPD in the cases of Huruglica and Spasoja c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 CF 913 (F.C.). 31 The parties did not propose a question for certification. The Court on its own discretion would have certified a question of general importance on the issue of determination to be applied by the RAD from appeals from the RPD. This question has been raised in the above two cases. Therefore, the Court shall not certify a question on the same issue. 126 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Judgment THIS COURT’S JUDGMENT is that the application for judicial review be allowed, the matter is remitted back for reconsideration by a newly constituted RAD. No question is certified. Application granted. Singh v. Canada (MCI) 127

[Indexed as: Singh v. Canada (Minister of Citizenship and Immigration)] Parminder Singh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6711-13 2014 FC 1022, 2014 CF 1022 Jocelyne Gagn´e J. Heard: July 2, 2014 Judgment: October 28, 2014* Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Standard of review –––– Appli- cant was citizen of India who had attended school with friend B until 2002 — In November 2012, after years of not having heard from him, B showed up unannounced at applicant’s house — Several days later, police arrested applicant to ask him questions about B; applicant was detained, tortured and released — Ap- plicant came to Canada in January 2013 and made refugee claim which was rejected by Refugee Protection Division (RPD) — RPD concluded that without applicant’s grade 12 diploma, which he had failed to produce, applicant had failed to satisfactorily establish both his identity, and fact that he had studied with B until 2002 — Applicant claimed that diploma had been taken by Citizen- ship and Immigration Canada (CIC) when he was detained upon arrival, and that CIC had forwarded it to his former lawyer — Applicant appealed RPD’s decision to Refugee Appeal Division (RAD), and sought to produce diploma as new evidence pursuant to s. 110(4) of Immigration and Refugee Protection Act — Applying test in Raza v. Canada, RAD held that diploma was not admissible as new evidence since applicant could have produced it at RPD hearing — Appli- cant applied for judicial review of RAD’s decision — Application granted — It was unreasonable for RAD to strictly apply test in Raza v. Canada, as case considered issue of admissibility of fresh evidence before PRRA officer, whose role was neither quasi-judicial nor appellate in nature — Moreover, it was unreasonable for RAD to conclude that applicant could have brought diploma before RPD.

*A corrigendum issued by the court on February 17, 2015 has been incorporated herein. 128 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — Of general importance –––– Applicant was citizen of India who had attended school with friend B until 2002 — In November 2012, after years of not having heard from him, B showed up unannounced at applicant’s house — Several days later, police arrested applicant to ask him questions about B; applicant was detained, tortured and released — Applicant came to Canada in January 2013 and made refugee claim which was rejected by Refugee Protection Division (RPD) — RPD concluded that without applicant’s grade 12 diploma, which he had failed to produce, applicant had failed to satisfactorily establish both his identity, and fact that he had studied with B until 2002 — Applicant appealed RPD’s decision to Refugee Appeal Division (RAD), and sought to produce diploma as new evidence pursuant to s. 110(4) of Immigration and Refugee Protection Act — Applying test in Raza v. Canada, RAD held that diploma was not admissible as new evidence since applicant could have produced it at RPD hearing — Applicant applied for judicial review of RAD’s decision — Applica- tion granted — Two questions were certified as being of general importance and determinative in case at bar — Firstly, what standard of review should be applied by court when reviewing RAD’s intepretation of s. 110(4) of Act? — Sec- ondly, in considering role of PRRA officer and that of RAD, does test set out in Raza v. Canada for interpretation of s. 113(a) of Act apply to s. 110(4)?. Cases considered by Jocelyne Gagné J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — followed Alvarez c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CF 702, 2014 CarswellNat 2620, 2014 CarswellNat 2863, 2014 FC 702 (F.C.) — referred to Alyafi c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CF 952, 2014 CarswellNat 3842, 2014 FC 952, 2014 CarswellNat 4375 (F.C.) — considered British Columbia (Securities Commission) v. McLean (2013), (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Ad- min. L.R. (5th) 237, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 2013 SCC 67, [2014] 2 W.W.R. 415, 366 D.L.R. (4th) 30, (sub nom. McLean v. Singh v. Canada (MCI) 129

British Columbia Securities Commission) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67 (S.C.C.) — considered Eng c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CF 711, 2014 CarswellNat 2621, 2014 FC 711, 2014 CarswellNat 2921 (F.C.) — referred to Huruglica v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 799, 2014 CF 799, 2014 CarswellNat 3148, 2014 CarswellNat 3149, [2014] F.C.J. No. 845 (F.C.) — followed Iyamuremye c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 FC 494, 2014 CarswellNat 1948, 2014 CF 494, 2014 CarswellNat 1673 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered 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, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 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 Newton v. Criminal Trial Lawyers’ Assn. (2010), 14 Admin. L.R. (5th) 181, [2011] 4 W.W.R. 232, 38 Alta. L.R. (5th) 63, 493 A.R. 89, 502 W.A.C. 89, 2 C.P.C. (7th) 166, 2010 CarswellAlta 2461, 2010 ABCA 399 (Alta. C.A.) — followed Njeukam c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CarswellNat 3710, 2014 FC 859, 2014 CF 859, 2014 CarswellNat 3429 (F.C.) — referred to Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, [2008] 1 F.C.R. D-7, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — followed Spasoja c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2014), 2014 CarswellNat 3617, 2014 CF 913 (F.C.) — referred to Whatcott v. Saskatchewan Human Rights Tribunal (2013), 355 D.L.R. (4th) 383, 441 N.R. 1, (sub nom. Saskatchewan (Human Rights Commission) v. Whatcott) 276 C.R.R. (2d) 270, (sub nom. Saskatchewan (Human Rights Commission) v. Whatcott) 76 C.H.R.R. D/1, (sub nom. Saskatchewan 130 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

(Human Rights Tribunal) v. Whatcott) [2013] 1 S.C.R. 467, [2013] 4 W.W.R. 429, 2013 SCC 11, 2013 CarswellSask 73, 2013 CarswellSask 74, 409 Sask. R. 75, 568 W.A.C. 75, [2013] S.C.J. No. 11 (S.C.C.) — followed Yetna c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CF 858, 2014 FC 858, 2014 CarswellNat 3569, 2014 CarswellNat 4223 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97(1) — pursuant to s. 110(2) — considered s. 110(4) — considered s. 110(6) — considered s. 111(1)(b) — considered s. 113(a) — considered Rules considered: Refugee Appeal Division Rules, SOR/2012-257 R. 3(3) — considered

APPLICATION for judicial review of decision of Refugee Appeal Division confirming decision of Refugee Protection Division that applicant was neither Con- vention refugee nor person in need of protection.

Me Claude Whalen, for Applicant Me Mario Blanchard, for Respondent

Jocelyne Gagn´e J.:

1 This application for judicial review concerns the power and duties of the newly constituted Refugee Appeal Division of the Immigration and Refugee Board [RAD], not so much with respect to the standard of intervention that it should apply when sitting in appeal of decisions by the Refugee Protection Division [RPD], but rather with respect to the criteria it must consider upon admitting evidence not before the RPD. 2 Mr. Parminder Singh seeks judicial review of a decision by the RAD, dated September 26, 2013, whereby it confirmed the decision of the RPD that he is neither a Convention refugee within the meaning of section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] nor a person in need of protection under its subsection 97(1). In its analysis of the RPD decision, the RAD applied the reasonableness standard; it Singh v. Canada (MCI) Jocelyne Gagn´e J. 131

considered its mandate essentially akin to that of this Court when undertaking a judicial review of a RPD decision. 3 There is several recent decisions of this Court concerning both the role of the newly created RAD, and of this Court upon judicial review of decisions made by the RAD (see Iyamuremye c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 494 (F.C.); Alvarez c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 702 (F.C.); Eng c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 711 (F.C.); Huruglica v. Canada (Minister of Citizenship and Immi- gration), 2014 CF 799 (F.C.) [Huruglica]; Njeukam c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 859 (F.C.); Yetna c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 858 (F.C.); and Spasoja c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 CF 913 (F.C.)). In addition, early this month in Alyafi c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 952 (F.C.), Justice Martineau, who did not specifically need to take position on these issues, made an interesting review of this Court’s previous decisions. 4 For the purpose of the present application, it is sufficient to say that this Court clearly rejected the position taken by the RAD in the decision under review, that it owes deference to the findings of the RPD and that it should apply the reasonableness standard, as this Court does when reviewing the RPD decisions that are not subject to an appeal before the RAD. 5 However and as indicated above, the principal issue in this application for judicial review, as framed by the applicant, is whether it was reasonable for the RAD to refuse to admit a piece of evidence — a 2002 grade 12 diploma — that had not been before the RPD, pursuant to subsection 110(4) of the Act. The diploma would allegedly confirm that the RPD had unreasonably determined that the applicant failed to demonstrate his identity, and that he was not credible. 6 The RAD applied the jurisprudence of this Court interpreting paragraph 113(a) of the Act mutatis mutandis to the interpretation of its subsection 110(4). Paragraph 113(a) deals with the admissibility of fresh evidence before a Pre-Removal Risk Assessment [PRRA] officer (that had not been before the RPD). While the RAD ultimately held that the RPD unreasonably determined that the applicant had failed to satisfactorily demonstrate his identity for other reasons, the applicant maintains that 132 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

the credibility determination was compromised by the RAD’s refusal to admit his new evidence. 7 For the reasons discussed below, this application for judicial review will be granted.

I. Background 8 The applicant is a 30 year old citizen of India. He alleged before the RPD a well-founded fear of persecution based on “imputed political opinion” and also claimed to be a person in need of protection. 9 During his school days, the applicant was friend with one Bhupinder Singh. He graduated in 2002, at which time he returned to his family’s farm. 10 In November 2012, after several years of not having heard from him, Bhupinder Singh showed up unannounced at the applicant’s house to spend the night. A few days later, the Indian police arrived at the applicant’s house and arrested him in order to ask him questions about Bhupinder Singh. The applicant was detained, tortured and released three days later. He was admitted to a hospital for five days, where he was treated for stomach pains. 11 The applicant was arrested a second time, 15 days later, in order to be asked more questions about Bhupinder Singh. After a 1 day detention, he was unconditionally released. 12 Following his second arrest, the applicant’s mother decided to pay an agent so her son could safely leave India. He left India on January 28, 2013, and arrived in Canada the following day. His inland refugee claim was received on February 21, 2013.

II. The RPD decision 13 The applicant’s refugee claim hearing was rejected on May 1, 2013. The RPD held that the applicant failed to satisfactorily establish his identity. 14 The applicant claimed to have arrived with some genuine documents, including his birth certificate, a 1998 school report card, as well as two school diplomas (a grade 10 diploma from 2000, and a grade 12 diploma from 2002). The RPD found it noteworthy to add that neither diploma had been examined by the Canada Border Services Agency [CBSA]. However, only the grade 10 diploma was before the RPD. In addition to not confirming his identity, the fact that the 2002 diploma was missing Singh v. Canada (MCI) Jocelyne Gagn´e J. 133

could not corroborate that the applicant had studied with Bhupinder Singh until 2002. 15 The applicant alleged that his grade 12 diploma had been taken by Citizenship and Immigration Canada [CIC] when he had been detained upon arrival, and that CIC failed to forward it to the RPD. The RPD did not believe that CIC was in possession of the document. Moreover, considering the importance of this evidence for the applicant’s narrative, the RPD held that his inability to produce it negatively affected his credibility. 16 The RPD did not believe that the applicant’s birth certificate was sufficient to demonstrate his identity. 17 Despite not being satisfied with his identity demonstration, the RPD continued with its analysis, concluding that even had the applicant sufficiently demonstrated his identity, his refugee claim would still have been denied because it lacked credibility. Notably, the RPD drew negative inferences from the fact that the applicant had amended his original Basis of Claim form [BOC] to reflect that his father’s stroke occurred between his two arrests (and not following his second arrest). The Board considered this to be a significant event in the applicant’s life, and so he should not have made a chronological error in this respect. 18 The RPD also drew negative inferences as it seemingly misunder- stood the difference between a heart attack and a stroke. The applicant had written in his BOC that his father had suffered a stroke, and had produced a medical report indicating that his father had suffered from facial paralysis in late November 2012, and was advised to seek bed rest for five days. Yet the RPD could not accept that a man suffering from a heart condition would be issued such a medical report. Moreover, the applicant had testified that his father became bedridden, almost para- lyzed, and required assistance to complete basic life tasks; yet the medical note does not mention a bedridden person, but rather someone who suffers from facial paralysis and who has to stay in bed for a five-day period. 19 The RPD also did not believe that the applicant had to go to the hospital following the torture he suffered when first detained, as the medical note he produced (and the list of drugs it claims were administered to him) does not corroborate his allegations. No explanation was provided as to why these specific drugs would not be administered to a torture victim. 134 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

20 Finally, even had the applicant established his identity and been considered credible, he had an internal flight alternative [IFA] in Mumbai, Delhi or Bangalore. 21 The applicant appealed his decision to the RAD, invoking three main grounds: (1) the RPD erred in analyzing his identity; (2) the RPD did not properly evaluate his credibility; and (3) the RPD erred in its IFA analysis. 22 On September 26, 2013 the applicant’s appeal was rejected by a one member panel of the RAD.

III. The Impugned RAD Decision 23 The applicant sought to produce his 2012 high school diploma before the RAD, arguing that it was new evidence pursuant to subsection 110(4) of the Act. Pursuant to subsection 3(3) of the Refugee Appeal Division Rules, SOR/2012-257, the applicant submitted a written statement detail- ing how his documentary evidence satisfied the requirements of subsection 110(4) of the Act. 24 The RAD determined that section 110(4) is very similar to paragraph 113(a) of the Act, which deals with the admissibility of fresh evidence before a PRRA officer. As such, the RAD applied the criteria emanating from Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.) [Raza] at para 13, and evaluated the credibility, the relevance, the newness, and the materiality of the evidence in order to decide on its admissibility. 25 In his written statement, the applicant pled that he only became aware on June 11, 2013 that this document had been faxed on February 25, 2013 by CIC (which had seized it on January 29, 2013) to the applicant’s former lawyer. As such, it had been impossible for him to produce it before the RPD. The applicant argued that he needed it for his appeal in order to prove that the RPD had erred in not believing that CIC had seized it. Considering that his failure to produce this diploma negatively affected his overall credibility, the applicant argued that it was of paramount importance to have it before the RAD. 26 The RAD concluded that at the date of the hearing before the RPD, the applicant could have produced the document, and so it could not be admissible before the RAD. Considering that he had not taken a complaint procedure against his former lawyer for failing to advise him that the document was in her possession before the RPD hearing, the RAD Singh v. Canada (MCI) Jocelyne Gagn´e J. 135

presumed that the applicant had been made aware of the document’s retrieval from CIC: [28] ... En effet, si ce document a et´´ e saisi, le 29 janvier 2013, par les autorités de l’immigration, il n’en demeure pas moins que, le 25 février 2013, une copie de ce document a et´´ e transmise par télécopieur a` son avocate. Un membre du Barreau du Québec a en- vers son client, un devoir de compétence ainsi que des obligations de loyauté, d’intégrité, d’indépendance, de désintéressement, de dili- gence et de prudence. Dans le cadre de la présente procédure d’appel, l’appelant n’a pas invoqué que son avocate a agi avec incompétence et il n’a pas fourni la preuve qu’il avait, d’une manière ou d’une autre, formulé une plainte contre son ancienne avocate et que celle-ci en a et´´ e informée de manière a` ce qu’elle puisse, au besoin, se faire entendre a` ce sujet. [Emphasis added.] 27 The RAD also dismissed the applicant’s request for a hearing pursuant to subsection 110(6) of the Act, in order to reassess his credibility in light of the production of the 2002 diploma. Considering the document was deemed inadmissible, there was no ground to hold a hearing. 28 With respect to which standard of review to apply to the RPD’s decision, invoking Newton v. Criminal Trial Lawyers’ Assn., 2010 ABCA 399 (Alta. C.A.), the RAD held that the RPD, as a first instance tribunal, is owed deference, and that its findings of fact and of mixed fact and law decisions must be assessed on a reasonableness standard. Questions of law and of procedural fairness are to be evaluated on the correctness standard. 29 As such, the three grounds of appeal (dealing with the applicant’s identity, his credibility, and his IFA) were reviewed on the reasonableness standard. 30 With respect to the applicant’s identity, the RAD held that the RPD unreasonably concluded that he had failed to satisfactorily demonstrate it. In doing so, the RAD noted that its purpose is not to “re-evaluate the evidence,” nor to proceed with “a microscopic analysis” of the RPD’s decision, but rather determine whether this was a reasonable outcome. 31 The RAD agreed that the applicant had failed to make sufficient ef- forts in order to provide documents establishing his identity, and that the RPD was right to draw a negative credibility finding in this respect. Nonetheless, it was unreasonable that the RPD did not consider the probative value of the school diploma (and the 1998 report card) in assess- 136 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

ing whether the applicant had satisfactorily demonstrated his identity, even though it had assessed the document for other reasons. 32 However, the RAD determined that the RPD’s overall credibility assessment was reasonable. 33 Finally, the RAD did not address the RPD’s determination with respect to his IFA, considering the applicant was deemed not to be credible.

IV. Issues and Standard of Review 34 The applicant only raises one issue:

• Was the Refugee Appeal Division’s overall decision reasonable? 35 The parties both plead that the RAD owes the RPD deference and that it should review the RPD decision applying the reasonableness standard. Respectfully, I do not agree. 36 However, the issue before the Court is rather whether the RAD erred in its interpretation of subsection 110(4) of the Act by using the Raza test and if it reasonably applied it. 37 As regards the standard of review applied by this Court, the respondent argues that the RAD’s determination of the appropriate analysis that is to be conducted in assessing the admissibility of new evidence should be subject to the reasonableness standard, as it involves a tribunal considering and applying its home statute: while errors of law are generally governed by a correctness standard. New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) says “that if the interpretation of the home statute or a closely related statute by an expert decision maker is reasonable, there is no error of law justifying intervention” (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 44). 38 The respondent further cites Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11 (S.C.C.) at para 167, interpreting A.T.A. v. Alberta (Information & Privacy Commissioner), [2011] 3 S.C.R. 654 (S.C.C.) [Alberta Teachers] at para 30 on the exceptions where correctness will apply: This principle [of deference] applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, ... Singh v. Canada (MCI) Jocelyne Gagn´e J. 137

‘[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals’ [and] true questions of jurisdiction or vires ...”. 39 As such, the respondent argues that the admissibility of new evidence before the RAD is within the tribunal’s expertise and does not involve a question of central importance to the legal system as a whole or any other special circumstances that would require review on a correctness standard. 40 I agree with the respondent. 41 In A.T.A., Justice Binnie set out that an issue of general legal importance is one “whose resolution has significance outside the operation of the statutory scheme under consideration.” The Supreme Court of Can- ada has since not identified a case that raised a “question of central importance to the legal system as a whole.” Moreover, since A.T.A., the Supreme Court of Canada has reiterated its strict limitations to the use of the exceptions to the reasonableness standard. In British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.), the Court found that deference is owed to provincial securities’ regulators interpretation of statute of limitation provisions, despite it being a “technical” question, rather than a “bureaucratic” one. 42 Therefore, I am of the view that both the RAD’s interpretation of subsection 110(4) of the Act (as a question of law that is not of general importance to the legal system as a whole and outside the expertise of the RAD) and its application to the facts of this case (as a question of mixed fact and law) are to be reviewed on the reasonableness standard.

V. Legislation 43 Subsection 110(4) and paragraph 113(a) of the Immigration and Ref- ugee Protection Act provide as follows: 110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant 138 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; 110. (4) Dans le cadre de l’appel, la personne en cause ne peut pré- senter que des el´´ ements de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet;

VI. Analysis • Was the RAD’s interpretation of subsection 110(4) of the Act reasonable? 44 The applicant argues that by not admitting the 2002 school diploma into evidence, the RAD failed to admit a document that not only goes to the core of his story, but also to the RPD’s finding of credibility which consequently, gravely prejudices his claim. The RAD failed to properly apply Raza, as this “new evidence” satisfies the Raza test insofar that the document: (a) is credible; (b) is pertinent; (c) is “new” in that it can re- fute a factual conclusion drawn by the RPD; (d) is of substantial character; and (e) was not raised before the board through no fault of the applicant. The RAD could not have reasonably expected that it be produced by the applicant at the time of the RPD hearing. 45 The applicant adds that the RAD failed to give sufficient weight to the following factors: 1. The document was of critical probative value to the applicant’s claim because it proved that he attended school with Bhupinder Singh at that time and that he was not lying about this fact; 2. Although the document was initially seized by the CBSA, the RPD did not believe this part of the applicant’s testimony when in fact it was true (i.e. this demonstrates that the applicant was not lying); and 3. The RAD recognized that the failure to produce the document was the fault of the lawyer yet nonetheless it blamed the applicant, whose case was entirely in the hands of his lawyer(s), and who Singh v. Canada (MCI) Jocelyne Gagn´e J. 139

likely did not know what documents may have been missing from his file or that the document in question was of such critical importance to his claim. 46 Meanwhile, the respondent argues the RAD used the proper test by interpreting subsection 110(4) of the Act in light of similar wording in paragraph 113(a); an interpretation of the latter can assist this Court in interpreting the former. Accordingly, the respondent agrees that the series of factors set forth in Raza apply, and that it was available to the RAD to consider them. I quote the relevant parts of Raza in full: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the 140 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above. 47 The applicant was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing. The respondent maintains the RAD did not err in finding that he failed to do so. 48 It is worthwhile to explore whether it is reasonable for there to be an application of paragraph 113(a) jurisprudence when considering said paragraph mutatis mutandis to subsection 110(4) of the Act. 49 Unlike a PRRA officer, the RAD is a quasi-judicial administrative tribunal, trusted to act as an instance of appeal of the RPD’s determination of a refugee’s claim. While both a PRRA decision and a RPD decision in certain instances of restriction — as detailed in subsection 110(2), are not subject to appeal, except in circumstances where there are applications for leave and for judicial review by this Court, the RPD’s determination of a claim not falling under the scope of a restriction stipulated under subsection 110(2) is subject to an automatic right of appeal to the RAD. Only upon receiving the “final” RAD decision can the claimant seek leave to this Court. Moreover, in revisiting the RPD’s decision, unlike this Court, the RAD has the power — as expressly granted by the Singh v. Canada (MCI) Jocelyne Gagn´e J. 141

legislature under paragraph 111(b), to set aside the RPD’s decision and substitute a determination that, in its opinion, should have been made. 50 A PRRA officer is not a quasi-judicial body, nor does he or she have an appellate function when faced with a RPD decision. The PRRA officer is an employee of the Minister, acting within his or her employer’s discretion (insofar as it is circumscribed by the Act and the Regulations). The PRRA officer must give deference to the RPD’s determination of the claim, to the extent that the facts remain unchanged from the time it had rendered its decision. Instead, the PRRA officer is specifically looking as to whether new evidence has come to life since the RPD’s rejection of the claim for determining a risk of persecution, a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment. The underlying rationale for paragraph 113(a) of the Act is not appellate in nature but rather to assure the claimant has a last chance to have any new risks of refoulement (not previously assessed by the RPD) assessed before removal can take place. 51 The language of paragraph 113(a) is similar to that of subsection 110(4). The latter provision sets out that the RAD can only declare evidence admissible if it arose after the RPD’s rejection of the claim or if it was not reasonably available or if the person could not reasonably have been expected in the circumstances to have presented it (unlike for paragraph 113(a), the French version of subsection 110(4) does not use “reasonably have been expected” but rather the equivalent of “normally have been expected”). The RAD however considers this evidence in a very different light than does the PRRA officer; it is doing so in an appellate review of the correctness of the RPD’s determination. 52 I recognize that an appeal to the RAD is mostly intended as a “paper- based” appeal. 53 However, in considering whether to grant a hearing, the RAD may only look to admissible evidence. Given this requirement, the approach taken to applying admissibility criteria - either strictly or leniently - is of paramount importance because when a claimant, who is deserving of a hearing, is refused one, serious issues of procedural equity are potentially implicated. In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible. 54 Further, a restrictive interpretation of this new section would limit the ability of a claimant to get a “full fact-based appeal,” as former Minister 142 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

of Citizenship and Immigration Jason Kenney intended. I quote his re- marks in Hansard (41st Parliament, 1st Session, Tuesday March 6, 2012): I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. [Emphasis added.] 55 Accordingly, in order for there to be a “full fact-based appeal” before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially sub- mitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised 56 But there is more. In Raza, Justice Sharlow distinguishes between the express and the implicit questions raised by paragraph 113(a) of the Act and specifically states that the four implied questions (credibility, relevance, newness and materiality) find their source in the purpose of paragraph 113(a) within the statutory scheme of the Act relating to refugee claims and PRRA applications. In my view, they need to be addressed in that specific context and are not transferable in the context of an appeal before the RAD. 57 In sum, I am of the view that it was unreasonable for the RAD to strictly apply the Raza test in interpreting subsection 110(4) of the Act all the while failing to appreciate that its role is quite different from that of a PRRA officer. 58 In order to achieve statutory coherence, in that the RAD would be able to hear fleshed out appeals of questions of fact and of mixed fact and law, the main issue is whether the evidence “was not reasonably available, or that the person could not reasonably (or normally according Singh v. Canada (MCI) Jocelyne Gagn´e J. 143

to the French version) have been expected in the circumstances to have presented.”

Was the RAD’s application of subsection 110(4) of the Act to the facts of this case reasonable? 59 In the case at bar, the evidence at issue could be material for demonstrating that the RPD erred in two key credibility findings: first, the RPD wrongly believed that the CBSA had not confiscated the 2002 diploma, and second, that the document lends further credence that the applicant did in fact go to school with Bhupinder Singh until 2002. These findings surely affected the totality of the credibility assessment made by the RPD. 60 Moreover, it was not reasonable for the RAD to conclude that the applicant should have brought the documentary evidence before the RPD. The document was not in his possession, and he mistakenly believed that CBSA still had it, based on the fact that the agency had seized it from him initially. The RAD seemingly recognized that the failure to produce the document was the fault of the lawyer. The CBSA had faxed it to the lawyer after the RPD hearing and the lawyer had failed to forward it to the applicant before the RAD determination. 61 In my mind, it was unreasonable for the RAD to expect the applicant to file a complaint against his former lawyer as a prerequisite for filing the new evidence before the RAD. It was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Bar- reau du Qu´ebec, much less be willing to attack the competence and eth- ics of that lawyer. 62 The applicant’s request to file this new evidence fell squarely, in my view, within the scope of subsection 110(4) of the Act and it met its explicit criteria...... 63 Counsels for the parties were asked at the hearing if they proposed a question of general importance for certification, which they did not. 64 As a result of certain comments made by the Court during the hearing, counsel for the respondent, with the consent of counsel for the applicant, subsequently proposed the same question of general importance as was proposed before Justice Phelan in Huruglica: Within the RAD’s statutory framework where the appeal proceeds on the basis of the record of the proceedings of the Refugee Protection 144 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Division, does the RAD owe deference to RPD findings of fact and of mixed fact and law? 65 As indicated above, I am of the view that said question is not determinative of the present case and that it would not be determinative of an appeal. However, I view the following questions as being of general importance and determinative in the case at bar: • What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? • In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Pro- tection Division, does the test set out in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.) for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)?

VII. Conclusion 66 For these reasons, I find that both the RAD’s interpretation of subsection 110(4) of the Act and its application to the facts before it are unreasonable such that the application for judicial review should be granted and the above questions certified.

Judgment THIS COURT’S JUDGMENT is that: 1. The applicant’s Application for Judicial Review is granted; 2. The decision of the Refugee Appeal Division of the Immigration and Refugee Board, dated September 26, 2013, is set aside and the matter is remitted back to a different member for redetermination; 3. The following questions of general importance are certified: • What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? • In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Im- Singh v. Canada (MCI) Jocelyne Gagn´e J. 145

migration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v. Canada (Minister of Citizenship & Immigra- tion), 2007 FCA 385 (F.C.A.) for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Application granted. 146 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Afzal v. Canada (Minister of Citizenship and Immigration)] Shaheen Afzal, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-2042-13 2014 FC 1028, 2014 CF 1028 Donald J. Rennie J. Heard: August 13, 2014 Judgment: October 29, 2014* Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Miscellaneous –––– Applicant failed both mandatory pre-conditions to citizenship established by s. 5(1)(d) of Citi- zenship Act — On written test, applicant scored two out of six on language component and eight out of 20 on knowledge component — On appearance before citizenship judge, applicant received zero out of six on language component and four out of 20 on knowledge component — Citizenship judge checked boxes indicating that applicant did not meet mandatory requirements of section 5(1)(d) and (e) of Act — No recommendation was made by citizenship judge to Minister under section 5(3) of Act that Minister grant citizenship on compassionate grounds — Due to series of administrative errors, applicant received notice to appear for citizenship ceremony — Applicant took Oath of Citizenship and was given citizenship certificate — Immediately after ceremony citizenship officer detected error — Applicant was contacted but did not reply — Registrar concluded that applicant had been issued certificate in error, and pursuant to s. 26(3) of Regulations under Act, cancelled citizenship certificate — Applicant brought application for judicial review — Application dismissed — Registrar’s belief that applicant was not entitled to certificate had objective foundation, rooted in record before her — There was no denial of procedural fairness as applicant had notice that there was issue with citizenship certificate and she could have obtained more information had she returned calls — Relief under section 18.1 of Federal Courts Act is equitable and discretionary and can be withheld where setting aside decision would not affect ultimate result — To set aside de-

*Corrigenda issued by the court on March 16 and April 16, 2015 have been incorporated herein. Afzal v. Canada (MCI) 147

cision would serve no purpose, as applicant would still be ineligible for citizenship. Cases considered by Donald J. Rennie J.: Bell ExpressVu Ltd. Partnership v. Rex (2002), 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 166 B.C.A.C. 1, 271 W.A.C. 1, 18 C.P.R. (4th) 289, 100 B.C.L.R. (3d) 1, 2002 SCC 42, 2002 CarswellBC 851, 2002 Car- swellBC 852, 93 C.R.R. (2d) 189, [2002] 2 S.C.R. 559, 2002 CSC 42, [2002] S.C.J. No. 43, REJB 2002-30904 (S.C.C.) — referred to Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board) (1994), 1994 CarswellNfld 277, 163 N.R. 27, 21 Admin. L.R. (2d) 248, 115 Nfld. & P.E.I.R. 334, 360 A.P.R. 334, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1, 1994 CarswellNfld 211, EYB 1994-67363, [1994] S.C.J. No. 14 (S.C.C.) — considered R. v. Ulybel Enterprises Ltd. (2001), 2001 SCC 56, 2001 CarswellNfld 239, 2001 CarswellNfld 240, 206 Nfld. & P.E.I.R. 304, 618 A.P.R. 304, 275 N.R. 201, 157 C.C.C. (3d) 353, 203 D.L.R. (4th) 513, 45 C.R. (5th) 1, [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, REJB 2001-25833 (S.C.C.) — referred to Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, 36 O.R. (3d) 418 (note), 36 O.R. (3d) 418, [1998] S.C.J. No. 2 (S.C.C.) — followed Stanizai v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 74, 2014 CarswellNat 128, 22 Imm. L.R. (4th) 261, 73 Admin. L.R. (5th) 58, 2014 CarswellNat 520, 2014 CF 74 (F.C.) — followed Veleta v. Canada (Minister of Citizenship & Immigration) (2006), 268 D.L.R. (4th) 513, 2006 CarswellNat 978, 2006 FCA 138, 350 N.R. 94, 53 Imm. L.R. (3d) 32, 2006 CAF 138, 2006 CarswellNat 2430, [2006] F.C.J. No. 615 (F.C.A.) — followed Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to Pt. I — referred to Pt. II — referred to s. 3(1)(a) — considered s. 3(1)(b) — considered s. 3(1)(c) — considered s. 5 — considered s. 5(1)(d) — considered s. 5(1)(e) — considered 148 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

s. 5(3) — considered s. 7 — considered s. 10(1) — considered s. 12 — considered s. 12(3) — considered s. 14(1) — considered s. 14(2) — considered s. 14(5) — considered s. 27 — considered s. 27(j) — considered s. 27(j.1) [en. 2008, c. 14, s. 12(5)] — considered s. 27(k) — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — considered Interpretation Act, R.S.C. 1985, c. I-21 s. 12 — considered Rules considered: Federal Courts Rules, SOR/98-106 R. 397(1)(a) — referred to Regulations considered: Citizenship Act, R.S.C. 1985, c. C-29 Citizenship Regulations, 1993, SOR/93-246 Generally — referred to s. 26(3) — considered

APPLICATION for judicial review of decision by Registrar cancelling applicant’s citizenship certificate.

Ms Krassina Kostadinov, for Applicant Mr. Nur Muhammad-Ally, Ms Susan Gans, for Respondent

Donald J. Rennie J.:

1 On September 26, 2013, the applicant attended before a citizenship judge in Hamilton, Ontario, swore the oath of allegiance to Her Majesty Queen Elizabeth II and committed to faithfully observe the laws of Can- ada. She was issued a certificate of citizenship and left at the conclusion of the ceremony a Canadian citizen. Or did she? Afzal v. Canada (MCI) Donald J. Rennie J. 149

2 Previously, the applicant had failed both of the mandatory pre-conditions to citizenship established by section 5(1)(d) and (e) of the Citizen- ship Act (RSC, 1985, c C-29) (the Act): Grant of citizenship 5. (1) The Minister shall grant citizenship to any person who [...] (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; Attribution de la citoyenneté 5. (1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: [...] d) a une connaissance suffisante de l’une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des respon- sabilités et avantages conférés par la citoyenneté; 3 On the written test, the applicant scored 2/6 on the language component and 8/20 on the knowledge component. Her scores did not improve on her subsequent appearance before the citizenship judge, receiving 0/6 on the language component and 4/20 on the knowledge component. The citizenship judge checked the boxes indicating that the applicant did not meet the mandatory requirements of section 5(1)(d) and (e). In the “Rea- sons” section the judge wrote: Applicant signed ICES consent form. The Applicant failed the language hearing 0/6 and does not comply with paragraph 5(1)(d) of the Citizenship Act. The Applicant failed the knowledge hearing 4/20 and does not comply with paragraph 5(1)(e) of the Citizenship Act. 4 No recommendation was made by the citizenship judge to the Min- ister under section 5(3) of the Act that the Minister grant citizenship on compassionate grounds. 5 There ensued a series of administrative errors. The citizenship judge checked the wrong “Decision” box, indicating that the application for Canadian citizenship was granted. The next day, on September 5, 2013, the departmental citizenship official responsible for processing the file signed the box “Decision seen” and checked the box “Citizenship Granted 5(1),” compounding the original error. A few days later, the ap- 150 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

plicant received a notice to appear for a citizenship ceremony and on September 26, 2013, she took the Oath of Citizenship and was given a citizenship certificate. 6 Immediately after the ceremony however, citizenship officer Jean-Si- mon Cantin, who served as clerk for the citizenship ceremony (and was not the officer who checked the “Decision seen” box), observed the error. He immediately called the applicant at her home and left a message with her son. The next day, officer Cantin called the applicant on her cellular phone, again leaving a message. The calls were not returned. 7 On or about November 22, 2013, the Registrar concluded that the applicant had been issued the certificate in error, and pursuant to section 26(3) of the Citizenship Regulations (SOR/93-246) (Regulations), cancelled the citizenship certificate. Section 26(3) of the Regulations provides: 26 (3) Where the Minister has determined that the holder of a certificate of naturalization, certificate of citizenship, miniature certificate of citizenship or other certificate that contains the holder’s photo- graph, or certificate of renunciation, issued or granted under the Act or prior legislation or any regulations made thereunder is not entitled to the certificate, the Registrar shall cancel the certificate. (emphasis added) 26 (3) Lorsque le ministre a déterminé que le titulaire d’un certificat de naturalisation, d’un certificat de citoyenneté, d’un certificat de citoyenneté petit format ou autre certificat de citoyenneté portant sa photographie, ou d’un certificat de répudiation délivré ou attribué en vertu de la Loi ou de la législation antérieure ou en application de leurs règlements n’a pas droit a` ce certificat, le greffier annule le certificat. (je souligne) 8 In sum, the applicant received a highly valued privilege which the Minister seeks to take back, and the question framed for decision is whether the Regulations provide the authority to do so. The applicant contends that the Regulations do not confer in the Registrar the authority to revoke a certificate of citizenship. The Regulations are not a collateral mechanism to supplement the statutory grounds under which citizenship, Afzal v. Canada (MCI) Donald J. Rennie J. 151

once obtained, can be lost. Section 7 in Part II of the Act, makes this clear: No loss except as provided 7. A person who is a citizen shall not cease to be a citizen except in accordance with this Part or regulations made under paragraph 27(j.1). Perte de la citoyenneté 7. Le citoyen ne peut perdre sa citoyenneté que dans les cas prévus a` la présente partie ou aux règlements pris en vertu de l’alinéa 27(j.1). 9 The applicant also says that the cancellation was unlawful as the decision was made without notice to her and in breach of procedural fairness and must be set aside. 10 Before considering these arguments, I turn to the consequences of the failure of the Minister to appeal the decision of the citizenship judge. No notice of appeal from the decision of the citizenship judge was filed even though the Minister and his officials had knowledge of the error within the 60-day appeal period provided by section 14(5). The applicant contends that, having missed the appeal period, the Registrar cannot, through the device of an administrative, regulatory provision, collaterally attack the decision of the citizenship judge. 11 In my view, this argument is a distraction from the central question of the interpretation of the statute and regulations. Subsequent to the issuance of the certificate, no appeal could be taken from the citizenship judge’s decision. That decision was spent, replaced by the oath and certificate. It must be remembered that the error was discovered after the certificate was issued and the oath taken. It was too late to appeal - not because 60 days had expired, which it had not, but because the factual substratum of the appeal had evaporated. The foundation of the applicant’s claim or proof of citizenship was no longer the citizenship judge’s decision, but rather it was the certificate of citizenship.

I. Issues and Standard of Review 12 The central question before the Court is the resolution of the tension or interface between section 7 of the Act and section 26(3) of the Regula- tions. The Regulations upon which the Registrar relied to cancel the cer- 152 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

tificate are authorized by section 27 of the Act. Section 27(j) and (k) of the Act provide: Regulations 27. The Governor in Council may make regulations [...] (j) providing for the surrender and retention of certificates of citizenship, certificates of naturalization or certificates of renunciation issued or granted under this Act or prior legislation or any regulations made thereunder if there is reason to believe that the holder thereof may not be entitled thereto or has contravened any of the provisions of this Act; [...] (k) providing for the surrender and cancellation of certificates referred to in paragraph (j) where the holder thereof has ceased to be entitled thereto; (emphasis added) Règlements 27. Le gouverneur en conseil peut, par règlement [...] j) régir la restitution et la rétention des certificats de citoyenneté, de naturalisation ou de répudiation délivrés en vertu de la présente loi ou de la législation antérieure ou en application de leurs règlements lorsqu’il y a des raisons de croire que leur titulaire n’y a peut-être pas droit ou a enfreint la présente loi; [...] k) régir la restitution et l’annulation des certificats men- tionnés a` l’alinéa j) lorsque leur titulaire a cessé d’y avoir droit; (je souligne) 13 The core of the applicant’s position is that in section 7, Parliament directed its mind to the circumstances under which citizenship could be lost and expressly prescribed the extent to which citizenship could be lost using regulatory authority. Neither of the exceptions in section 7 (misrepresentation or material disclosure) nor the circumstances contemplated by regulation 27(j.1) (born outside of Canada to a Canadian but did not become a citizen prior to February 15, 1977) are engaged in this case. Afzal v. Canada (MCI) Donald J. Rennie J. 153

14 The central question, being one of statutory interpretation, is assessed against a correctness standard of review. Whether there was a breach of procedural fairness is also assessed against a standard of correctness, but the determination by the Registrar that the applicant’s citizenship was granted as a result of administrative error involves applying a legal standard to a set of facts. It is therefore a question of mixed fact and law and is reviewable on a standard of reasonableness.

II. The Statutory Scheme Governing Citizenship 15 The foundation of Canadian citizenship is statutory. There is no independent or free-standing right to citizenship except as accorded by the provisions in Part I of the Act — The Right to Citizenship. Largely writ, citizenship can be acquired through birth (section 3(1)(a) and (b)) or, as in this case, consequent to permanent residency (section 3(1)(c)). Part II of the Act - Loss of Citizenship - authorizes revocation of citizenship pursuant to subsection 10(1) where the Governor-in-Council is satisfied, on the basis of a report from the Minister, that the person has obtained citizenship by fraud or misrepresentation. Administrative error is not one of the enumerated grounds in Part II. 16 In the case of a permanent resident seeking Canadian citizenship, the specific statutory pre-conditions of the Act must be met. Those conditions require demonstration of a certain level of linguistic competence in either of Canada’s official languages and an adequate knowledge of Can- ada’s social, civic and political norms. These competencies must be established before citizenship can be granted. 17 Section 14(1) provides that a citizenship application “shall be considered by a citizenship judge who shall...determine whether or not the person who made the application meets the requirements of this Act and the regulations”. Under section 14(2), the citizenship judge shall approve or not approve the application. As noted, section 14(5) allows the Minister or the applicant to appeal the decision of the citizenship judge within sixty days. 18 Section 12 in Part IV of the Act - Certificate of Citizenship - provides that where an application for citizenship under section 5 is approved the Minister shall issue the certificate. Application for certificate of citizenship 12. (1) Subject to any regulations made under paragraph 27(i), the Minister shall issue a certificate of citizenship to any citizen who has made application therefore. 154 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Issue of certificate (2) When an application under section 5 or 5.1 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant. When effective (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. Demandes emanant´ de citoyens 12. (1) Sous réserve des règlements d’application de l’alinéa 27i), le ministre délivre un certificat de citoyenneté aux citoyens qui en font la demande. Délivrance aux nouveaux citoyens (2) Le ministre délivre un certificat de citoyenneté aux personnes dont la demande présentée au titre des articles 5 ou 5.1 ou du paragraphe 11(1) a et´´ e approuvée. Entrée en vigueur (3) Le certificat délivré en application du présent article ne prend effet qu’en tant que l’intéressé s’est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté.

III. The Applicant’s Perspective on the Statutory Scheme 19 The applicant contends that she is a citizen, has the certificate to prove it, and, further, that in section 7 Parliament expressly addressed the only circumstances under which citizenship, once obtained, can be lost. The Regulations contemplated by section 27 of the Act are necessarily confined to the implementation and support of those circumstances in Part II of the Act pertaining to the loss or revocation of citizenship, or where the certificate is required for civil or criminal proceedings or as evidence in an investigation. Further, the language of section 27(j) of the Act “if there is reason to believe that the holder thereof may not be entitled thereto” cannot constitute an independent authority to revoke citizenship, as Parliament has expressly considered this in sections 7 and 10. 20 To elaborate, the applicant’s perspective is that section 26(3) of the Regulations has to be interpreted in conjunction with sections 7, 12(2), 14(1) and (14(5) of the Act, and if done so, section 26(3) of the Regula- Afzal v. Canada (MCI) Donald J. Rennie J. 155

tions does not give the Registrar the power to cancel a citizenship certificate that was issued after an application for citizenship was approved by a citizenship judge. More bluntly, the applicant asserts that the respondent is relying on section 26(3) of the Regulations to do what the Act does not allow. Section 12 of the Act requires that citizenship be granted, and Parliament has prescribed and limited the means of recourse to either an appeal or the launch of revocation proceedings. 21 In sum, the applicant’s argument is that the finality contemplated by the statutory scheme cannot, in the absence of legislative authority, be set aside simply because the Minister wishes the result were otherwise. To interpret the Regulations so broadly would render the scheme meaning- less, as the certificate could be revoked simply by administrative action of the Registrar who came to the view that the applicant was not entitled to the certificate. The legislation contemplates a right of appeal (now a right to seek leave to commence judicial review) to the Federal Court and revocation proceedings. The statute itself provides that the Minister shall issue the certificate and, similarly, that if not content with the decision of the citizenship judge, the Minister may appeal.

IV. Analysis A. The Statutory Foundation for Cancellation by Regulation 22 Any consideration of the relationship between statutes and regulations begins with two principles. First, it is axiomatic that the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament Second, the Regulations are subordinate legislation, and as such cannot derogate from or be inconsistent with the statute. As Professor Ruth Sullivan explains in Statutory Interpretation, 2nd ed (Toronto: Irwin Law, 2007) at page 312, “the par- amountcy of statutes over delegated legislation operates as a presumption” and in cases of conflict, “the statute is presumed to prevail”. The Regulations cannot take away that which the statute has granted. 23 To this extent the applicant’s argument is well-founded. Statutes cannot be undone by subordinate legislation. In order to revoke by regulation, a citizenship certificate, granted by statute, there must be a foundation in the statute. There is such a foundation. Indeed, there are two: section 12(3) and section 27(j) of the Act. I turn first to section 12(3). 156 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

24 Section 12(3) provides: When effective 12 (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. Entrée en vigueur 12 (3) Le certificat délivré en application du présent article ne prend effet qu’en tant que l’intéressé s’est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté. 25 Subsection 12(3) provides a legislative foundation for the cancellation of a certificate issued in error. A certificate, even if issued, is of no effect where the conditions precedent to citizenship have not been met. The applicant’s citizenship was not revoked and sections 7, 10 and 18 not engaged, as the applicant never had citizenship. The requirements of the Act had not been fulfilled. 26 I turn to the second legislative foundation which supports the regulatory action. To repeat, section 27 authorizes regulations: Regulations 27. The Governor in Council may make regulations [...] (j) providing for the surrender and retention of certificates of citizenship, certificates of naturalization or certificates of renunciation issued or granted under this Act or prior legislation or any regulations made thereunder if there is reason to believe that the holder thereof may not be entitled thereto or has contravened any of the provisions of this Act; [...] (k) providing for the surrender and cancellation of certificates referred to in paragraph (j) where the holder thereof has ceased to be entitled thereto; (emphasis added) Règlements 27. Le gouverneur en conseil peut, par règlement [...] Afzal v. Canada (MCI) Donald J. Rennie J. 157

j) régir la restitution et la rétention des certificats de citoyenneté, de naturalisation ou de répudiation délivrés en vertu de la présente loi ou de la législation antérieure ou en application de leurs règlements lorsqu’il y a des raisons de croire que leur titulaire n’y a peut-être pas droit ou a enfreint la présente loi; [...] k) régir la restitution et l’annulation des certificats men- tionnés a` l’alinéa j) lorsque leur titulaire a cessé d’y avoir droit; (je souligne) 27 Sections 27(j) and (k) contemplate two circumstances where a certificate of citizenship may be cancelled. In this case, the Registrar believed that the applicant was not entitled to the certificate. That belief had an objective foundation, rooted in the record before her. The action was purely administrative, and required no adjudicative assessment, or impor- tantly, re-adjudication of the substance of the citizenship judge’s decision. The authority under the Regulations was used as it was intended, not to change, vary or substitute a Ministerial decision for the one that was reached under the Act, rather to ensure that the outcome conformed with the adjudicative process contemplated by the Act itself. Viewed in this light regulation 26(3) is analogous to Federal Court Rule 397(1)(a) which allows the Court to reconsider an order where the order does not accord with the reasons given. That is precisely what occurred here. Rules of practice applicable to superior courts contain mechanisms to address administrative errors and it is not surprising to see an analogous provision in legislation like the Citizenship Act. 28 To read section 7 as to trump section 27 of the Act would produce two absurd results. First, the valued right of citizenship would be given to someone who was not, as a matter of fact or as a matter of law, entitled to it. Parliament’s intention that all Canadians possess a minimal degree of linguistic ability and civic awareness would be thwarted. Sec- ondly, the procedure triggered to remedy the administrative error, namely that of a ministerial report and Cabinet consideration and adjudicative review, would be entirely disproportionate to the nature of the issues underlying cancellation of the certificate. 29 Further, to borrow from Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.) at para 27 a “label of absurdity” can be attached to interpretations that render some part of the statute “pointless or futile”. 158 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

The argument advanced by the applicant with respect to the scope of section 7 neutralizes both section 12(3), the purpose of which is to provide a fail-safe measure in circumstances such as these and section 27(j), which contemplates that citizenship certificates might be issued in circumstances where the requirements of the Act were not met. This is not a case where citizenship, once lawfully granted, is lost or revoked. Here, the applicant never had citizenship. That is the effect of sections 12(3) and 27(j). 30 Section 27 of the Act contemplates cancellation in situations such as those in this case where a certificate has been issued through administrative error as well as in exigent or emergent circumstances. Parliament, in enacting section 27, understood the necessity of regulations to give effect to the Act and its objectives. This interpretation of section 27(j) and (k) is a plain and obvious reading of the statute, but also is consistent with the obligation under section 12 of the Interpretation Act (RSC, 1985, c I-21) to read the statute with a “fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. This interpretation also aligns with the principle of achieving “harmony, coherence, and consistency” within and between statutes (Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (S.C.C.) at para 27, citing R. v. Ulybel Enterprises Ltd., 2001 SCC 56 (S.C.C.) at para 52). No section of the statute is negated, and there is coherence between sections 12(3) and 27 of the Act and section 26(3) of the Regulations. 31 In sum, section 26(3) of the Regulations is authorized by section 27(j) and (k) of the Act. Regulation 26(3) is neither inconsistent with, nor a derogation from, any right created by the Act itself; rather section 26(3) implements, administratively, the intent of Parliament as reflected in sections 12(3) and 27(j) and (k) of the Act. This interpretation also ensures that the privilege of Canadian Citizenship is granted only as intended by Parliament. 32 Before concluding, I turn to Stanizai v. Canada (Minister of Citizenship and Immigration), 2014 FC 74 (F.C.), and in particular in paragraph 44 of the decision, where Justice Anne Mactavish states that “an error within the offices of the respondent does not have the effect of overriding the statutory requirements of the Citizenship Act and confer- ring a discretion on the Minister to withhold citizenship that he would not otherwise have.” This decision is relied on by the applicant, but it is entirely distinguishable on its facts. In Stanizai, the applicant met all the statutory requirements for citizenship but the Minister nevertheless Afzal v. Canada (MCI) Donald J. Rennie J. 159

delayed in granting citizenship. The applicant in the present case did not meet the statutory requirements for citizenship. Further, Stanizai did not involve the use of section 26(3) of the Regulations to cancel the citizenship certificate. The decision does not advance the applicant’s position. 33 I turn now to the applicant’s alternative argument, namely that the cancellation breached the principles of procedural fairness. The standard of review for this is correctness. 34 The Court of Appeal, in Veleta v. Canada (Minister of Citizenship & Immigration), 2006 FCA 138 (F.C.A.), made clear its view as to the application of the principles of procedural fairness in matters dealing with citizenship. Regardless of the scope and extent to which those principles apply, and in respect of which aspect of the process they might apply, the applicant in this case had notice that there was an issue with her citizenship certificate. The obligation to provide notice and the duty of fairness discharged by the two calls to the applicant by officer Cantin. The applicant chose not to avail herself of further information that would have been forthcoming had she returned the calls. A party cannot turn a blind eye, or a deaf ear, to the information that is made available to her and then plead lack of notice and breach of procedural fairness. 35 In any event, even if there was a breach of procedural fairness, I would withhold relief. Relief under section 18.1 of the Federal Courts Act is equitable and discretionary and can be withheld where setting aside the decision would not affect the ultimate result; Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board), [1994] 1 S.C.R. 202 (S.C.C.), at paras 51, 52. In this case, the applicant failed both of the mandatory requirements established by statute. To set aside the decision would serve no purpose, as the applicant would still be ineligible for citizenship. Remedies that serve no purpose will not be granted.

Judgment THIS COURT ORDERS that the application for judicial review is dismissed with costs. Application dismissed. 160 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

[Indexed as: Tran v. Canada (Minister of Public Safety and Emergency Preparedness)] Thanh Tam Tran, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-7208-13 2014 FC 1040, 2014 CF 1040 James W. O’Reilly J. Heard: June 25, 2014 Judgment: November 4, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– In 1989, applicant arrived in Canada from Vietnam and became permanent resident — In 2013, applicant was convicted on charge of producing marijuana and given conditional sentence of 12 months to be served in community — Immigration Division decided applicant was inadmissible to Canada for having been convicted of offence for which term of imprisonment greater than six months had been imposed, or offence punishable by maximum term of imprisonment of at least 10 years — Applicant brought application for judicial review — Application granted — Matter was referred back to another officer for reconsideration — Applicant’s conditional sentence of 12 months did not represent term of imprisonment greater than six months — Con- ditional sentence was not term of imprisonment within meaning of Immigration and Refugee Protection Act — Applicant’s offence was punishable by maximum of seven years’ incarceration — While maximum sentence was subsequently raised to 14 years, applicant was not punishable by sentence of that duration — Officer should not have considered arrests and dropped charges that did not result in convictions. Cases considered by James W. O’Reilly J.: Cartwright v. Canada (Minister of Citizenship & Immigration) (2003), 32 Imm. L.R. (3d) 79, 2003 CarswellNat 1899, 2003 FCT 792, 2003 CFPI 792, 2003 CarswellNat 3179, 236 F.T.R. 98, [2003] F.C.J. No. 1024 (Fed. T.D.) — referred to Gama Sanchez v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 157, 2014 CarswellNat 2177 (F.C.A.) — considered Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (2014), 2014 SCC 68, 2014 CSC 68, 2014 CarswellNat 4175, 2014 CarswellNat 4176 (S.C.C.) — considered Tran v. Canada (Minister of Public Safety) 161

Martin v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 3 F.C.R. 615, 268 F.T.R. 74 (Eng.), 127 C.R.R. (2d) 65, 2005 FC 60, 2005 CarswellNat 86, 42 Imm. L.R. (3d) 104, 2005 CarswellNat 1819, 2005 CF 60, [2005] F.C.J. No. 83 (F.C.) — referred to Martin v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CAF 347, 341 N.R. 341, 2005 CarswellNat 5115, 2005 FCA 347, 2005 Car- swellNat 3497 (F.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 R. v. Middleton (2009), 244 C.C.C. (3d) 52, 388 N.R. 89, 251 O.A.C. 349, 306 D.L.R. (4th) 628, 66 C.R. (6th) 157, [2009] 1 S.C.R. 674, 2009 CarswellOnt 2718, 2009 CarswellOnt 2719, 2009 SCC 21, [2009] S.C.J. No. 21 (S.C.C.) — followed 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.) — followed Rajagopal v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 1287, 2007 FC 523, 2007 CarswellNat 2638, 2007 CF 523, [2007] F.C.J. No. 716 (F.C.) — referred to Veerasingam v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1661, 2004 CarswellNat 4279, 2004 CarswellNat 5733, 2004 CF 1661, [2004] F.C.J. No. 2014 (F.C.) — followed Younis v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2744, 2008 FC 944, 332 F.T.R. 99 (Eng.), 74 Imm. L.R. (3d) 115, 2008 CarswellNat 6467, 2008 CF 944 (F.C.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 36(1)(a) — considered s. 64(2) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(b) — considered

APPLICATION for judicial review of decision by Immigration Division that applicant was inadmissible to Canada. 162 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Peter Edelmann, Aris Daghighian, for Applicant Banafsheh Sokhansanj, for Respondent

James W. O’Reilly J.: I. Overview 1 In 1989, Mr Than Tam Tran arrived in Canada from Vietnam and became a permanent resident. In 2013, a judge of the British Columbia Provincial Court convicted Mr Tran on a charge of producing marijuana and imposed a sentence of 12 months to be served in the community (ie a conditional sentence). In turn, an officer of the Canadian Border Services Agency (CBSA) referred Mr Tran’s file to the Immigration Division to decide whether Mr Tran should be found to be inadmissible to Canada for having been convicted of an offence for which a term of imprisonment greater than six months has been imposed, or an offence punishable by a maximum term of imprisonment of at least 10 years (Immigration and Refugee Protection Act, SC 2001, c 27, [IRPA] s 36(1)(a)). In the exercise of his discretion whether to refer Mr Tran’s file, the officer considered the following factors: • Mr Tran’s age when he arrived in Canada (19), the length of time he has been here (24 years), and his substantial family support in Canada; • The poor living conditions in Vietnam; • Mr Tran’s employment history and establishment in Canada; • Mr Tran’s criminal record, including a conviction for impaired driving and arrests on various other charges; • The circumstances surrounding the triggering offence (production of marijuana), the maximum sentence available (7 years’ imprisonment at the time, but subsequently increased to 14 years), and the sentence actually imposed (a 12-month conditional sentence); • Mr Tran’s potential for rehabilitation (fairly low); and • The best interests of Mr Tran’s five children. 2 Based on these considerations, the officer decided to refer Mr Tran’s case to the Immigration Division to decide if Mr Tran is inadmissible to Canada for serious criminality. That is the decision Mr Tran seeks to challenge in this application for judicial review. He maintains that the officer erred in three respects: (1) by finding that he had been convicted of an offence for which a term of imprisonment greater than 6 months had been imposed; (2) by concluding that he had been convicted of an Tran v. Canada (Minister of Public Safety) James W. O’Reilly J. 163

offence punishable by a maximum sentence of at least 10 years; and (3) by rendering an unreasonable decision based on extraneous evidence, namely, arrests and charges that did not result in convictions. He asks me to overturn the officer’s decision and order another officer to reconsider the question of his inadmissibility to Canada. 3 I agree with Mr Tran that the officer erred. In my view, Mr Tran’s conditional sentence of 12 months did not represent a term of imprisonment greater than 6 months; his offence was punishable by a maximum of 7 years’ incarceration (not 10 or more); and the officer should not have considered allegations that did not result in convictions. Therefore, I must allow this application for judicial review and order another officer to reconsider the question of Mr Tran’s inadmissibility. 4 There are three issues: 1. Does a conditional sentence of 12 months constitute a term of imprisonment greater than 6 months? 2. Was Mr Tran convicted of an offence punishable by maximum of at least 10 years’ imprisonment? 3. Was the officer’s conclusion unreasonable?

II. The Officer’s Decision 5 The officer found there were reasonable grounds to believe that Mr Tran was inadmissible to Canada for having been convicted of an offence punishable by a maximum of at least 10 years’ imprisonment or for having received a sentence of more than 6 months’ imprisonment. In the exercise of his discretion whether to refer Mr Tran’s case to the Immigra- tion Division for an admissibility hearing, the officer considered the various factors outlined above. 6 In the end, the officer concluded that Mr Tran had been involved in a serious offence and had been involved in other criminal activity. Further, there were insufficient mitigating factors to cause the officer not to refer the case for an inadmissibility hearing.

A. Issue One — Does a conditional sentence of 12 months constitute a term of imprisonment greater than 6 months? 7 The Minister argues that a conditional sentence has been definitively characterized as a sentence of imprisonment and, therefore, a conditional sentence of 12 months is obviously a term of imprisonment greater than 6 months. 164 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

8 I disagree. In my view, the officer’s decision was unreasonable. 9 The Minister correctly points out that the Supreme Court of Canada characterized a conditional sentence as a term of imprisonment in R. v. Proulx, 2000 SCC 5 (S.C.C.). However, in subsequent cases, the Court has clarified that the question whether a particular statutory reference to imprisonment includes a conditional sentence must be answered in context. In some cases, a reference to a term of imprisonment will include conditional sentences and, in others, it will refer solely to carceral sentences. For example, the Supreme Court has held that the word “imprisonment” “does not bear a uniform meaning for all purposes of the Criminal Code” (R. v. Middleton, 2009 SCC 21 (S.C.C.), at para 14). Obviously, then, if it does not bear a uniform meaning throughout the Criminal Code, it cannot bear a uniform meaning across the whole of the federal statute book. The fact that a conditional sentence is described as a sentence of imprisonment in general terms in the Code does not necessarily mean it should be considered to be a sentence of imprisonment in other statutes, such as IRPA. Context matters. 10 In effect, s 36(1)(a) describes the grounds on which a person can be found inadmissible for “serious criminality”. Serious criminality encom- passes both responsibility for a serious crime (one punishable by a maximum of 10 years or more) and serious criminals (those sentenced to 6 months or more of imprisonment). By contrast, courts impose conditional sentences on persons who are not regarded as serious criminals. As the Supreme Court stated in Proulx, a conditional sentence “is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (at para 21). To include conditional sentences within s 36(1)(a) would appear to be at odds with the purpose of that provision: to identify those coming within the concept of “serious criminality”. 11 Further, in relation to s 36(1)(a) in particular, the Supreme Court has stated that the reference to a term of imprisonment in that provision relates to the period of time the person has been sentenced to spend in prison, which would exclude conditional sentences (Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51 (S.C.C.), at para 11). The Court said: In keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA, s 36(1)(a)... [T]he Act is clear: a prison term of over six months will bar entry to Canada. (Emphasis added). Tran v. Canada (Minister of Public Safety) James W. O’Reilly J. 165

12 The Minister also relies on cases where there was a question whether the reference to a sentence of imprisonment meant the full term of the sentence imposed by the Court or just the amount of time the offender actually spent in prison before being paroled. For example, where a person was sentenced to 4 years’ imprisonment, but only spent 10 months in prison before being paroled, was the person sentenced to a term of imprisonment greater than 2 years (for purposes of s 64(2) of IRPA)? The answer is yes — it is the sentence actually imposed that matters, not the amount of time actually spent in custody. See Martin v. Canada (Minister of Citizenship & Immigration), 2005 FC 60 (F.C.), aff’d 2005 FCA 347 (F.C.A.); Cartwright v. Canada (Minister of Citizenship & Im- migration), 2003 FCT 792 (Fed. T.D.). 13 By analogy, the Minister contends that, even if a sentence includes no time in prison, so long as the sentence exceeds 6 months, it comes within s 36(1)(a). It is the duration that matters, according to the Minister, not the amount of time actually spent in prison. 14 I disagree. In the cases cited by the Minister, the persons were sentenced to terms of incarceration of 4 years and 3 years respectively. Even though paroled early, their prison sentences remained in place and the offenders were liable to re-incarceration in the event of any parole viola- tions. Here, no prison sentence was ever imposed on Mr Tran. In my view, on that basis, the parole cases are entirely distinguishable. 15 Accordingly, I find that the officer’s conclusion that Mr Tran’s 12- month conditional sentence amounted to a term of imprisonment greater than 6 months was unreasonable.

B. Issue Two — Was Mr Tran convicted of an offence punishable by maximum of at least 10 years’ imprisonment? 16 The Minister argues that Mr Tran should be considered to have been convicted of an offence punishable by a maximum of at least 10 years’ imprisonment since Parliament recently, prior to the officer’s decision, elevated the maximum from 7 to 14 years. 17 I cannot agree. 18 Section 36(1)(a) states that a person is inadmissible to Canada on grounds of serious criminality for “having been convicted of an offence ... punishable by a maximum term of imprisonment of at least 10 years”. 19 I note that the Federal Court of Appeal recently held that, for purposes of the exclusion clause in Article 1F(b) of the Refugee Convention, 166 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

the seriousness of a crime should be assessed according to punishment available at the time it is reviewed for immigration purposes, not when the accused was convicted (Gama Sanchez v. Canada (Minister of Citizenship and Immigration), 2014 FCA 157 (F.C.A.), at para 6). How- ever, the Court’s ruling does not mean the same is true under s 36(1)(a). The sole issue under Article 1F(b) is whether the crime was “serious” without any specific reference to the sentence that could have been imposed on the offender (but see Hernandez Febles v. Canada (Minister of Citizenship and Immigration), 2014 SCC 68 (S.C.C.) where the Court suggested that punishment by a maximum sentence of ten years or more will usually indicate that the crime is serious (at para 62)). By contrast, s 36(1)(a) sets out a specific test: whether the person was convicted of a crime for which he or she could be punished by a maximum of at least 10 years’ imprisonment. As I read it, s 36(1)(a) refers to the maximum punishment available at the time of conviction. There is no similar wording in Article 1F(b). 20 Here, Mr Tran was not convicted of a crime punishable by at least 10 years’ imprisonment. The maximum sentence at the time of his conviction was 7 years. While the maximum sentence was subsequently raised to 14 years, Mr Tran was not punishable by a sentence of that duration. Therefore, the offence of which he was convicted did not come within s 36(1)(a), and the officer’s decision to the contrary was unreasonable.

C. Issue Three — Was the officer’s conclusion unreasonable? 21 The Minister argues that the officer, in the exercise of his discretion, was entitled to consider arrests and dropped charges relating to Mr Tran. 22 The case law makes clear that arrests and charges, in themselves, are not evidence of criminal conduct (Veerasingam v. Canada (Minister of Citizenship & Immigration), 2004 FC 1661 (F.C.), at para 5). However, the evidence underlying arrests and charges, if reliable, can be considered (at para 6). 23 Here, the officer treated arrests and charges as being evidence of criminal behaviour. In particular, based on Mr Tran’s past brushes with the law, he found that Mr Tran would likely “reoffend because he has done so in the past”. However, those arrests and charges simply did not amount to evidence that Mr Tran had re-offended, since they amounted merely to allegations, not proof, of criminal conduct. 24 Similarly, the officer also relied on police reports relating to conduct that did not give rise to arrests or charges. Again, this evidence does not Tran v. Canada (Minister of Public Safety) James W. O’Reilly J. 167

constitute proof of criminal conduct; it merely records the allegations received by the police (Rajagopal v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 523 (F.C.), at para 43; Younis v. Canada (Minister of Citizenship & Immigration), 2008 FC 944 (F.C.), at para 55). 25 Accordingly, I find that the officer’s reliance on unproved allegations — arrests, charges, and police reports — rendered the officer’s conclusion that there were reasonable grounds to believe Mr Tran was inadmissible for serious criminality unreasonable.

III. Conclusion and Disposition 26 A CBSA officer found that Mr Tran — convicted of an offence carry- ing a maximum of 7 years’ imprisonment and sentenced to a 12-month conditional sentence — came within s 36(1)(a) of IRPA, which renders persons inadmissible to Canada if they have committed a crime punishable by a maximum of at least 10 years or sentenced to more than 6 months’ imprisonment. In my view, in the circumstances, the officer’s decision was unreasonable. Further, the officer unreasonably relied on unproved allegations in exercising his discretion to refer Mr Tran for an inadmissibility hearing. Therefore, I must allow this application for judicial review and order another officer to reconsider Mr Tran’s file. 27 As the parties requested an opportunity to make submissions regarding a question of general importance to be certified, I will entertain any submissions received within 10 days of this judgment.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed. The matter is referred back to another officer for reconsideration. 2. The parties may make submissions regarding a question of general importance to be certified within 10 days. Application granted. 168 IMMIGRATION LAW REPORTER 31 Imm. L.R. (4th)

Annex “A”

Immigration and Refugee Protection Act, SC 2001, c 27 Serious Criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;