IMMIGRATION LAW REPORTER Third Series/Troisi`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 96 (Cited 96 Imm

IMMIGRATION LAW REPORTER Third Series/Troisi`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 96 (Cited 96 Imm. L.R. (3d))

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[Indexed as: Li v. Canada (Minister of Citizenship & Immigration)] Tao Li, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-295-10 2011 FCA 110 Eleanor R. Dawson, Carolyn Layden-Stevenson, Robert M. Mainville JJ.A. Heard: March 15, 2011 Judgment: March 22, 2011 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — General principles –––– Applicant paid permanent residence (PR) visa application fee as well as sponsorship fee when he submitted sponsorship application for parents, under s. 295(3)(a) of Immigration and Refugee Protection Regulations (IRPR) — Processing of PR applications typically took 34 months — Applicant submitted that s. 295(3)(a) of IRPR was ultra vires in that it conflicted with s. 19 of Financial Administration Act — Applicant’s application for judicial review of decision to charge him fee payable pursuant to s. 295(1)(a) and 295(3)(a) of IRPR was dismissed — Applicant appealed — Appeal dismissed — Fees could be required in advance of service to fulfil purpose of s. 19 of Act that users of government service assume part of its cost while avoiding costly fees collection after its delivery — Processing of sponsorship application and of PR visa application were two closely related services for which two separate fees were being collected — Applications were interrelated and interdependent, as sponsorship application was submitted solely in contemplation of PR visa application — Where sponsorship application was not approved, sponsor could withdraw it and obtain refund of PR visa fees — There was nexus between fees collected for PR visa applications and cost of processing them despite advance collection of fees on submission of sponsorship application — Applicant did not establish that government received benefit from advance payment of fees — It was role of government rather than courts to 2 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d) make policy choices and determine corrective regulatory measures — Section 295(3) of IRPR, as applied to sponsored PR visa applications, was not ultra vires for inconsistency with s. 19 of Act. Cases considered by Robert M. Mainville J.A.: 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] S.C.J. No. 43, REJB 2002-30904 (S.C.C.) — referred to Canadian Shipowners Assn. v. Canada (1997), 1997 CarswellNat 1139, 3 Ad- min. L.R. (3d) 36, (sub nom. Canadian Shipowners Association v. Canada (Attorney General)) 137 F.T.R. 216, [1997] F.C.J. No. 1002 (Fed. T.D.) — referred to Canadian Shipowners Assn. v. Canada (1998), (sub nom. Canadian Shipowners Association v. Canada (Attorney General)) 154 F.T.R. 318 (note), 1998 Car- swellNat 2075, (sub nom. Canadian Shipowners Association v. Canada (Attorney General)) 233 N.R. 162, [1998] F.C.J. No. 1515 (Fed. C.A.) — referred to Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters (2009), 203 C.R.R. (2d) 247, [2009] Alta. L.R.B.R. 396, [2009] 3 S.C.R. 407, 188 C.L.R.B.R. (2d) 1, 2009 CarswellAlta 1891, 2009 CarswellAlta 1892, 2009 SCC 53, 470 W.A.C. 50, 469 A.R. 50, 14 Alta. L.R. (5th) 203, [2010] 1 W.W.R. 1, D.T.E. 2009T-847, 94 Admin. L.R. (4th) 1, 2010 C.L.L.C. 220- 001, 395 N.R. 276, 313 D.L.R. (4th) 285, 81 C.C.E.L. (3d) 163 (S.C.C.) — referred to de Guzman v. Canada (Minister of Citizenship & Immigration) (2005), 42 Ad- min. L.R. (4th) 234, 2005 FCA 436, 2005 CarswellNat 4381, 51 Imm. L.R. (3d) 17, 262 D.L.R. (4th) 13, 137 C.R.R. (2d) 20, [2006] 3 F.C.R. 655, 345 N.R. 73, 2005 CarswellNat 6009, 139 C.R.R. (2d) 376 (note), [2005] F.C.J. No. 2119 (F.C.A.) — referred to Eurig Estate, Re (1998), (sub nom. Eurig Estate v. Ontario Court (General Division), Registrar) 114 O.A.C. 55, 1998 CarswellOnt 3950, 1998 Cars- wellOnt 3951, 40 O.R. (3d) 160 (headnote only), [2000] 1 C.T.C. 284, 165 D.L.R. (4th) 1, (sub nom. Eurig Estate v. Ontario Court (General Division), Registrar) 231 N.R. 55, 23 E.T.R. (2d) 1, [1998] 2 S.C.R. 565, [1998] S.C.J. No. 72 (S.C.C.) — considered Global Helicopter Pilots Assn. v. CHC Global Operations (2008) Inc. (2010), 4 Admin. L.R. (5th) 251, (sub nom. CHC Global Operations (2008) Inc. v. Global Helicopter Pilots Association) 401 N.R. 37, 2010 CAF 89, 2010 Car- swellNat 2917, (sub nom. CHC Global Operations (2008) Inc. v. Global Helicopter Pilots Association) 2010 C.C.L.C. 220-028, 2010 CarswellNat 752, 2010 FCA 89 (F.C.A.) — referred to Li v. Canada 3

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] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — followed Mercier c. Canada (Service correctionnel) (2010), (sub nom. Mercier v. Correctional Service of Canada) 404 N.R. 275, 2010 FCA 167, 2010 Car- swellNat 1960, 2010 CarswellNat 1961, 2010 CAF 167, (sub nom. Mercier v. Canada (Correctional Service)) 320 D.L.R. (4th) 429 (F.C.A.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Saputo Inc. v. Canada (Attorney General) (2011), 2011 CarswellNat 431, 2011 FCA 69 (F.C.A.) — referred to Sunshine Village Corp. v. Parks Canada (2004), 2004 CarswellNat 1197, 2004 FCA 166, 320 N.R. 331, 238 D.L.R. (4th) 647, [2004] 3 F.C.R. 600, 16 Admin. L.R. (4th) 242, 4 M.P.L.R. (4th) 174, 2004 CarswellNat 5582, [2004] F.C.J. No. 756 (F.C.A.) — considered Thorne’s Hardware Ltd. v. R. (1983), 1983 CarswellNat 530F, [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577, 46 N.R. 91, 1983 CarswellNat 530, [1983] S.C.J. No. 10 (S.C.C.) — referred to United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004), 46 M.P.L.R. (3d) 1, 236 D.L.R. (4th) 385, [2004] 7 W.W.R. 603, 346 A.R. 4, 320 W.A.C. 4, 318 N.R. 170, 18 R.P.R. (4th) 1, [2004] 1 S.C.R. 485, 2004 CarswellAlta 355, 2004 CarswellAlta 356, 2004 SCC 19, 26 Alta. L.R. (4th) 1, 12 Admin. L.R. (4th) 1, 50 M.V.R. (4th) 1, [2004] S.C.J. No. 19, REJB 2004-55539 (S.C.C.) — referred to 620 Connaught Ltd. v. Canada (Attorney General) (2008), 2008 SCC 7, 290 D.L.R. (4th) 385, 371 N.R. 200, 2008 G.T.C. 1194 (Eng.), [2008] 1 S.C.R. 131, 74 Admin. L.R. (4th) 1, 2008 CarswellNat 399, 2008 CarswellNat 400 (S.C.C.) — referred to Statutes considered: Financial Administration Act, R.S.C. 1985, c. F-11 Generally — referred to s. 19 — considered s. 19(1) — considered 4 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

s. 19(1)(a) — referred to s. 19(2) — considered s. 20(2) — considered Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 5 — referred to s. 13(1) — considered s. 74(d) — referred to Interpretation Act, R.S.C. 1985, c. I-21 s. 12 — considered Regulations considered: Financial Administration Act, R.S.C. 1985, c. F-11 Repayment of Receipts Regulations, 1997, SOR/98-127 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 117(1) — referred to s. 130(1) — considered s. 295(1)(a) — considered s. 295(3) — considered s. 295(3)(a) — considered s. 295(3)(b) — considered s. 304 — considered

APPEAL by applicant from judgment, reported at Li v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 803, 2010 CarswellNat 3411, 90 Imm. L.R. (3d) 161, 2010 CarswellNat 2694, 2010 FC 803 (F.C.), dismissing application for judicial review of fees charged for sponsored permanent residence visa applications.

Lorne Waldman, for Appellant Marie-Louise Wcislo, David Cranton, for Respondent

Robert M. Mainville J.A.:

1 Paragraph 295(3)(a) of the Immigration and Refugee Protection Reg- ulations, SOR/2002-227 (the “Regulations”) requires that the fee for processing an application for a permanent resident visa as a member of the family class be paid together with the fee for processing the related Li v. Canada Robert M. Mainville J.A. 5

sponsorship application. Since a family class sponsorship application for a parent or grandparent is contingent on the successful approval of the related sponsorship application, which may take a few years to be processed, the appellant asserts that the advance fee payment requirement for the family class permanent resident visa application is inconsistent with the concept of a user fee under section 19 of the Financial Ad- ministration Act, R.S.C. 1985, c. F-11. 2 Mosley J. of the Federal Court, in reasons reported as 2010 FC 803 (F.C.), dismissed the appellant’s judicial review application seeking, among other things, a declaration that paragraph 295(3)(a) of the Regula- tions is ultra vires section 19 of the Financial Administration Act. How- ever, Mosley J. certified the following question pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), thus giving rise to the appeal of his judgment to this Court: Is Immigration and Refugee Protection Regulation 295(3)(a), as applied to sponsored immigrant visa applications made by parents and grandparents, ultra vires on the ground it is inconsistent with s. 19 of the Financial Administration Act? 3 For the reasons set out below, I would answer “no” to this question and consequently dismiss this appeal.

Context and background 4 Under the former Immigration Act, R.S.C. 1985, c. I-12, a Canadian citizen or permanent resident in Canada seeking to sponsor a member of the family class had to file a sponsorship application and pay a single processing fee of $500 for the principal applicant and each adult dependent, and $100 for each dependent under 19 years of age. These fees covered the processing of both the sponsorship and the related permanent resident visa, and were not subject to refund. If a sponsorship applicant failed to satisfy the requirements of sponsorship, the related permanent resident visa application was nevertheless forwarded for processing and assessment at the appropriate visa post, even though that application was invariably rejected due to the lack of an eligible sponsor. 5 Effective June 28, 2002, the Immigration Act was repealed and replaced by the IRPA. The new Regulations adopted under the IRPA set out a new fee structure for applications under the family class. Previ- ously, there was one set of fees for one process having two parts. The new fee structure identifies two fees for two closely related services: a $75 fee for processing the sponsorship application and a $475 fee for 6 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

processing the permanent resident visa application of a principal applicant, with additional fees for processing the visa applications of any ac- companying family members. The family class permanent resident visa application fee is paid at the same time as the related sponsorship application fee, but can now be refunded. 6 The processing time for family class sponsorship applications concerning parents and grandparents has significantly increased since the IRPA first came into force in 2002. The additional delays are in part the result of the decision of the government to prioritize applications within the family class through a so-called “Family Class Re-Design Initiative” under which the applications of spouses, common-law partners, conjugal partners and children are prioritized so as to significantly reduce the overall processing time for both sponsorship and permanent resident visa applications. This is achieved by the requirement for joint sponsorship and permanent resident visa applications (the completion and submission of which are coordinated by the sponsor) and through the government’s commitment to process 80% of the applications for both sponsorship and permanent residence within 6 months of the submission of the completed joint applications. 7 This initiative has reduced the average processing time of sponsorship applications related to spouses, common-law partners, conjugal partners and children, which stood at 54 days as of March 2010. However, it has also contributed to a longer average processing time for applications related to parents and grandparents, which are not prioritized within the family class. A sponsorship application for a parent or grandparent continues to be processed independently from its related permanent resident visa application, which can be submitted only after the sponsorship application has been approved. None of these applications are given any priority. As of March 2010, the average processing time of sponsorship applications related to parents and grandparents stood at 34 months.

The reasons of the applications judge 8 The applications judge recognized that the enabling authority for the impugned fee structure under the Regulations was section 19 of the Fi- nancial Administration Act, which requires that when user fees are prescribed, they must be paid for a service provided by or on behalf of the government by users or classes of users of that service, and may not exceed the cost to the government of providing the service. The applications judge also recognized that the fees related to the family class per- Li v. Canada Robert M. Mainville J.A. 7

manent resident visa applications must be paid upfront with the related sponsorship application and, in the case of sponsored parents and grandparents, considerably in advance (approximately 34 months) of the visa applications themselves. He also acknowledged that the processing of the visa applications was contingent on the prior approval of the related sponsorship application. However, he found that only approximately 2.5% of sponsorship applications were refused, and that in the event of such a refusal, the related visa application fees were refundable. 9 Turning his attention to the interpretation of the Financial Adminis- tration Act, the applications judge found at paragraphs 45 and 47 of his reasons that, read as a whole, in a manner consistent with the modern approach to statutory interpretation, subsection 19(2) of that act does not “preclude the imposition of a fee to recover the costs incurred by the government in providing services well in advance of the delivery of those services” and does not “require that the service for which the fee is charged be performed in a reasonable time-period” nor does it “impose a temporal limitation on the delivery of the services for which the fee is charged.” 10 Relying on the decision of the Supreme Court of Canada in Eurig Estate, Re, [1998] 2 S.C.R. 565 (S.C.C.) (Eurig) the applications judge found that for user fees to be valid, a reasonable connection or clear nexus must exist between the quantum of the fees and the cost of providing the corresponding service. He further found, based on the evidence, that a clear nexus had been established between the service cost and the fees charged for permanent resident visa applications related to parents and grandparents, even though these fees were paid well in advance of the service. 11 Relying on the decision of Rouleau J. in Canadian Shipowners Assn. v. Canada, [1997] F.C.J. No. 1002, 137 F.T.R. 216 (Fed. T.D.), aff’d [1998] F.C.J. No. 1515, 233 N.R. 162 (Fed. C.A.), the applications judge concluded that, in considering whether a regulation lawfully imposes user fees under the enabling authority of the Financial Administration Act, the practical realities of providing the service must be taken into account. In this case, he found, at paragraph 58 of his reasons, that the timing of the permanent resident visa application fees reflected the practical reality of processing sponsorship and permanent residence applications, and he agreed “that this is effectively one service”. He accepted the evidence that collecting the fees together for both applications “reflected the need for efficiency in an already lengthy process, by processing two 8 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

fees at once and by doing so early on so that services are not delayed later.”

The standard of review 12 This appeal concerns the vires of paragraph 295(3)(a) of the Regula- tions. Therefore, the Court is not dealing with judicial review of administrative action, to which the principles established in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) apply, but with appellate review of the decision of a judge of first instance rejecting an administrative law challenge to the validity of regulations brought by way of an application. In these circumstances, the principles of appellate review established in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) apply: Saputo Inc. v. Canada (Attorney General), 2011 FCA 69 (F.C.A.) at para. 9. 13 The determination of the validity or vires of regulations on administrative law grounds is subject to the correctness standard: United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485 (S.C.C.) at para. 5; Sunshine Village Corp. v. Parks Canada, 2004 FCA 166, [2004] 3 F.C.R. 600 (F.C.A.) at para. 10; Mercier c. Canada (Service correctionnel), 2010 FCA 167, 404 N.R. 275 (F.C.A.) at paras. 78-79. 14 In an appeal involving a constitutional challenge, where it is possible to treat the constitutional analysis separately from the factual findings that underlie it, deference is owed to the initial findings of fact: Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407 (S.C.C.) at para. 26; Global Helicopter Pilots Assn. v. CHC Global Operations (2008) Inc., 2010 FCA 89, 401 N.R. 37 (F.C.A.) at para. 22. I see no reason why the same approach should not be used where the challenge is based on administrative law principles rather than on constitutional law principles.

The position of the appellant 15 The appellant states, relying on Eurig, that section 19 of the Financial Administration Act requires a nexus between the user fees collected and the service provided. For the appellant, no such nexus can exist when user fees are charged in advance for applications which do not exist and which have no possibility of existing until approximately 34 months after the fees are actually paid. The net result is that the government finan- cially benefits from the permanent resident visa application processing Li v. Canada Robert M. Mainville J.A. 9

fees paid years in advance of any processing cost being incurred for the related services. 16 The appellant contends that this result is contrary to section 19 of the Financial Administration Act, which restricts user fees to services actually provided in consideration of the fees paid, and which consequently does not allow for the collection of two fees where the service related to the second fee is contingent on the successful completion of the first service. 17 The appellant thus alleges that the applications judge erred in finding that the processing of the sponsorship application and of the related family class permanent resident visa application are effectively one service, and in finding that a clear nexus exists between the cost of processing the permanent resident visa application and the fees paid for this service.

The position of the respondent 18 The respondent supports the decision of the applications judge in all aspects. The respondent contends that subsection 19(2) of the Financial Administration Act is the legislative reflection of the principle that government should not profit by the service fees it charges, but that this provision does not prevent the government from collecting service fees in advance of delivering a service. As the applications judge found, the practical realities of providing services must be taken into account when determining how and when to collect the fees associated with the services. Paragraph 295(3)(a) of the Regulations reflects the practical reality that the sponsorship and permanent resident visa applications are effectively two parts of one service, and also reflects the practical need for efficiency in an already lengthy immigration process. 19 In this case, although the Regulations contain different fee structures for sponsorship applications and sponsored permanent resident visa applications, the respondent argues that they are enacted for one class of users, namely persons who wish to process family class applications.

Statutory Framework 20 Subsections 19(1) and (2) of the Financial Administration Act provide for the adoption of regulations prescribing user fees: 19. (1) The Governor in Council may, on the recommendation of the Treasury Board, (a) by regulation prescribe the fees or charges to be paid for a service or the use of a facility provided by or on 10 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

behalf of Her Majesty in right of Canada by the users or classes of users of the service or facility; or (b) authorize the appropriate Minister to prescribe by order those fees or charges, subject to such terms and conditions as may be specified by the Governor in Council. (2) Fees and charges for a service or the use of a facility provided by or on behalf of Her Majesty in right of Canada that are prescribed under subsection (1) or the amount of which is adjusted under section 19.2 may not exceed the cost to Her Maj- esty in right of Canada of providing the service or the use of the facility to the users or class of users. 19. (1) Sur recommandation du Conseil du Trésor, le gouverneur en conseil peut: a) fixer par règlement, pour la prestation de services ou la mise a` disposition d’installations par Sa Majesté du chef du Canada ou en son nom, le prix a` payer, individuellement ou par catégorie, par les bénéficiaires des services ou les usagers des installations; b) autoriser le ministre compétent a` fixer ce prix par ar- rêté et assortir son autorisation des conditions qu’il juge indiquées. (2) Le prix fixé en vertu du paragraphe (1) ou rajusté conformé- ment a` l’article 19.2 ne peut excéder les coûts supportés par Sa Majesté du chef du Canada pour la prestation des services aux bénéficiaires ou usagers, ou a` une catégorie de ceux-ci, ou la mise a` leur disposition des installations. 21 Subsection 20(2) of the Financial Administration Act allows for the refund of money paid to a public officer for any purpose that is not fulfilled, less any amount attributable to any service rendered: (2) Where money is paid by any person to a public officer for any purpose that is not fulfilled, the money may, in accordance with regulations of the Treasury Board, be returned or repaid to that person, less such sum as in the opinion of the Board is properly attributable to any service rendered. (2) Les fonds versés a` un fonctionnaire public a` des fins non réalisées peuvent, conformément aux règlements du Conseil du Trésor, etreˆ restitués a` celui qui les a versés moins le montant régulièrement im- putable, selon le Conseil, a` un service rendu. Li v. Canada Robert M. Mainville J.A. 11

22 Paragraph 295(1)(a), subsection 295(3) and section 304 of the Regu- lations were adopted pursuant to section 5 of the IRPA and paragraph 19(1)(a) and subsection 20(2) of the Financial Administration Act in order to prescribe the following fees for the processing of sponsorship applications and related permanent resident visa applications for members of the family class: 295. (1) The following fees are payable for processing an application for a permanent resident visa: (a) if the application is made by a person as a member of the family class (i) in respect of a principal applicant, other than a principal applicant referred to in subparagraph (ii), $475, (ii) in respect of a principal applicant who is a foreign national referred to in any of paragraphs 117(1)(b) or (f) to (h), is less than 22 years of age and is not a spouse or common-law partner, $75, (iii) in respect of a family member of the principal applicant who is 22 years of age or older or is less than 22 years of age and is a spouse or common-law partner, $550, and (iv) in respect of a family member of the principal applicant who is less than 22 years of age and is not a spouse or common-law partner, $150; (3) A fee payable under subsection (1) in respect of a person who makes an application as a member of the family class or their family members (a) is payable, together with the fee payable under subsection 304(1), at the time the sponsor files the sponsorship application; and (b) shall be repaid in accordance with regulations referred to in subsection 20(2) of the Financial Administration Act if, before the processing of the application for a permanent resident visa has begun, the sponsorship application is withdrawn by the sponsor. 304. (1) A fee of $75 is payable for processing a sponsorship application under Part 7. (2) The fee referred to in subsection (1) is payable at the time the application is filed. 295. (1) Les frais ci-après doivent etreˆ acquittés pour l’examen de la demande de visa de résident permanent: 12 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

a) si la demande est faite au titre de la catégorie du regroupement familial: (i) dans le cas du demandeur principal autre que celui visé au sous-alinéa (ii), 475 $, (ii) dans le cas du demandeur principal qui est un etranger´ visé a` l’un des alinéas 117(1)b) ou f) a` h), est ag´ˆ e de moins de vingt-deux ans et n’est pas un epoux´ ou conjoint de fait, 75 $, (iii) dans le cas d’un membre de la famille du demandeur principal qui est ag´ˆ e de vingt-deux ans ou plus ou qui, s’il est ag´ˆ e de moins de vingt-deux ans, est un epoux´ ou conjoint de fait, 550 $, (iv) dans le cas d’un membre de la famille du demandeur principal qui est ag´ˆ e de moins de vingt-deux ans et qui n’est pas un epoux´ ou conjoint de fait, 150 $; (3) Les frais prévus au paragraphe (1) a` l’égard de la personne qui présente une demande au titre de la catégorie du regroupement familial ou a` l’égard des membres de sa famille sont: a) exigibles au moment où le répondant dépose sa demande de parrainage, a` l’instar des frais prévus au paragraphe 304(1); b) restitués conformément aux règlements visés au paragraphe 20(2) de la Loi sur la gestion des finances publiques, si la demande de parrainage est retirée par le répondant avant que ne débute l’examen de la demande de visa de résident permanent. 304. (1) Des frais de 75 $ sont a` payer pour l’examen de la demande de parrainage présentée sous le régime de la partie 7. (2) Les frais prévus au paragraphe (1) doivent etreˆ acquittés au moment du dépôt de la demande.

Analysis 23 A nexus must exist between the user fees charged by government and the cost of the associated service provided: Eurig at para. 21; 620 Connaught Ltd. v. Canada (Attorney General), 2008 SCC 7, [2008] 1 S.C.R. 131 (S.C.C.) at para. 19. However, “courts will not insist that fees correspond precisely to the cost of the relevant service. As long as a reasonable connection is shown between the service provided and the amount charged, that will suffice” (Eurig at para. 22). Though this test was developed within the context of distinguishing between a tax and a user fee for constitutional purposes, it is nevertheless instructive for in- Li v. Canada Robert M. Mainville J.A. 13

terpreting the Financial Administration Act as it relates to user fees. The fundamental issue raised by this appeal is whether such a reasonable connection can be found to exist where the payment of user fees is made substantially in advance of the actual service and in circumstances where the service may, in some cases, never be provided. 24 The first question to address is whether the Financial Administration Act precludes the payment of user fees in advance of the service they relate to. If the Financial Administration Act does not preclude advance payments of user fees, it must then be determined whether it nevertheless precludes the collection of user fees for a service which is contingent on the successful completion of a related service. 25 The provisions of the Financial Administration Act are to be read in their entire context and in their grammatical and ordinary sense harmoni- ously with the scheme of the act, the object of the act, and the intention of Parliament: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 (S.C.C.) at para. 26. This approach is buttressed by section 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the at- tainment of its object.” 26 Section 19 of the Financial Administration Act does not prescribe that fees for a service or the use of a facility may only be charged after the service is provided or after the facility has been used. In interpreting this provision, the “Court must take the statute as it finds it. In the absence of limiting words in the statute, the Court will not read in limitations”: Sunshine Village Corp. v. Parks Canada, 2004 FCA 166, [2004] 3 F.C.R. 600 (F.C.A.) at para. 18. There is nothing in section 19 which restricts the authority of the Governor in Council to adopt regulations requiring the payment of user fees prior to the actual delivery of the service. The restriction set out in section 19 simply requires that the fees not exceed the cost of providing the service or the use of the facility. This can be achieved by adequately projecting the cost of providing the service or the use of the facility at the time the fees are prescribed or collected. 27 In my view, restricting the collection of user fees until after the related government service has been provided runs counter to the very purpose of section 19 of the Financial Administration Act, which is to ensure that, in appropriate prescribed situations, users of a government service assume at least part of the cost of providing the service. The ful- 14 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

fillment of this purpose implicitly suggests that the payment of the fees can be required in advance of the service in circumstances deemed appropriate by the Governor in Council. This avoids situations where some users refuse to pay after the delivery of the service, leaving the government with the costly and time consuming task of collecting the fees through various after service collection means. 28 In addition, subsection 20(2) of the Financial Administration Act and the related Repayment of Receipts Regulations, 1997, SOR/98-127 allow for the refund of any money that has been paid to a public officer for any purpose that has not been fulfilled, less any sum that is properly attributable to the service rendered. This is an additional indication that a requirement to pay fees in advance of services can be prescribed under section 19 of the Financial Administration Act. 29 The appellant argues that even if the fees can be collected in advance of the service, in this case no service can in fact be provided until the sponsorship application has been dealt with, a process which, in March of 2010, was estimated to take approximately 34 months to complete. Since the permanent resident visa application is contingent on the approval of the sponsorship application, the appellant asks how a nexus or reasonable connection can be established between the fee collected for this visa application and the service this fee relates to when such service is simply a potentiality rather than a reality? 30 The applications judge dealt with this question by taking into account the practical realities of providing the service. He found that though two services were in fact being paid for, one actual service (processing the sponsorship application) and one potential service (processing the permanent residence application), this simply reflected the practical realities of processing family class immigration requests, and that, in effect, only one service was being provided. 31 I agree with the appellant that in this case two services are being provided, for which two separate fees are collected. Paragraph 295(1)(a) and section 304 of the Regulations clearly distinguish between the sponsorship application processing fee and the permanent resident visa application processing fee. Therefore, I would not characterize the processing of the sponsorship application and the processing of the visa application as one service, but rather as two closely related processing services within the family class selection process. 32 Nevertheless, the practical realities of providing both services may be taken into account in assessing whether section 19 of the Financial Ad- Li v. Canada Robert M. Mainville J.A. 15

ministration Act has been complied with: Canadian Shipowners Assn. v. Canada, op. cit. In this case, the practical realities are that the sponsorship application has no independent utility from the permanent resident visa application and both applications are interrelated and interdependent. The sponsorship application is submitted solely in contemplation of the permanent resident visa application. Subsection 13(1) of the IRPA sets out that a Canadian citizen or permanent resident may “sponsor a foreign national who is a member of the family class.” One may only be a member of the family class if sponsored (subsection 117(1) of the Reg- ulations). Likewise, subsection 130(1) of the Regulations refers to “a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class” and such sponsor must file “a sponsorship application in respect of a member of the family class.” It stands to reason that a sponsorship application cannot be made in the absence of an identified member of the family class who intends to make an application for a permanent resident visa as a member of that class. 33 Moreover, in those rare cases where a sponsorship application is not approved, the sponsor is given an opportunity to withdraw his sponsorship application, thus allowing the fees collected for processing the permanent resident visa application to be refunded in accordance with subsection 20(2) of the Financial Administration Act. Paragraph 295(3)(b) of the Regulations provides that the fees “shall be repaid”. 34 Consequently, a nexus or reasonable connection can be established between the fees collected for the permanent resident visa applications and the cost of processing these applications even if these fees are collected in advance along with the related sponsorship application. The sponsorship application is inextricably related and intertwined with the related permanent resident visa application. Requiring the simultaneous payment of the fees for both applications can thus be justified under the nexus or reasonable connection test, particularly in light of the fact that the fees for processing the visa application can be refunded in the event the sponsorship application is not successful. 35 The appellant however also claims that the government profits from the 34 months during which it holds the fees prior to incurring the cost of the service, and that this is contrary to section 19 of the Financial Admin- istration Act. Although it is true on a theoretical level that the government could gain interest on these amounts or could avoid interest charges through reducing borrowings proportional to the amounts collected, this, 16 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

if established, would not offend section 19 of the Financial Administra- tion Act. Since the Governor in Council may prescribe that user fees be collected in advance of the service they relate to, it is inherent to the scheme of the Financial Administration Act that such fees will be depos- ited and managed in accordance with the applicable statutory and regulatory provisions relating to public monies. This is intrinsic to the management of such monies and in no way offends section 19 of the Financial Administration Act. The appellant has not referred to any other legislative provision which could sustain his argument on this point. In any event, no evidence has been submitted establishing that a benefit is, in fact, received by government through the payment of these fees in advance of the service, nor as to the quantum of that alleged benefit. 36 The underlying rationale of the appellant’s argument seems to be that it is unreasonable for the government to collect the permanent resident visa application processing fees some 34 months in advance of the service they relate to when it would be easy for the government to amend the Regulations in order to address the issue. The appellant submits at paragraph 42 of his memorandum “that the Minister should be required to notify an applicant when he is prepared to provide the service of determining an application for permanent residence and to then provide the applicant with the opportunity to pay the applicable fee for the service of determining an application for permanent residence if he wishes to proceed with that application.” 37 The problem with this rationale is that it implies that the Court may enter into the realm of policy decision making. There are often competing demands on government services and it is the role and responsibility of government to address these competing demands. Sometimes hard choices need to be made, such as prioritizing the administrative processing of the applications of spouses and children within the family class. These choices may impact others competing for the same or similar government services. However, it is the responsibility of government, not of the courts, to determine the appropriate corrective regulatory measures, if any, to address such impacts. In the absence of a legislative or constitutional constraint on the regulatory choices made by government, courts will not interfere to compel their own regulatory preferences: Thorne’s Hardware Ltd. v. R., [1983] 1 S.C.R. 106 (S.C.C.) at p. 111; de Guzman v. Canada (Minister of Citizenship & Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 (F.C.A.) at para. 26. Li v. Canada Carolyn Layden-Stevenson J.A. 17

Conclusion 38 I would answer the question certified by the applications judge as follows: Question: Is Immigration and Refugee Protection Regulation 295(3)(a), as applied to sponsored immigrant visa applications made by parents and grandparents, ultra vires on the ground it is inconsistent with s. 19 of the Financial Administration Act? Answer: No. 39 I would consequently dismiss this appeal.

Eleanor R. Dawson J.A.:

I agree

Carolyn Layden-Stevenson J.A.:

I agree Appeal dismissed. 18 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Peer v. Canada (Minister of Citizenship & Immigration)] Danish Haroon Peer, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-267-10 2011 FCA 91 Pierre Blais C.J., Sharlow, Stratas JJ.A. Heard: March 9, 2011 Judgment: March 9, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Spies and subversives –––– Foreign national was citizen of Pakistan whose wife was Canadian citizen — Foreign national and wife had three children who were born in Canada — Wife applied to sponsor foreign national as member of family class — Foreign national disclosed that he had worked for Pakistani intelligence entities — During interview, foreign national admitted conducting domestic intelligence-gathering activities to protect Paki- stan from terrorism — Interviewer alleged foreign national also admitted gathering intelligence on Indian, Israeli, and American intelligence services present in Pakistan — Foreign national was denied permanent resident visa on basis that he was involved in espionage and therefore inadmissible for security reasons — Foreign national brought application for judicial review — Application was dismissed — Judge held that visa officer erred in preferring internal post-interview brief over foreign national’s further submissions, but this error was not material to outcome — Visa officer did not err in finding foreign national inadmissible for security reasons — Foreign national conducted intelligence-gathering activities in Pakistan against persons from democratic countries — Judge held that term “espionage” in s. 34(1)(a) of Immigration and Refugee Protection Act applied to any surreptitious gathering of information without regard to location or existence of hostile intent — It was not for court to judge Parliament’s policy choices — Foreign national had option of applying for exercise of ministerial discretion — Question was certified as to whether lawful domestic intelligence- gathering with no hostile intent fell within meaning of “espionage” in s. 34(1)(a) of Act — Foreign national appealed — Appeal dismissed — Judge did not err in his interpretation of word “espionage”. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34(1) — considered Peer v. Canada (Minister of Citizenship & Immigration) Pierre Blais C.J. 19

s. 34(1)(a) — considered

APPEAL by foreign national from judgment, reported at Peer v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3628, 2010 CF 752, 91 Imm. L.R. (3d) 17, 2010 FC 752, 2010 CarswellNat 2396, 372 F.T.R. 28 (Eng.) (F.C.), dismissing his application for judicial review of decision of visa officer denying his application for permanent resident visa on basis that he was inadmissible for security reasons.

Jacqueline Swaisland, for Appellant Ladan Shahrdoz, Hillary Stephenson, for Respondent

Pierre Blais C.J.:

1 Despite the able submissions of counsel for the Appellant, we have not been persuaded that Justice Zinn erred in his interpretation of the word “espionage” in subsection 34(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. On the contrary, we agree with his decision, substantially for the reasons he gave. 2 The certified question is: Is a person inadmissible to Canada for “engaging in an act of espionage ... against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed? 3 We would answer yes to this question. 4 Counsel conceded that, given that answer, there is no basis for appellate intervention. 5 The appeal will be dismissed. Appeal dismissed. 20 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Agraira v. Canada (Minister of Public Safety & Emergency Preparedness)] The Minister of Public Safety and Emergency Preparedness, Appellant and Muhsen Ahmed Ramadan Agraira, Respondent Federal Court of Appeal Docket: A-31-10 2011 FCA 103 Pierre Blais C.J., Marc No¨el, J.D. Denis Pelletier JJ.A. Heard: September 17, 2010 Judgment: March 17, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Terrorists –––– Applicant A, who was Libyan national, initially applied for Convention refugee status in Canada but was denied — A later married Canadian woman who sponsored A’s permanent residence application — A claimed to be low-level member of organization in Libya whose goal it was to overthrow regime and install democracy — Organization was considered to be terrorist group by Canada — A later claimed to have exaggerated level of involvement in effort to strengthen his refugee status — Minister refused application for permanent residence — A successfully applied for judicial review of Minister’s decision — Application judge found that there was minimal evidence that group A belonged to was terrorist in nature — Application judge also found that minister had not considered questions that needed to be taken into account on applications for ministerial relief — Ministry appealed decision — Appeal allowed — Standard of review was reasonableness — Changes to legislation placed greater burden on Minister of Public Safety to determine whether foreign national’s presence in Canada would be detrimental — If foreign national’s presence may be detrimental to Canada, any contribution to national interest will not balance detriment out — Discretion of minister to allow national into Canada was limited if they had been involved with terrorism — A’s evidence was inconsistent and contradictory, leading to conclusion that he was most likely still involved with organization in Libya — Application for permanent residence denied. Cases considered by J.D. Denis Pelletier J.A.: A. v. Secretary of State for the Home Department (2004), [2004] UKHL 56, [2005] 3 All E.R. 169, (sub nom. A. (F.C.) v. Secretary of State for the Home Department) [2004] H.L.J. No. 45 (U.K. H.L.) — referred to Abdella v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 3884, 2009 FC 1199, 355 F.T.R. 86 (Eng.), 2009 Agraira v. Canada 21

CarswellNat 5180, 2009 CF 1199, [2009] F.C.J. No. 1493 (F.C.) — considered Afridi v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CarswellNat 4557, 2008 CF 1192, 2008 CarswellNat 3787, 2008 FC 1192, 75 Imm. L.R. (3d) 291, [2008] F.C.J. No. 1471 (F.C.) — referred to Al Yamani v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 62 Imm. L.R. (3d) 203, 2007 FC 381, 2007 CarswellNat 830, 2007 CF 381, 2007 CarswellNat 2558, 311 F.T.R. 193 (Eng.), [2007] F.C.J. No. 520 (F.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed 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] S.C.J. No. 43, REJB 2002-30904 (S.C.C.) — considered Chogolzadeh v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 405, 2008 CarswellNat 836, 2008 CF 405, 71 Imm. L.R. (3d) 300, 327 F.T.R. 39 (Eng.), 2008 CarswellNat 2394, [2008] F.C.J. No. 544 (F.C.) — followed Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 1366, 2008 CarswellNat 4694, 77 Imm. L.R. (3d) 310, 2008 CarswellNat 5166, 2008 CF 1366, [2008] F.C.J. No. 1728 (F.C.) — referred to Kanaan v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 241, 2008 CarswellNat 1854, 2008 CF 241, 71 Imm. L.R. (3d) 63, 2008 CarswellNat 427, [2008] F.C.J. No. 301 (F.C.) — referred to Miller v. Canada (Solicitor General) (2006), 297 F.T.R. 203 (Eng.), 2006 FC 912, 2006 CarswellNat 2282, 2006 CarswellNat 5435, 2006 CF 912, [2007] 3 F.C.R. 438, [2006] F.C.J. No. 1164 (F.C.) — referred to Naeem v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 255, 2007 FC 123, 60 Imm. L.R. (3d) 221, 2007 CarswellNat 1176, 2007 CF 123, [2007] 4 F.C.R. 658, 308 F.T.R. 256 (Eng.), [2007] F.C.J. No. 173 (F.C.) — referred to Soe v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 461, 2007 CarswellNat 1007, 2007 CarswellNat 2635, 2007 CF 461, [2007] F.C.J. No. 620 (F.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — considered 22 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Tameh v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 332 F.T.R. 158 (Eng.), 2008 FC 884, 2008 CarswellNat 2557, [2008] F.C.J. No. 1111 (F.C.) — referred to Statutes considered: Canada Border Services Agency Act, S.C. 2005, c. 38 Generally — referred to s. 5(1)(a) — considered s. 6 — considered Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10 Generally — referred to s. 4 — considered s. 4(2) — considered Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to s. 19 — considered s. 19(1)(f)(iii)(B) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(h) — considered s. 3(1)(i) — considered s. 4 — referred to s. 4 [rep. & sub. 2005, c. 38, s. 118] — referred to s. 4(1) — considered s. 4(2) — considered s. 4(2)(c) — referred to s. 6 — referred to s. 6(1) — considered s. 6(2) — considered s. 25 — considered s. 25(1) — considered s. 34 — considered s. 34(1) — considered s. 34(1)(f) — referred to s. 34(2) — considered s. 44(1) — referred to s. 190 — referred to

APPEAL by Minister of Public Safety from decision, reported at Agraira v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 5509, 2009 CF 1302, [2009] F.C.J. No. 1664, 357 F.T.R. 246 (Eng.), 2009 FC 1302, 2009 CarswellNat 4438, 87 Imm. L.R. (3d) 135 (F.C.), allowing foreign national’s application for permanent residence. Agraira v. Canada J.D. Denis Pelletier J.A. 23

Alexis Singer, Laoura Christodoulides, for Appellant Lorne Waldman, for Respondent

J.D. Denis Pelletier J.A.: Introduction 1 Mr. Agraira is a foreign national who was found to be inadmissible to Canada on security grounds. He attempted to avoid this finding of inadmissibility through an application for ministerial relief under the relevant legislation. The legislative landscape changed significantly during the life of Mr. Agraira’s application. 2 The Minister refused to grant relief. His application to the Federal Court for judicial review of that decision was successful. The Minister of Public Safely and Emergency Preparedness appeals to this Court from the decision of the Federal Court. While there is abundant jurisprudence on the issue of ministerial relief in the Federal Court, this appeal is this Court’s first opportunity to consider the relevant provision. 3 For the reasons which follow, I would allow the appeal and set aside the decision of the Federal Court.

The Facts 4 Mr. Agraira is a citizen of Libya who, in 1996, left his homeland for Germany where he made a claim for Convention Refugee status on the basis of his membership in the Libyan National Salvation Front (LNSF, also referred to in some of the material as NFSL). His application was unsuccessful because the refugee determination authority found he lacked credibility. 5 In March 1997, Mr. Agraira entered Canada using an Italian passport, illegally purchased in Germany. He applied for Convention Refugee status on March 13, 1997, once again on the basis of his involvement with the LNSF. In his Personal Information Form, he described the nature of his activities with the LNSF. As part of an eleven member cell, he deliv- ered envelopes to members of other cells, raised or attempted to raise funds and watched and reported on the movements of supporters of the Libyan regime. Members of his cell were told that they were in training for future activities; they were taught how to engage people in political discourse and to raise funds. At the hearing before the Convention Refu- gee Determination Division, Mr. Agraira tendered, in support of his application, a letter from the LNSF attesting to his membership in the organization. Notwithstanding this evidence, on October 24, 1998, his 24 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

claim for Convention Refugee status was refused on the basis of his lack of credibility. 6 Meanwhile, Mr. Agraira met a Canadian woman whom he married in a Muslim ceremony in December 1997 and subsequently in a civil ceremony on March 7, 1999. Mr. Agraira’s wife sponsored his application for permanent residence in August 1999. After the Immigration authorities satisfied themselves of the bona fides of the marriage, they told Mr. Agraira that his application for permanent residence would be considered. 7 On May 1, 2002, a senior immigration officer wrote to Mr. Agraira to advise him that “Immigration National Headquarters in Ottawa has received new information which suggests that your application for landing may have to be refused.” The letter went on to say that the issue was whether Mr. Agraira was inadmissible on the grounds that there were reasonable grounds to believe that he was or had been a member of an organization that is or was engaged in terrorism, contrary to clause 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2 [Immigration Act] (Appeal Book at 106). The source and nature of the new information is not disclosed in the letter. 8 According to Mr. Agraira’s affidavit sworn June 15, 2009 (Appeal Book at 46-49), he was interviewed by an agent of the Canadian Security Intelligence Service (CSIS) during the summer of 2000 in the course of which he was asked about his membership with the LNSF. In his affidavit filed with the Federal Court, Mr. Agraira suggests that this was the source of the “new” information but this is purely speculation. 9 Mr. Agraira was interviewed by an immigration officer on May 21, 2002. In the course of that interview, he admitted that he had been a member of the LNSF. According to the report prepared by the officer who interviewed him, Mr. Agraira claimed that he “made up stories regarding the extent of his involvement” in order to bolster his refugee claim (Appeal Book at 221-223). 10 In her report, the officer identified several inconsistencies in the information provided to her by Mr. Agraira. Although the latter claimed not to know much about the LNSF, he was able to name the founder and the current leader of the organization. Then, having stated that he attended meetings of the LNSF in Libya, he asserted that he did not attend meetings but only discussed the group with his friends. Finally, Mr. Agraira said that he had had no contact with the group since leaving Libya but then acknowledged that he had received newsletters from Agraira v. Canada J.D. Denis Pelletier J.A. 25

chapters of the organization in the United States since arriving in Can- ada. The officer indicated to Mr. Agraira that the answers he had given her appeared to contradict answers given to the CSIS agent. 11 At the conclusion of the interview, the officer advised Mr. Agraira that there were grounds to believe that he belonged, or had belonged, to an organization that engaged in terrorism and that he had a right to seek ministerial relief from a finding of inadmissibility on that ground. Mr. Agraira indicated that he would retain counsel to seek such relief. 12 When preparing her report on the results of Mr. Agraira’s interview, the immigration officer had Mr. Agraira’s request for ministerial relief in hand. The report noted further inconsistencies between Mr. Agraira’s submissions in support of his request for ministerial relief and his earlier statements. For example, in his request for ministerial relief, as in his Personal Information Form, Mr. Agraira claimed that he had attended clandestine meetings where he was taught how to approach potential members and how to solicit donations. In the interview with the immigration officer, Mr. Agraira said that he did not know how the LNSF funded itself or how it recruited members. 13 The officer also made the following finding regarding Mr. Agraira’s continued membership in the LNSF (Appeal Book at 223): In my opinion Mr. Ramadan Agraira was and continues to be a member of the NFSL. He declared to the IRB that he was a member, he declared [redacted] that he was a member and he has through his own legal counsel stated that he was and still considers himself a member of this organization. 14 The officer’s report concluded (Appeal Book at 223): Without evidence that Mr. Ramadan Agraira was directly linked to any acts of violence, I would accept the evidence before me, that he was mainly involved in distributing leaflets and garnering support for the NFSL. Thus I would recommend that Ministerial Relief be granted. 15 At the same time, on July 22, 2002, the immigration officer prepared a report under subsection 44(1) of the Immigration and Refugee Protec- tion Act, S.C. 2001, c. 27 [IRPA], which came into effect on June 28, 2002, indicating that in her opinion, Mr. Agraira was inadmissible to Canada pursuant to paragraph 34(1)(f) of the IRPA, on the ground that he was a member of an organization that had engaged, engages, or will en- 26 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

gage in terrorism. The grounds for the immigration officer’s opinion were set out in the following terms (Appeal Book at 224-225): Mr. Agraira stated in a written submission prepared by his legal counsel, that he was an active member of the National Front for the Salvation of Libya. His duties included distributing leaflet, seeking potential members and soliciting donations. He stated he has never taken part in any NFSL meetings since coming to Canada However, he does [illegible] still a member because he does support the general goal of seeing Col. Gadaffi removed from power and democratic principles instated in Libya. 16 As a result of amendments to the IRPA following the passage of the Canada Border Services Agency Act, S.C. 2005 c. 38 [CBSAA], the next step in the Ministerial relief process was the preparation of a briefing note for the consideration of the Minister of Public Safety and Emer- gency Preparedness (the Minister of Public Safety). The draft Briefing Note is date stamped August 19, 2005 and recommended that Mr. Agraira be granted ministerial relief. It was provided to counsel for Mr. Agraira by Citizenship and Immigration Canada on August 22, 2005. On August 30, 2005, Mr. Agraira’s counsel indicated that he had nothing to add to the submissions already made on behalf of his client. The Briefing Note was put before the Minister at a later date, probably March 9, 2006, as indicated by the date stamp. 17 After setting out Mr. Agraira’s procedural history to date, the Brief- ing Note observed that, following his interview on May 21, 2002, Mr. Agraira “was found to be inadmissible to Canada due to his past membership in the LNSF, an organization described in paragraph 34(1)(f) of IRPA” and that “he was reported pursuant to section 44 of IRPA on July 22, 2002.” 18 The Briefing Note repeated much of the information already on the record as to Mr. Agraira’s involvement in the LNSF. Under the heading Considerations, the Briefing Note summarized the information with respect to Mr. Agraira’s personal circumstances as well as the submissions made on his behalf by his counsel. 19 The Briefing Note concluded with a recommendation that ministerial relief be granted to Mr. Agraira on the basis that “there is not enough evidence to conclude that Mr. Ramadan Agraira’s continued presence in Canada would be detrimental to the national interest” (Appeal Book at Agraira v. Canada J.D. Denis Pelletier J.A. 27

43). The basis for this recommendation appears in the following paragraph: Mr. Ramadan Agraira admitted to joining the LNSF but was only a member for approximately 2 years. There is some information to suggest that he became a member at a time when the organization was not in its most active phase and well after it was involved in an operation to overthrow the Libyan regime. He initially stated that he had participated in a number of activities on behalf of the organization but later indicated that he had exaggerated the extent of his involvement so that the could make a stronger claim to obtain refugee status in Canada. This is supported to some extent by the fact that his attempts to obtain refugee status in Germany and Canada were rejected on the basis of credibility. Mr. Ramadan Agraira denied having been involved in any acts of violence or terrorism and there is no evidence to the contrary. He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF. He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to remove the current regime in Libya through non-violent means. 20 The Minister responded on January 27, 2009, thirty-four months after the Briefing Note was submitted to his office. The Minister did not accept the Canada Border Services Agency’s recommendation. His response was relatively brief and is reproduced in full below (Appeal Book at 45): After having reviewed and considered the material and evidence submitted in its entirety as well as specifically considering these issues: • The applicant offered contradictory and inconsistent accounts of his involvement with the Libyan National Salvation Front (LNSF). • There is clear evidence that the LNSF is a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government. • There is evidence that LNSF has been aligned at various times with Libyan Islamic opposition groups that have links to Al-Qaeda. • It is difficult to believe that the applicant, who in interviews with officials indicated at one point that he belonged to a “cell” of the LNSF which operated to recruit and raise funds for LNSF, was unaware of the LNSF’s previous activity. 28 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist connected organizations. Ministerial relief is denied. “The Honourable Peter Van Loan” “January 27/09” Minister of Public Safety 21 On March 24, 2009, Mr. Agraira was notified by mail by Citizenship and Immigration Canada that he was inadmissible to Canada based on his membership in an organization that there are grounds for believing engages, has engaged or will engage in terrorism (Appeal Book at 48). As a result, his application for permanent residence was dismissed.

The Decision Under Appeal 22 Mr. Agraira applied for, but was denied, leave to have the decision under subsection 34(1) of the IRPA that he was inadmissible judicially reviewed. However, he was granted leave to seek judicial review of the Minister’s determination under subsection 34(2) that his continued stay in Canada was detrimental to Canada’s national interest. The application for judicial review was heard and disposed of by Mr. Justice Mosley (the application judge) in a decision reported as Agraira v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FC 1302, [2009] F.C.J. No. 1664 (F.C.)[Reasons for Judgment]. 23 The application judge described the issue in the application as whether the Minister’s decision was reasonable. In his view, significant deference should be accorded to discretionary ministerial decisions particularly when, as here, the discretion is non-delegable. He noted that the Minister had acquired expertise in matters of national security and the national interest in course of exercising his duties. The application judge then touched upon the role of the judiciary in reviewing “political” decisions, citing a passage from a decision of the House of Lords to the effect that political actors should decide political questions, A. v. Secretary of State for the Home Department, [2004] UKHL 56 (U.K. H.L.) at para. 29. The application judge noted that, at first blush, the question of whether or not to grant Ministerial relief appeared to be closer to the political end of the spectrum and therefore not a matter for judicial intervention. Nonetheless, he concluded that the decision was reviewable. 24 The application judge questioned the Minister’s stated conclusion that Mr. Agraira was a member of a terrorist group. He found that the evidence before the Minister that the LNSF had engaged in terrorism was minimal at best. In particular, he noted that Al Qaeda was mentioned Agraira v. Canada J.D. Denis Pelletier J.A. 29

only once in the documentation which was available to the Minister and that reference related to other Libyan opposition groups generally and not to the LNSF specifically. The application judge also noted that the LNSF was not mentioned in the list of terrorist organizations maintained by the Canadian government and that it had appeared to have received support from western governments in its attempts to overthrow the Lib- yan government. That said, the application judge correctly noted that the question of whether or not the LNSF is, or was, a terrorist organization was not before him. 25 The application judge then referred to another decision of the Federal Court, Abdella v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FC 1199, [2009] F.C.J. No. 1493 (F.C.) [Abdella], in which the Federal Court referred to the departmental guidelines for the processing of applications for ministerial relief, IP-10 Refusal of Na- tional Security Cases/Processing of National Interest Requests [IP-10], which set out five questions to be considered by departmental officials in the processing of applications for ministerial relief under subsection 34(2). The questions are: 1. Will the applicant’s presence in Canada be offensive to the Cana- dian public? 2. Have all ties with the regime organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant might be benefiting from previous membership in the regime organization? 5. Has the person adopted the democratic values of Canadian society? 26 The application judge found that while the five questions had been addressed in the Briefing Note, they had not been considered by the Minister. 27 The application judge further found that the Minister had not bal- anced the factors identified in prior decisions of the Federal Court as relevant to the determination of what is in the national interest. Those factors include: whether the applicant posed a threat to Canada’s security; whether the applicant posed a danger to the public; the period of time the applicant had been in Canada; whether it is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Can- 30 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ada; the impact on both the applicant and all other members of society of the denial of permanent residence; and the adherence to all of Canada’s international obligations, (Reasons for Judgment at para. 25.) 28 The application judge agreed with Mr. Agraira’s counsel that there were concerns whether the Minister’s decision “turned on the simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest of Canada”, referring to the Federal Court’s decision in Kanaan v. Canada (Minister of Public Safety & Emergency Prepared- ness), 2008 FC 241, [2008] F.C.J. No. 301 (F.C.) at para. 8. Along the same lines, the application judge noted it could be said that the Min- ister’s analysis had rendered the exercise of his discretion meaningless, referring to the Federal Court’s decision in Soe v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 461, [2007] F.C.J. No. 620 (F.C.) [Soe], where the Court said at paragraph 34: “It is tanta- mount to saying that an individual who commits an act described in subsection 34(1) cannot secure Ministerial discretion because they committed the very act that confers jurisdiction on the Minister to exercise discretion under subsection 34(2).” 29 In the end result, the application judge allowed the application for judicial review and certified the following question: When determining a ss. 34(2) application, must the Minister of Pub- lic Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Specifically, must the Minister consider the five factors listed in the Appendix D of IP10? 30 In doing so, the application judge must be taken to have concluded that the Minister’s exercise of his discretion was unreasonable due to his failure to consider the five questions identified in the Guidelines or to deal with the factors identified in the Federal Court jurisprudence.

Issues 31 This case raises the following issues: 1- The standard of review of the Minister’s decision. 2- The burden of proof. Agraira v. Canada J.D. Denis Pelletier J.A. 31

3- The interpretation of subsection 34(2) of the IRPA. a. The legislative evolution of subsections 34(2) and section 6 of the IRPA. i. The separation of “national interest” and national security from humanitarian and compassionate considerations. ii. The term “national interest” must be understood within the context of national security and public safety. b. The scope of subsection 34(2) of the IRPA. 4- The reasonableness of the Minister’s decision.

1. The Standard of Review of the Minister’s Decision 32 This first question is what standard of review applies to the statutory interpretation of subsection 34(2) of the IRPA. Specifically, what is the meaning of “national interest” within the scope of the provision? This is a question of law that does not involve a review of the Minister’s decision-making and so should be assessed on the standard of correctness. The Minister has no relative expertise in the interpretation of these provisions of the IRPA so there is no reason for the Court to defer to him on these questions. 33 The second question is what standard should be adopted with respect to the Minister’s decision that a foreign national’s presence in Canada is detrimental to the national interest. The application judge concluded, and I agree, that the standard of review of the Minister’s exercise of his discretion is reasonableness.

2. The Burden of Proof 34 The jurisprudence of the Federal Court is consistently to the effect that, in a ministerial relief application, the onus is on the applicant to satisfy the Minister (see Tameh v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 884, [2008] F.C.J. No. 1111 (F.C.) at para. 40 [Tameh]; Miller v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438 (F.C.) at para. 64; Al Yamani v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 381, 62 Imm. L.R. (3d) 203 (F.C.) at para. 69 [Al Yamani]. I agree with this conclusion as it represents the unambiguous language of subsection 34(2). 32 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

35 In this case, the Briefing Note put before the Minister reversed the onus when it stated that “there is not enough evidence to conclude that Mr. Ramadan Agraira’s continued presence in Canada would be detrimental to the national interest.” This reversal of onus was a sufficient reason for the Minister to disregard the Briefing Note’s recommendation.

3. The Interpretation of Subsection 34(2) of the IRPA A. The legislative evolution of subsection 34(2) and section 6 of the IRPA 36 The legislative landscape changed significantly between the date when Mr. Agraira first made his application for permanent resident status and the date the Minister of Public Safety refused his request for ministerial relief. 37 The legislative evolution of the ministerial exemption provision dem- onstrates a significant policy shift in the administration of ministerial relief for foreign nationals found to be inadmissible on security grounds. Parliament changed the relevant decision-maker from the Minister of Citizenship and Immigration to the Minister of Public Safety. With this change in the responsible Minister, the provision must now be read in light of the objects of the Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10 [DPSEPA], as the Minister of Public Safety’s enabling statute, the Canada Border Services Agency Act, supra, as the statute governing the Agency responsible for assisting the Minister in his duties, as well as those of the IRPA. 38 To understand subsection 34(2), we must apply the principle of “presumption of coherence” — that provisions of legislation, or a legislative scheme, are meant to work together as a functional whole — and consider the objects of the IRPA, the mandate of the Minister of Public Safety, and goals of the CBSA. In Bell ExpressVu Ltd. Partnership v. Rex, [2002] S.C.J. No. 43, [2002] 2 S.C.R. 559 (S.C.C.) at para. 27, Iac- cobucci J. discussed the approach to be taken to the construction of a statutory scheme whose elements are found in a number of enactments: The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell”, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an Agraira v. Canada J.D. Denis Pelletier J.A. 33

instance, the applicant of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd. as the “principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter. 39 As we shall see, the changes made to the legislative scheme allow us to draw two important conclusions: i) Parliament has intentionally separated considerations of national interest from humanitarian and compassionate considerations; ii) Parliament has placed the consideration of national interest within the context of national security and public safety

a. The separation of “national interest” from humanitarian and compassionate considerations. 40 At the time of Mr. Agraira’s admissibility interview on May 21, 2002, the Immigration Act was in force. Following that interview, he was advised that he was thought to be inadmissible and was advised of his right to apply for a ministerial exemption. The provisions which applied to Mr. Agraira’s admissibility at that time were the following: 19(1) No person shall be granted admission who is a member of any of the following classes: ... (f) persons who there are reasonable grounds to believe ... (iiii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in ... (B)Terrorism except persons who have satisfied the Minister that their admission would not be detrimental to the national interest 19(1) Les personnes suivantes appartiennent a` une cat´egorie non admissible: [...] (f) celles dont il y a des motifs raisonnables de croire qu’elles: [...] (iii) soit sont ou ont et´´ e membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livr´ee: [...] 34 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

(B) soit a` des actes de terrorisme Le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable a` l’intérêt national 41 At that time, the Minister of Citizenship and Immigration was responsible for both the determination of inadmissibility and the decision as to whether a ministerial exemption was warranted. In addition, the same Minister was also responsible for applications for exemptions from the provisions of the Immigration Act based on humanitarian and compassionate [H&C] grounds. 42 Effective June 28, 2002, the Immigration Act was repealed and replaced by the IRPA. As a proceeding which was pending at the time IRPA came into force, Mr. Agraira’s application for a ministerial exemption was governed by IRPA (see IRPA, s. 190). Thus, by the time Mr. Agraira’s counsel forwarded his submissions with respect to ministerial relief to the Canada Immigration Centre on July 16, 2002, section 19 of the Immigration Act, as it related to inadmissibility on security grounds had been carried into section 34 of the IRPA: 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 en- danger 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 Can- ada would not be detrimental to the national interest. Agraira v. Canada J.D. Denis Pelletier J.A. 35

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 renver- sement 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 raisonnables 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 rés- ident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable a` l’intérêt national. 43 When the IRPA first came into force, the Minister responsible for determinations under subsection 34(2) remained the Minister of Citizenship and Immigration (see s. 4 of the IRPA as originally enacted). The responsible Minister changed, however, with the passage of the Canada Border Services Agency Act. Among the consequential amendments following the passage of the CBSAA, the IRPA was amended to transfer the non- delegable responsibility for making the determination under subsection 34(2) from the Minister of Citizenship and Immigration to, first, “the Minister as defined in section 2 of the Canada Border Services Agency Act” (see IRPA, s. 4, as am. by S.C. 2005, c. 38, s. 118) and later the Minister of Public Safety (IRPA, s. 4, as am. by S.C. 2008, c. 3, s.1) At the time the Minister of Public Safety made his decision, on January 27, 2009, the relevant portions of the IRPA read as follows: 4.(1) Except as otherwise provided in this section, the Minister of Citizenship and Immigration is responsible for the administration of this Act. ... (2) The Minister of Public Safety and Emergency Preparedness is responsible for the administration of this Act as it relates to (a) examinations at ports of entry; 36 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

(b) the enforcement of this Act, including arrest, deten- tion and removal; (c) the establishment of policies respecting the enforcement of this Act and inadmissibility on grounds of security, organized criminality or violating human or international rights; or (d) determinations under any of subsections 34(2), 35(2) and 37(2). ... 6.(1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated. (2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization. (3) Notwithstanding subsection (2), the Minister may not dele- gate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a) 4.(1) Sauf disposition contraire du présent article, le ministre de la Citoyenneté et de l’Immigration est chargé de l’application de la présente loi. [...] (2) Le ministre de la Sécurité publique et de la Protection civile est chargé de l’application de la présente loi relativement: a) au contrôle des personnes aux points d’entrée; b) aux mesures d’exécution de la présente loi, notamment en matière d’arrestation, de détention et de renvoi; c)a ` l’établissement des orientations en matière d’exécution de la présente loi et d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou pour activités de criminalité organisée; d)a ` la prise des décisions au titre des paragraphes 34(2), 35(2) ou 37(2). [...] 6. (1) Le ministre désigne, individuellement ou par catégorie, les personnes qu’il charge, a` titre d’agent, de l’application de tout Agraira v. Canada J.D. Denis Pelletier J.A. 37

ou partie des dispositions de la présente loi et précise les attributions attachées a` leurs fonctions. (2) Le ministre peut déléguer, par ecrit,´ les attributions qui lui sont conférées par la présente loi et il n’est pas nécessaire de prouver l’authenticité de la délégation. (3) Ne peuvent toutefois etreˆ déléguées les attributions conférées par le paragraphe 77(1) et la prise de décision au titre des dispositions suivantes: 34(2), 35(2) et 37(2)a). 44 The Minister of Citizenship and Immigration may still grant exemptions from the requirements of the Act based on H & C grounds pursuant to subsection 25(1) of the IRPA. At the time the Minister made his decision, section 25(1) read: [emphasis added]: 25. (1) The Minister shall, upon request of a foreign national in Can- ada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. 25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, de sa propre initiative ou sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger´ et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives a` l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. 45 Thus, while Parliament transferred the responsibility for deciding whether ministerial relief ought to be granted to the Minister of Public Safety, it left the discretion to waive the provisions of the IRPA on the basis of H & C considerations with the Minister of Citizenship and Im- migration. It is significant that this discretion can be exercised in favour of persons who have been found to be inadmissible. It is clear that Parlia- ment intended ministerial relief to be granted or withheld on the basis of considerations other than those that could support an application for H & C relief. The proper forum in which to advance an application based on 38 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

H & C considerations is under section 25 of IRPA, not in an application for ministerial relief under subsection 34(2).

b. The term “national interest” must be understood within the context of national security and public safety. 46 The grant of decision-making authority to the Minister of Public Safety brings into consideration his enabling statute, the Department of Public Safety and Emergency Preparedness Act, [DPSEPA] and the mandate of the Canada Border Services Agency. 47 The Minister of Public Safety must act within the terms of reference provided to him in the DPSEPA. Section 4 of the DPSEPA, supra, which sets out the powers, duties and functions of the Minister, emphasizes his responsibility for public safety and emergency preparedness at a national level [emphasis added]: 4.(1) The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction — and that have not been assigned by law to another department, board or agency of the Government of Canada — relating to public safety and emergency preparedness. (2) The Minister is responsible for exercising leadership at the national level relating to public safety and emergency preparedness. 4.(1) Les attributions du ministre s’étendent d’une fa¸con générale a` tous les domaines de compétence du Parlement liés a` la sécurité publique et a` la protection civile qui ne sont pas at- tribués de droit a` d’autres ministères ou organismes fédéraux. (2) A` l’échelon national, le ministre est chargé d’assumer un rôle de premier plan en matière de sécurité publique et de protection civile. 48 The Minister of Public Safety is also responsible for the CBSA, pursuant to section 6 of the CBSAA, supra; the Agency’s mandate is defined in section 5 of that Act [emphasis added]: 5. (1) The Agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation, by (a) supporting the administration or enforcement, or both, as the case may be, of the program legislation; ... Agraira v. Canada J.D. Denis Pelletier J.A. 39

5. (1) L’Agence est chargée de fournir des services frontaliers in- tégrés contribuant a` la mise en oeuvre des priorités en matière de sécurité nationale et de sécurité publique et facilitant le libre mouve- ment des personnes et des biens — notamment les animaux et les végétaux — qui respectent toutes les exigences imposées sous le ré- gime de la législation frontalière. A` cette fin, elle: a) fournit l’appui nécessaire a` l’application ou au contrôle d’application, ou aux deux, de la législation frontalière; [...] 49 The legislative mandate of the Minister of Public Safety makes it clear that national security and public safety are at the heart of his mission. Such considerations are also present in the objectives of the IRPA which have remained unchanged throughout its evolution [emphasis added]: 3. (1) The objectives of this Act with respect to immigration are ... (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and ... 3. (1) En matière d’immigration, la présente loi a pour objet: [...] h) de protéger la santé des Canadiens et de garantir leur sécurité; i) de promouvoir, a` l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; [...] 50 The Minister of Public Safety exercises his discretion under subsection 34(2) of the IRPA in the context of the entire legislative scheme. When that scheme is taken as a whole, it is clear that the transfer of responsibility of the processing of applications for ministerial relief to the Minister of Public Safety was intended to bring security concerns to the forefront in the treatment of those applications. As a result, the notion of “national interest” in the context of subsection 34(2) must be understood in terms of the Minister of Public Safety’s mandate. In my view, this means that the principal, if not the only, consideration in the process- 40 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ing of applications for ministerial relief is national security and public safety, subject only to the Minister’s obligation to act in accordance with the law and the Constitution. As a finding of inadmissibility does not necessarily result in the removal of the foreign national from Canada, the exercise of the Minister’s discretion does not raise any issue of Canada’s international obligations. 51 The test whether a foreign national’s presence in Canada is detrimental to the national interest is not a net-detriment test. The Minister of Public Safety is not required to balance the possible contribution to the national interest by an applicant against the possible detriment to the national interest and to refuse only those applications that result in a net detriment to the national interest. There is nothing in the statutory language which mandates such a balancing and the very specific mandate of the Minister of Public Security militates against such a balancing requirement. 52 The idea that the processing of requests for ministerial relief involves a balancing of various factors is drawn from the Department of Citizen- ship and Immigration’s departmental guidelines dealing with the processing of requests for ministerial relief, IP-10, supra, where the following definition of national interest appears: The consideration of national interest involves the assessment and balancing of all factors pertaining to the applicant’s admission against the stated objectives of the Act as well as Canada’s domestic and international interests and obligations. 53 It is trite law that a departmental document cannot alter the law as laid down by Parliament. While this definition may have had some utility for departmental staff at a time when the Minister of Citizenship and Im- migration was responsible for applications for ministerial relief as well as applications based on humanitarian and compassionate considerations, it has, in my view, been overtaken by events. Given that the responsibility for deciding applications for ministerial relief now lies with the Minister of Public Safety, the Department of Citizenship and Immigration’s department guidelines have limited application to the latter’s exercise of his non-delegable discretion. This is particularly true when one considers that the responsibility for establishing policies respecting “inadmissibility on grounds of security, organized criminality or violating human or international rights” has been assigned to the Minister of Public Safety (see IRPA, s. 4(2)(c) as am. by. S.C. 2008, c. 3, s.1). If guidelines are to be promulgated with respect to the treatment of ministerial relief applica- Agraira v. Canada J.D. Denis Pelletier J.A. 41

tions, they will have to be promulgated by the Minister of Public Safety. To my knowledge, no such guidelines exist. 54 It follows from this that the five factors which are referred to in the certified question are not, simply by virtue of being found in IP-10, factors the Minister of Public Safety must take into account in disposing of applications for ministerial relief. 55 The jurisprudence of the Federal Court has generally taken the view that departmental guidelines, in this case IP-10, can be taken as an indication of the reasonableness of the Minister’s decision. This reasoning is based on the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.) where the following appears at paragraph 72: The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power. 56 This passage has been relied upon by the Federal Court in several cases to justify reference to these questions, and to IP-10 generally, to determine whether the Minister’s decision is reasonable, see: Abdella, supra at para. 19 and following; Afridi v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1192, [2008] F.C.J. No. 1471 (F.C.) para. 45; Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1366, [2008] F.C.J. No. 1728 (F.C.) at para. 15 and following; Naeem v. Canada (Minister of Citizenship & Immigration), 2007 FC 123, [2007] 4 F.C.R. 658 (F.C.) at para. 56 and following; Soe, supra at para. 24 and following; Tameh, supra at para. 41 and following; Al Yamani, supra at para. 70 and following. 57 In my view, even if one sets aside the fact that the guidelines were not issued by the minister whose decision is under review, the Federal Court’s reliance upon Baker in connection with IP-10 is problematic. The guidelines in issue in Baker provided instances of circumstances where the granting of an H&C application was warranted. As summarized in Baker, the guidelines provided that: Guideline 9.07 states that humanitarian and compassionate grounds will exist if “unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada”. The guidelines also directly address situations involv- 42 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ing family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident, whether parents, children, or others who are close to the claimant, but not related by blood. They note that in such cases, the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country should also be considered. 58 Where the guidelines specifically direct an officer to consider whether certain identified conditions will result in “unusual, undeserved or disproportionate hardship”, it is appropriate to conclude that the failure to consider those conditions or the failure to consider their effects upon the applicant is an indication of an unreasonable decision. 59 That is not the case with respect to the five questions raised in IP-10, supra, which I reproduce below for ease of reference: 1. Will the applicant’s presence in Canada be offensive to the Cana- dian public? 2. Have all ties with the regime organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant might be benefiting from previous membership in the regime organization? 5. Has the person adopted the democratic values of Canadian society? 60 In Baker, it was possible to reason that the inclusion of certain conditions in the guidelines meant that departmental officials considered those conditions to be indicators of unusual, undeserved or disproportionate hardship. In ministerial relief cases, the questions appear to be designed to identify foreign nationals whose presence in Canada would be detrimental to the national interest e.g. applicants who maintain contact with terrorist organizations, who benefit from assets obtained while a member of a terrorist organization, etc. To that extent, the reasoning in Baker would apply only to eliminate unsuitable applicants. It would not assist in identifying suitable applicants, even if an applicant answered all the questions “correctly” because the list is not exhaustive, nor could it ever be, of all the possible reasons for which a person’s presence in Canada would be detrimental to the national interest. As a result, the Baker reasoning does not justify the use of IP-10 in the way suggested by the Fed- eral Court jurisprudence. Agraira v. Canada J.D. Denis Pelletier J.A. 43

61 To summarize, the transfer of responsibility for disposing of applications for ministerial relief to the Minister of Public Safety is intended to bring security and public safety issues to the forefront in the assessment of those applications. Thus the aspect of the national interest which is in issue in these applications is national security and public safety. The assessment of such applications does not require the Minister to engage in a balancing exercise because the test is not a net-detriment test. The De- partment of Citizenship and Immigration’s departmental guidelines, in particular IP-10, are not relevant to the Minister of Public Safety’s exercise of his discretion since the Minister is the one responsible for setting policy in this area and, in any event, recourse to them is not justified under the authority of the Supreme Court’s decision in Baker.

B. The scope of subsection 34(2) of the IRPA 62 The question which arises at this point is the one raised in Soe, supra: does the emphasis on national security and public safety mean that individuals who commit an act described in subsection 34(1) cannot obtain ministerial relief because they committed the very act that confers jurisdiction on the Minister to exercise the discretion conferred by subsection 34(2)? Such a result would deprive the provision 34(2) of any effect, an absurd result. 63 A partial answer to this question is provided by the decision of the Supreme Court in Suresh v. Canada (Minister of Citizenship & Immigra- tion), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.) [Suresh]. The Supreme Court dealt with section 19 of the Immigration Act, supra, which, as set out above, contained substantially the same inadmissibility and ministerial relief provisions as are now found in section 34. Given the broad sweep of section 19, Mr. Suresh argued it could be applied to persons who innocently joined or supported organizations that, unbeknownst to them, were terrorist organizations and thus lead to their deportation to places where they faced the risk of inhumane treatment. The Supreme Court dealt with this argument by invoking the ministerial relief provision, as follows, Suresh, supra at para. 110: 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 44 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

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. 64 As I read the Supreme Court’s decision, it concluded that the saving provision of section 19 of the Immigration Act would apply to protect persons who innocently joined or contributed to organizations that, unbeknownst to them, were terrorist organizations. There may be other cases in which persons who would otherwise be caught by subsection 34(1) of the IRPA may justify their conduct in such a way as to escape the consequence of inadmissibility. For example, those who could persuade the Minister that their participation in a terrorist organization was coerced might well benefit from ministerial relief. 65 There is thus an area in which subsection 34(2) of the IRPA operates to provide ministerial relief to persons who would otherwise be found inadmissible as a result of activities described in subsection 34(1). I agree with Shore J. who wrote at paragraph 54 of his reasons in Chogolzadeh v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 405, [2008] F.C.J. No. 544 (F.C.): “The relief, in subsection 34(2), is not illusory, but it is clearly intended to be exceptional.”

4. The Reasonableness of the Minister’s Decision 66 The argument made before us was that the Minister failed to consider relevant evidence and that his reasons were inadequate. As indicated earlier in these reasons, the Department of Citizenship and Immigration’s guidelines, including IP-10, are neither exhaustive nor determinative of what evidence is relevant or must be considered. The relevant question is whether Mr. Agraira’s submissions were addressed. 67 Setting aside Mr. Agraira’s arguments regarding humanitarian and compassionate considerations that, as set out above, are not relevant to the Minister’s decision, the primary argument raised by Mr. Agraira was that his involvement in the LNSF was either innocent or trivial. Mr. Agraira on his own behalf, and through counsel, raised several contradictory arguments on this point. In his initial application for relief dated July 16, 2002, counsel for Mr. Agraira set out the statements made by Mr. Agraira v. Canada J.D. Denis Pelletier J.A. 45

Agraira as to his membership in the LNSF and concluded (Appeal Book at 110): Therefore, it is respectfully submitted that, when assessing this request for Ministerial Relief, that the Minister take into account the low level, ordinary nature of Mr. Agraira’s activities on behalf of the NFSL. The facts reveal that he was only active in this low-level capacity from 1994-1996 and that Mr. Agraira has not engaged in any actual activities since 1996. 68 Mr. Agraira sought to distance himself from this admission and explain his inconsistent claims in his affidavit of June 15, 2009, filed with the Federal Court, where he stated (Appeal Book at 48): The truth in this matter is that I have never been a member of the LNSF and have never been involved with the organization in any way. I was ill-advised when I arrived in Canada and that stating this would help my refugee claim. After I made the claim in my [Personal Information Form] I was afraid of contradicting my statements and continued to state that I was a member of the organization under pressure from the immigration officer at my interview in 2000. I have never been a member of the LNSF and have never engaged in any of their activities. I stated this at my interview in May of 2002. I further stated that I had no knowledge of their violence and would no have been involved with a group that supported violence. 69 The Minister directly addressed this argument in his dismissal of Mr. Agraira’s application for ministerial relief. The Minister found Mr. Agraira’s account of his involvement with the LNSF to be “contradictory and inconsistent” and that his claims that he was unaware of the LNSF’s violent activities were “difficult to believe”. 70 Whether Mr. Agraira had renounced his ties to the LNSF was not in issue as Mr. Agraira admitted his on-going sympathy with the organization. Further, the denials of his continuing involvement in Canada also lack credibility as, in his interview with the immigration officer, he admitted that he continued to receive newsletters from chapters of the LNSF in the United States. 71 The Minister found that Mr. Agraira was not credible, a conclusion which is amply supported by the various conflicting versions of his story offered by Mr. Agraira at various points in his dealings with the immigration system and the courts. This lack of credibility is fatal to Mr. Agraira’s application as the Minister can have no faith in any of his representations. In the result, the Minister cannot be said to have acted un- 46 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

reasonably in concluding that Mr. Agraira’s presence in Canada is detrimental to the national interest. 72 I am aware of the apparent absurdity of the position in which Mr. Agraira finds himself. Twice, his application for refugee status on the basis of his membership in the LNSF was refused for lack of credibility. Then, when he applied for permanent residence, his previously discounted assertions of membership in the LNSF are raised against him and his application for ministerial relief is dismissed, once again on grounds of lack of credibility. From Mr. Agraira’s point of view, it is difficult to see how he could be lying about both being, and not being, a member of the LNSF. 73 The absurdity is more apparent than real. Mr. Agraira claimed to be a member of the LNSF when it suited his purposes and denied being a member when it suited his purposes. The findings of the various decision-makers before whom he has pleaded his cause are only as inconsistent as Mr. Agraira, by his lack of candour, has allowed them to be.

Conclusion 74 For these reasons, I would allow the appeal, set aside the judgment of the Federal Court, and giving the judgment which the Federal Court should have given, I would dismiss Mr. Agraira’s application for judicial review. I would answer the certified question as follows: 1- When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Answer: National security and public safety, as set out in para. 50 of these reasons. Agraira v. Canada Marc No¨el J.A. 47

2- Specifically, must the Minister consider the five factors listed in the Appendix D of IP10? Answer: No.

Pierre Blais C.J.:

I agree

Marc No¨el J.A.:

I agree Appeal allowed. 48 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Douze v. Canada (Minister of Citizenship & Immigration)] Pierre Charles Douze Margarette Luc Douze, Applicants and The Ministers of Citizenship and Immigration and Public Safety and Emergency Preparedness, Respondents Federal Court Docket: IMM-1743-10 2010 FC 1337 Dani`ele Tremblay-Lamer J. Heard: December 21, 2010 Judgment: December 30, 2010 Administrative law –––– Practice and procedure — On application for mandamus — Standing –––– For specified periods during 1991 to 1994, Haitian government regime was designated under s. 35(1)(b) of Immigration and Refu- gee Protection Act for having been involved in serious human rights abuses — Applicant, citizen of Haiti who had worked as justice of peace from 1991 to 1998, applied for permanent residence in family class in 2005 — Applicant was sponsored by his wife, who had lived in Canada since 2003 — In 2007, opinion was issued that applicant was member of inadmissible class of persons in s. 35(1)(b) for having served as part of Haitian judiciary under designated regime — In 2008, applicant filed request for ministerial relief under s. 35(2) of Act — Various estimates were cited to applicant as to processing time for relief request between 2008 and 2010 — In March 2010 applicant and his wife (applicants) applied for mandamus order requiring Minister of Public Safety and Se- curity to render final decision on request for Ministerial relief and seeking “ancillary” mandamus order requiring Minister of Citizenship and Immigration to render final decision on permanent residence application — Application granted in part on other grounds — Applicant’s wife lacked standing and should be struck from style of cause — Mere fact that wife was principal applicant’s sponsor was insufficient to give her standing in present judicial review — Fact that wife and children continued to live apart from principal applicant was indirect result of respondents’ delay in processing request for ministerial relief. Administrative law –––– Prerogative remedies — Mandamus — Perform- ance of public duty — General principles –––– Applicant, citizen of Haiti who had worked as justice of peace from 1991 to 1998, applied for permanent residence in family class in 2005 — In 2007, opinion was issued that applicant was member of inadmissible class of persons in s. 35(1)(b) of Immigration and Refu- gee Protection Act for having served as part of Haitian judiciary under desig- Douze v. Canada 49 nated regime — In 2008, applicant filed request for ministerial relief under s. 35(2) of Act — Applicant and his wife (applicants) applied for mandamus order requiring Minister of Public Safety and Security (MPS) to render final decision on request for ministerial relief and seeking “ancillary” mandamus order requiring Minister of Citizenship and Immigration (MCI) to render final decision on permanent residence application — Application granted in part on other grounds — Ancillary mandamus order requested by applicants could not possibly issue — MCI did not owe principal applicant public legal duty to act — MCI had discharged its responsibilities to principal applicant by finding that he was inadmissible — Before any duty could be said to be re-engaged, MPS had to first render decision regarding ministerial relief — If MCI took unreasonable time to decide permanent residence after MPS decided request for ministerial relief, then principal applicant could apply to Federal Court for mandamus order against MCI. Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — General principles –––– Delay in processing of application for ministerial relief — For specified periods during 1991 to 1994, Haitian government regime was designated under s. 35(1)(b) of Immigration and Refugee Protection Act for having been involved in serious human rights abuses — Applicant, citizen of Haiti who had worked as justice of peace from 1991 to 1998, applied for permanent residence in family class in 2005 — Applicant was sponsored by his wife, who had lived in Canada since 2003 — In 2007, opinion was issued that applicant was member of inadmissible class of persons in s. 35(1)(b) for having served as part of Haitian judiciary under designated regime — In 2008, applicant filed request for ministerial relief under s. 35(2) of Act — Various estimates were cited to applicant as to processing time for relief request between 2008 and 2010 — In March 2010 applicants applied for mandamus order requiring Minister of Public Safety and Security (MPS) to render final decision on request for Ministerial relief requiring Minister of Citizenship and Immigration to render final decision on permanent residence application — Application granted in part — Order in nature of mandamus issued requiring MPS to process principal applicant’s request for ministerial relief and provide him with decision within three months — Appropriate period of delay to consider was period starting when request for ministerial relief was initially received in March 2008 until December 2010, which was approximately two years and nine months — Noth- ing significant was accomplished during first 22 months since principal applicant first submitted request for relief — Ever-expanding time estimates provided by MPS were also revealing as to reasonableness of delay — Delay was prima facie unreasonable and was not adequately justified by MPS — While institutional reorganization might explain some delay, it was insufficient to explain magnitude of delay at issue. 50 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Cases considered by Danièle Tremblay-Lamer J.: Apotex Inc. v. Canada (Attorney General) (1993), 1993 CarswellNat 820, 1993 CarswellNat 1357, (sub nom. Apotex Inc. v. Merck & Co.) 69 F.T.R. 152 (note), [1993] F.C.J. No. 1098, 51 C.P.R. (3d) 339, 162 N.R. 177, [1994] 1 F.C. 742, 18 Admin. L.R. (2d) 122 (Fed. C.A.) — followed Apotex Inc. v. Canada (Governor in Council) (2007), 2007 CF 232, 2007 Car- swellNat 2187, 2007 FC 232, 2007 CarswellNat 473, [2007] F.C.J. No. 312 (F.C.) — referred to Carson v. Canada (Minister of Citizenship & Immigration) (1995), 1995 Car- swellNat 195, 95 F.T.R. 137, [1995] F.C.J. No. 656 (Fed. T.D.) — considered Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, 1998 CarswellNat 2788, 15 Admin. L.R. (3d) 157, 1998 Car- swellNat 2905, (sub nom. Conille v. Canada (Ministre de la Citoyenneté et de l’Immigration)) 159 F.T.R. 215, [1998] F.C.J. No. 1553 (Fed. T.D.) — referred to Esmaeili-Tarki v. Canada (Minister of Public Safety & Emergency Prepared- ness) (2010), 2010 FC 697, 2010 CarswellNat 2878, 2010 CF 697, 2010 CarswellNat 2942 (F.C.) — considered League for Human Rights of B’Nai Brith Canada v. R. (2008), 2008 Car- swellNat 2601, [2008] F.C.J. No. 926, (sub nom. League for Human Rights of B’Nai Brith Canada v. Canada (Attorney General)) 334 F.T.R. 63 (Eng.), 2008 FC 732 (F.C.) — referred to Rothmans of Pall Mall Canada Ltd. v. Minister of National Revenue (1976), [1976] C.T.C. 339, 10 N.R. 153, 67 D.L.R. (3d) 505, 1976 CarswellNat 202, 1976 CarswellNat 393, [1976] 2 F.C. 500 (Fed. C.A.) — referred to Wu v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 363, 4 Imm. L.R. (3d) 145, 183 F.T.R. 309 (Fed. T.D.) — considered Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1(1) [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 13 — referred to s. 35(1)(b) — considered s. 35(2) — considered s. 72(1) — pursuant to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 17 — considered Douze v. Canada Danièle Tremblay-Lamer J. 51

Federal Courts Rules, SOR/98-106 R. 302 — considered

APPLICATION for judicial review seeking mandamus orders requiring Minis- ters to render final decisions regarding application for permanent residence and request for ministerial relief.

Jared Will, for Applicants Mich`ele Joubert, for Respondents

Dani`ele Tremblay-Lamer J.:

1 This is an application by Pierre Charles Douze (the “principal applicant”) and Margarette Luc Douze (together, the “applicants”) made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], for judicial review of the respondent ministers’ failure to render a decision with respect to the principal applicant’s application for permanent residence and ministerial relief. The applicants request an order in the nature of mandamus requiring the respondent Min- ister of Public Safety and Emergency Preparedness (MPS) to render a final decision as to the principal applicant’s request for ministerial relief and, thereafter, requiring the respondent Minister of Citizenship and Im- migration (MCI) to render a final decision on the principal applicant’s application for permanent residence.

Background 2 The principal applicant, age 53, is a citizen of Haiti. His wife, age 45, began living in Canada on August 23, 2003 and became a Canadian citizen in June of 2008. They married on September 26, 1992 in Haiti and have three children residing in Montreal with their mother and are all Canadian citizens. 3 In February of 2005, the principal applicant submitted an application for permanent residence in the family class category, accompanied by sponsorship from Mrs. Douze, to the MCI. It was received at the embassy in Port-au-Prince, Haiti at the end of March, 2005. On June 21, 2005 a Quebec Selection Certificate (QSC) was issued. On July 27, 2005 the principal applicant was interviewed by Canadian embassy officials in Port-au-Prince. 4 In October 2005, the principal applicant’s file was sent to Ottawa for an opinion as to potential inadmissibility under paragraph 35(1)(b) of the 52 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

IRPA. The principal applicant had worked as a justice of the peace in Haiti from 1991 to 1998. The Haitian government regime, for specified periods during 1991 to 1994, was a designated regime under paragraph 35(1)(b) of the IRPA for having been involved in serious human rights abuses. An opinion as to the applicability of paragraph 35(1)(b) was not immediately forthcoming. In September of 2007, the embassy in Port-au- Prince followed up with the Ottawa office regarding the status of the opinion. At the end of October 2007, the opinion was issued to the effect that the principal applicant was a member of the class of inadmissible persons listed in paragraph 35(1)(b) for having served as part of the Hai- tian judiciary under a designated regime. His position in the Haitian judiciary gave rise to the presumption that he had, or was capable of having, influence over the designated government regime. 5 On November 9, 2007, the applicants attended an interview with a visa officer in Haiti who informed them that the principal applicant was inadmissible due to paragraph 35(1)(b) of the IRPA; they were provided with a letter to that effect. The visa officer also indicated that the principal applicant could apply, under subsection 35(2) of the IRPA, to the MPS for relief. On January 29, 2008, the principal applicant filed a subsection 35(2) request for ministerial relief. In March of 2008, immigration officials in Haiti forwarded the request on to Canada Border Ser- vices Agency (CBSA) officials in Ottawa. Along with the request, they provided a case summary in which they indicated that there was no evidence to suggest that the principal applicant was involved in the activities of the designated regime. They indicated that he had refrained from his judicial duties shortly after the military coup in October 1991 and had, in fact, been arrested by that regime and detained for a period. The file was received by the CBSA on March 14, 2008. 6 During the months that followed, counsel for the applicants sent three letters to Case Management at the Department of Citizenship and Immi- gration Canada (CIC) requesting a status update. No response was provided. The applicants also attempted to follow up via Mrs. Douze’s Member of Parliament (MP). Notes from the Computer Assisted Immi- gration Processing System (CAIPS) indicate that the MP was provided with a number of estimates in terms of anticipated processing time for the request for ministerial relief. On May 30, 2008, the MP was told not to expect a response before 6 to 9 months. Again on August 14, 2008, he was told the same thing (i.e. another 6 to 9 months). On January 13, 2009, he was informed that these types of decisions require at least 2 years to process. Finally, a CAIPS note dated April 24, 2009, indicates Douze v. Canada Dani`ele Tremblay-Lamer J. 53

that the MP was told the request for ministerial relief would take another 2 years to process (i.e. until April of 2011). In November of 2009, counsel filed an Access to Information Request with the CBSA. On December 17, 2009, the CBSA disclosed the requested information. There was no indication that any steps had been taken by the CBSA with respect to the request for ministerial relief since it had received the file on March 14, 2008. On January 18, 2010, counsel sent a letter to the CBSA requesting that processing of the request be expedited. 7 On February 4, 2010, counsel sent a “notice of default” to the CBSA informing it that the applicants considered the delay in processing to be unacceptable. On March 17, 2010, the CIC sent counsel a note regarding the status of the request for ministerial relief. It indicated that the “relief application [was] still being processed,” and that it could be “a long and complex procedure.” It assured counsel that the “CBSA [was] working diligently to process” the application “as quickly as possible”. 8 On March 29, 2010, the applicants filed the application that is before the Court now. They requested an order in the nature of mandamus requiring the respondent MPS to render a final decision on the request for ministerial relief and, thereafter, requiring the respondent MCI to render a final decision on the application for permanent residence. 9 On September 13, 2010, Ms. Michelle Barrette, a Senior Program Of- ficer with the CBSA Ministerial Relief Unit submitted an affidavit with regards to these proceedings. She indicated that the CBSA underwent a re-organization on April 1, 2010 which involved moving the principal applicant’s request from a pool of 15 cases to an inventory of over 225 cases. Further, Ms. Barrette indicated that the assessment of a request for ministerial relief can take, on average, 5 to 10 years. This, she explained, is because of the complex nature of such determinations and because the Minister must personally make the ultimate decision. Ms. Barrette indicated that a recommendation had already been drafted with respect to the principal applicant’s request. She pointed to the following steps that were still outstanding: provision of the draft recommendation to the principal applicant for feedback, review of any submissions made by the principal applicant in response, incorporation of those submissions into the draft recommendation, approval of the draft recommendation by the President of the CBSA, and, finally, rendering of the ultimate decision by the MPS. 10 Ms. Barrette was cross-examined on September 22, 2010. She indicated that the draft recommendation was completed on February 5, 2010 and although she could not provide a firm time frame, she indicated that 54 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

as a general estimate, it might be presented to the Minister some time between February 2011 and February 2013. 11 Although the respondent MPS had provided a Certified Tribunal Re- cord (CTR) in August of 2010, the applicants argued that it was incomplete, in part because it did not contain the draft recommendation discussed by Ms. Barrette. On October 1, 2010 the applicants filed a motion for an order compelling the respondent MPS to produce a more complete CTR pursuant to the requirements set out in Rule 17 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22. On appeal, the Court found that the MPS was not required to disclose the draft recommendation, but was required to disclose all undisclosed case notes and correspondence related to the principal applicant’s ministerial relief request. On October 28, 2010, the respondent MPS disclosed additional correspondence and notes relating to the processing of the principal applicant’s request.

Issues 12 The following preliminary issues were raised by the respondents with respect to the application for judicial review: a) Does Mrs. Douze have standing in this application? b) Is the application improperly constituted because more than one mandamus order is sought? 13 The main issue to be decided with respect to the application for judicial review is: c) Is the principal applicant entitled to a mandamus order with respect to the pending request for ministerial relief?

Analysis a) Does Mrs. Douze have standing in this application? 14 The respondents request that Mrs. Douze be removed as a party since she is not the object of the paragraph 35(1)(b) decision and is not the applicant for ministerial relief under subsection 35(2). The applicants argue that Mrs. Douze should not be removed as a party since she is “directly affected by the matter in respect of which relief is sought,” and thus has standing by virtue of subsection 18.1(1) of the Federal Courts Act, R.S. 1985, c. F-7 [FCA]. 15 The test for determining whether a party is “directly affected” within the meaning of subsection 18.1(1) of the FCA is whether the matter at Douze v. Canada Dani`ele Tremblay-Lamer J. 55

issue directly affects the party’s rights, imposes legal obligations on it, or prejudicially affects it directly (Rothmans of Pall Mall Canada Ltd. v. Minister of National Revenue, [1976] 2 F.C. 500, 67 D.L.R. (3d) 505 (Fed. C.A.) at para. 13; Apotex Inc. v. Canada (Governor in Council), 2007 FC 232 (F.C.) at para. 20, (2007), 155 A.C.W.S. (3d) 1080 (F.C.); League for Human Rights of B’Nai Brith Canada v. R., 2008 FC 732 (F.C.) at para. 24, (2008), 334 F.T.R. 63 (Eng.) (F.C.)). 16 First, the applicants argue that the respondents’ failure to render a decision directly affects Mrs. Douze’s legal right to sponsor her husband as set out in section 13 of the IRPA. 17 This Court, in Carson v. Canada (Minister of Citizenship & Immigra- tion) (1995), 95 F.T.R. 137, 55 A.C.W.S. (3d) 389 (Fed. T.D.), considered a similar issue. The question was whether a Canadian citizen, who had sponsored her husband in applying for landing in Canada based on humanitarian and compassionate grounds, had standing to bring a judicial review application regarding an immigration officer’s negative determination. The Court found that she did not. It held, at paragraph 4: While Mrs. Carson has an interest in this proceeding, in that she is Mr. Carson’s sponsor for landing in Canada and she was interviewed as part of the marriage interview involving the H&C determination, these facts are insufficient to give her standing in this judicial review. Mrs. Carson is a Canadian citizen and does not require any exemption whatsoever from the Immigration Act or regulations. Moreover, whether she has standing or not has no impact whatsoever on the ultimate issue in this matter. Accordingly, with respect to this proceeding, the applicant, Tonya Carson, is struck as a party. Similarly, I find that the mere fact that Mrs. Douze is the principal applicant’s sponsor is insufficient to give her standing in this judicial review. 18 Second, the applicants argue that Mrs. Douze has standing because she has been prejudicially affected by the respondents’ failure to render a decision, in that the delay in processing forces her to live apart from her husband, and forces her to raise her children alone. I find that this impact, while substantial, is only indirect. In Wu v. Canada (Minister of Citizenship & Immigration) (2000), 183 F.T.R. 309, 4 Imm. L.R. (3d) 145 (Fed. T.D.) [Wu], Justice Gibson considered whether a six year old boy could be a party to the judicial review of a negative determination of his parents’ application for landing from within Canada on humanitarian 56 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

and compassionate grounds. The Court found that he could not. It indicated at paragraph 15: The applicant Kevin Wu is a Canadian citizen and is at no risk of deportation. The rejection of his parents’ H&C application affects him only indirectly, albeit that the indirect effects could be very dra- matic. I am satisfied that he has no standing on this application. Similarly, I find that the fact that Mrs. Douze and her children continue to live apart from the principal applicant is an indirect result of the respondents’ delay in processing the request for ministerial relief. 19 I am satisfied that Mrs. Douze has no standing in this matter. There- fore, it will be ordered that the applicant Margarette Luc Douze be struck from the style of cause

b) Is the application improperly constituted because more than one mandamus order is sought? 20 The applicants are seeking not only an order in the nature of mandamus requiring the respondent MPS to render a final decision with respect to the principal applicant’s request for ministerial relief, but also an order in the nature of mandamus requiring the respondent MCI, after the MPS has made its decision, to render a final decision regarding the principal applicant’s overall permanent residence application. 21 The respondents argue that this violates Rule 302 of the FCR which states: Limited to single order 302. Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. Limites 302. Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée. 22 They submit that Rule 302 does not allow an applicant to seek the review of two decisions, made by two different decision makers, in a single application. The MCI’s decision as to inadmissibility under paragraph 35(1)(b) of the IRPA is completely separate from the decision as to ministerial relief under subsection 35(2) and that the applicants are essentially asking the Court to issue mandamus orders in respect of both. Douze v. Canada Danièle Tremblay-Lamer J. 57

23 The applicants reply that the respondents have mischaracterized their application. They are primarily seeking an order enjoining the MPS to make a decision on the principal applicant’s request for ministerial relief under subsection 35(2). The order enjoining the MCI to finalize the permanent residence application is only ancillary and is not related to the MCI’s decision with respect to inadmissibility under paragraph 35(1)(b). The applicants point out that the s. 35(1)(b) inadmissibility decision has already been made (i.e. in November of 2007) and, as such, it would make no sense for them to seek a mandamus order requiring the MCI to render that decision again. Instead, the ancillary order is requested to ensure that the MCI makes the overall permanent residence determination within a fixed period of time after the request for ministerial relief is determined. I disagree. 24 I find that the ‘ancillary’ mandamus order requested by the applicants cannot possibly issue. The criteria set out in Apotex Inc. v. Canada (Attorney General) (1993), [1994] 1 F.C. 742, 44 A.C.W.S. (3d) 349 (Fed. C.A.) [Apotex] are clearly not satisfied. The MCI does not currently owe the principal applicant a public legal duty to act. In November of 2008, the MCI discharged its responsibilities towards the principal applicant by finding that he was inadmissible. Before any duty can be said to be re-engaged, the respondent MPS must first render a decision regarding the ministerial relief. After the MPS has decided the request for ministerial relief, if the MCI takes an unreasonable amount of time to make a decision as to permanent residence, then the principal applicant would be able to apply to this Court for an order in the nature of mandamus against the MCI. 25 Thus, I will focus on the “principal relief” sought by the applicants, i.e. the mandamus order with respect to the request for ministerial relief.

c) Is the principal applicant entitled to a mandamus order with respect to the pending request for ministerial relief? 26 For this Court to issue an order in the nature of mandamus, the following criteria, as set out by Justice Robertson in Apotex, above at para. 45, must be satisfied: 1. There must be a public legal duty to act... 2. The duty must be owed to the applicant... 58 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

3. There is a clear right to performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty... (b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay... 4. Where the duty sought to be enforced is discretionary, the following rules apply: [omitted] 5. No other adequate remedy is available to the applicant... 6. The order sought will be of some practical value or effect... 7. The Court in the exercise of its discretion finds no equitable bar to the relief sought... 8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. 27 The respondent MPS focuses its argument mainly on the third crite- rion. He argues that, presently, there is no right to a decision on the principal applicant’s request for ministerial relief because the delay exper- ienced, thus far, has not been unreasonable. The affidavit evidence submitted by Ms. Barrette shows that ministerial relief requests generally take between five and ten years to process because they involve complex assessment and require the Minister’s personal involvement. In this case, the request for ministerial relief was submitted to the CBSA in March of 2008, which is less than three years ago. During this time, the CBSA has been working diligently on the principal applicant’s request and has, in fact, already drafted a recommendation. At the hearing, the respondent’s counsel further indicated that the process could be finalized, in all likelihood, by February of 2011. 28 Three requirements must be met in order for a delay to be considered unreasonable: (1) the delay in question must have been longer than the nature of the process required, prima facie; (2) the applicant and his counsel must not be responsible for the delay; and (3) the authority responsible for the delay must not have provided a satisfactory justification (Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33 (Fed. T.D.) at para. 23; (1998), 87 A.C.W.S. (3d) 24 (Fed. T.D.) [Conille]). In this case, I am satisfied that there is no issue with respect to the second requirement. Douze v. Canada Dani`ele Tremblay-Lamer J. 59

29 Before considering the first and third requirements, it is important to be clear as to what “the delay in question” is in this case. It would be incorrect to consider the delay to have started when the principal applicant first submitted his application for permanent residence. The decision as to inadmissibility has already been made, and it was made by a different decision-maker. Instead, the appropriate period to consider is, as the respondents suggest, the period starting when the request for ministerial relief was initially received by the CBSA (i.e. March of 2008) until now. That is a period of approximately 2 years and 9 months. Is this delay prima facie longer than the nature of the process requires? 30 In Esmaeili-Tarki v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 697 (F.C.) [Esmaeili-Tarki], my colleague, Jus- tice Michel Beaudry found that a mandamus order should issue against the MPS. The applicant applied for ministerial relief in 1999 and was denied that relief in 2004. That decision, however, was set aside in 2005 and the matter was sent back to the MPS for re-determination. In August of 2009, the applicant was informed that his application was in the re- drafting stage and no timeline could be provided. As in this case, the MPS relied on an affidavit submitted by Ms. Barrette. She indicated a draft recommendation had been prepared and would be disclosed to the applicant for comment within six to eight weeks. As in this case, the MPS argued that the delay was not unreasonable for a number of reasons: a) since the decision had to be made by the Minister, who had a wide range of other responsibilities, b) many levels of assessment and review were involved, and c) the process had been hampered by an institutional reorganization. Justice Beaudry found the delay was prima facie unreasonable and had not been adequately justified. He wrote, at paragraph 15: I do not accept these arguments as justifying the delay. In light of the facts that more than five years have elapsed since the matter was sent back to the Minister for redetermination and the Minister had the benefit of the previously prepared briefing note. Also, a briefing note was sent to the Applicant for comments in 2007 and there have been no further follow ups with him. There is no way to know that there won’t be further delays even if the new recommendation is commu- nicated to the Applicant in the timeline proposed in Michelle Bar- rette’s affidavit. There is no evidence that there are any pending investigations regarding the Applicant. The Applicant has cooperated in all aspects of the process. 60 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

31 In the current case, almost three years have passed since the principal applicant first submitted his request for ministerial relief. Nothing of any significance was accomplished during the first 22 months. At the beginning of 2010 — and then only because of the insistence of counsel — the respondent MPS undertook efforts to complete a draft recommendation. The draft was completed by February of 2010. Unfortunately, since that time, no further steps of significance appear to have been taken. It is interesting to note that Ms. Barrette indicated in the Esmaeili-Tarki case, above, that a draft recommendation had been completed for the applicant in that case, and that it would only take six to eight weeks for it to be disclosed for comment. Although the draft recommendation in the current case has been ready for almost a year, and despite the fact that there is no evidence that further investigation is required, the principal applicant has yet to receive it for comment. 32 The ever-expanding time estimates provided by the respondent MPS are also revealing as to the reasonableness of the delay. The notes associated with the principal applicant’s file indicate that the CBSA provided Mrs. Douze’s MP with the following processing time estimates throughout 2008 and 2009: (a) on May 30, 2008: 6 to 9 months, (b) on August 14, 2008: another 6 to 9 months, (c) on January 13, 2009: 2 years, and (d) on April 24, 2009: another 2 years. The final estimate would see the decision being made by April of 2011 — which seems now, according to counsel’s submissions, to have shifted to February of 2011. 33 Ultimately, I find that the delay in this case is prima facie unreasonable and has not been adequately justified by the respondent MPS. The same explanations as were provided in Esmaeili-Tarki, above, have been advanced by the respondent MPS in this case. Neither the fact that the ultimate decision must be made by the Minister, nor the fact that multiple levels of assessment are involved, explain why essentially nothing was done on the principal applicant’s file for almost two years, and why, after having completed a draft recommendation almost a year ago, that draft has not been provided to the applicant for feedback. While institutional reorganization might explain some delay, it is certainly insufficient to explain the magnitude of delay at issue here. 34 As such, the requirements from Conille, above, have been met; the delay at issue is unreasonable. Since I find that none of the other criteria from Apotex, above, are in doubt, an order in the nature of mandamus requiring the respondent MPS to process the principal applicant’s request for ministerial relief is issued. The respondent MPS shall process the Douze v. Canada Dani`ele Tremblay-Lamer J. 61 principal applicant’s request for ministerial relief and provide him with a decision within three (3) months of this Order.

Judgment THIS COURT ORDERS that: • Margarette Luc Douze be struck from the style of cause. • An Order in the nature of mandamus requiring the respondent MPS to process the principal applicant’s request for ministerial relief is issued. The respondent MPS shall process the principal applicant’s request for ministerial relief and provide him with a decision within three (3) months of this Order. Application granted in part. 62 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Mings-Edwards v. Canada (Minister of Citizenship & Immigration)] Ferona Elaine Mings-Edwards, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3694-10 2011 FC 90 Anne Mactavish J. Heard: January 25, 2011 Judgment: January 26, 2011 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations –––– Applicant submitted application for permanent residence from within Canada — Applicant based her application on humanitarian and compassionate grounds — Applicant claimed she had family ties in Canada and would face hardship in Jamaica if she returned — Applicant’s application was rejected by officer — Applicant brought application for judicial review — Application granted — Matter was remitted to different officer for redetermination — Officer’s decision was unreasonable — Officer failed to properly evaluate hardship that applicant would face in Jamaica as HIV-positive woman — Applicant had provided documentary evidence which demonstrated that HIV-positive people in Jamaica were often ostracized by their families, lost their homes and jobs, and were treated like “throwaway” persons — Nowhere did officer evaluate hardship that applicant would face in returning to Jamaica, where she would be exposed to pervasive discrimination and societal stigma as result of her status as HIV-positive woman — There was also no basis for officer’s finding that applicant would have family support in Jamaica. Cases considered by Anne Mactavish J.: Hinzman v. Canada (Minister of Citizenship & Immigration) (2010), 10 Admin. L.R. (5th) 89, 2010 CarswellNat 2094, 2010 FCA 177, 2010 CAF 177, 2010 CarswellNat 3626, 321 D.L.R. (4th) 111, 405 N.R. 275, [2010] F.C.J. No. 838 (F.C.A.) — considered

APPLICATION for judicial review of officer’s decision to reject applicant’s application for permanent residence.

Aadil Mangalji, for Applicant Mings-Edwards v. Canada Anne Mactavish J. 63

Kareena Wilding, for Respondent

Anne Mactavish J.:

1 Ferona Elaine Mings-Edwards based her application for permanent residence from within Canada on humanitarian and compassionate grounds on several factors. These included her establishment and family ties in Canada, and the hardship that she claimed that she would face in Jamaica both from her former domestic partner and because she is an HIV+ woman. 2 Ms. Mings-Edwards’ application was rejected by a PRRA Officer, who found that she had not established that she would face unusual, undeserved or disproportionate hardship if she were required to return to Jamaica in order to apply for permanent residence. 3 I am of the view that this decision was unreasonable as the Officer failed to properly evaluate the hardship that Ms. Mings-Edwards would face in Jamaica as an HIV+ woman. Consequently, the application for judicial review will be granted.

Analysis 4 Although Ms. Mings-Edwards’s H&C submissions were relatively brief, she clearly identified the stigma and discrimination that she would face in Jamaica as a result of her HIV+ status as a hardship factor. She also stated that she would have no employment prospects or family support in Jamaica. 5 Ms. Mings-Edwards provided the Officer with a substantial amount of country condition information that addressed the treatment of HIV+ individuals in Jamaica. Amongst other things, this evidence indicated that individuals living with HIV/AIDS in Jamaica face significant social stigma and discrimination, and that there are no laws in place to protect HIV+ individuals from discrimination. Amnesty International describes this as a “pressing unmet obligation”. 6 The documentary evidence also demonstrated that HIV+ individuals in Jamaica are often ostracized by their families. They may lose their homes and their jobs, and can be treated like “a throwaway person”. 7 Because AIDS is frequently dismissed as a disease of gay men and prostitutes, women infected with HIV are particularly stigmatized in Jamaican society, as they are regarded either as promiscuous or as sex 64 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

trade workers. This can expose them to violence, and can also negatively affect their ability to access health care and other services. 8 The Officer recognized that no laws protected those infected with HIV from discrimination, and that human rights NGOs reported severe stigma and discrimination against HIV+ individuals. The Officer nevertheless went on to find that state protection, while not perfect, existed in Jamaica, and that it would not be a hardship for Ms. Mings-Edwards to access that protection, if required. 9 The Officer also noted that Ms. Mings-Edwards’s doctor had indicated that she led a healthy, active and self-supporting life with medica- tion and regular medical care, and that Ms. Mings-Edwards had not shown that she would not be able to access appropriate health care in Jamaica. 10 As Ms. Mings-Edwards had been educated and employed in Jamaica, the Officer was not persuaded that she would have difficulties readjust- ing to Jamaican society and culture. The Officer observed that Ms. Mings-Edwards had been self-supporting in the past, and that she had a network of relatives in Jamaica, including step-siblings, who could assist in her re-integration. 11 There are a number of problems with this conclusion. 12 While Ms. Mings-Edwards may previously have been able to support herself while living in Jamaica, she did so before she became HIV+. Ms. Mings-Edwards may also have been able to lead a healthy, active and self-supporting life, but she has done so in Canada, not in Jamaica, where employment discrimination against those who are HIV+ is pervasive. Nowhere does the Officer consider the impact that the change in her HIV status will have for Ms. Mings-Edwards’s ability to support herself in Jamaica, or whether the difficulties that she may encounter in this regard amount to an unusual, undeserved or disproportionate hardship. 13 The evidence before the Officer also indicated that Ms. Mings-Ed- wards had no relationship with the step-siblings in Jamaica who were supposed to assist in her re-integration into Jamaican society. She had, moreover, been thrown out of an aunt’s home (where she was staying during a visit to Jamaica) when her HIV status was discovered. Thus there was no basis for the Officer’s finding that Ms. Mings-Edwards would have family support in Jamaica. 14 The more fundamental problem with the decision is that nowhere in the analysis does the Officer ever really come to grips with, or evaluate Mings-Edwards v. Canada Anne Mactavish J. 65

the hardship that Ms. Mings-Edwards would face in returning to a society where she would be exposed to pervasive discrimination and societal stigma as a result of her status as an HIV+ woman. 15 A review of the decision as a whole reveals that the Officer approached the issue of Ms. Mings-Edwards’s status as an HIV+ woman in Jamaica from two perspectives. The Officer looked at whether Ms. Mings-Edwards would be able to access medical care in Jamaica, and whether adequate state protection would be available to her, should she require it. 16 In regard to this latter point, the Officer committed the same error as was identified by the Federal Court of Appeal in its recent decision in Hinzman v. Canada (Minister of Citizenship & Immigration), 2010 FCA 177, [2010] F.C.J. No. 838 (F.C.A.). That is, insofar as the risk component of the application was concerned, “the Officer’s analysis is really nothing more than a risk assessment which stops short at the availability of state protection ...”: Hinzman at para. 27. 17 The question for the Officer on Ms. Mings-Edwards’ H&C application was not whether adequate state protection would be available to her in Jamaica, but whether, having regard to all of her individual personal circumstances, including her status as an HIV+ woman, Ms. Mings-Ed- wards would face unusual, undeserved or disproportionate hardship if returned home. The Officer’s failure to evaluate this hardship factor, which was central to Ms. Mings-Edwards’ H&C application, renders the decision unreasonable.

Conclusion 18 For these reasons, the application for judicial review is allowed.

Certification 19 Neither party has suggested a question for certification, and none arises here.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. This application for judicial review is allowed, and the matter is remitted to a different PRRA Officer for re-determination; and 2. No serious question of general importance is certified. Application granted. 66 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Beharry v. Canada (Minister of Citizenship & Immigration)] Estardai Beharry, Jonathan Neville Beharry, Mohani Budhan, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3466-10 2011 FC 110 Anne Mactavish J. Heard: January 27, 2011 Judgment: February 1, 2011 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Best interests of child –––– Applicant and her two children fled Guyana after applicant was beaten and raped in front of her children during home invasion — Applicants claimed Convention refugee status but was refused when board found that there was adequate state protection in Guyana — Applicant brought application for permanent residence on humanitarian and compassionate (H&C) factors of best interest of children and hardship they would face in Guyana — Application was dismissed — Applicant’s children were 12 and 16 years old and had been in Canada for eight years when application was assessed — Children had become well adjusted to Canada and did well in school but still suffered ongoing trauma from witnessing attack on their mother and fear of having to return there and leave their friends and family in Canada — Officer found that children’s best interests would not be affected by returning to English-speaking Guyana with their mother and that their adjustment would not constitute exceptional situation or unusual circumstances — Of- ficer found there would be no hardship in applying from Guyana — Officer found that applicants had not established they would experience unusual, undeserved or disproportionate hardship if they were returned to Guyana to apply for permanent residence — Applicant brought application for judicial review — Application granted — Officer’s decision was unreasonable — Officer erred by assessing children’s best interests under terms of whether they would suffer “unusual and undeserved and disproportionate hardship” if they had to return to Guyana — Unusual, undeserved, or disproportionate hardship test is not appropriate for use in analysis of best interests of child — It was not clear if officer applied correct test — Officer failed to properly address issue before him, as he did not determine children’s best interests by weighing them against other relevant factors — Officer totally failed to address issue of trauma children suffered Beharry v. Canada 67 after witnessing attack on their mother and their fear of returning to country where that occurred. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations –––– Applicant and her two children fled Guyana after applicant was beaten and raped in front of her children during home invasion — Applicants claimed Convention refugee status but was refused when board found that there was adequate state protection in Guyana — Appli- cant brought application for permanent residence on humanitarian and compassionate (H&C) factors of best interest of children and hardship they would face in Guyana — Application was dismissed — Applicant’s children were 12 and 16 years old and had been in Canada for eight years when application was assessed — Children had become well adjusted to Canada and did well in school but still suffered ongoing trauma from witnessing attack on their mother and fear of having to return there and leave their friends and family in Canada — Officer found that children’s best interests would not be affected by returning to En- glish-speaking Guyana with their mother and that their adjustment would not constitute exceptional situation or unusual circumstances — Officer found there would be no hardship in applying from Guyana — Officer found that applicants had not established they would experience unusual, undeserved or disproportionate hardship if they were returned to Guyana to apply for permanent residence — Applicant brought application for judicial review — Application granted — Officer’s decision was unreasonable — Officer erred by assessing children’s best interests under terms of whether they would suffer “unusual and undeserved and disproportionate hardship” if they had to return to Guyana — Unusual, undeserved, or disproportionate hardship test is not appropriate for use in analysis of best interests of child — It was not clear if officer applied correct test — Officer failed to properly address issue before him, as he did not determine children’s best interests by weighing them against other relevant factors — Officer totally failed to address issue of trauma children suffered after witnessing attack on their mother and their fear of returning to country where that occurred. Cases considered by Anne Mactavish J.: Arulraj v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 1106, 2006 FC 529, 2006 CarswellNat 3740, 2006 CF 529, [2006] F.C.J. No. 672 (F.C.) — referred to Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, 24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — considered Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- 68 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — considered Ruiz v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3824, 2009 FC 1175, 2009 CF 1175, 2009 CarswellNat 5769, [2009] F.C.J. No. 1474 (F.C.) — referred to Segura v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 2800, 2009 FC 894, 2009 CF 894, 2009 CarswellNat 4495, [2009] A.C.F. No. 1116, [2009] F.C.J. No. 1116 (F.C.) — referred to

APPLICATION for judicial review.

Krassina Kostadinov, for Applicants Veronica Cham, for Respondent

Anne Mactavish J.:

1 Estardai Beharry and her two children based their application for permanent residence on humanitarian and compassionate grounds on several factors. These included the best interests of the children, and the hardship that Ms. Beharry and the children would face if they were compelled to return to Guyana. 2 The family’s H&C application was rejected by a PRRA Officer, who found that they had not established that they would face unusual, undeserved or disproportionate hardship if they were required to return to Guyana in order to apply for permanent residence. For the reasons that follow, I am of the view that this decision was unreasonable.

Background 3 Ms. Beharry and her family fled Guyana after being subjected to a brutal home invasion, during which Ms. Beharry was beaten and raped in front of her two young children. Her injuries were sufficiently severe as to require her hospitalization for several days after the attack. The family sought refugee protection on their arrival in Canada. While the Refugee Protection Division of the Immigration and Refugee Board accepted that the attack on Ms. Beharry and her family had occurred, it found that adequate state protection was available to the family in Guyana.

The Officer’s Analysis of the Best Interests of the Children 4 Ms. Beharry’s daughter was 16 years old and her son was 12 at the time that the family’s H&C application was assessed. The children had Beharry v. Canada Anne Mactavish J. 69

been in Canada since 2002, and by all accounts were doing very well in school. 5 The family’s various H&C submissions described the on-going trauma that the children have suffered as a result of having witnessed the vicious attack on their mother, and the children’s fear of returning to the country where the attack occurred. The submissions also described the ways in which the children had adapted to the Canadian school system, and how they would suffer from being separated from family and friends in Canada. 6 The Officer determined that requiring the children to return to a country where English is spoken, in the company of their mother, would not negatively affect their best interests. 7 In coming to this conclusion, the Officer acknowledged that “the children will be upset and disappointed in having to return to Guyana”, but reiterated that the children would be cared for by their mother. The Of- ficer also recognized that the children would be returning to an environ- ment “with different economic and social aspects”. However, in the Of- ficer’s view, this was not “an exceptional situation” or “unusual circumstance to justify a positive exemption”. The Officer also found that there was insufficient evidence to show that the children would not have access to basic amenities in Guyana. 8 The Officer also discussed the fact that the children could remain in contact with family members by telephone, finding that insufficient evidence had been provided to show that the separation of the children from their family in Canada “will result in unusual, undeserved or disproportionate hardship”. 9 The Officer concluded the analysis of the children’s best interests by stating that it had not been shown that requiring that family to return to Guyana “would have a significant negative impact to [the] children that would amount to unusual and undeserved or disproportionate hardship”. 10 There are several problems with the Officer’s analysis. 11 The first is the test or tests that the Officer appears to have used in assessing the children’s best interests. At various points in the analysis the Officer discusses the best interests of the children in terms of whether the children would suffer “unusual and undeserved and disproportionate hardship” if they were required to return to Guyana. However, the unusual, undeserved, or disproportionate hardship test has no place in the best interests of the child analysis: see Arulraj v. Canada (Minister of 70 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Citizenship & Immigration), 2006 FC 529, [2006] F.C.J. No. 672 (F.C.) and Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475, 297 N.R. 187 (Fed. C.A.), at para. 9. 12 I am mindful that the mere use of the words “unusual, undeserved or disproportionate hardship” in a ‘best interests of the child’ analysis does not automatically render an H&C decision unreasonable. It will be sufficient if it is clear from a reading of the decision as a whole that the Of- ficer applied the correct test and conducted a proper analysis: Segura v. Canada (Minister of Citizenship & Immigration), 2009 FC 894, [2009] F.C.J. No. 1116 (F.C.), at para. 29. 13 It is not at all clear that the Officer applied the correct test in this case. In addition to the repeated use of the term “unusual and undeserved or disproportionate hardship” in the Officer’s analysis of the best interests of the children, the Officer also looked at the situation of the children to see if they were in “an exceptional situation” or “unusual circumstance to justify a positive exemption”. Neither of these tests is appropriate in a ‘best interests of the child’ analysis. 14 As the Federal Court of Appeal observed in Hawthorne, immigration officers are presumed to know that living in Canada can afford many opportunities to a child that may not be available in the child’s country of origin. The task of the officer is thus to assess the degree of hardship that is likely to result from the removal of the child from Canada, and then to balance that hardship against other factors that might mitigate the conse- quences of removal: see also Ruiz v. Canada (Minister of Citizenship & Immigration), 2009 FC 1175, [2009] F.C.J. No. 1474 (F.C.), at para. 31. 15 In other words, the Officer had to determine whether the children’s best interests, “when weighed against the other relevant factors, justified an exemption on H&C grounds so as to allow them to enter Canada”: Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.), at para. 38. That is not what happened here. 16 I am also concerned about the failure of the Officer to appreciate or address the family’s submissions with respect to the impact that returning to Guyana would have for the children’s psychological well-being. The Officer does refer to the family’s submission that it would be “trauma- tizing” for the children to have to return to Guyana. However, the Officer seems to understand this trauma to relate to need for the children to get used to a new school system, and to leave their accomplishments in Can- ada behind. Beharry v. Canada Anne Mactavish J. 71

17 The family’s H&C submissions clearly identified the impact that witnessing the attack on their mother has had on the children, and their fear of returning to the country where the attack occurred as factors affecting the children’s best interests. Nowhere in the analysis does the Officer even mention this concern, let alone address it. The failure to address such an important factor further renders the analysis unreasonable. 18 In light of my conclusion on this issue, it is not necessary to address the other issues raised by the applicants.

Conclusion 19 For these reasons, the application for judicial review is allowed.

Certification 20 Neither party has suggested a question for certification, and none arises here.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. This application for judicial review is allowed, and the matter is remitted to a different Officer for re-determination; and 2. No serious question of general importance is certified. Application granted. 72 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Cho v. Canada (Minister of Citizenship & Immigration)] Duri Cho, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2831-10 2010 FC 1299 Dani`ele Tremblay-Lamer J. Heard: December 8, 2010 Judgment: December 17, 2010 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Well-founded fear –––– Ap- plicant, South Korean citizen, came to Canada with his wife in 2006 — Appli- cant claimed refugee protection and then withdrew his claim and left Canada — On March 31, 2009, applicant returned to Canada — In April 2009, applicant claimed refugee status — Applicant applied to board to have his 2006 claim reinstated, but application was refused — On June 8, 2009, applicant filed Pre- Removal Risk Assessment (PRRA) application — Applicant alleged that various violent incidents had occurred in 2005, 2007 and 2009 — On April 16, 2010, officer rejected applicant’s PRRA application — Applicant brought application for judicial review of officer’s decision — Application granted — Mat- ter was referred back for redetermination — Officer’s failure to engage with applicant’s submissions regarding violent incident in 2009 was concerning, as these submissions were central to applicant’s alleged personalized risk — Fact that officer failed to engage with applicant’s central allegations pointed to lack of justification, transparency and intelligibility in his decision-making process — Further, officer’s finding of state protection was unreasonable — Fact that officer failed to engage in discussion of alleged events of 2009 led to analysis that was conducted largely in abstract. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicant, South Korean citizen, came to Canada with his wife in 2006 — Applicant claimed refugee protection and then withdrew his claim and left Canada — On March 31, 2009, applicant returned to Canada — In April 2009, applicant claimed refugee status — Applicant applied to board to have his 2006 claim reinstated, but application was refused — On June 8, 2009, applicant filed Pre-Removal Risk Assessment (PRRA) application — Applicant alleged that various violent incidents had occurred in 2005, 2007 and 2009 — On April Cho v. Canada 73

16, 2010, officer rejected applicant’s PRRA application — Applicant brought application for judicial review of officer’s decision — Application granted — Matter was referred back for redetermination — Officer breached duty of procedural fairness when he failed to grant applicant’s request for oral hearing — In rejecting applicant’s allegations, officer made veiled credibility finding — Of- ficer’s negative credibility finding, and resulting determination that applicant failed to prove incidents of 2005, 2007 and 2009, seriously undermined applicant’s claim to personalized risk in South Korea — Had allegations been accepted as proved, applicant’s evidence might have justified allowing application for protection. Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA). Cases considered by Dani`ele Tremblay-Lamer J.: 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.) — considered Begashaw v. Canada (Minister of Citizenship & Immigration) (2009), 85 Imm. L.R. (3d) 220, 2009 CarswellNat 3821, 2009 FC 1167, 354 F.T.R. 296 (Eng.), [2009] F.C.J. No. 1470 (F.C.) — considered Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Ferguson v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 3353, 2008 FC 1067, 74 Imm. L.R. (3d) 306, [2008] F.C.J. No. 1308 (F.C.) — considered Flores c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CarswellNat 3293, 2010 FC 503, 2010 CarswellNat 1306, 2010 CF 503, [2010] F.C.J. No. 607 (F.C.) — referred to Guan v. Canada (Minister of Public Safety) (2010), 2010 CarswellNat 5361, 2010 CF 992, 92 Imm. L.R. (3d) 183, 2010 CarswellNat 3706, 2010 FC 992 (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 Liban v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1252, 76 Imm. L.R. (3d) 227, 2008 CarswellNat 4174, 2008 CF 1252, 2008 CarswellNat 5615 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New 74 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Persaud v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3137, 2010 FC 850, 2010 CF 850, 2010 CarswellNat 4182, 90 Imm. L.R. (3d) 292 (F.C.) — referred to Singh v. Canada (Minister of Employment & Immigration) (1985), 1985 Car- swellNat 663, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, 58 N.R. 1, 12 Ad- min. L.R. 137, 14 C.R.R. 13, 1985 CarswellNat 152, [1985] S.C.J. No. 11 (S.C.C.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Zokai v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1581, 2004 CarswellNat 4049, 2004 CF 1581, 2004 CarswellNat 5624, 44 Imm. L.R. (3d) 275 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 101(1)(c) — referred to s. 113(b) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 167 — considered s. 167(a) — considered s. 167(b) — considered s. 167(c) — considered

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

Mr. Willaim Sloan, for Applicant Mr. Bassam Khouri, for Respondent Cho v. Canada Dani`ele Tremblay-Lamer J. 75

Dani`ele Tremblay-Lamer J.:

1 This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of a Pre-Removal Risk Assessment (PRRA) officer rejecting the applicant’s PRRA application after finding that the applicant would not be subject to a risk of persecution, torture, a risk to his life or a risk of cruel and unusual treatment or punishment if returned to South Korea.

Background 2 The applicant, Mr. Duri Cho, was born in Bangladesh. He moved to South Korea in 1991 and married a South Korean citizen in 2002. He became a citizen of South Korea himself in May of 2005. 3 The applicant first came to Canada in December of 2006 with his wife. The two were separately interviewed by Canada Border Services Agency officers. The applicant claimed refugee protection. His wife did not. After being detained overnight, the applicant withdrew his claim for refugee protection. The applicant and his wife left Canada shortly thereafter. 4 The applicant returned to Canada on March 31, 2009 and was admitted as a temporary resident. In April of 2009, he claimed refugee status. Since he had previously withdrawn a claim for refugee protection, his new claim was deemed ineligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board (the Board) due to paragraph 101(1)(c) of the IRPA. The applicant applied to have his 2006 claim reinstated. That application was refused by the Board. 5 The applicant filed a PRRA application on June 8, 2009. He requested an oral hearing under paragraph 113(b) of the IRPA. No oral hearing was provided. The applicant alleged that he faced serious discrimination and persecution in South Korea based on his race, nationality and based on the fact that he was a human rights activist. Specifically, he alleged the following facts in support of his claim: • On October 15, 2005, the applicant was beaten by a manager at his place of work, a plastic factory in South Korea. He sustained injuries to his chest and head and went to the hospital for treatment. He filed a complaint with the police who came to the factory and told him that if he wanted to keep working, he should drop his claim. 76 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

• On May 27, 2007, a foreman at a candle factory threw hot candle wax at the applicant. The applicant called the police. The police came to the factory and the foreman apologized. The applicant was fired the next day. • The applicant was a vocal advocate for migrant workers. rights. Between 2002 and 2006, the applicant volunteered with the Mi- grant Workers House. From 2007 to 2009, he volunteered with the Migrant Workers Welfare Society of Korea. He took part in numerous protests and demonstrations and was identified in multiple news articles as an advocate for migrant workers. rights. The applicant believed that this lead to increased hostility against him by employers. • In December of 2008, the applicant brought a complaint against an ex-employer, Mr. Kim Chang Hwan, in relation to unpaid sal- ary. Mr. Hwan threatened to kill the applicant if he did not withdraw his complaint. The applicant received many death threats by telephone in connection with this complaint; some from Mr. Hwan, some from Mr. Hwan’s employees. The callers indicated that they would “get” the applicant wherever he went in Korea. • On March 12, 2009, Mr. Hwan’s vehicle (driven by his chauffeur) swerved to hit the applicant. The applicant was injured in the chest, head and knee. The driver indicated, “If you don’t drop the case, you’re dead.” The applicant reported the incident to the police, who laughed and wrote in their report that it was an accident. The applicant continued to receive threatening calls while in hospital and after he got home. The applicant discussed the situation with his wife and they decided that he should flee to Canada. 6 In a decision dated April 16, 2010, the applicant’s PRRA application was refused. On May 20, 2010, the applicant filed an application for Leave and for Judicial Review, contesting the PRRA decision. On May 31, 2010, this Court stayed the applicant’s removal until disposition of the leave application.

The Decision under Review 7 The PRRA officer began his assessment by considering the nature of the risk faced by the applicant in South Korea. He pointed out that the documentary evidence submitted by the applicant overwhelmingly per- tained to problems faced by migrant and irregular workers and that the Cho v. Canada Dani`ele Tremblay-Lamer J. 77

applicant was no longer a migrant or an irregular worker; he was a South Korean citizen. 8 In any event, the officer found that state protection did exist in South Korea for migrant workers. Although they remained a vulnerable group, and although state protection was not perfect, the officer pointed to evidence which indicated that the government of South Korea had recognized their vulnerability and was taking measures to address it. For instance, there was documentary evidence indicating that the South Korean government supported the mission of organizations such as the Migrant Workers Center. Thus it would be reasonable to assume that the applicant would be supported by the government in his volunteer work, not persecuted because of it. He further indicated that there was no evidence establishing that government officials were persecuting the staff or vol- unteers at migrant worker shelters based on Convention grounds. 9 The officer referred to the summonses (from 2005, 2007, and 2009) sent by the Seoul Regional Ministry of Labour that were submitted by the applicant. He indicated that no results were provided with respect to the outcome of the applicant’s complaints in these matters. In fact, the officer determined that the summonses actually supported the notion that legal recourse did exist in South Korea and was available to the applicant, “corroborating de facto the availability of state protection for the applicant.” 10 The officer further indicated that the applicant had not submitted documentary evidence demonstrating that he had made attempts to file complaints with Korean authorities regarding the alleged discrimination and harassment, and demonstrating that Korean authorities denied him protection. 11 The officer discussed the applicant’s allegations regarding the assault that had supposedly taken place in October of 2005. He considered the “Medical Certificate of Injury” submitted by the applicant and found that it was of low probative value because its origin was not established, the doctor who wrote it was not formally identified, and because the author of the document did not indicate that he had any personal knowledge regarding the assault. The officer concluded that there was no credible evidence to corroborate the applicant’s story regarding the 2005 assault. Further, the officer drew a “negative inference” from the fact that the applicant did not appear to have raised the assault when he withdrew his initial claim for refugee status in 2006. 78 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

12 Ultimately, the officer concluded: a) there was insufficient evidence to corroborate the applicant’s allegations of persecution or bad treatment, b) the applicant had not discharged himself of the onus of demonstrating an objective and identifiable risk upon his return to South Korea, and c) the applicant had not rebutted the presumption that state protection was available to him in South Korea.

Issues 13 This application raises the following issues: a) What is the applicable standard of review? b) Did the PRRA officer err in his treatment of the evidence regarding personalized risk? c) Did the PRRA officer breach the duty of procedural fairness owed to the applicant by not providing the applicant with an oral hearing? d) Was the PRRA officer’s finding as to state protection unreasonable?

Analysis a) What is the applicable standard of review? 14 The standard of review applicable to questions of procedural fairness is correctness (Khosa v. Canada (Minister of Citizenship & Immigra- tion), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para. 43; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 (F.C.A.) at para. 53). When applying the standard of correctness, the reviewing court will “decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para. 50 [Dunsmuir]). 15 The appropriate standard for reviewing whether the officer erred in his treatment of evidence is the reasonableness standard (Guan v. Canada (Minister of Public Safety), 2010 FC 992 (F.C.) at para. 15). Reasonableness is also the appropriate standard to apply in reviewing the officer’s state protection analysis (Persaud v. Canada (Minister of Citizenship & Immigration), 2010 FC 850 (F.C.) at para. 14). In Dun- smuir, above at para. 47, the Supreme Court of Canada held that “reasonableness is concerned mostly with the existence of justification, trans- Cho v. Canada Dani`ele Tremblay-Lamer J. 79

parency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

b) Did the PRRA officer err in his treatment of the evidence regarding personalized risk? 16 The applicant argues that the PRRA officer erred in his assessment of personalized risk because he failed to consider the key incidents of March 2009 — the attack and the death threats — that ultimately led to the applicant’s departure from South Korea and his claim for protection in Canada. 17 The respondent, however, argues that the officer acknowledged these alleged incidents at the beginning of his reasons, under the heading, “Risks identified by the applicant” but concluded there was insufficient evidence to corroborate the applicant’s allegations of persecution and bad treatment, and that, as such, the applicant had not met the burden of establishing a personalized risk in South Korea. In this regard, the respondent notes that the applicant did not submit any evidence to corroborate that the 2009 events had taken place, other than an un-translated medical certificate. Given this, the respondent contends, the officer’s single reference to the events of 2009 was entirely sufficient. I disagree. 18 The officer’s brief mention of the events of 2009 comes in stark contrast to the applicant’s lengthy discussion in his written PRRA submissions. In his submissions, the applicant set out the context in which his initial complaints against Mr. Kim Chang Hwan arose, he discussed the death threats he began receiving shortly after lodging those complaints, he discussed his encounter with Mr. Hwan’s driver on March 12, 2009, he discussed his interactions with the police shortly thereafter, and he discussed the continued death threats which culminated, ultimately, in his decision to leave South Korea. Beyond acknowledging at the beginning of his reasons that the applicant had alleged “that he was attacked, his life was threatened and his request for protection ignored,” none of the applicant’s allegations regarding the events of 2009 were discussed by the officer. 19 In my opinion, the officer’s failure to engage with the applicant’s submissions regarding the events of 2009 is of significant concern because these submissions were central to the applicant’s alleged personalized risk. As indicated by Justice John Maxwell Evans in the often-cited 80 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (Fed. T.D.), a decision- maker’s obligation to mention, analyze and consider evidence increases with the relevance of the evidence in question to the disputed facts. In- stead of discussing the applicant’s submissions regarding the events of 2009, the officer opted to discuss the alleged events of 2005 and then proceeded to conclude that there was “insufficient evidence to corroborate the applicant’s allegations of persecution or bad treatment.” It is not clear from the officer’s reasons that he ever did, in fact, consider the allegations surrounding March 2009. The fact that the officer failed to engage with the applicant’s central allegations points to a lack of justification, transparency and intelligibility in the officer’s decision-making process (Dunsmuir, above, at para. 47).

c) Did the PRRA officer breach the duty of procedural fairness owed to the applicant by not providing the applicant with an oral hearing? 20 The applicant further argues that the PRRA officer made a veiled credibility finding. The officer rejected the applicant’s allegations regarding the 2005 assault because they were “not corroborated by other credible or trustworthy evidence.” More generally, in his conclusion, the officer stated that “there [was] insufficient evidence to corroborate the applicant’s allegations of persecution or bad treatment.” This, the applicant argues, suggests that the officer questioned his credibility. He relies on Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 (S.C.C.) [Singh] for the proposition that when the credibility of a refugee claimant is at issue, the claimant is entitled to an oral hearing. Since credibility was at issue in this case, and since the PRRA officer did not provide the applicant with an oral hearing, the applicant claims there was a breach of the duty of procedural fairness. 21 The respondent submits that no credibility determination was made. The respondent points to Ferguson v. Canada (Minister of Citizenship & Immigration), 2008 FC 1067, 170 A.C.W.S. (3d) 397 (F.C.), [Ferguson] in support of the proposition that a trier of fact may consider the probative value of evidence without necessarily considering the credibility of that evidence or the credibility of its source. The respondent claims that the officer, in this case, merely determined that the applicant had not met the burden of proving a personalized risk, and that this is very different from making a determination as to the applicant’s credibility. As such, Cho v. Canada Dani`ele Tremblay-Lamer J. 81

the respondent submits, the officer was not required to provide the applicant with an oral hearing. I disagree. 22 Although, generally speaking, a PRRA applicant is not entitled to an oral hearing, paragraph 113(b) of the IRPA indicates that “a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required.” The prescribed factors are set out in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR). Section 167 reads: Hearing — prescribed factors 167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following: (a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act; (b) whether the evidence is central to the decision with respect to the application for protection; and (c) whether the evidence, if accepted, would justify allowing the application for protection. Facteurs pour la tenue d’une audience 167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci- après servent a` décider si la tenue d’une audience est requise: a) l’existence d’éléments de preuve relatifs aux el´´ ements men- tionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur; b) l’importance de ces el´´ ements de preuve pour la prise de la décision relative a` la demande de protection; c) la question de savoir si ces el´´ ements de preuve, a` supposer qu’ils soient admis, justifieraient que soit accordée la protection. The factors are conjunctive. I will consider each in turn. 23 The PRRA officer found that the applicant’s allegations regarding the incidents of 2005, 2007 and 2009 had not been sufficiently proven. In determining whether paragraph 167(a) of the IRPR is satisfied, we must determine whether or not the officer’s decision to dismiss the applicant’s statements, in this regard, was based on a finding as to credibility, or whether it was based merely on insufficiency of evidence — as was suggested by the officer in his reasons. 82 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

24 In the absence of a determination as to credibility, an applicant’s evidence is presumed to be true. Is it possible that the officer, in this case, accepted the applicant’s allegations regarding having been assaulted in 2005, 2007 and 2009 as true, but nonetheless found that the burden of proof had not been satisfied in this regard? Did he merely assess the probative value of the applicant’s evidence, without making a credibility finding, and determine that it was insufficient, on its own, to prove that the alleged events took place? I do not think so. 25 Of course, a determination as to probative value and weight can be made without making a determination as to credibility. Such is the case, for example, when evidence is found not to be directly relevant to the facts alleged, or when evidence is found to be unreliable for reasons other than credibility. 26 However, in this case, the applicant’s statements with respect to the 2005, 2007 and 2009 assaults were directly relevant to the question of whether the alleged events took place. Further, credibility aside, neither the officer nor the circumstances point to any issue with respect to the reliability of the applicant’s written submissions. The officer did indicate, however, that he drew “a negative inference from the fact that the applicant [did] not seem to have raised [the 2005 assaults] when he withdrew his initial claim for refugee status [in 2006]...”. I find that in rejecting the applicant’s allegations in this case, the officer did, in fact, make a veiled credibility finding similar to the ones pointed to by this Court in Zokai v. Canada (Minister of Citizenship & Immigration), 2004 FC 1581, 135 A.C.W.S. (3d) 286 (F.C.), Liban v. Canada (Minister of Citizenship & Immigration), 2008 FC 1252, 172 A.C.W.S. (3d) 730 (F.C.), Begashaw v. Canada (Minister of Citizenship & Immigration), 2009 FC 1167, 85 Imm. L.R. (3d) 220 (F.C.), and Arfaoui v. Canada (Minister of Citizenship & Immigration), 2010 FC 549 (F.C.) [S.A.]. To borrow the words of Justice Sean Harrington from S.A., above at para. 20, “In my view, the PRRA officer could not have made the decision he did unless he did not believe the claimant. That lack of belief is inherent in his analysis.” I find that a credibility determination was made. 27 With respect to paragraph 167(b) of the IRPR, there is no question that the PRRA officer’s negative credibility finding, and the resulting determination that the applicant had failed to prove the incidents of 2005, 2007 and 2009, seriously undermined the applicant’s claim to a personalized risk in South Korea. As such, it cannot be argued that this determi- Cho v. Canada Dani`ele Tremblay-Lamer J. 83

nation was not “central to the decision with respect to the application for protection”. The criteria set out in paragraph 167(b) is satisfied. 28 If the officer had accepted the applicant’s evidence regarding the events of 2005, 2007 and 2009, then the officer would have believed that: the applicant had been repeatedly assaulted by his employers, death threats were recently issued against the applicant, an attempt on the applicant’s life had recently been made, and — most importantly — the police had consistently refused to provide the applicant with assistance. In my mind, had these allegations been accepted as proved, then paragraph 167(c) of the IRPR may well have been satisfied; i.e. this evidence might have justified allowing the application for protection. 29 Furthermore, I note that because the Board refused to hear the applicant’s refugee claim, the applicant has never had his credibility assessed in the context of an oral hearing. The Supreme Court of Canada in Singh, above at para. 20, indicated that, “where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.” For these reasons, in failing to grant the applicant’s request for an oral hearing, I find that the PRRA officer breached the duty of procedural fairness that was owed to the applicant.

d) Was the PRRA officer’s finding as to state protection unreasonable? 30 I find that the officer’s state protection analysis is undermined by the reviewable errors identified under the previous two headings. The fact that the officer failed to engage in any detailed discussion of the alleged events of 2009 led to a state protection analysis that was conducted largely in the abstract. The availability of state protection should not be decided in a factual vacuum with regard to a claimant’s personal circumstances (Flores c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 503 (F.C.) at para. 4). It may well have been that the reason the events of 2009 were not discussed as part of the state protection analysis was because the officer had discounted them as un- proven. However, as discussed above, such a determination would have involved a suspect credibility finding, given the lack of an oral hearing. Ultimately, the errors discussed above resulted in an incomplete state protection analysis. As such, the finding of state protection in this case was unreasonable. 31 For these reasons, the application for judicial review is granted. The matter is referred back for redetermination. 84 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Judgment The application for judicial review is granted. The matter is referred back for redetermination. Application granted. Divito v. Canada 85

[Indexed as: Divito v. Canada (Minister of Public Safety & Emergency Preparedness)] Pierino Divito, Appellant and Minister of Public Safety and Emergency Preparedness, Respondent and Canadian Civil Liberties Association, Intervener Federal Court of Appeal Docket: A-425-09 2011 FCA 39 M. Nadon, Johanne Trudel, Robert M. Mainville JJ.A. Heard: October 14, 2010 Judgment: February 3, 2011 Criminal law –––– Prisons and prisoners — Regulation — Transfer of prisoners — Miscellaneous –––– Appellant immigrated to Canada at age sixteen and became Canadian citizen — Appellant found guilty of serious drug-related offences and sentenced to ten years in prison — While serving sentence, US authorities sought his extradition to answer charges of possession and distribution of drugs in Florida — Upon Canadian release, appellant was extradited to US and sentenced to ninety months in prison — Appellant submitted transfer request pursuant to International Transfer of Offenders Act — Request approved by US but denied by Canadian Minister — Appellant unsuccessfully sought judicial review of decision — Appellant appealed denial of judicial review — Ap- peal dismissed — Fact that appellant was not able to enter Canada was not due to refusal to admit, but rather refusal to administer US sentence within Can- ada — Due to Canada’s refusal to administer sentence, US would not release him — Refusal to administer sentence did not constitute violation of rights under Canadian Charter of Rights and Freedoms — Appellant failed to establish causal connection between refusal of transfer request and inability to enter country. Criminal law –––– Charter of Rights and Freedoms — Mobility rights [s. 6] –––– Appellant immigrated to Canada at age sixteen and became Canadian citizen — Appellant found guilty of serious drug-related offences and sentenced to ten years in prison — While serving sentence, US authorities sought his extradition to answer charges of possession and distribution of drugs in Florida — Upon Canadian release, appellant was extradited to US and sentenced to ninety months in prison — Appellant submitted transfer request pursuant to Interna- tional Transfer of Offenders Act — Request approved by US but denied by Ca- nadian Minister — Appellant unsuccessfully sought judicial review of decision — Appellant appealed denial of judicial review — Appeal dismissed — 86 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Fact that appellant was not able to enter Canada was not due to refusal to admit, but rather refusal to administer US sentence within Canada — Due to Canada’s refusal to administer sentence, US would not release him — Refusal to administer sentence did not constitute violation of rights under Canadian Charter of Rights and Freedoms — Appellant failed to establish causal connection between refusal of transfer request and inability to enter country. The appellant immigrated to Canada at age sixteen and later became a Canadian citizen. The appellant had a long history of legal troubles and was found guilty of serious drug-related offences for which he served ten years in prison. While serving this sentence, the US authorities sought his extradition in order to answer charges of possession and distribution of drugs in Florida. Upon his release in Canada, he was extradited to the US. The appellant was sentenced to ninety months in prison, and shortly afterward, the appellant submitted a transfer request pursuant to the International Transfer of Offenders Act. The request was approved by US authorities but denied by the Canadian Minister. The appellant submitted a second application which was also denied. The appellant unsuccessfully sought judicial review of the decision. The appellant appealed the denial of judicial review. Held: The appeal was dismissed. Per Nadon J.A. (Trudel J.A. concurring): The fact that the appellant was not able to enter Canada was not due to a refusal to admit him to the country, but rather a refusal to administer his US sentence within Canada. As a result of this refusal, the US would not agree to release him. The refusal to administer the appellant’s sentence did not constitute a violation of his right to enter Canada under the Canadian Charter of Rights and Freedoms because there was an insufficient causal connection between Canada’s refusal of the appellant’s transfer request and his inability to enter the country. Per Mainville J.A. (concurring for different reasons): The applicable provisions of the Act constituted prima facie infringements to the rights guaranteed under s. 6(1) of the Charter but were reasonable limits pursuant to s. 1 of the Charter. Cases considered by Robert M. Mainville J.A.: Canada (Minister of Justice) v. Fischbacher (2009), 198 C.R.R. (2d) 168, 69 C.R. (6th) 21, [2009] 3 S.C.R. 170, 255 O.A.C. 288, 2009 SCC 46, 2009 CarswellOnt 6153, 2009 CarswellOnt 6154, (sub nom. Fischbacher v. Canada (Minister of Justice)) 248 C.C.C. (3d) 419, 394 N.R. 139, 312 D.L.R. (4th) 1 (S.C.C.) — referred to Co-operative Committee on Japanese Canadians v. Canada (Attorney General) (1947), [1947] A.C. 87, [1947] L.J.R. 836, 76 L.T. 547, [1947] 1 D.L.R. 577 (Canada P.C.) — referred to Cotroni c. Centre de Prévention de Montréal (1989), (sub nom. El Zein c. Centre de Prévention de Montréal) [1989] 1 S.C.R. 1469, (sub nom. United Divito v. Canada 87

States v. El Zein) 96 N.R. 321, (sub nom. El Zein c. Centre de Prévention de Montréal) 23 Q.A.C. 182, (sub nom. United States v. Cotroni) 48 C.C.C. (3d) 193, 96 N.S.R. 321, 1989 CarswellQue 1774, (sub nom. El Zein c. Centre de Prévention de Montréal) 42 C.R.R. 101, 1989 CarswellQue 129, [1989] S.C.J. No. 56, REJB 1989-95863 (S.C.C.) — followed Divito c. Canada (Ministre de la Sécurité publique & de la Protection civile) (2009), 2009 CF 983, 2009 CarswellNat 3004, 2009 FC 983, 2009 Car- swellNat 5283 (F.C.) — referred to Divito c. Canada (Procureur général) (2004), 2004 CarswellQue 2674, [2004] J.Q. No. 10729, REJB 2004-71683 (Que. C.A.) — referred to Divito c. Canada (Procureur général) (2004), (sub nom. Etats-Unis´ d’Amérique v. Divito) 194 C.C.C. (3d) 148, 2004 CarswellQue 10059, REJB 2004-81575 (Que. C.A.) — referred to Getkate v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CarswellNat 2941, 2008 FC 965, 2008 CF 965, 236 C.C.C. (3d) 102, 177 C.R.R. (2d) 49, 333 F.T.R. 121 (Eng.), 2008 CarswellNat 3515, 298 D.L.R. (4th) 558, [2009] 3 F.C.R. 26 (F.C.) — referred to 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, [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, 157 C.R.R. 21, 2007 SCC 27, 2007 CarswellBC 1289, 2007 CarswellBC 1290, [2007] 2 S.C.R. 391, [2007] S.C.J. No. 27 (S.C.C.) — considered Kamel c. Canada (Procureur général) (2009), (sub nom. Kamel v. Canada (Attorney General)) 195 C.R.R. (2d) 275, (sub nom. Kamel v. Canada (Attorney General)) [2009] 4 F.C.R. 449, 2009 CarswellNat 1004, 2009 FCA 21, (sub nom. Kamel v. Canada (Attorney General)) 388 N.R. 4, 2009 CarswellNat 180, 2009 CAF 21 (F.C.A.) — considered Kamel c. Canada (Procureur général) (2009), (sub nom. Kamel v. Canada (Attorney General)) 400 N.R. 389 (note), 2009 CarswellNat 2473, 2009 Car- swellNat 2474 (S.C.C.) — referred to Kozarov v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 4982, 333 F.T.R. 27 (Eng.), 2007 CarswellNat 2705, 2007 FC 866, 2007 CF 866, [2008] 2 F.C.R. 377, [2007] F.C.J. No. 1132 (F.C.) — followed Németh c. Canada (Ministre de la Justice) (2010), 11 Admin. L.R. (5th) 159, (sub nom. Németh v. Canada (Minister of Justice)) 408 N.R. 198, 2010 SCC 56, 2010 CarswellQue 11954, 2010 CarswellQue 11955, 91 Imm. L.R. (3d) 165, [2010] S.C.J. No. 56 (S.C.C.) — referred to R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316, 1985 CarswellAlta 609, [1985] S.C.J. No. 17 (S.C.C.) — followed 88 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

R. c. Gauvin (1997), 187 N.B.R. (2d) 262, 478 A.P.R. 262, 1997 CarswellNB 144 (N.B. C.A.) — referred to R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 53 O.R. (2d) 719, 1986 CarswellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556 (S.C.C.) — followed R. v. Rumbaut (1998), 1998 CarswellNB 328, [1998] N.B.J. No. 381 (N.B. Q.B.) — 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] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — followed United States v. Burns (2001), 39 C.R. (5th) 205, 265 N.R. 212, [2001] 3 W.W.R. 193, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 2001 SCC 7, 2001 CarswellBC 272, 2001 CarswellBC 273, 151 C.C.C. (3d) 97, 195 D.L.R. (4th) 1, 81 C.R.R. (2d) 1, 148 B.C.A.C. 1, 243 W.A.C. 1, REJB 2001-22580, [2001] S.C.J. No. 8 (S.C.C.) — referred to United States v. Lake (2008), 72 Admin. L.R. (4th) 30, (sub nom. Lake v. Canada (Minister of Justice)) 236 O.A.C. 371, (sub nom. Lake v. Canada (Minister of Justice)) 171 C.R.R. (2d) 280, 2008 SCC 23, 2008 CarswellOnt 2574, 2008 CarswellOnt 2575, (sub nom. Lake v. Canada (Minister of Jus- tice)) 373 N.R. 339, 56 C.R. (6th) 336, 230 C.C.C. (3d) 449, (sub nom. United States of America v. Lake) 292 D.L.R. (4th) 193, (sub nom. Lake v. Canada (Minister of Justice)) [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23 (S.C.C.) — referred to

Cases considered by M. Nadon J.A.: 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, (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.) — followed Curtis v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 FC 943, 2010 CarswellNat 3446 (F.C.) — referred to Divito c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile) (2009), 2009 CF 983, 2009 CarswellNat 3004, 2009 FC 983, 2009 Car- swellNat 5283 (F.C.) — considered Getkate v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CarswellNat 2941, 2008 FC 965, 2008 CF 965, 236 C.C.C. Divito v. Canada 89

(3d) 102, 177 C.R.R. (2d) 49, 333 F.T.R. 121 (Eng.), 2008 CarswellNat 3515, 298 D.L.R. (4th) 558, [2009] 3 F.C.R. 26 (F.C.) — referred to R. v. B. (D.) (2008), 374 N.R. 221, 237 O.A.C. 110, 293 D.L.R. (4th) 278, [2008] 2 S.C.R. 3, 171 C.R.R. (2d) 133, 92 O.R. (3d) 399 (note), 2008 Cars- wellOnt 2708, 2008 CarswellOnt 2709, 2008 SCC 25, 231 C.C.C. (3d) 338, 56 C.R. (6th) 203, [2008] S.C.J. No. 25 (S.C.C.) — referred to R. v. Hape (2007), 363 N.R. 1, 227 O.A.C. 191, 160 C.R.R. (2d) 1, [2007] 2 S.C.R. 292, 2007 SCC 26, 2007 CarswellOnt 3563, 2007 CarswellOnt 3564, 47 C.R. (6th) 96, 220 C.C.C. (3d) 161, 280 D.L.R. (4th) 385, [2007] S.C.J. No. 26 (S.C.C.) — referred to Statutes considered by Robert M. Mainville J.A.: Canadian Bill of Rights, S.C. 1960, c. 44, Pt. I, reprinted R.S.C. 1985, App. III Generally — referred to s. 2(a) — 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 — considered s. 6(1) — considered s. 33 — referred to Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to Corrections and Conditional Release Act, S.C. 1992, c. 20 Generally — referred to s. 2(1) “sentence” — considered Immigration Act, R.S.C. 1952, c. 325 (Supp.) s. 3 — considered Immigration Act, R.S.C. 1970, c. I-2 s. 3 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 19(1) — considered International Transfer of Offenders Act, S.C. 2004, c. 21 Generally — referred to s. 3 — considered s. 7 — considered s. 8(1) — considered s. 10(1) — considered s. 10(1)(a) — considered s. 10(2) — considered s. 10(2)(a) — considered s. 11 — considered s. 13 — considered 90 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Magna Carta, 1297 (25 Edw. 1), c. 1 Generally — referred to Transfer of Offenders Act, S.C. 1977-78, c. 9 Generally — referred to s. 6(1) — referred to

Statutes considered by M. Nadon J.A.: 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 — considered s. 6(1) — considered s. 32(1)(a) — referred to International Transfer of Offenders Act, S.C. 2004, c. 21 Generally — referred to s. 8(1) — considered s. 10(1)(a) — considered s. 10(2)(a) — considered Treaties considered by Robert M. Mainville J.A.: Canada-United States Treaty on the Execution of Penal Sentences, 1977, C.T.S. 1978/12 Generally — referred to International Covenant on Civil and Political Rights, 1966, C.T.S. 1976/47; 999 U.N.T.S. 171; 6 I.L.M. 368 Article 12 ¶ 4 — considered Universal Declaration of Human Rights, 1948, G.A. Res. 217(III)A Article 13(2) — considered

APPEAL from decision of Federal Court declaring International Transfer of Of- fenders Act did not violate s. 6(1) of Canadian Charter of Rights and Freedoms.

Marie-Hélène Giroux, Clément Monterosso, for Appellant Eric´ Lafrenière, Marc Ribeiro, for Respondent Lorne Waldman, for Intervener

Robert M. Mainville J.A. (Concurring):

1 This appeal raises for the first time in this Court the relationship between the right to enter and remain in Canada guaranteed to every citizen under subsection 6(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11(the “Charter”) and the authority of the Minister Divito v. Canada Robert M. Mainville J.A. 91

of Public Safety and Emergency Preparedness (the “Minister”) under the International Transfer of Offenders Act, S.C. 2004, c. 21 to refuse a transfer to Canada of an offender who is a Canadian citizen incarcerated abroad. 2 The appellant in this case, supported by the intervener the Canadian Civil Liberties Association, seeks to have declared unconstitutional subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act which empower the Minister to refuse the transfer of a Canadian offender incarcerated abroad where the offender’s return to Canada would constitute a threat to the security of Canada or where, in the Minister’s opinion, the offender will commit, after the transfer, a terrorism offence or a criminal organization offence. 3 For the reasons further set out below, I find that subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offend- ers Act do constitute prima facie infringements of the right of a Canadian citizen to enter and remain in Canada guaranteed under subsection 6(1) of the Charter, but that these legislative provisions are nevertheless reasonable limits to that right as can be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter.

Background to the appeal 4 The appellant, born in 1937, immigrated to Canada when he was 16, and subsequently became a Canadian citizen in 1980. The record shows that he has had a difficult relationship with the law, going back many years, including prior convictions in 1962 for attempted false pretences, in 1963 for possession of a restricted weapon outside a dwelling house, in 1963 for living on the avails of prostitution, in 1966 for the possession of a still, in 1976 for possession of stolen property, and in 1987 for assault. 5 In March of 1995, the appellant was found guilty by a Canadian court of serious drug related offences involving the importation of 5400 kilograms of cocaine having a street value of over $500 million, and was sentenced to a long imprisonment term. 6 While he was serving his sentence in Canada, authorities in the United States sought his extradition from Canada in order to answer serious charges related to the possession and distribution of drugs in the state of Florida involving 300 kilograms of cocaine. After serving his incarceration time in Canada, the appellant was extradited to the United States in June of 2005. He pleaded guilty to cocaine distribution charges and 92 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

was sentenced by an American court to 90 months of imprisonment. In determining this sentence, the American court took into account and credited 145 months for time served in Canada. 7 It is noteworthy that various Canadian courts involved in adjudicating criminal charges or extradition proceedings concerning the appellant’s associates have concluded that the appellant was the leader of a criminal organization heavily involved in drug trafficking: Divito c. Canada (Procureur général), J.E. 2004-2034 (Que. C.A.) [2004 CarswellQue 2674 (Que. C.A.)] at paras. 34, 50; Divito c. Canada (Procureur général) (2004), 194 C.C.C. (3d) 148 (Que. C.A.), J.E. 2005-96; at para. 5; R. c. Gauvin (1997), 187 N.B.R. (2d) 262 (N.B. C.A.); R. v. Rumbaut [1998 CarswellNB 328 (N.B. Q.B.)], 1998 CanLII 9816. 8 In December of 2006, the appellant submitted a first transfer request under the International Transfer of Offenders Act, which was approved by the authorities of the United States Department of Justice but refused by the Minister in October of 2007. This refusal was not challenged by the appellant. 9 However, shortly after this first refusal, the appellant submitted a second transfer request under the act. The Minister denied the second request for a transfer to Canada for the following reasons: The offender has been identified as an organized crime member, convicted for an offence involving a significant quantity of drugs. The nature of his offence and his affiliations suggest that the offender’s return to Canada would constitute a potential threat to the safety of Canadians and the security of Canada.

Federal Court judgment 10 The appellant challenged this second refusal through a judicial review application before the Federal Court. The application was heard and decided by Harrington J. at the same time as a challenge brought by the appellant’s son to a similar refusal by the Minister. Indeed, the appellant’s son was also incarcerated in the United States and had also sought a transfer to Canada under the International Transfer of Offenders Act. Harrington J. rejected the appellant’s application for judicial review and the constitutional challenge to the impugned provisions of the legislation in short reasons which refer to the lengthier reasons stated in the case of the appellant’s son and reported at [Divito c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile)] 2009 FC 983 (F.C.). The Divito v. Canada Robert M. Mainville J.A. 93

reasons for the decision in the appellant’s case are thus to be found in the decision concerning his son, and can be briefly summarized as follows. 11 Harrington J. relied on his reasons in Kozarov v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 866, [2008] 2 F.C.R. 377 (F.C.) (Kozarov) to find that the International Transfer of Offenders Act did not engage subsection 6(1) of the Charter. Under his reasoning in Kozarov, Harrington J. found that the restrictions on the mobility of offenders seeking a transfer to Canada arise from the actions and criminal activities of the offenders themselves. Consequently what is at issue in a transfer request under the International Transfer of Offenders Act is not a mobility right, but rather “the transfer of supervision of a prison sentence” (Kozarov at para. 32). 12 In the event he was found to be wrong on this issue, Harrington J. further found, for the reasons set out by Kelen J. in Getkate v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 965, [2009] 3 F.C.R. 26 (F.C.) (Getkate), that the impugned provisions of the International Transfer of Offenders Act were reasonable limits as can be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter, “given that the applicant has already had his mobility restricted due to his own illegal activity” (Getkate at para. 27). 13 Having upheld the constitutional validity of the legislation, Harring- ton J. then reviewed the decision of the Minister on administrative law grounds. Applying a reasonableness standard of review, he found that in light of the appellant’s criminal record, it was not unreasonable for the Minister to opine that the appellant would renew his contacts with elements of organized crime once transferred to Canada in order to serve his sentence. Consequently, the refusal of the transfer on the basis of that opinion was reasonable.

Positions of the parties on appeal 14 The appellant’s position in this Court is strictly limited to constitutional grounds, and consequently the appellant does not raise any administrative law arguments to challenge the Minister’s decision to refuse his transfer. 15 The appellant and the intervener argue that the right to enter and to remain in Canada guaranteed to every Canadian citizen by subsection 6(1) of the Charter is a particularly fundamental right in light, notably, of the fact that Parliament may not derogate from that right pursuant to section 33 of the Charter. They add that the right to return to one’s country 94 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

of citizenship is set out in numerous international instruments to which Canada is a party, thus emphasising the importance and fundamental value of this right. They bolster their argument relying by analogy on Cotroni c. Centre de Pr´evention de Montr´eal, [1989] 1 S.C.R. 1469 (S.C.C.) (United States v. Cotroni) and on United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 (S.C.C.), in which the Supreme Court of Canada found that the extradition of a citizen from Canada infringes the right to remain in Canada guaranteed by subsection 6(1) of the Charter. 16 The appellant and the intervener further argue that the infringements to the right to enter and to remain in Canada resulting from the Interna- tional Transfer of Offenders Act are not justifiable under section 1 of the Charter since there is no rational link between, on the one hand, the protection of the safety of Canadians and the security of Canada and, on the other hand, the objectives of rehabilitation and reintegration underlying the offender transfer scheme as explicitly stated in section 3 of the legislation. The appellant and the intervener assert that the safety of Canadi- ans and the security of Canada would be better served by allowing all Canadian offenders imprisoned abroad to benefit from a transfer to Can- ada, thus allowing them to be directly supervised by Canadian authorities pursuant to Canada’s correctional system, which notably provides for supervised conditional releases. 17 The Minister, for his part, relies on the reasoning found in Kozarov to conclude that subsection 6(1) of the Charter is not engaged in this case. The International Transfer of Offenders Act simply provides special mo- dalities for the execution of a foreign sentence imposed upon a Canadian citizen by allowing, in appropriate circumstances, the citizen to serve his sentence in Canada. No mobility right is engaged since the offender incarcerated abroad would not be physically able to avail himself of the right to enter Canada were it not for the transfer legislation itself. The mobility rights of the offender are already limited by the incarceration sentence, and the offender’s mobility rights will continue to be restricted whether or not a transfer is agreed to by the Minister. 18 The Minister adds that should this Court find that subsection 6(1) of the Charter is nevertheless engaged, then the impugned provisions of the International Transfer of Offenders Act are justified under section 1 of the Charter. The objectives of these provisions are the protection of the security of Canada and of the safety of Canadian citizens, and such objectives are incontestably pressing and substantial, and the means pro- Divito v. Canada Robert M. Mainville J.A. 95

vided in the legislation to meet these objectives satisfy the test of R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.).

Issues 19 This appeal raises the two following issues: a. Do subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act infringe subsection 6(1) of the Charter? b. If so, are these legislative provisions justified under section 1 of the Charter?

Analysis a) The standard of review 20 This appeal raises the constitutional validity of subsection 8(1) and of paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offend- ers Act in light of subsection 6(1) and section 1 of the Charter. In these circumstances the standard of review is that of correctness. The role of an appellate court, when deciding an appeal from an application for judicial review, is to determine whether the reviewing court identified the applicable standard of review and applied it correctly.

b) The statutory scheme 21 In 1977, Canada and the United States of America signed a Treaty between Canada and the United States of America on the Execution of Penal Sentences, March 2, 1977, [1978] Can. T.S. No. 12. Under the treaty, offenders sentenced to imprisonment in one of the signing countries may be transferred to the other country if the sending state, the receiving state and the concerned offender concur to the transfer, and if the offender is a citizen of the receiving country. Both parties to the treaty are committed to establish by legislation or regulation the procedures necessary and appropriate to give legal effect within their respective ter- ritories to sentences pronounced by courts of the other party, and to mu- tually collaborate in these procedures. Moreover, under the terms of the treaty, save exception, the completion of a transferred offender’s sentence is to be carried out according to the laws and procedures of the receiving country, including the application of any provisions for reduc- tion of the term of confinement by parole, conditional release or otherwise. 96 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

22 Parliament adopted the Transfer of Offenders Act, S.C. 1977-78, c. 9 in large part to ensure the implementation of this treaty and a similar treaty with Mexico, as well as eventual future treaties with other countries. Under subsection 6(1) of that act, the responsible Minister was provided with an unfettered discretion to approve or disapprove the transfer under the act of a Canadian citizen found guilty of an offence in a foreign state with which Canada has entered into a treaty for the transfer of offenders: 6. (1) Where the Minister is informed on behalf of a foreign state that a Canadian offender has requested transfer to Canada and that the responsible authority in that state agrees to such transfer, the Minister shall cause the foreign state to be advised whether he approves or disapproves the transfer of such offender and, where he approves the transfer, he shall make the necessary arrangements therefor. 6. (1) Lorsque le Ministre est avisé par un Etat´ etranger´ qu’un délin- quant canadien demande son transfèrement au Canada et que l’autorité compétente de cet Etat´ l’a approuvé, il informe l’Etat´ etranger´ de son acceptation ou de son refus de ce transfèrement et, en cas d’acceptation, il prend les mesures nécessaires a` ce transfèrement. 23 Canada has since concluded numerous bilateral and multilateral treaties concerning the transfer of offenders. Though more recent statistical information has not been placed before us, the record nevertheless shows that between 1978 and 2003, a total of 118 offenders were transferred from Canada to a foreign country, for the most part the United States (106 transfers) while, during the same period, 1,066 offenders were transferred to Canada from various foreign countries, mainly the United States (836 offenders): Legislative Summary: Bill C-33 International Transfer of Offenders Act, (Parliamentary Information And Research Service, 29 July 2003) at 4 (page 95 of the Appeal Record). 24 Major modifications to the offender transfer system were however adopted in 2004 through the International Transfer of Offenders Act, S.C. 2004, c. 21, which modernized and replaced the prior Transfer of Offenders Act. For the purposes of this appeal, the most notable changes introduced in 2004 concern new provisions setting out the purposes of the legislation, and also providing for specific criteria which the Minister must consider in determining whether to consent to the transfer of Cana- dian and foreign offenders. A requirement that reasons be provided when the Minister’s consent is refused was also added. For our purposes, the Divito v. Canada Robert M. Mainville J.A. 97 pertinent provisions of the International Transfer of Offenders Act introduced in 2004 read as follows: 3. The purpose of this Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals. 7. A person may not be transferred under a treaty, or an administrative arrangement entered into under section 31 or 32, unless a request is made, in writing, to the Minister. 8. (1) The consent of the three parties to a transfer — the offender, the foreign entity and Canada — is required. 10. (1) In determining whether to consent to the transfer of a Cana- dian offender, the Minister shall consider the following factors: (a) whether the offender’s return to Canada would constitute a threat to the security of Canada; (b) whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence; (c) whether the offender has social or family ties in Canada; and (d) whether the foreign entity or its prison system presents a serious threat to the offender’s security or human rights. (2) In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister shall consider the following factors: (a) whether, in the Minister’s opinion, the offender will, after the transfer, commit a terrorism offence or criminal organization offence within the meaning of section 2 of the Criminal Code; and (b) whether the offender was previously transferred under this Act or the Transfer of Offenders Act, chapter T-15 of the Re- vised Statutes of Canada, 1985. 11. (1) A consent, a refusal of consent or a withdrawal of consent is to be given in writing. (2) If the Minister does not consent to a transfer, the Minister shall give reasons. 13. The enforcement of a Canadian offender’s sentence is to be continued in accordance with the laws of Canada as if the offender had been convicted and their sentence imposed by a court in Canada. 3. La présente loi a pour objet de faciliter l’administration de la justice et la réadaptation et la réinsertion sociale des délinquants en 98 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

permettant a` ceux-ci de purger leur peine dans le pays dont ils sont citoyens ou nationaux. 7. Le transfèrement d’une personne en vertu d’un traité ou d’une en- tente administrative conclue en vertu des articles 31 ou 32 est subordonné a` la présentation d’une demande ecrite´ au ministre. 8. (1) Le transfèrement nécessite le consentement des trois parties en cause, soit le délinquant, l’entité etrang`´ ere et le Canada. 10. (1) Le ministre tient compte des facteurs ci-après pour décider s’il consent au transfèrement du délinquant canadien: a) le retour au Canada du délinquant peut constituer une menace pour la sécurité du Canada; b) le délinquant a quitté le Canada ou est demeuré a` l’étranger avec l’intention de ne plus considérer le Canada comme le lieu de sa résidence permanente; c) le délinquant a des liens sociaux ou familiaux au Canada; d) l’entité etrang`´ ere ou son système carcéral constitue une menace sérieuse pour la sécurité du délinquant ou ses droits de la personne. (2) Il tient compte des facteurs ci-après pour décider s’il consent au transfèrement du délinquant canadien ou etranger:´ a)a ` son avis, le délinquant commettra, après son transfèrement, une infraction de terrorisme ou une infraction d’organisation criminelle, au sens de l’article 2 du Code criminel; b) le délinquant a déjà et´´ e transféré en vertu de la présente loi ou de la Loi sur le transfèrement des délinquants, chapitre T-15 des Lois révisées du Canada (1985). 11. (1) Le consentement au transfèrement, le refus de consentement et le retrait de consentement se font par ecrit.´ (2) Le ministre est tenu de motiver tout refus de consentement. 13. La peine imposée au délinquant canadien transféré continue de s’appliquer en conformité avec le droit canadien, comme si la con- damnation et la peine avaient et´´ e prononcées au Canada.

c) Do subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act infringe subsection 6(1) of the Charter? 25 As noted above, in order to be transferred from incarceration in a foreign country to incarceration in Canada, the International Transfer of Of- fenders Act requires that an offender who is a Canadian citizen submit a Divito v. Canada Robert M. Mainville J.A. 99

request in writing to the Minister, and such request is subject to refusal by the Minister for certain specified reasons, including reasons related to the security of Canada, to the threat of terrorism, or to the threat of organized criminal activity. 26 The first issue before this Court is whether these provisions of the legislation infringe on subsection 6(1) of the Charter, which enshrines every Canadian citizen’s “right to enter, remain in and leave Canada”. 27 To interpret the right to enter and to remain in Canada guaranteed by subsection 6(1) of the Charter, it is useful to adopt a purposive approach. The often quoted words of Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.), at 344 set out the appropriate analysis to be carried out: This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the char- acter and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. 28 The right of a Canadian citizen to enter and to remain in Canada is one of the most fundamental rights associated with citizenship. The fundamental nature of this right is clearly reflected both in domestic legislation and in international instruments, and has been reiterated on many 100 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

occasions by the Canadian judiciary, most notably by the Supreme Court of Canada. 29 The Citizenship Act, R.S.C. 1985, c. C-29 sets out a detailed and stringent framework for the acquisition of citizenship. Subsection 19(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 specifically provides that every Canadian citizen within the meaning of the Citi- zenship Act has the unqualified and unrestricted right to enter and remain in Canada, and that an officer must allow a person to enter Canada if satisfied that the person is a citizen. The legislative history related to this provision establishes that this is a right which predates the coming into force of the Charter. Section 3 of the Immigration Act, S.C. 1952, c. 325 and R.S.C. 1970, c. I-2, for example, provided for a citizen’s right to “come in to Canada”. 30 The right of British citizens to enter and remain in the royal realm has been a fundamental right since at least the time of the Magna Carta, which forbade the exile of a freeman without lawful judgment. A similar prohibition against arbitrary exile is found in paragraph 2(a) of the Cana- dian Bill of Rights S.C. 1960, c. 44. However, prior to its incorporation in the Charter, the right was subject to legislative override: Co-operative Committee on Japanese Canadians v. Canada (Attorney General), [1947] A.C. 87 (Canada P.C.). The origin of the right can probably be traced back to feudal principles of allegiance to, and protection by, a lord and, ultimately, the reigning monarch. 31 The right to enter and to remain in one’s country of citizenship has also been reiterated in numerous international instruments to which Can- ada is a signatory, including notably the 1948 Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810 (1948), in which paragraph 13(2) provides that “[e]veryone has the right to leave any country, including his own, and to return to his country”, and the 1966 Interna- tional Covenant on Civil and Political Rights, 999 U.N.T.S. 172, in which paragraph 12(4) similarly provides that “[n]o one shall be arbitrar- ily deprived of the right to enter his own country”. 32 Moreover, the Supreme Court of Canada has repeatedly found that the right under subsection 6(1) of the Charter is engaged in the context of extradition proceedings against a Canadian citizen, most notably in Cotroni c. Centre de Prévention de Montréal, supra at pp. 1480-81, United States v. Burns, supra at para. 41; and United States v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761 (S.C.C.) at paras. 28 and 42. This Court has also held in Kamel c. Canada (Procureur général), 2009 FCA 21, [2009] Divito v. Canada Robert M. Mainville J.A. 101

4 F.C.R. 449 (F.C.A.) at para. 15 (leave to appeal to the Supreme Court of Canada refused [2009 CarswellNat 2473 (S.C.C.)]), that subsection 6(1) of the Charter is also engaged when a request for a passport is denied. 33 If a Canadian citizen’s Charter right to remain in Canada under subsection 6(1) is engaged when Canadian authorities seek his extradition in order to face charges and eventual imprisonment in a foreign jurisdiction, it seems logical that the citizen’s right to enter and remain in Canada would also be engaged when that same foreign jurisdiction agrees to transfer that Canadian citizen to Canada in order to serve his sentence here. 34 These legislative provisions, international instruments and court decisions are all strong indications that subsection 6(1) of the Charter is engaged by the impugned provisions of the International Transfer of Of- fenders Act. 35 Nevertheless, the Minister invites us to find that the right to enter and to remain in Canada is not engaged by these legislative provisions. The Minister advances three propositions to support his assertion: 1) the concerned offenders are in any event imprisoned and the legislation simply provides for the management by Canada of the foreign sentences to which the offenders are subject; 2) the offenders would have no right to enter Canada were it not for the legislation; and 3) the international treaty scheme pursuant to which the legislation was adopted provides for the unqualified right of participating states to refuse the transfer of an offender. I find none of these propositions persuasive. 36 Dealing with these propositions in reverse order, the fact that the 1977 Treaty on the execution of penal sentences between Canada and the United States does not qualify the consent which Canada must provide for the transfer of an offender under the treaty has no bearing whatsoever on the constitutional rights of the concerned offenders. First, the treaty was entered into prior to the coming into force of the Charter, and it would be curious indeed if the rights guaranteed by the Charter would somehow be subservient to prior treaty instruments. The Minister has submitted no authority to support such a proposition. Second, though the treaty itself requires the consent of Canada and does not provide for any fettering of this consent, this does not mean that Canadian legislation fettering that consent cannot be adopted. In fact, the Minister’s discretion to consent to an offender transfer was substantially fettered in 2004 through the adoption by Parliament of the International Transfer of Offenders 102 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Act. I see no reason why the Charter itself could not also fetter that discretion. 37 I also reject the proposition that subsection 6(1) of the Charter is not engaged by the legislation since offenders would have no right to enter Canada where it not for the legislation. Though it is true that offenders imprisoned in foreign jurisdictions cannot in fact exercise their right to enter and remain in Canada, this situation results from the superior force of the foreign jurisdiction over the offenders, and not from the loss of the right itself by the offenders. The very purpose of the International Trans- fer of Offenders Act and its related treaty system is to facilitate the repa- triation of offenders to their countries of citizenship, and to thus facilitate, in the case of Canadian citizens, the exercise of their right to enter and to remain in Canada. 38 Finally, this brings me to the proposition that what is at issue in a transfer request under the International Transfer of Offenders Act is not a mobility right, but rather the transfer of the supervision of a prison sentence. 39 Obviously, imprisonment in Canada restricts Charter mobility rights of offenders in Canada. However, we are not concerned here with a restriction on the mobility rights of an offender sentenced in Canada, but rather with the mobility rights of a Canadian citizen incarcerated in a foreign jurisdiction. 40 In the case of an offender incarcerated in a foreign jurisdiction, the restriction on the offender’s mobility rights under the Charter resulting from the foreign incarceration is only effected for the purposes of the Charter after the offender is transferred to Canada pursuant to the Inter- national Transfer of Offenders Act: see section 13 of the act. The definition of “sentence” in the Corrections and Conditional Release Act, S.C. 1992, c. 20 (as amended by the International Transfer of Offenders Act) is instructive in this regard [emphasis added]: “sentence” means a sentence of imprisonment and includes a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Of- fenders Act [...]; « peine » ou « peine d’emprisonnement » S’entend notamment [...] d’une peine d’emprisonnement imposée par une entité etrang`´ ere a` un Canadien qui a et´´ e transféré au Canada sous le régime de la Loi sur le transfèrement international des délinquants Divito v. Canada Robert M. Mainville J.A. 103

41 Prior to a transfer to Canada pursuant to the legislation, from the per- spective of the Charter, no sentence of incarceration restricting mobility rights has been recognized by Canadian authorities. The fact that the Ca- nadian citizen committed an offence in a foreign jurisdiction, and the fact that he is detained in a foreign jurisdiction, do not restrict de jure the right. Consequently, there is no legal restriction to the Charter right resulting from imprisonment in a foreign jurisdiction, though of course there is a practical impediment to the exercise of that right resulting from the foreign imprisonment itself. 42 However, once the foreign jurisdiction expresses its consent to transfer an offender to Canada, that practical impediment is lifted. Thereafter, the only legal restriction to that offender’s right to enter and remain in Canada guaranteed under subsection 6(1) of the Charter is the required consent of the Minister pursuant to the International Transfer of Offend- ers Act. 43 Consequently, an offender’s Charter right to enter and to remain in Canada is engaged once a request for a transfer to Canada is approved by the foreign jurisdiction. This is so notably in light of the fact that the Corrections and Conditional Release Act does not apply to that Canadian citizen prior to the Minister’s consent under the International Transfer of Offenders Act. 44 The Minister recognizes that if the American authorities deported the appellant to Canada, subsection 6(1) of the Charter would be engaged. If this Charter provision is engaged when a Canadian citizen is deported from a foreign jurisdiction to Canada, I fail to grasp why it would not be engaged in the context of a transfer of a Canadian citizen from a foreign jurisdiction. The Minister’s reasoning transforms the foreign sentence of a Canadian citizen into a legal exile from Canada in the event the foreign jurisdiction agrees to allow the Canadian citizen to serve his sentence in Canada. This, in my opinion, is not only contrary to the Charter, but also contrary to the Canadian Bill of Rights, which curtails arbitrary exile. 45 I consequently find that the right to enter and to remain in Canada is infringed by the International Transfer of Offenders Act. 46 In closing on the infringement inquiry, I add that the concerned Char- ter right should not be lightly discarded. As discussed further below, the Charter analysis in this case results in the conclusion that the legislative scheme at issue here is justified under section 1 of the Charter. But this legislative scheme was not the one in force prior to 2004 and may well change in the future. To refuse in principle the engagement of the Char- 104 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ter in all offender transfers to Canada would consequently, in my considered opinion, be contrary to the very purposes which lead to enshrining in the Charter the right of all citizens, even bad citizens, to enter and to remain in Canada. The noble purposes underlying the Charter would be lost if the legislation under which such refusals are made was not subject to scrutiny under section 1. 47 The engagement of the Charter in this case also serves an important purpose even if the impugned provisions of the International Transfer of Offenders Act are justified under section 1. Indeed, the Minister’s power to consent or to refuse such a transfer must be exercised in accordance not only with the provisions of the legislation, but also in accordance with the Charter. Since a Charter right is engaged in these circumstances, the Minister must therefore take into account the offender’s Charter rights, including his rights under subsection 6(1), in reaching his decision: see by analogy with extradition Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170 (S.C.C.) at paras. 36, 38 and 39; N´emeth c. Canada (Ministre de la Justice), 2010 SCC 56 (S.C.C.) at para. 65.

d) Are the impugned provisions of the act justified under section 1 of the Charter? 48 Having found that subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act infringe on the right to enter and to remain in Canada guaranteed under subsection 6(1) of the Charter, it is now necessary to determine if these legislative provisions are justified under section 1 of the Charter. 49 The analysis used for such purpose is the one first set out in the well known case of R. v. Oakes, supra. This analysis has been recently summarized as follows in Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (S.C.C.) at paras. 138-139: The analysis for assessing whether or not a law violating the Charter can be saved as a reasonable limit under s. 1 is set out in Oakes. A limit on Charter rights must be prescribed by law to be saved under s. 1. Once it is determined that the limit is prescribed by law, then there are four components to the Oakes test for establishing that the limit is reasonably justifiable in a free and democratic society (Oakes, at pp. 138-40). First, the objective of the law must be pressing and substantial. Second, there must be a rational connection between the pressing and substantial objective and the means chosen by Divito v. Canada Robert M. Mainville J.A. 105

the law to achieve the objective. Third, the impugned law must be minimally impairing. Finally, there must be proportionality between the objective and the measures adopted by the law, and more specifically, between the salutary and deleterious effects of the law (Oakes, at p. 140; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 889). The s. 1 analysis focuses on the particular context of the law at issue. Contextual factors to be considered include the nature of the harm addressed, the vulnerability of the group protected, ameliorative measures considered to address the harm, and the nature and importance of the infringed activity: Thomson Newspapers Co. v. Canada (Attor- ney General), [1998] 1 S.C.R. 877, and Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33. This said, the basic template of Oakes remains applicable, and each of the elements required by that test must be satisfied. The government bears the onus of establishing each of the elements of the Oakes test and hence of showing that a law is a reasonable limit on Charter rights on a balance of probabilities (see Oakes, at pp. 136-37).

(i) Is the limit prescribed by law? 50 There is no dispute here that the limits to the right to enter and remain in Canada set out in the impugned provisions of the International Trans- fer of Offenders Act are prescribed by law.

(ii) Is the objective or purpose for which the limit is imposed pressing and substantial? 51 The appellant and the intervener both rightfully recognize that the security of Canada and the prevention of offences related to terrorism or to organized crime are pressing and substantial objectives (at paragraph 23 of the appellant’s Memorandum and at paragraph 42 of the intervener’s Memorandum). 52 This is consistent with teachings of the judiciary, notably the Su- preme Court of Canada’s decision in Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3 (S.C.C.) at paras. 85 and 89 to 92 reached in the context of deportation proceedings, and the decision of this Court in Kamel c. Canada (Procureur g´en´eral), supra.

(iii) Is the limit rationally connected to the objective or purpose? 53 There also appears to be a prima facie rational connection between, on the one hand, the security of Canada and the prevention of offences 106 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

related to terrorism or to organized crime and, on the other hand, the authority of the Minister to refuse the transfer of an offender under the International Transfer of Offenders Act. Logic, reason and common sense seem to readily establish a causal relationship between the pressing and substantial objectives at issue and refusing a transfer to an offender whose return to Canada would constitute a threat to these objectives. This rational connection seems moreover clearly established where, as in this case, the offender has been found guilty of serious offences connected to organized criminality. 54 Yet, the appellant and the intervener contend that such a rational connection is not self-evident. Rather, they assert that the safety of Canadi- ans and the security of Canada would be better served by allowing all Canadian offenders imprisoned abroad to be transferred to Canada, including offenders posing threats to the security of Canada or likely to commit terrorist or organized crime offences, thus allowing these offenders to be directly supervised by Canadian authorities pursuant to Can- ada’s correctional system. This, they say, is consistent with the objectives of rehabilitation and reintegration stated in section 3 of the International Transfer of Offenders Act. They therefore contend that Par- liament was irrational and acted contrary to the Charter when it granted the Minister the authority to refuse offender transfers on the basis of threats to the security of Canada, or of likely offences of terrorism or of organized criminality. 55 I do not accept these contentions. Though I do not dispute that Can- ada’s correctional system can, in most circumstances, adequately protect Canadian citizens from convicted terrorists, organized crime members or felons threatening the security of Canada, Parliament has decided that it may be preferable, in certain circumstances, not to allow convicted offenders who pose such threats to be allowed to serve their sentence in Canada. I cannot conclude that this legislative choice is itself irrational. 56 Indeed, I do not find it irrational for Parliament to empower the Min- ister to refuse the transfer of a convicted terrorist if it is reasonable to believe that the incarceration of that terrorist in Canada would result in retaliatory terrorist attacks on Canadian citizens. Likewise, I do not find it irrational for Parliament to empower the Minister to refuse the transfer of an international drug cartel kingpin if it is reasonable to believe that such a transfer would result in attacks on Canadian prison guards or would facilitate the criminal operations of that offender or of his criminal Divito v. Canada Robert M. Mainville J.A. 107

organization. These are clear cases were the Minister could properly refuse a transfer to Canada. 57 Of course, these examples are extreme, and not all the offenders convicted of security or related offences, or of offences related to terrorism or organized crime, pose a threat to Canada or to Canadians should they serve their foreign sentences in Canada. There are some cases which clearly justify refusing a transfer on the grounds set out by Parliament, and other cases where such a refusal would clearly be inappropriate and contrary to the Charter right at issue. Many cases will however fall between these two extremes. This is precisely why Parliament has empow- ered the Minister to decide each individual case on its particular facts, taking into account pertinent circumstances and prescribed factors. 58 The legislative framework in which the Minister’s discretion is exercised is therefore reasonable and it is clearly rationally linked to the pressing and substantial objectives at hand. First, the Minister’s discretion is strongly fettered by specific enumerated factors which must be considered, including notably whether the offender’s return to Canada would constitute a threat to the security of Canada (paragraph 10(1)(a) of the act) or whether the offender will, after the transfer to Canada, commit a terrorism offence or criminal organization offence (paragraph 10(2)(a) of the act). These are serious and important constraints on the Minister’s discretion. Second, the scheme of the legislation allows the offender to make prior representations to the Minister through a written request in which all pertinent factors and circumstances can be addressed (section 7 of the act). Third, the Minister must provide written reasons if he refuses his consent to the transfer (section 11 of the act). Finally, the decision of the Minister is subject to judicial review before the Federal Court, and the decision of that court is itself subject to appeal to this Court and ultimately, in appropriate cases, to the Supreme Court of Canada.

(iv) Does the limit minimally impair the right? 59 The minimal impairment must be understood and analysed keeping in mind that the concerned offender has been found guilty of an offence by a foreign jurisdiction, in this case the United States, and is already incarcerated by that foreign jurisdiction. The legislation only provides for the enforcement of an offender’s sentence in Canada in accordance with the laws of Canada. Consequently, a refusal under the legislation for the pressing and substantial objectives set out therein results in the offender serving his sentence in the foreign jurisdiction in accordance with the 108 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

laws of the jurisdiction in which he committed an offence, rather than in Canada. 60 The principal practical impacts of the refusal are thus twofold: first, the offender will not be incarcerated in Canada, thus limiting potential visits from family and friends in an incarceration facility more easily accessible to them, and second, the offender will lose the benefit of Can- ada’s correctional system, including the benefit of a statutory release, parole or other conditional release under the Corrections and Conditional Release Act which may, in certain circumstances, allow for an earlier albeit supervised release from incarceration than what the offender would have otherwise benefited from in the foreign jurisdiction. 61 Concerning the first practical impact, it is useful to keep in mind that though the Corrections and Conditional Release Act takes into account an offender’s accessibility to his home community and family in inmate placement decisions, it does not guarantee such a placement to offenders in Canada. Though it is preferable for an offender sentenced in Canada to be incarcerated in an institution which is easily accessible for family visits, this is not always possible, and in certain cases not desirable. Conse- quently, the fact that the refusal of a transfer under the International Transfer of Offenders Act could result in the offender remaining incarcerated in a foreign institution which may be more difficult to access for visits from family or friends is not in itself sufficient to constitutionally override the impugned provisions of the act. 62 I now consider the second practical impact. Though for some offenders the loss of the perceived “benefit” of a potential earlier conditional release under the Canadian correctional system may be unfair, I do not agree that this consequence of the transfer refusal is in fact unfair or affects the rights of the offenders to such an extent as to constitutionally invalidate the impugned legislative provision in the context where the offender’s return to Canada would constitute a threat to the security of Canada or would result in a terrorism offence or a criminal organization offence. 63 These offenders have committed offences in foreign jurisdictions. Barring exceptional circumstances, there is nothing unfair or unreasonable in the fact that these offenders are subject to the incarceration sys- tems of the foreign jurisdictions in which they committed their offences. Canada’s entire extradition system is in fact based on this premise. 64 The Supreme Court of Canada has already found that the right to remain in Canada is minimally impaired by extradition procedures which Divito v. Canada Robert M. Mainville J.A. 109

can result in the conviction and incarceration of a Canadian citizen in a foreign jurisdiction. The same logic applies here. As noted by La Forest J. in Cotroni c. Centre de Pr´evention de Montr´eal, supra, at pp. 1488-89: The more serious attack of the respondents is based on the second component of the proportionality test. In R. v. Oakes, supra, Dickson C.J. observed that “the means, even if rationally connected to the objective ... should impair ‘as little as possible’ the right or freedom in question”. The objective of transnational crimes, the respondents say, can, in the circumstances of the present cases, be achieved without infringing on the right set forth in s. 6(1) of the Charter by prosecut- ing them in Canada. The difficulty I have with this approach is that it seeks to apply the Oakes test in too rigid a fashion, without regard to the context in which it is to be applied. It must be remembered that the language of the Charter, which allows “reasonable limits”, invites a measure of flexibility [...] 65 Likewise here, the prevention of threats to the security of Canada, or of offences of terrorism or of organized criminality, invites a measure of flexibility in the analysis.

(v) Is the legislation proportionate in its effect? 66 The fact that a convicted offender would have to serve his sentence in a foreign jurisdiction for crimes committed in that jurisdiction must be assessed in light of the importance of the pressing and substantial objectives reflected in paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act. This is moreover the case since there appears to be no other reasonable method of achieving these pressing and sub- stantive objectives in the case of offenders convicted and incarcerated in a foreign jurisdiction. 67 In circumstances where the transfer “would constitute a threat to the security of Canada” or if “in the Minister’s opinion, the offender will, after the transfer, commit a terrorism offence or criminal organization offence”, it is hard to imagine what other reasonable measure could be devised to impair to a lesser extent the offender’s right.

(e) Conclusions 68 I have concluded that the provisions of paragraphs 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act constitute prima facie infringements to the right guaranteed by subsection 6(1) of the Charter, but are nevertheless reasonable limits to that right as can be 110 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

demonstrably justified in a free and democratic society pursuant to section 1 of the Charter. 69 In deciding a request for a transfer under the International Transfer of Offenders Act, the Minister must thus be alive not only to the terms of the legislation itself, but also to the Charter right of the offender under subsection 6(1). Consideration of the Charter right by the Minister will, in most cases, be subsumed in his consideration of the factors set out in the legislation. 70 Thus, the Minister’s decision is subject to judicial review not only on administrative law grounds, but equally on Charter grounds in light of the fact his decision itself engages a Charter right. The reviewing court’s role is to determine whether the Minister considered the relevant facts and the relevant constitutionally defensible factors set out in the legislation, and reached a defensible conclusion based on those facts and those factors. This is primarily a form of administrative law review to be conducted in accordance with applicable administrative law standards, which of course remain informed by the Charter. This approach does not however change the applicable standard of review, which remains reasonableness. This standard of review does not minimize the protection afforded by the Charter, but rather recognizes that in the case of the international transfer of an offender, the proper assessment under subsection 6(1) of the Charter involves primarily a fact-based balancing test: see by analogy with extradition United States v. Lake, supra at paras. 34 to 41. 71 In this appeal, the appellant does not challenge the reasonableness of the decision of the Minister. The only challenge before us concerns the constitutional validity of the impugned provisions of the legislation. As I have already found, the impugned provisions of the legislation are constitutional. Consequently, I would dismiss the appeal with costs to the respondent.

M. Nadon J.A.:

72 I have had the benefit of reading the Reasons of my colleague Mainville J.A. for dismissing the appeal. While I agree with his disposal of the appeal, I do so on different grounds. More particularly, I agree with his justification analysis under section 1 of the Canadian Charter of Human Rights and Freedom (the “Charter”), but disagree with his conclusion that the International Treatment of Offenders Act (the “Act”) vio- Divito v. Canada M. Nadon J.A. 111

lates the appellant’s right to enter Canada under subsection 6(1) of the Charter. 73 I need not repeat the facts or the submissions which the parties made in support of their respective positions as they have been carefully and thoroughly reviewed by Mainville J.A. 74 Before stating my reasons for dismissing the appeal, it is important to note that the appellant does not challenge the Minister’s decision on any ground other than that the provisions on which the Minister relies in making his decision are unconstitutional. In other words, the appellant does not challenge the Minister’s determination that his transfer to Can- ada to serve out his sentence “would constitute a potential threat to the safety of Canadians and the security of Canada”. Rather, he says that subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the Act — which allow the Minister to consider whether an offender’s return to Canada could constitute a threat to the security of Canada or whether, in the Min- ister’s opinion, the offender will commit, after his transfer, a terrorism or criminal organization offence — violate his right to enter Canada under subsection 6(1) of the Charter and that, as a result, the Minister’s decision cannot stand. 75 In dismissing the appellant’s judicial review application, Harrington J. concluded that subsection 8(1) and paragraphs 10(1)(a) and 10(2)(a) of the Act were constitutional. In so concluding, he relied on the reasons he gave in dismissing the appellant’s son’s judicial review application of the Minister’s decision to refuse his transfer to Canada to serve out his U.S. sentence, in Divito c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile), 2009 FC 983 (F.C.). At paragraphs 12, 13 and 17 of his Reasons, Harrington J. wrote: [12] As I indicated in Kozarov v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 866, [2008] 2 F.C.R. No. 377 at paragraphs 27 and 28, “current restrictions on the mobility” of Mr. DiVito, in this case, “arise from his own actions, his own criminal activities. A natural and foreseeable consequence of a criminal conviction ...”. [28] However the American authorities have put a condition on his transfer. The condition is that he serve his sentence here. Upon his transfer he could not immediately invoke his constitutional right as a citizen to leave Can- ada. His freedom would properly be restricted in accordance with the Corrections and Conditional Release Act. I have come to the conclusion that neither section 8 of the 112 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

International Transfer of Offenders Act which requires the consent of the offender, the foreign entity and Canada, nor subsections 10(1) (b) and (c) which call upon the Minister to consider whether Mr. Kozarov has social or family ties here or whether he left or remained outside Canada with the intention of abandoning Canada as his place of permanent residence offends his mobility rights under the Charter. [13] Consequently, I conclude that the Act does not violate Mr. DiV- ito’s mobility rights. On the contrary, I find, as Justice Kelen did in Getkate v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 965, that the Act constitutes a reasonable limit as can be demonstrably justified in a free and democratic society (section 1 of the Charter). ... [17] The case of Mr. Kozarov illustrates the limits on mobility rights. Mr. Kozarov appealed the decision, but was released by the U.S. authorities before the appeal could be heard. The Court of Appeal refused to hear the case because it was moot: Kozarov v. Canada (Min- ister of Public Safety & Emergency Preparedness) 2008 FCA 185. Similarly, if the U.S. authorities pardoned Mr. DiVito tomorrow, he would have an absolute right to return to Canada. He would even be deported to Canada. 76 To complete the learned Judge’s reasoning, I reproduce paragraph 27 of his Reasons in Kozarov v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 866, [2008] 2 F.C.R. 377 (F.C.) (“Kozarov”):: [27] Mr. Kozarov’s current restrictions on his mobility arise from his own actions, his own criminal activities. A natural and foreseeable consequence of a criminal conviction is that the state in which the offence is committed and in which the offender may be found may incarcerate him. Once Mr. Kozarov serves his sentence, he has the absolute right, as a citizen, to return here. The same holds true if his current sentence were commuted, or if he were pardoned. All citizens, unlike foreigners and permanent residents, have that constitutional mobility right (see Catenacci v. Canada (Attorney General), 2006 FC 539, 144 C.R.R. (2d) 128). 77 Thus, Harrington J. found that the appellant’s right under subsection 6(1) of the Charter was not infringed by the impugned provisions and that, in any event, those provisions constituted a reasonable limit to his right to enter Canada under section 1 of the Charter. Divito v. Canada M. Nadon J.A. 113

78 I substantially agree with Harrington J., but would add the following. 79 First, let me say at the outset that I agree with Mainville J.A. that an immigration officer must allow a person to enter Canada if the officer is satisfied that the person is a Canadian citizen. Thus, if the appellant had been brought to the Canadian border and released unconditionally by the American authorities, there can be no doubt that he would have been allowed to enter Canada. In Cotroni c. Centre de Pr´evention de Mon- tr´eal, [1989] 1 S.C.R. 1469 (S.C.C.), the Supreme Court of Canada held at page 1482 that: “... an accused may return to Canada following his trial and acquittal or, if he has been convicted, after he has served his sentence”. 80 Harrington J. put it similarly in Kozarov at paragraph 27, where he said that Mr. Kozarov would have an absolute right to enter Canada once he had served his sentence in the United States (see also: Getkate v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 965 (F.C.); Curtis v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 943 (F.C.), at paragraph 30). 81 However, the appellant is not simply claiming that Canada must admit him; but rather, he is claiming that Canada must admit him in order to administer his sentence. He makes that claim because the United States has neither pardoned him nor commuted his sentence; its approval of his transfer is premised on Canada undertaking to administer his sentence. 82 I cannot agree with the proposition that Canada is refusing to allow the appellant to enter Canada. Although it is beyond dispute that Canada cannot prevent one of its citizens from entering the country, such is not the situation before us. Rather, Canada is refusing to administer the appellant’s sentence and the result of that refusal is that the appellant is unable to enter Canada because the United States will not release him. In essence, Canada’s refusal to administer the appellant’s sentence does not constitute a violation of his right to enter Canada under subsection 6(1) of the Charter because there is an insufficient causal connection between Canada’s refusal and the appellant’s inability to enter 83 In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (S.C.C.) (“Blencoe”), the Supreme Court held that there must be a “sufficient causal connection” between state action and the harm suffered by a claimant for the Charter to be triggered (paragraph 60) (see also: R. v. B. (D.), 2008 SCC 25 (S.C.C.)). I see no such connection in this case. The appellant’s inability to enter Canada stems from his deci- 114 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

sion to engage in the traffic of cocaine in Florida, the resulting conviction and sentence for that act in the United States and the United States’ demand that Canada administer the remainder of his sentence. None of these actions are, in my view, state actions, since none is “a [matter] within the authority of Parliament” under paragraph 32(1)(a) of the Charter (see: R. v. Hape, 2007 SCC 26 (S.C.C.), paragraph 103). Thus, none of these actions is capable of causing a Charter violation. 84 In other words, Canada’s contribution to the appellant’s inadmissibility to enter Canada is indirect and secondary. The direct causes are his criminal acts, his conviction and sentencing, coupled with the United States’ insistence that Canada administer his sentence. Had the appellant not trafficked cocaine, he would no doubt be able to enter Canada at any time. If the United States did not require Canada to administer his sentence, he would also be able to enter Canada at any time. Consequently, these events are the direct causes of the appellant’s inability to enter Canada. 85 In my respectful view, the Minister’s refusal to administer the appellant’s sentence can only be found to constitute a sufficient cause of the violation of the appellant’s right to enter if it is viewed entirely in isolation from its surrounding context. Such an approach, however, would be inconsistent with the Supreme Court’s approach in Blencoe, where the events leading up to the appellant filing a human rights complaint were found to be central to the Court’s analysis. 86 In Blencoe, a majority of the Court found that the state action at issue was not a sufficient cause of the harm suffered by the claimant and so his Charter rights were not infringed. There, the claimant asserted that the delayed processing of his complaint by the BC Human Rights Commis- sion had caused harm to his psyche and reputation. The Court disagreed, even though, viewed in isolation, this delay caused harm to the claimant. The majority found that the most prejudicial impact on the claimant resulted from the allegations which led to his being ejected from Cabinet and the related media treatment. These events all occurred prior to the government action at issue; that is, before the complaint came before the Commission. Thus, the events leading up to the human rights complaint were central to the Court’s finding that there was an insufficient causal link between the delay by the Commission and the harm suffered by the claimant. 87 Similarly, the appellant’s illegal actions, his conviction in the United States and the latter’s insistence that Canada administer his prison sen- Divito v. Canada Johanne Trudel J.A. 115

tence all occurred before the Minister refused to admit the appellant. Thus, the reasoning in Blencoe is applicable because the appellant is in an analogous position. 88 What the appellant seeks in the present matter is, in my respectful view, a declaration that subsection 6(1) of the Charter grants him a constitutional right to serve his foreign prison sentence in Canada once the foreign country has agreed to transfer him. There is no such right to be found under subsection 6(1). To repeat, the appellant is not asserting his right to enter Canada, but rather is asserting that Canada must allow him to enter so that he may serve the remainder of his prison sentence here. I see nothing in the language of subsection 6(1) of the Charter, or in the authorities which have dealt with that provision, which suggest that that provision includes a right to serve one’s foreign prison sentence in Canada. 89 I therefore conclude that the Minister’s decision refusing to administer the appellant’s United States prison sentence in Canada does not violate his right to enter this country under subsection 6(1) of the Charter. On that basis, I would dismiss the appeal with costs.

Johanne Trudel J.A.:

I agree. Appeal dismissed. 116 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Grewal v. Kaur] Aman Grewal (Applicant) and Simarpreet Kaur (Respondent) Ontario Superior Court of Justice Docket: FS-08-0783-00 2011 ONSC 1812 K. van Rensburg J. Judgment: March 29, 2011 Family law –––– Annulment — Essential validity — Marriage for immigration purposes –––– Husband and wife were married in India on February 9, 2007 — Husband, who was Canadian citizen, returned to Canada and began sponsorship process for wife — In July 2007, immigration approval was obtained and wife came to Canada — Wife became permanent resident of Can- ada — Husband claimed that marriage was entered into by wife for sole purpose of immigrating to Canada — Husband brought application that court annul marriage — Application dismissed — Judgment was issued for divorce — Regard- less of whether dual domicile test or intended matrimonial home was applied, in present case result would be same — Ontario law would apply to determine whether husband’s consent to marriage was valid, as husband was domiciled there at time of marriage and, according to evidence of both parties, Ontario was place where they intended to live after marriage — Issues respecting recognition of marriages for immigration purposes were best addressed by immigration authorities who have mandate and powers of investigation to address such issues, as well as specialized knowledge, including appreciation of practices and norms in various cultures. Immigration and citizenship –––– Admission — Immigrants — Family class — Marriage for immigration purposes –––– Husband and wife were married in India on February 9, 2007 — Husband, who was Canadian citizen, returned to Canada and began sponsorship process for wife — In July 2007, immigration approval was obtained and wife came to Canada — Wife became permanent resident of Canada — Husband claimed that marriage was entered into by wife for sole purpose of immigrating to Canada — Husband brought application that court annul marriage — Application dismissed — Judgment was issued for divorce — Regardless of whether dual domicile test or intended matrimonial home was applied, in present case result would be same — Ontario law would apply to determine whether husband’s consent to marriage was valid, as husband was domiciled there at time of marriage and, according to evidence of both parties, Ontario was place where they intended to live after marriage — Issues respecting recognition of marriages for immigration purposes were best addressed Grewal v. Kaur 117 by immigration authorities who have mandate and powers of investigation to address such issues, as well as specialized knowledge, including appreciation of practices and norms in various cultures. Conflict of laws –––– Family law — Nullity of marriage — Jurisdiction –––– Husband and wife were married in India on February 9, 2007 — Husband, who was Canadian citizen, returned to Canada and began sponsorship process for wife — In July 2007, immigration approval was obtained and wife came to Can- ada — Wife became permanent resident of Canada — Husband claimed that marriage was entered into by wife for sole purpose of immigrating to Canada — Husband brought application that court annul marriage — Application dismissed — Judgment was issued for divorce — Regardless of whether dual domicile test or intended matrimonial home was applied, in present case result would be same — Ontario law would apply to determine whether husband’s consent to marriage was valid, as husband was domiciled there at time of marriage and, according to evidence of both parties, Ontario was place where they intended to live after marriage — Issues respecting recognition of marriages for immigration purposes were best addressed by immigration authorities who have mandate and powers of investigation to address such issues, as well as specialized knowledge, including appreciation of practices and norms in various cultures. Cases considered by K. van Rensburg J.: Ali v. Ahmad (2002), 2002 CarswellOnt 354, [2002] O.J. No. 397 (Ont. S.C.J.) — referred to Asser v. Peermohamed (1984), 40 R.F.L. (2d) 299, 46 O.R. (2d) 664, 12 D.L.R. (4th) 475, 1984 CarswellOnt 251, [1984] O.J. No. 3243 (Ont. H.C.) — referred to 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.) — referred to Ciresi (Ahmad) v. Ahmad (1982), 23 Alta. L.R. (2d) 223, 31 R.F.L. (2d) 326, (sub nom. Ciresi v. Ahmad) 142 D.L.R. (3d) 364, 40 A.R. 542, [1983] 1 W.W.R. 710, 1982 CarswellAlta 234, [1982] A.J. No. 13 (Alta. Q.B.) — referred to Davison v. Sweeney (2005), 2005 BCSC 757, 2005 CarswellBC 1267, 42 B.C.L.R. (4th) 69, 255 D.L.R. (4th) 757, [2005] 9 W.W.R. 698 (B.C. S.C.) — 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 Grewal v. Kaur (2009), 2009 CarswellOnt 7511, 84 Imm. L.R. (3d) 227, 75 R.F.L. (6th) 443, [2009] O.J. No. 5130 (Ont. S.C.J.) — referred to Grewal v. Sohal (2004), 2004 CarswellBC 2787, 2004 BCSC 1549, 246 D.L.R. (3d) 743, 12 R.F.L. (6th) 55, [2004] B.C.J. No. 2487 (B.C. S.C.) — referred to 118 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Iantsis (Papatheodorou) v. Papatheodorou (1970), 1970 CarswellOnt 154, [1971] 1 O.R. 245, 15 D.L.R. (3d) 53, 3 R.F.L. 158 (Ont. C.A.) — followed Johnson v. Smith (1968), 70 D.L.R. (2d) 374, [1968] 2 O.R. 699, 1968 Carswell- Ont 199 (Ont. H.C.) — referred to Kalyan v. Lal (1976), 1976 CarswellBC 108, 28 R.F.L. 229, [1976] B.C.J. No. 299 (B.C. S.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 Kenward v. Kenward (1949), [1950] P. 71, [1949] 2 All E.R. 959, 65 T.L.R. 707, 94 S.J. 50 (Eng. P.D.A.) — considered Kenward v. Kenward (1950), [1951] P. 124, 66 T.L.R. (Pt. 2) 157, 94 S.J. 383, [1950] 2 All E.R. 297 (Eng. C.A.) — referred to Laroia v. Laroia (1986), 1986 CarswellOnt 2208, 54 O.R. (2d) 224, [1986] O.J. No. 2995 (Ont. C.A.) — referred to Leonotion v. Leonotion (1977), 4 R.F.L. (2d) 94, 1977 CarswellOnt 163, [1977] O.J. No. 23 (Ont. C.A.) — referred to Macmillan Inc. v. Bishopsgate Investment Trust (No. 3) (1995), [1996] 1 W.L.R. 387, [1996] 1 All E.R. 585 (Eng. C.A.) — considered McKenzie v. McKenzie (1982), 1982 CarswellOnt 254, 26 R.F.L. (2d) 310, [1982] O.J. No. 30 (Ont. C.A.) — referred to Merriman v. Solomes (1999), 1999 CarswellSask 425, 183 Sask. R. 273, [1999] S.J. No. 421 (Sask. Q.B.) — referred to S. (A.) v. S. (A.) (1988), 65 O.R. (2d) 720, 15 R.F.L. (3d) 443, 1988 CarswellOnt 277, [1988] O.J. No. 1407 (Ont. U.F.C.) — referred to Szechter v. Szechter (1970), [1971] 2 W.L.R. 170, [1970] 3 All E.R. 905, [1971] P. 286 (Eng. P.D.A.) — referred to 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.) — distinguished Torfehnejad v. Salimi (2008), 2008 ONCA 583, 2008 CarswellOnt 4798, 60 R.F.L. (6th) 17, 298 D.L.R. (4th) 191 (Ont. C.A.) — referred to Truong (Malia) v. Malia (1975), 25 R.F.L. 256, 1975 CarswellOnt 267, [1975] O.J. No. 1691 (Ont. H.C.) — referred to Vervaeke v. Smith (1982), [1982] 2 All E.R. 144, [1983] 1 A.C. 145, [1982] 2 W.L.R. 855 (U.K. H.L.) — referred to Statutes considered: Family Law Act, R.S.O. 1990, c. F.3 s. 64(1) — considered Hindu Marriage Act, 1955, No. 25 Generally — referred to s. 5 — considered s. 11 — considered s. 12 — considered Grewal v. Kaur K. van Rensburg J. 119

s. 12(c) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 40 — considered s. 41 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 4 — considered

APPLICATION by husband to annul marriage.

J. Clark, for Applicant L. Sandhu, for Respondent

K. van Rensburg J.: Introduction 1 Aman Grewal and Simarpreet (Simar) Kaur were married in India on February 9, 2007. After the marriage, which was celebrated in a Hindu temple before their family and friends, the couple lived together for forty days, travelling on a honeymoon and to visit extended family. Aman, who is a Canadian citizen, returned to Canada and began the sponsorship process for his wife. In July 2007, immigration approval was obtained. Simar boarded a plane for Toronto, arriving July 21. Three days later, she travelled to Burnaby, B.C. where her brother and aunt lived and where she continues to reside. 2 With her marriage to Aman and arrival in Canada, Simar became a permanent resident of Canada. Aman claims that the marriage was entered into by Simar for the sole purpose of immigrating to Canada, and that Simar never intended to live with him as his wife in this country. Aman asks that the court annul the marriage. 3 Simar asserts that she married Aman with the intention of being his wife and living with him in Canada, and that it was Aman who rejected her after the marriage. She also asserts that if anyone engaged in immigration fraud it was Aman, who married Simar only as part of an exchange marriage for the purpose of bringing his sister Kiran to Canada. Simar seeks a divorce. 4 There is no question that the marriage between Aman and Simar was formally valid under the laws of India, the place where it was celebrated. 120 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

The issue is whether the marriage is essentially valid and whether this Court should annul the marriage. 5 Justice Sproat heard a summary judgment motion in these proceedings in November 20091. He concluded that, assuming that the facts were as contended by Aman, the marriage was valid and could not be annulled under Ontario law. Specifically, Sproat J. held that immigration fraud, where one spouse has married the other for the sole purpose of acquiring citizenship status in Canada, unbeknownst to the other sponsoring spouse who thought they were entering into a genuine marriage and was deceived as to the other spouse’s motivation for entering into the marriage, could not form the legal basis for granting an annulment under Ontario law. Sproat J. followed the 1971 Court of Appeal decision in Iantsis (Papatheodorou) v. Papatheodorou2 to the effect that immigration fraud is not a proper ground for annulment under Ontario law. The court left open the question of annulment, if the laws of India were to apply. 6 At trial Aman contended that, under the laws of India, his marriage to Simar is voidable because his consent was obtained by fraud as to a material fact or circumstance concerning Simar, that is, her intention to marry only to obtain Canadian immigration status. Aman asserted that Indian law would apply under the “dual domicile” test for essential validity. Under the Hindu Marriage Act, 19553, a Hindu marriage in India is voidable, inter alia, where the consent of the petitioner was obtained by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. 7 Simar denied a fraudulent intention in marrying Aman and she asserted that, in any event, the law of Ontario would apply to the issue of consent, and, as Sproat J. had already determined, under our law the marriage could not be annulled for immigration fraud. In the alternative, she claimed that even under the laws of India, the marriage would be essentially valid. 8 The witnesses at trial were the parties and Surjit Grewal, Aman’s adoptive mother, who testified about the circumstances leading up to and following the marriage. Two lawyers from India, Parijat Sinha and Amit

1[Grewal v. Kaur] [2009] O.J. No. 5130 (Ont. S.C.J.). 2(1970), [1971] 1 O.R. 245 (Ont. C.A.) [hereinafter Iantsis]. 3Act 25 of 1955, 18 May, 1955. Grewal v. Kaur K. van Rensburg J. 121

Chaudhary, also testified, having been qualified as expert witnesses on the question of foreign law; that is, on the interpretation and application of the Hindu Marriage Act.

Issues at Trial 9 The issues for the court to determine after trial were the following: 1. What were the parties’ intentions in entering the marriage? (a) Did Simar marry for the sole purpose of immigration, without intending to remain married to Aman? (b) If so, was Aman’s consent to the marriage procured by misrepresentation or fraud? (c) If there was misrepresentation or fraud, was Aman an active participant? 2. What is the law of India with respect to the issue of “consent”? In particular would the marriage lack essential validity under Indian law where one party, unknown to the other, married only for immigration purposes with the intention of leaving the marriage once that objective was achieved? 3. What law or laws are applicable in determining whether the marriage between Aman and Simar is essentially valid? 4. Should the marriage be annulled, or should the court grant a divorce?

Decision 10 For the reasons that follow I dismiss the applicant’s claim for an annulment and instead grant a divorce. 11 I have found on the evidence that, while Aman was motivated to marry Simar in part by his desire to bring his sister to Canada, through an exchange marriage involving Simar’s brother, his intention was to live together with Simar in Canada as a married couple. By contrast, Simar’s sole intention in entering the marriage was to secure her immigration to Canada, and she did not intend to remain in the marriage once her objective was achieved. In this regard, there was misrepresentation and fraud on the part of Simar in entering the marriage, without which Aman would not have proceeded with the marriage. 12 I have concluded that the proper law to apply in determining the essential validity of this marriage, that is whether Aman’s consent was vitiated by fraud or misrepresentation, is the law of Ontario. The law of On- 122 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

tario applies, under conflict of laws rules, because Aman, whose consent is at issue, was domiciled in Ontario at the time of the marriage. As such, I have applied the “dual domicile” test; that is, the validity of each party’s consent is to be assessed under the laws of their respective premarital domicile. The same result would follow if the law of the parties’ intended matrimonial home were applied. 13 As Sproat J. has already determined in this case, our law does not recognize immigration fraud as a ground for annulment of marriage. I find on the evidence in this case that the law of India (Simar’s premarital domicile), may take a broader approach to questions of misrepresentation and fraud, however that law does not apply, as the validity of Simar’s consent to the marriage is not at issue. 14 A divorce is granted based on the parties’ separation for more than one year.

Relevant Facts 15 The chronology of what occurred between Aman and Simar is straightforward. The basic facts are not in dispute. What is at issue is the intention of each party in entering the marriage. 16 Aman is now 30 years old and a Canadian citizen. He was born in India and came to Canada when he was adopted by his aunt, Surjit Grewal, when he was eight years old. Aman has a high school education and is currently employed in sales. 17 Simar was born in India where she lived until her immigration to Canada in July 2007. Simar is 31 years of age. She is well-educated, having commenced her studies toward a Ph.D. while living in India. 18 Aman was married and divorced twice before his marriage to Simar. Although he described these marriages as “love marriages”, in each case he married a woman in India that he met in person shortly before the wedding. He sponsored his first wife in 2000 and they were divorced in 2002, separating a few months after her immigration to Canada. He did not sponsor his second wife, whom he married in 2004 and divorced in 2005. 19 In the summer of 2006 there was interest on the part of Aman’s family and Simar’s family to enter into what was described as an “exchange marriage”. Aman’s adoptive mother Surjit was eager to assist her niece Kiran (Aman’s sister); and Simar’s aunt, Balbir Dhaliwal, who lived in B.C., was eager to help her niece. In both cases they wanted their nieces Grewal v. Kaur K. van Rensburg J. 123

to immigrate to Canada, and each had a marriageable adoptive son. As Surjit explained at trial, this would help both families, as Kiran and Si- mar could then sponsor other family members to immigrate to Canada. 20 Surjit and Balbir contacted one another through ads placed in a Pun- jabi language newspaper. Over time the two developed a close relationship, working together to make other introductions before contemplating the marriage of Simar and Aman, as well as a marriage between Simar’s biological brother Harminder, and Kiran. 21 In the fall of 2006 Aman travelled to India, where he met Simar and her family. While the decision to marry was ultimately their own, they were influenced by their families’ preferences and interests. The families were satisfied, and Aman and Simar got along well and so they decided to marry. 22 Ultimately, the marriage between Simar and Aman took place in In- dia on February 7, 2007. The marriage met all formalities under the laws of India. There was a traditional Sikh wedding ceremony in a gurdwara near Ludhiana in the state of Punjab. A priest presided and they performed the usual rites and exchange of vows, which included the promise by the couple to live together for the rest of their lives. There was a re- ception with more than 300 people that took place in a banquet hall. The families exchanged gifts. Surjit Grewal, Aman’s adoptive mother, travelled to India for the marriage. 23 After the wedding Aman and Simar went on a honeymoon and spent time with relatives. In all, they were together for 40 days after the marriage. Aman returned to Canada March 20 to begin the sponsorship process. Simar returned to her parents’ home pending her immigration. 24 One week after Aman and Simar’s marriage, Aman’s sister Kiran married Simar’s brother, Harminder. This marriage also was attended by many guests, gifts were exchanged and the couple went on a honeymoon. Harminder’s adoptive family travelled from B.C. to India for the marriage. Harminder returned to Canada at the end of February in the company of Surjit Grewal. 25 Surjit took care of the paperwork for the sponsorships of both Simar and Kiran, and she paid the fees for both applications. The sponsorship application and the application for permanent residence status for Simar were completed on May 1, 2007. There were some delays in Harminder’s application to sponsor Kiran. This application contained some errors and the immigration authorities asked for more information. Surjit hired a lawyer in Brampton to assist with both applications. She 124 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

travelled to Vancouver to obtain Harminder’s papers. Harminder co-operated in the process and his application to sponsor Kiran was submitted in late May. 26 Aman tracked the progress of his sponsorship application on the internet. Simar’s application for permanent residence status was processed very quickly. The sponsorship was approved by the Canadian authorities on June 14. On July 17 Simar received her visa. 27 Aman and Surjit became suspicious when Simar had not contacted them to share the news about her visa. When they called India her family claimed she was ill and out of town. 28 Aman decided to travel to India. He sent Simar an email on July 19th that stated, “Hey Simar, I heard the good news about the visa. I’m so happy. I just wanted to let you know that I booked my flight and I’ll be there soon. That way you, Bibi [Aman’s grandmother] and me can come back together. Can’t wait to see.... Love, Aman”. 29 Aman travelled to India on July 21. On his arrival he called Simar’s house and was told that Simar was in another city, and still not feeling well. He checked on the internet and discovered that Simar had already landed at Pearson Airport on July 21. 30 Simar arrived at Toronto Pearson Airport on July 21, the same day Aman departed for India. She was picked up from the airport by her father’s friend from Hamilton. While she had entered Canada using Surjit’s address, two days later she changed her address with Canada Post to her aunt’s address in B.C. On July 24 she flew to Vancouver, and since then has resided in Burnaby. 31 Harminder’s sponsorship of Kiran was approved in Canada on July 10, 2007, and the application for permanent residence was forwarded at that time to the visa office in New Delhi for further processing. In No- vember 2007 Harminder withdrew the application.

1. Simar’s Intention in Marrying Aman 32 Simar’s almost immediate travel to B.C. on her arrival in Canada suggests that she never intended to live with Aman, and that she married him only to obtain immigration status in Canada. 33 Simar testified at trial that she married Aman with the intention of being married and living with him as his wife in Canada. She described the couple’s courtship in India and their friendly email and telephone communications after the marriage and before her immigration. She Grewal v. Kaur K. van Rensburg J. 125

stated that she had wanted to marry Aman, to live in Mississauga and to have children, however the parties’ relationship broke down between the date of the marriage and her arrival in Canada. 34 Simar offered a number of explanations for the breakdown of the marriage and her decision to travel to B.C. as soon as she arrived in Can- ada. She claimed that she had been rejected by Aman, whose relatives had mistreated her after the marriage, calling her names and taunting her with the fact that Aman had married her only to secure his sister’s immigration to Canada. In her Answer and Amended Answer, she asserted that Aman and his family committed acts of mental cruelty and contempt that led to the failure of the marriage “in September 2007” (not July 2007 when she had arrived in the country). 35 Simar also contended that her brother had gotten cold feet when he discovered that there had been previous attempts to bring Aman’s sister, Kiran, to Canada, and that he was backing out of sponsoring Kiran. It was this development that had angered Aman’s family and turned Aman against her. The reason she went to B.C. was to plead with her brother, Harminder, to sponsor Kiran, in an effort to save her marriage. 36 Simar asserted that her aunt purchased her ticket for the flight to B.C. only after she was already in Canada. Aman’s family had not come to fetch her at the airport, and she learned in a telephone call home that he was in fact in India. She believed he would travel to B.C. to get her after he returned. It was only when he did not do so, that she concluded that he did not want to be married to her. 37 There are a number of problems with Simar’s account. First, there is no evidence that Harminder had done anything to jeopardize his sponsorship of Kiran before Simar came to Canada. At the time Simar entered Canada, Kiran’s application had received approval by the Canadian immigration authorities and the sponsorship was proceeding, albeit more slowly than her own. Harminder only withdrew the application in the fall of 2007, several months after Simar had entered the country. 38 There was no evidence to corroborate Simar’s account. Before trial she had undertaken to produce her aunt’s credit card statements that might have shown when her ticket to B.C. had been purchased. The statements were never produced, and Simar suggested that her aunt had paid cash for the ticket. The aunt did not testify at trial and had refused to provide copies of her credit card statements, according to Simar, because the two had a falling out. Harminder’s evidence was also not available at trial, with the explanation that his medical condition prevented his travel 126 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

to Ontario. The family friend from Hamilton who had picked up Simar at the airport, allegedly after she had called Aman’s home and no one had responded, was also not called as a witness to corroborate Simar’s testimony. 39 Other evidence called into question Simar’s account. In a letter written by her aunt Balbir to Aman’s lawyer in January 2008, that appeared to have been signed by Balbir and Simar, a claim was made for fraud, dowry and defamation. Simar said she knew nothing of the letter and denied signing it. Simar’s family filed a police report in India in August 2008 in which they claimed that when she arrived in Canada she had been kidnapped by Aman’s family. Simar admitted there was no truth to this allegation. The police report also contained complaints about various and increasing dowry demands. 40 None of the allegations in the police report or the letter formed part of Simar’s evidence at trial, although some of the allegations had been repeated in her Answer in these proceedings. Although Simar tried to distance herself from the prior allegations which were extreme and exaggerated, her explanations and her efforts to do so were unconvincing. 41 Simar testified that when she arrived in Canada she thought Aman would be at the airport waiting for her, notwithstanding that she believed he did not want to continue in the marriage with her. She claimed that she had called his house and that no one had answered, but she did not leave a message on the answering machine. Simar also testified that, after Aman had not collected her at the airport, her father informed her that Aman was in India and he advised her to take three wise men to sit down and talk to Aman’s family. She had not followed the advice, but instead had travelled to B.C. She had not informed Aman of her whereabouts and made no further efforts to contact him after travelling to B.C. 42 Simar testified that she called Aman on July 17 to tell him that she had received her visa. He told her that she could not come until her sister had arrived in Canada, and that he was travelling to India to obtain her papers and passport. She identified a receipt dated July 17, 2007, that she said was from a call she made from a public telephone booth to Aman’s cell number. If Simar did speak with Aman that day, it is clear that she had not disclosed her travel plans. Whatever Aman’s motivation was in travelling to India, it is unlikely he would have departed on a flight from Canada on July 21 if he had known Simar was to arrive in Canada on the same day. Grewal v. Kaur K. van Rensburg J. 127

43 I find that Simar’s sole purpose in marrying Aman was to immigrate to Canada and that she never intended to live with him in this country as his wife. I do not accept her testimony as to why, after arriving in Can- ada, she went immediately to B.C. She gave inconsistent and contradictory explanations for the breakdown of the marriage. On the one hand she suggested that she had been verbally abused by Aman’s family, that she had concluded that he only married her to gain Kiran’s admission to Canada, while on the other hand, she claimed that she was trying to save the marriage. Her conduct in travelling to B.C. and initiating no further contact with Aman was inconsistent with any such intention.

2. Aman’s Intentions in Marrying Simar 44 Aman testified that he married Simar with the intention of sponsoring her immigration to Canada and living with her as her husband. He recognized that there were no guarantees but he felt that they could try to make the marriage a success. 45 Aman explained why he had agreed to the marriage. He acknowledged that his aunt had made the initial contacts and he was willing to travel to India to meet Simar. He also acknowledged that they hoped for a marriage exchange, and that he was eager to have his sister Kiran immigrate to Canada. He also testified that he was ready for marriage and had a preference for Indian girls. Aman was able to explain what he found attractive in Simar after meeting her. The expression of his embar- rassment and feelings of betrayal as a result of Simar’s conduct seemed genuine. 46 I accept Aman’s account which was corroborated by the evidence of Surjit Grewal. I found both to be generally credible witnesses. There was no question from their evidence that one of the factors motivating the marriage between Aman and Simar was to secure Kiran’s immigration through her marriage to Simar’s brother. That is, Simar was an attractive prospect for marriage to Aman because she had a marriageable brother in Canada. 47 Efforts were made at trial to suggest that Aman’s only objective in marrying Simar was to secure his sister’s immigration, and that this had been concealed from Simar. There was some evidence to suggest that Kiran had been married twice before, and that there had been problems with her sponsorship. One of the marriages had the appearance of an exchange marriage, with Aman marrying a day or two earlier. 128 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

48 It was also suggested that one or both of Aman’s earlier marriages had been for immigration purposes - that he married and divorced his first wife who subsequently married one of his cousins. The evidence to support these allegations was tenuous; in any event, it was not the func- tion of the court in this case to determine whether Aman’s earlier marriages were genuine. The only relevance of this history is to the extent that it might shed light on Aman’s intentions in entering the marriage with Simar. That is, was he a participant in a fraudulent plan to marry simply to bring Simar and his sister into Canada, without intending to remain in the marriage? Was this marriage simply part of a pattern on Aman’s part of entering into marriages for the sole purpose of immigration and then abandoning such marriages once the purpose was achieved? 49 Aman became suspicious of Simar’s intentions a few weeks before her visa was received. He testified that her communications with him became more abrupt, business-like and infrequent, and this was borne out by copies of the couple’s email messages. He eventually decided to travel to India after he had found out about Simar’s visa and her family was making excuses about her inability to come to the phone. Aman testified that he travelled to India to make sure that his marriage was okay. Aman booked flights with a return date several weeks in the future. A fair inference is that, depending on what he discovered, Aman intended to prevent Simar from travelling to Canada. 50 I find, after considering all of the circumstances, including the history of Aman’s first two marriages that ended in divorce, that Aman would not have married Simar had he known that she planned to leave the marriage on her arrival in Canada. Having regard to his history of two marriages and divorces, it would have been a risky course of conduct for him to marry Simar only to obtain a divorce on her arrival in Canada. 51 While Aman may have been motivated in part by a desire to secure his sister’s immigration to Canada, I accept his evidence that he had a genuine desire to marry Simar and as he said “to see if it would work”. While the marriage may have helped to secure his sister’s immigration, he had a bona fide intention to be married to Simar. I conclude that he did not marry Simar for the sole purpose of facilitating her immigration and that of his sister, and if he had known that Simar intended to leave the marriage upon immigrating to Canada, he would not have married her. Grewal v. Kaur K. van Rensburg J. 129

Analysis 1. Jurisdiction to Annul the Marriage 52 The first question to be addressed is whether this court would have jurisdiction to grant an annulment at the request of the applicant. That is, is it sufficient to ground jurisdiction that the applicant is domiciled in Ontario? 53 In the past there was a distinction between marriages alleged to be void and those that were voidable. Any court was considered to have jurisdiction to declare a marriage void, as a void marriage was considered a nullity everywhere and for all purposes. By contrast, a voidable marriage would have to be brought to an end by a court where both parties were domiciled or were resident: Feiner v. Demkowicz4. 54 Under the common law a wife was considered to have acquired the domicile of her husband upon marriage, and this continued in the case of a voidable marriage until the marriage was annulled. 55 The unity of legal personality upon marriage has been abolished by s. 64(1) of the Family Law Act, R.S.O. 1990, c. F.3. As a result the authorities suggest that the domicile of either spouse will ground jurisdiction in annulment cases irrespective of whether the marriage is void or voidable. In Castel & Walker, Canadian Conflict of Laws5, at s. 17.4a, the authors observed: Now that the rule that upon marriage the wife acquires the domicile of her husband has been abolished, the distinction between void and voidable marriages is relevant only to jurisdiction based upon the place of celebration, matters of choice of law in nullity proceedings, and the recognition of foreign nullity decrees. 56 The authors of J. Payne and M. Payne, Canadian Family Law6 at 30 (citing, among other cases Davison v. Sweeney,7 noted: “Canadian courts may assume jurisdiction in nullity proceedings, whether the marriage is void or voidable, if either party is domiciled within the territorial juris-

4(1973), 2 O.R. (2d) 121 (Ont. H.C.). 5Janet Walker, ed., Castel & Walker, Canadian Conflict of Laws, 6th ed. vol. 2 (Markham: LexisNexis, 2005). 6Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 2d ed. (Ottawa: Irwin Law Inc., 2006). 72005 BCSC 757 (B.C. S.C.) 130 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

diction of the court at the commencement of the proceedings, or if the respondent is bona fide resident within the jurisdiction of the court...”. 57 I am satisfied that this court would have jurisdiction to grant an annulment based on Aman’s domicile in Ontario.

2. The Conflict of Laws Question 58 The next step in the conflict of laws analysis is to describe the legal nature of the problem according to the law of the forum or the lex fori.8 59 In this case the issue is best characterized as a question of “consent”. There is no question that Aman and Simar had the capacity to consent to the marriage. The question is whether Simar’s immigration fraud affected the essential validity of the marriage; that is, was Aman’s consent vitiated by Simar’s misrepresentation as to her purpose for the marriage? 60 While the law of India, where the marriage was celebrated (the lex loci celebrationis), would apply in determining the formal validity of the marriage, such law would not necessarily apply to determine its essential validity. 61 The essential validity of a marriage is comprised of the legal capacity to marry (prohibited degrees of consanguinity and affinity and prior subsisting marriage; non-age; ability to consummate the marriage) and consent (capacity to understand, absence of duress, absence of mistake/fraud). The law of the same jurisdiction will not necessarily apply to each of these factors. 62 It has already been determined in this case that the marriage would be valid under Ontario law if Aman’s consent was procured by Simar’s fraud and misrepresentation. Accordingly, if the law of Ontario is applicable to determine the issue of essential validity, the marriage could not be annulled. It is only if the marriage could be annulled under Indian law, and if that law applies to the question of consent in this case, that an annulment could be granted.

8The conflicts analysis that begins with characterising the issue according to the lex fori is explained in Macmillan Inc. v. Bishopsgate Investment Trust (No. 3) (1995), [1996] 1 All E.R. 585 (Eng. C.A.) (cited with approval in Castel & Walker, Canadian Conflict of Laws at paras. 1.16 and 3.1). Grewal v. Kaur K. van Rensburg J. 131

3. What is the Applicable Law of India? 63 It was the position of Aman’s counsel at trial that Indian law would apply to determine the essential validity of the marriage, and that under Indian law the marriage would be voidable by reason of Simar’s misrepresentation having induced Aman’s consent to the marriage. 64 Simar’s counsel asserted that Ontario law would apply, and that in any event, the marriage would not be capable of being annulled under Indian law. 65 The parties called expert evidence at trial as to the applicable laws of India. As Sikhs, Aman and Simar were subject to the Hindu Marriage Act, 1955. Two lawyers from India testified at trial as expert witnesses on the question of the Hindu laws of marriage, annulment and divorce. 66 Both experts considered the relevant provisions of the Hindu Mar- riage Act. Section 5 sets out certain conditions for a valid Hindu marriage, and section 11 provides that marriages that are in contravention of certain prescribed conditions (such as neither spouse having a spouse living at the time) are void. 67 Section 12 of the Act provides for voidable marriages that may be annulled by a decree of nullity on certain grounds. These include where (c) “the consent of the petitioner ... was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent”. 68 Parijat Sinha offered the opinion that under the laws of India, an annulment would be granted in circumstances where one party married only to obtain immigration status, concealing her intention to leave the marriage once such status was obtained. Mr. Sinha referred to various reported cases from courts in India involving declarations of annulment in cases of non-disclosure of such matters as premarital divorce status, a husband having undergone a vasectomy, a prior annulment on the ground of unsoundness of mind, a party suffering from an abhorrent disease and the employment status of the husband. According to Mr. Sinha, age, edu- cational qualifications, income, caste, marital status, family status, financial status, religion and nationality have been found to be material facts and circumstances for the purposes of marriage under the relevant law of India. 69 Mr. Sinha testified that a marriage solemnized under the Hindu Mar- riage Act is both a contract and a sacrament and that consent is an essential element of a valid marriage in India. Where a marriage was for the 132 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

sole purpose of immigration with the intention to then leave the marriage, the marriage would be voidable at the option of the innocent party on the grounds of fraud “as to a material fact or circumstance concerning the respondent”. 70 Amit Chaudhary testified that there is no precedent under Indian case law for the annulment of a marriage based on immigration fraud, or even on any other fraudulent purpose for a marriage. He asserted that the court in India would be concerned with misrepresentation as to objective facts, but not as to the subjective motive or intent of a party when entering a marriage. Based on his reading of the Hindu Marriage Act and the relevant case law, a marriage would not be voidable if procured by fraud as to a party’s intentions. Mr. Chaudhary relied on a passage from P. Di- wan, Modern Hindu Law, that states that, based on a combined reading of sections 5, 11 and 12 of the Act, consent is not an important element of a Hindu marriage. Nevertheless, s. 12 does provide a remedy of annulment where consent is procured by fraud in certain circumstances. 71 I accept for the purpose of this decision that on the evidence provided by Mr. Sinha, which I prefer over that of Mr. Chaudhary, a court in India in circumstances where one party has withheld vital information such as an intention not to continue living with the other partner that existed at the time of the marriage, might well grant an annulment. 72 I note that the Hindu Marriage Act provides for the termination of a marriage by divorce or declaration of annulment in a wide range of circumstances that would not be recognized under the Canadian law of annulment or divorce. I confess to some concern about being asked to apply in our jurisdiction a foreign law affecting marital status outside of its cultural context. 73 The court has jurisdiction to refuse to apply a foreign law on public policy grounds.9 Indeed in the present case, the respondent’s counsel urged this court to refuse to apply Indian law for public policy reasons, even if under the proper conflicts analysis such law would be applicable. He argued that unequal treatment of residents of Canada would result if the court were to apply disparate and contradictory laws of foreign juris-

9See Canadian Conflict of Laws, at para. 8.6: “Canadian courts will not recognize or enforce a foreign law or judgment or a right, power, capacity, status or disability created by a foreign law that is contrary to the forum’s fundamental public policies, its ‘essential public or moral interest’, or its ‘conception of essential justice and morality’” (case citations omitted). Grewal v. Kaur K. van Rensburg J. 133

dictions. There may be a variety of circumstances in which our courts might refuse to enforce laws of marriage and dissolution of marriage from other jurisdictions, including concerns about cultural and religious norms that are inconsistent with fundamental Canadian values. It is unnecessary however to address such concerns in this case, as I have concluded that the law of Ontario applies with respect to the issue of Aman’s consent to the marriage.

4. Which Law Applies to the Question of Consent? 74 There has been a great deal of debate and discussion in the case law and among academics as to what law should apply to determine the essential validity of a marriage. The lack of a single coherent approach may result from the fact that the validity of a marriage can be questioned in a variety of legal contexts - in determining rights of inheritance in estates matters, in claims of bigamy, in questions of compellability of spouses as witnesses, in determinations of citizenship and nationality and for entitlement to social security benefits. In certain situations there may be a strong disposition toward finding a marriage valid (such as, histori- cally, for the determination of legitimacy of children). As a practical matter, different aspects of essential validity, such as consent and non- age, may warrant different analytical approaches to the choice of law question. 75 One approach is to apply the law of the domicile of each party at the time of the marriage. Under the “dual domicile” theory, if the marriage was not essentially valid under the law of each party’s prenuptial domicile, the marriage is voidable. This is the approach put forward by the authors of Dicey, Morris and Collins on the Conflict of Laws10. This view is based on the idea that the community to which each party belongs is most interested in his or her status. 76 In dealing with the issue of consent, under the dual domicile test, a marriage would be invalid if either party’s consent were vitiated under the law of their antenuptial domicile. In the 1949 U.K. decision in Kenward v. Kenward11, the Court stated that since marriage is a volun- tary union, the question of consent is to be determined by applying the

10Dicey, Morris & Collins on the Conflict of Laws 14th ed. (London: Sweet & Maxwell, 2006). 11[1949] 2 All E.R. 959 (Eng. P.D.A.) (rev’d on appeal at [1950] 2 All E.R. 297 (Eng. C.A.), but not on this point). 134 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

personal law of each party at the time of the marriage. See also Szechter v. Szechter12. 77 In Canadian Conflict of Laws, the authors state at para. 16.4: “A marriage is invalid if it is invalid under the law of either party’s antenuptial domicile on the ground of that party’s lack of consent”. Kenward and Szechter are cited as authorities, noting however that in each case the law of the domicile coincided with the law of the place where the marriage was celebrated. In Davison v. Sweeney, supra, the law of a party’s antenuptial domicile was applied where the issue was capacity to consent. 78 An alternative approach to the choice of law question is to apply the law of the parties’ intended matrimonial home. This is the approach favoured by the authors of Cheshire, North & Fawcett, Private Interna- tional Law13. The principle underlying this 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. This approach was commented on but not endorsed in Feiner v. Demkowicz, and was applied in 1990 by the Federal Court of Appeal in Canada (Minister of Employment & Immigration) v. Narwal14. 79 Other cases and commentators have suggested that the law of the place with which the marriage has the most real and substantial connection should govern the “quintessential validity” of the marriage (per Lord

12[1970] 3 All E.R. 905 (Eng. P.D.A.). 13James Fawcett, Janeen Carruthers & Peter North, Cheshire, North & Fawcett, Private International Law 14th ed. (Toronto: Oxford University Press, 2008). 14[1990] 2 F.C. 385 (Fed. C.A.). In that case, the Court upheld as valid a marriage that would have been prohibited under the law of India, where the husband was domiciled in India and the parties married in the United Kingdom. The court applied Canadian law as the law of the parties’ intended matrimonial home, under which the marriage was legal. (The issue in that case was prohibited degrees of affinity and not consent.) In Kaur v. Canada (Minister of Employment & Immigration), [1990] F.C.J. No. 922, 12 Imm. L.R. (2d) 1 (Fed. C.A.), the Federal Court of Appeal characterized the matrimonial home theory as new, alternative and exceptional and suggested it would apply only in special circumstances. Grewal v. Kaur K. van Rensburg J. 135

Simon in the House of Lords in the 1982 case Vervaeke v. Smith15.) In the U.S. the choice of law for validity of marriage, under the Restatement of Conflict of Laws16, s. 283(1) is determined “by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage”. 80 On the choice of law issue for the question of consent, I find persuasive the comments of Professor Alan Reed in “Essential Validity of Mar- riage: The Application of Interest Analysis and Depecage to Anglo- American Choice of Law Rules”17 at 445: The most affected state in the consent equation, which has the greatest concern in protecting the denuded party from the effects of defective consent, will be the pre-nuptial domiciliary law of that individual immediately prior to the marriage celebration. In essence, it would be futile to unwillingly hold such an individual embedded to a marriage, which according to the tenets of his own community is defective. That community, which governs his personal status, is most impli- cated in effecting the well-being of their own domiciles, and the aggrieved party should have the degree of protection accordingly laid down by their own personal law. This meets with the reasonable expectations standard in that whether a marriage is defective or not can legitimately be tested by the party’s community to which he belongs at the time of the marriage ceremony. The focus of the policy sensitive analysis herein is to suitably protect an aggrieved party, and unlike the impediments of consanguinity and polygamy, is not to propa- gate the public interest requirements of the established matrimonial residence. For this category in the pantheon of essential validity, the intended matrimonial home test seems wholly devoid of merit. The preferred option of pre-nuptial domiciliary law needs to be adopted in a salutary fashion. In circumstances where the marriage relationship is not defective by the petitioner’s own personal law, it would be fallacious for him to superimpose attenuated protection through reliance on principles conferred by the law of the other party’s domicile, at some third state law. Governance of these issues ought to be in accordance with the extant personal law of the allegedly non-consenting party,

15(1982), [1983] 1 A.C. 145 (U.K. H.L.). 16American Law Institute, Restatement of the Law Second, Conflict of Laws (St. Paul: ALI, 1971). 17(2000), 20 N.Y.L. Sch. J. Int’l & Comp. L. 387. 136 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

with the stipulated grounds only subsisting in favour of that particular individual.... 81 Regardless of whether the dual domicile test or the intended matrimonial home is applied, in the present case the result will be the same. On- tario law would apply to determine whether Aman’s consent to the marriage was valid, as Aman was domiciled there at the time of the marriage and, according to the evidence of both parties, Ontario was the place where they intended to live after their marriage. 82 The applicant’s attempt to invoke and to rely upon Indian law in this case was misplaced. He was seeking, as Professor Reed put it, “attenuated protection through reliance on principles conferred by the law of the other party’s domicile”. There is no basis for Aman to invoke the laws of India with respect to the issue of his own consent to marriage. Applying the dual domicile test would result in the law of Ontario applying to the issue of Aman’s consent and the law of India applying to the issue of Simar’s consent. The victim of fraud is Aman, however he is not entitled to the extended protection that might be afforded under s. 12 of the Hindu Marriage Act, the law of Simar’s premarital domicile. 83 As authority for the application of Indian law in this case, the applicant’s counsel relied on the decision of Greer J. in Torfehnejad v. Salimi18, which was upheld on appeal to the Court of Appeal. In that case the court granted an annulment in circumstances where the wife, when domiciled in Iran, had entered into a marriage in Iran with a Cana- dian domiciliary for the sole purpose of immigrating to Canada. 84 On the evidence, Greer J. found that under Iranian law marriage is a contract, and that there is no religious element to the ceremony. Since fraud would vitiate a contract, the marriage should be annulled. The court looked to Iranian law, as the lex loci celebrationis. to understand the essence of the marriage, i.e. that it was a contract, and then concluded that the respondent’s fraud vitiated the applicant’s consent to the contract. This was the effect under Iranian law as proven to the court and also under the law of the forum, when considered in respect of contracts. In that case, a feast or celebration to recognize the legitimacy of the marriage had never taken place, so arguably the marriage was not formally valid under the lex loci celebrationis.

18Torfehnejad v. Salimi, [2006] O.J. No. 4633, 32 R.F.L. (6th) 115 (Ont. S.C.J.), aff’d 2008 ONCA 583, 60 R.F.L. (6th) 17 (Ont. C.A.). Grewal v. Kaur K. van Rensburg J. 137

85 Torfehnejad is factually different from the present case, in a number of respects, including the fact that the parties had never cohabited in Canada or elsewhere. In Torfehnejad, the Iranian law that was accepted by the court permitted a purely contractual analysis. In the present case, both experts testified that a Hindu marriage is both a contract and a sacrament. As such, whether the marriage is voidable depends not on contract law, but on considerations of its essential validity which depends on the law of each party’s antenuptial domicile. 86 It is unnecessary to try to reconcile the Court of Appeal’s decision upholding Torfehnejad with Iantsis, and in general I would agree with Sproat J.’s analysis and conclusion that Iantsis remains good law in On- tario until specifically considered and overruled by the Court of Ap- peal19. It is sufficient to observe that Greer J. applied Iranian law in an- nulling the marriage in Torfehnejad, while I have concluded that on a proper conflict of laws analysis in this case, Ontario law would apply. Summary judgment has already been granted rejecting an annulment under Ontario law in this case, and that decision is binding on me and the parties in these proceedings. 87 Counsel for the applicant also argued that granting an annulment would be consistent with the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and in particular s. 4 of the Regulations that provides that “no foreign national shall be considered a spouse, a common law partner, a conjugal partner or an adopted child of a person if the mar-

19Iantsis has been applied consistently in reported cases in Ontario, British Co- lumbia and Alberta as well as in the Federal Court. See: Feiner v. Demkowicz; Leonotion v. Leonotion (1977), 4 R.F.L. (2d) 94, [1977] O.J. No. 23 (Ont. C.A.); McKenzie v. McKenzie (1982), 26 R.F.L. (2d) 310, [1982] O.J. No. 30 (Ont. C.A.); Ciresi (Ahmad) v. Ahmad (1982), 31 R.F.L. (2d) 326, [1982] A.J. No. 13 (Alta. Q.B.); Laroia v. Laroia (1986), 54 O.R. (2d) 224, [1986] O.J. No. 2995 (Ont. C.A.); S. (A.) v. S. (A.) (1988), 15 R.F.L. (3d) 443, [1988] O.J. No. 1407 (Ont. U.F.C.); Ali v. Ahmad, [2002] O.J. No. 397 (Ont. S.C.J.); Grewal v. Sohal, 2004 BCSC 1549, [2004] B.C.J. No. 2487 (B.C. S.C.). Some cases which have not followed Iantsis have cited as authority Johnson v. Smith, [1968] 2 O.R. 699 (Ont. H.C.), which was specifically overturned in Iantsis: Kalyan v. Lal (1976), 28 R.F.L. 229, [1976] B.C.J. No. 299 (B.C. S.C.) (this case was cited by Greer J. in Torfehnejad); Truong (Malia) v. Malia (1975), 25 R.F.L. 256, [1975] O.J. No. 1691 (Ont. H.C.); Asser v. Peermohamed (1984), 12 D.L.R. (4th) 475, [1984] O.J. No. 3243 (Ont. H.C.); Merriman v. Solomes (1999), 183 Sask. R. 273, [1999] S.J. No. 421 (Sask. Q.B.). 138 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

riage, common law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purposes of acquiring any status or privilege under the Act.” The Act makes it clear that a foreign national is inadmissible on the grounds of misrepresentation or non-com- pliance with the Act, which includes “directly or directly misrepresenting or withholding material facts relating to a relevant mater that induces or could induce an error in the administration of this Act” (ss. 40 and 41). 88 Justice Sproat reviewed and rejected the public policy arguments if Iantsis were not binding on the court at paragraphs 20 to 24: Submissions (a) and (b) [to discourage persons from using marital status to “jump the queue” and to provide relief to innocent sponsoring spouses] relate to the public interest in federal immigration policy. It appears, however, from section 4 of the regulations cited above that the federal government has already altered the definition of spouse for immigration purposes to exclude immigration fraudsters. It is, therefore, difficult to see what practical significance for federal immigration purposes there would be to expand the provincial grounds for annulment of a marriage. Put differently, if the federal regulation deems that an immigration fraudster is not married then an annulment of his or her marriage has no added significance. Submission (c) relates to disentitling immigration fraudsters from family law remedies flowing from marital status. It is, however, difficult as a practical matter to conceive that family law remedies would be awarded to a proven immigration fraudster. For example in Torfehnejad, Greer J. found that the conduct of the fraudster effectively disentitled her to spousal support or an equalization entitlement. In summary, the salutary effects that Mr. Clark submitted as grounds for changing the law are in my opinion illusory or relatively insignif- icant. I do, however, see a downside to the suggested change. First, on a principled approach it may be difficult to differentiate immigration fraud from other types of fraud. In Grewal v. Sohal (2004), 246 D.L.R. (4th) 743 (B.C.S.C.) the fraud consisted of the defendant fraudulently representing his marital intentions for immigration purposes and fraudulently representing that he did not have an alcohol or drug addiction. One can think of many other misrepresentations such as related to education, health or assets that might induce a decision to marry and which could be made fraudulently. If a fraud as to fundamental facts that ground the decision to marry is generally a ground for annulment, this certainly raises the spectre of an increase in the volume of costly litigation. Grewal v. Kaur K. van Rensburg J. 139

Even assuming that the law can logically extend to permit annulment on the basis of immigration fraud and not on other grounds of fraud, it remains that this may simply promote increased and expensive litigation. 89 I agree with this analysis. I am satisfied that the law of Ontario remains as set forth in Iantsis. Issues respecting the recognition of marriages for immigration purposes are best addressed by the immigration authorities who have the mandate and powers of investigation to address such issues, as well as specialized knowledge, including an appreciation of the practices and norms in various cultures. In any event, the public policy arguments that were advanced again at trial in this case do not affect the choice of law and accordingly can have no effect on whether an annulment can be granted.

Conclusion 90 The application for an annulment of the marriage between Aman Grewal and Simarpreet Kaur is dismissed. Judgment shall issue for divorce. If the parties are unable to agree on costs, I will receive written submissions within 30 days. Any party seeking costs shall include in their submissions a costs outline. Application dismissed. 140 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

[Indexed as: Abid v. Canada (Minister of Citizenship & Immigration)] Hani Yousef Abid, Rahima Shaik, Nazmeyah Hani Abid, Sumayah Hani Abid, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1342-10 2011 FC 164 Judith A. Snider J. Heard: January 20, 2011 Judgment: February 11, 2011 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was citizen of Jordan and was granted refugee protection in Canada after spending several years in United States — Principal applicant and family applied for permanent residence; application was denied — As part of application, principal applicant disclosed previous conviction for wire fraud in US — Immigration officer’s decision was based on determination that principal applicant’s US conviction was equivalent to conviction in Canada and he was inadmissible for serious criminality pursuant to s. 36(1)(b) of Immigration and Refugee Protection Act (IRPA) — Applicants applied for judicial review of decision — Application granted — Immigration officer’s decision was correct pursuant to IRPA, but there were sufficient humanitarian and compassionate (H&C) grounds to warrant exemption — Was reasonable for immigration officer to conclude that US conviction was equivalent to Canadian offence — Principal applicant was inadmissible pursuant to IRPA — Officer erred in finding that application contained no submissions on H&C grounds; applicants’ immigration consultant made submissions without using specific terminology — Officer failed to consider factors highlighted by consultant, including fact that principal applicant was found to be convention refugee and that his criminal conviction was seventeen years prior and likelihood of reoffending was minimal — Matter referred back to Citizenship and Immigration Canada for re- consideration of H&C grounds only by different immigration officer. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was citizen of Jordan and was granted refugee protection in Canada after spending several years in United States — Principal applicant and family applied for permanent residence; application was denied — As part of application, principal applicant disclosed previous conviction for wire fraud Abid v. Canada (Minister of Citizenship & Immigration) 141 in US — Immigration officer’s decision was based on determination that principal applicant’s US conviction was equivalent to conviction in Canada and he was inadmissible for serious criminality pursuant to s. 36(1)(b) of Immigration and Refugee Protection Act (IRPA) — Applicants applied for judicial review of decision — Application granted — Immigration officer’s decision was correct pursuant to IRPA, but there were sufficient humanitarian and compassionate (H&C) grounds to warrant exemption — Was reasonable for immigration officer to conclude that US conviction was equivalent to Canadian offence — Principal applicant was inadmissible pursuant to IRPA — Officer erred in finding that application contained no submissions on H&C grounds; applicants’ immigration consultant made submissions without using specific terminology — Officer failed to consider factors highlighted by consultant, including fact that principal applicant was found to be convention refugee and that his criminal conviction was seventeen years prior and likelihood of reoffending was minimal — Matter referred back to Citizenship and Immigration Canada for reconsideration of H&C grounds only by different immigration officer. Cases considered by Judith A. Snider J.: Davis v. Canada (Minister of Employment & Immigration) (June 19, 1986), Doc. A-81-86, [1986] F.C.J. No. 1053 (Fed. C.A.) — referred to Grinshpon v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1695, 2005 CarswellNat 4299, 2005 CarswellNat 5257, 2005 CF 1695, 306 F.T.R. 27 (Eng.) (F.C.) — considered Hill v. Canada (Minister of Employment & Immigration) (1987), 73 N.R. 315, 1987 CarswellNat 15, 1 Imm. L.R. (2d) 1, [1987] F.C.J. No. 47 (Fed. C.A.) — followed Lakhani v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 1807, 2007 FC 674, 2007 CF 674, 2007 CarswellNat 5128, [2007] F.C.J. No. 914 (F.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (1996), 1996 CarswellNat 1133, 1996 CarswellNat 2618, [1997] 1 F.C. 235, 34 Imm. L.R. (2d) 109, 200 N.R. 307, 138 D.L.R. (4th) 275, 37 C.R.R. (2d) 360, 119 F.T.R. 130 (note), [1996] F.C.J. No. 1060 (Fed. C.A.) — referred to Magtibay v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 397, 2005 CarswellNat 757, 2005 CarswellNat 2019, 2005 CF 397, 271 F.T.R. 153 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. 142 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

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, 318 N.R. 300, (sub nom. Owusu v. Canada) [2004] 2 F.C.R. 635, [2004] F.C.J. No. 158 (F.C.A.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 380(1)(a) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 33 — considered s. 36(1)(b) — considered Crimes and Criminal Procedure Code, 18 U.S.C. s. 2 — referred to s. 1343 — considered

APPLICATION for judicial review of decision of immigration officer rejecting applicants’ application for permanent residence on basis of criminality.

Mr. Lorne Waldman, for Applicant Mr. Jamie Todd, for Respondent

Judith A. Snider J.: I. Introduction 1 The Principal Applicant, Mr. Hani Yousef Abid, a citizen of Jordan, came to Canada in 2003 after spending several years in the United States. He was granted refugee protection in 2005. In October 2005, the Princi- pal Applicant and his family (collectively, the Applicants) applied for permanent residence in Canada. As part of his application, the Principal Applicant disclosed that he had been charged and convicted of “wire fraud” in the United States, for which conviction he served a sentence from September 1992 to March 1993. In a decision dated February 12, 2010, the Applicants’ application for permanent residence was rejected by an immigration officer (the Officer). The Officer’s decision was based on a determination that the Principal Applicant’s conviction in the United States was equivalent to a conviction in Canada, pursuant to s. 380(1)(a) of the Criminal Code of Canada, RSC 1985, c C-46 (the Criminal Code), for fraud in an amount exceeding CDN $5000, an offence punishable by a maximum term of imprisonment not exceeding 14 years. Accordingly, Abid v. Canada (Minister of Citizenship & Immigration) Judith A. Snider J. 143

the Officer held that the Principal Applicant was inadmissible for “serious criminality” pursuant to s. 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). In addition, the Officer concluded that an exemption was not warranted on humanitarian and compassionate (H&C) grounds. 2 The Applicants now seek to overturn the Officer’s decision.

II. Issues 3 The Application raises the following issues: 1. Did the Officer err in determining that 18 United States Code, section 1343 was equivalent to s. 380(1)(a) of the Criminal Code? 2. Did the Officer err in finding that the value of the offence committed by the Principal Applicant was greater than $5000? 3. Did the Officer err in his examination of whether the Applicants should be granted an exemption from s. 36(1)(b) of IRPA on the basis of H&C considerations? 4 While I am not persuaded that the Officer erred in his assessment of serious criminality, I am prepared to allow this application for judicial review on the basis that the Officer erred in his analysis of a possible exemption on H&C grounds.

III. Background 5 The Principal Applicant was arrested for wire fraud (18 United States Code section 1343) on September 12, 1992 and reached a plea agreement on January 15, 1993. 6 The plea agreement states that: [B]eginning no later than sometime in 1992, the defendant and an individual named [AS] intentionally devised a scheme to defraud and obtain money and property from Southwestern Bell Telephone Com- pany by operating a network of ‘chipped up’ cellular telephones utilizing cellular telephone numbers issued by Southwestern Bell. 7 The Principal Applicant was convicted on March 31, 1993. The “Judgment in a Criminal Case” of the United States District Court, Northern District of Illinois, Eastern Division (the US Court) sets out that the Principal Applicant “pleaded guilty” to one count of the offence of 18 United States Code section 1343 and 2, described as “Wire Fraud, Aid & Abet”. At the time of the conviction, the relevant criminal provision, 18 144 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

United States Code section 1343 (referred to as the US Offence), read as follows: Fraud by wire, radio, or television Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1000 or imprisoned not more than 5 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 8 The Principal Applicant was found to be inadmissible to Canada pursuant to s. 36(1)(b) of IRPA: Serious criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parlia- ment punishable by a maximum term of imprisonment of at least 10 years; Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants b) etreˆ déclaré coupable, a` l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction a` une loi fédér- ale punissable d’un emprisonnement maximal d’au moins dix ans; 9 Under the provisions of s. 33 of IRPA, the facts underlying admissibility findings include facts “for which there are reasonable grounds to believe that they have occurred”. 10 For purposes of the s. 36(1)(b) determination of equivalency, the Of- ficer used s. 380(1)(a) of the Criminal Code, which states as follows: Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the Abid v. Canada (Minister of Citizenship & Immigration) Judith A. Snider J. 145

offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; Quiconque, par supercherie, mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens de la présente loi, frustre le public ou toute personne, déterminée ou non, de quelque bien, service, argent ou valeur: a) est coupable d’un acte criminel et passible d’un emprisonnement maximal de quatorze ans, si l’objet de l’infraction est un titre testa- mentaire ou si la valeur de l’objet de l’infraction dépasse cinq mille dollars

IV. Analysis A. Equivalency Determination 11 This Court has held that determinations of equivalency are factual determinations which attract deference (see, for example, Lakhani v. Canada (Minister of Citizenship & Immigration), 2007 FC 674, [2007] F.C.J. No. 914 (F.C.) at para 20-23; Magtibay v. Canada (Minister of Citizenship & Immigration), 2005 FC 397, 271 F.T.R. 153 (F.C.) at para 15). The standard of review is reasonableness. As taught by the Supreme Court in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir] at paragraph 47: [R]easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decisionmaking process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 12 The parties acknowledge that the approach to equivalency is that set out by the Federal Court of Appeal in Hill v. Canada (Minister of Employment & Immigration) (1987), 1 Imm. L.R. (2d) 1, 73 N.R. 315 (Fed. C.A.) [Hill] at paragraph 16: ... equivalency can be determined in three ways: first, by a compari- son of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining there from the essential ingredients of the respective offences; two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating 146 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

documents or in the statutory provisions in the same words or not; and three, by a combination of one and two.

(1) The language of the two offences 13 In this case, the words of the statute are not identical. Thus, it seems to me that the first step of the analysis must be an examination of the wording of both provisions to determine whether there is an area of intersection between the two. Such an examination is implicit in the Officer’s decision. After setting out the two provisions, the Officer concludes as follows: Fraud in Canada or Subsection 380(1) of the Criminal Code of Can- ada is broader than the Wire Fraud statute in the United States. Therefore, Wire Fraud (18 United States Code section 1343) in the United States is equivalent to Fraud in Canada or subsection 380(1) in the Criminal Code of Canada. In other words, the Officer found that there was an area of intersection between the two provisions; wire fraud can, depending on the facts of the offence, fall within either the US offence or the Criminal Code offence. 14 In some aspects the US offence is broader than the Criminal Code offence. As correctly noted by the Applicants, s. 380(1)(a) of the Crimi- nal Code requires that there be actual fraud whereas the US provision does not require the completion of the fraudulent activity. Under US law, the intent to defraud is sufficient to establish guilt. On the other hand, as noted by the Officer, the Canadian provision is broader in that it covers all manners of fraud and not just fraud in the areas of “wire, radio or television communication in interstate or foreign commerce”. 15 Is there an area of intersection between the two offences such that we can conclude that there is equivalency? I believe that there is such an overlap. On its face, the US Offence applies to the intent to defraud. However, depending on the facts of the conviction, it may be that the offence that took place was one where the “devised” scheme was put into effect, thereby resulting in actual fraud. More specifically, for purposes of the case before me, an actual fraud with a value of over CDN $5000 involving “wire, radio or television communication in interstate or foreign commerce” would fall within the US provision. 16 While his reasons could have been more expansive, the result of the Officer’s analysis was not unreasonable. Abid v. Canada (Minister of Citizenship & Immigration) Judith A. Snider J. 147

(2) The elements of the US Offence 17 Having concluded that there is an overlap between the two provisions, the next step is an examination of whether, on the facts of the Principal Applicant’s conviction, his particular offence would fall within the area of intersection. The Officer’s task was to examine the facts of the Principal Applicant’s conviction in the United States to establish whether the act or offence for which he was convicted falls within the bounds of s. 380(1)(a)of the Criminal Code. Adapting the words of Hill, above, the Officer had to determine whether or not the evidence before the adjudicator in the United States was sufficient to establish that the essential ingredients of the Canadian offence had been proven in the foreign proceedings. 18 Under the Criminal Code offence, the Principal Applicant would only have been convicted if: (a) there had been actual defrauding of the public; and (b) the value of the subject matter of the fraud exceeded CDN $5000. 19 There is no question that the Principal Applicant was convicted of an offence under 18 United States Code section 1343. The plea agreement, the conviction and the reasons for the sentence are clear in that regard. What is not as clear is what the elements of the offence were. Whether the Principal Applicant’s offence was one that could constitute an offence under s. 380(1)(a) of the Criminal Code can only be determined by an analyzing the evidence before the Officer. 20 The first issue is whether there were reasonable grounds to believe that the Principal Applicant had committed actual fraud. 21 The Applicants assert that the Officer had no evidence of actual fraud. They argue that “no fraud took place because the applicant was apprehended as soon as he purchased the phones for the purposes of engaging in the fraudulent activity”. 22 The critical question about the conviction is a factual one. As noted by Justice Heneghan in Grinshpon v. Canada (Minister of Citizenship & Immigration), 2005 FC 1695, 306 F.T.R. 27 (Eng.) (F.C.) at paragraph 11, “the plea was not entered in a vacuum”. The issue for the Officer is whether the acts for which the person was convicted in the United States would also have made him or her guilty of an offence in Canada (see Li v. Canada (Minister of Citizenship & Immigration) (1996), 138 D.L.R. (4th) 275, [1997] 1 F.C. 235 (Fed. C.A.) at para 12). 148 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

23 If the only evidence before the Officer is that the Applicant only committed an intent to defraud, then the elements of s. 380(1)(a) of the Crim- inal Code are not met. However, if the evidence before the Officer establishes that there are reasonable grounds to believe that actual fraud was committed, then “equivalency” to the s. 380(1)(a) element of actual fraud is established. 24 The US documentation related to the Principal Applicant’s conviction consists of the following: • the Criminal Complaint dated September 14, 1992, to which is at- tached the affidavit of the Special Agent, Secret Service (the Complaint); • the Special October 1990-1 Grand Jury Charges filed October 7, 1992; • the Plea Agreement dated January 15, 1993 (the Plea Agreement); • the Judgment (referred to above); and • the Statement of Reasons for Imposing Sentence under the Sen- tencing Guidelines of Judge James H. Alesia of the US Court, dated March 8, 1993 (the Sentencing Reasons). 25 Within this documentation, there was, in my view, more than sufficient evidence upon which the Officer could conclude that there were reasonable grounds to believe that the conviction in the United States was for an actual fraud. A full description of the “scheme” is set out in several of the documents. It is evident from these documents that the scheme had been put into practice. The offence extended far beyond the planning stages and into actual implementation. For example, the affidavit of the Special Agent discloses that the Principal Applicant sold a “chipped up phone”, which was activated and used. All of this was acknowledged by the Principal Applicant in the Plea Agreement. 26 The second issue relates to the value of the crime. An essential element of the Criminal Code provision is that the value of the fraud exceeds CDN $5000. Given the currency exchange rate at the time of the commission of the offence, the Officer concluded that he had to be satisfied that the “value” of the fraud was over US $4112 (see Davis v. Canada (Minister of Employment & Immigration), [1986] F.C.J. No. 1053 (Fed. C.A.)). As noted above, the US Offence does not specify any amount or value of the fraud. The Officer, however, was entitled to turn to the US documentary evidence. One obvious reference to the value of the offence was contained in the affidavit of the Secret Agent who swore Abid v. Canada (Minister of Citizenship & Immigration) Judith A. Snider J. 149

that he had purchased one phone for US $1000. Turning to the Sentenc- ing Reasons, Judge Alesia describes the offence as a “sophisticated scheme involving complex and highly technical alteration of microcom- puter chips”. Numerous references to the extent of the fraud are contained in the other documents before the Officer. Given the evidence, it was not unreasonable for the Officer to believe that the offence convicted of in the United States involved many, many sales of US $1000 phones. Therefore, it was not unreasonable for the Officer to conclude that there were sales in excess of CDN $5000. 27 The Applicants object to the Officer’s reliance on comments made by the Principal Applicant on his admission to Canada. In addition to the US documentation, the Officer had the Principal Applicant’s responses to questions as recorded by an immigration officer on August 26, 2003. The notes to the file contain the following: Question 14: Has claimant ever been arrested/detained by the police/military in any country? Response: Chicago, USA — 12 Sep1992 — wire fraud — working for [GS] defrauding Sprint, At&T, Canada (Minister of Citizenship and Immigration) of 117 million worth of phone calls from Palestine and Arab countries.... 28 In three separate letters (November 6, 2009, December 2, 2009 and January 8, 2010), the Principal Applicant was asked to provide information and evidence to show the value of the fraud that he plead guilty to in the US. In the final notification (January 8, 2010), the Officer referred to the statement made by the Principal Applicant that the fraud was “117 million worth of phone calls”. 29 The only response of the Principal Applicant, made through his immigration consultant, was the following letter dated January 26, 2010: I am very surprised of your referral to his declaration to Canadian immigration officials at Windsor and the money of 177 million of phone calls fraud. Does it make sense to a child let alone an adult that some one defraud phone companies in United States for this amount of money be sentenced to 5 months in prison and 50 dollar special assessment that was waived? If my client has defrauded this amount of money he will be in jail for at least 10 years if not more but the judge understood he cannot pinpoint the exact amount of fraud. It was very minor to him. 30 This response is most unhelpful. The Principal Applicant’s consultant may question the accuracy of the amount, but the Principal Applicant has not denied or explained the admission to the immigration officer. 150 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

31 The Applicant asserts that the mention of the $117 million figure is “absurd”. I disagree. Nowhere in the decision does the Officer conclude that the value of the fraud was $117 million. The Officer merely used the admission of the Applicant to support his conclusion that there were reasonable grounds to believe that the value of the crime exceeded CDN $5000. The Applicant was provided with three opportunities to explain the value of the offence he committed and the meaning of his admission that the fraud consisted of “$117 million worth of phone calls”. The Of- ficer did not place any undue emphasis on this statement, and the Appli- cant failed to provide any alternative evidence. In the result and based on the totality of the evidence, it was not unreasonable for the Officer to conclude that the value of the subject matter of the offence was greater than CDN $5000. Indeed, on this record, it would have been absurd to conclude otherwise. 32 The Applicants argue that the sentence given to the Principal Appli- cant provides evidence that the offence was not serious. I agree that the sentence of five months imprisonment and a $50 fine is not an overly harsh punishment. However, absent expert evidence on sentencing in Illi- nois on matters such as these, it is impossible to draw any inferences from the length of the sentence. From the remarks of Judge Alesia in the Sentencing Reasons, it appears that the Judge took into accout that the Principal Applicant was unable and unlikely to pay a fine. Moreover, the record discloses that the Principal Applicant was prepared to be an in- former; this factor may have been a reason or a reduced sentence. On these facts, the Officer could not reasonably infer that the offence was of a trivial nature and of a value of less than CDN $5000.

(3) Conclusion on Equivalency 33 The Applicants do not dispute that s. 380(1)(a) of the Criminal Code is an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. Accordingly, I am satisfied that, based on the words of the two statutory provisions and on the U.S. documentation, it was reasonable for the Officer to conclude that the Principal Applicant had been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parlia- ment punishable by a maximum term of imprisonment of at least 10 years. Thus, the Principle Applicant is inadmissible to Canada pursuant to s.36(1)(b) of IRPA. Abid v. Canada (Minister of Citizenship & Immigration) Judith A. Snider J. 151

B. H&C Determination 34 In addition to the criminal inadmissibility finding, the Officer also considered whether there were sufficient factors to warrant an exemption on H&C grounds. The Officer noted that the Principal Applicant had requested that the permanent residence application be kept open to allow him to seek criminal rehabilitation. However, beyond this request, the Officer stated that no request for an exemption on H&C grounds was made. Nevertheless, the Officer carried out an assessment of the possible H&C grounds, concluding that neither the request for rehabilitation nor H&C considerations warranted an exemption. The Officer’s analysis was very brief: The applicant has not satisfied me that either consideration is warranted. The applicant has lived in Canada for less than seven years and he has not satisfied me that he is sufficiently established to warrant either an exemption on H&C grounds or that the application be kept open pending criminal rehabilitation. The applicant has not provided information about the best interests of his children in his submissions. However, when the best interests of the applicant’s children are considered based on file information I am still not satisfied that the best interests of his children warrant an exemption on H&C grounds or that the application be kept open pending criminal rehabilitation. His children are both under ten years of age and thus I am satisfied that his children could be integrated elsewhere. While the applicant has not satisfied me that his case contains sufficient factors to justify an exemption on H&C grounds or that his application be held in abeyance pending criminal rehabilitation, both his time in Canada and the interests of his minor age children are positive factors. However, when those positive factors are considered in conjunction with the applicant’s serious criminality pursuant to subsection A36(1) of IRPA I am still not satisfied that either an H&C exemption is warranted or that the application should be kept open longer pending a criminal rehabilitation application. 35 The first error made by the Officer, in my view, is that he incorrectly found that no submissions on H&C grounds were made. While the submissions of the Applicants’ consultant leave much to be desired, there are a number of references to H&C grounds (albeit without use of the term “humanitarian and compassionate grounds”). The consultant refers to the status of the Principal Applicant as a Convention refugee. Moreo- 152 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

ver, the letter of January 26, 2010 from the consultant contains the following: It is also important to understand my client is a very decent, honest and credible person. ... It is true that he made a mistake 17 years ago and he paid for that mistake and he is now a family man and a li- censed technician in Canada. He has no criminal records in Canada or anywhere in the world after 1993. In my view, these were clear H&C submissions. 36 The Respondent correctly points out that Officers considering H&C requests are only obliged to consider factors commensurate with the submissions presented to them (Owusu v. Canada (Minister of Citizenship & Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635 (F.C.A.) at para 8). However, the question in this case is whether the Officer, faced with representations, had due regard for the submissions that were made. In my view, he did not. 37 The first error in the analysis is a factual one. Although the Officer purported to consider the interests of the Principal Applicant’s children, he incorrectly stated that there were only two children. As clearly set out in the “file information” upon which the Officer relied, the Principal Ap- plicant has four children. 38 The remaining problem with the Officer’s analysis is that he failed to consider the factors highlighted by the Applicants’ consultant and set out in the relevant Ministerial Guidelines: Inland Processing Policy Manual, Chapter 5, Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds, Appendix B (the H&C Guidelines). The Of- ficer makes no reference to the fact that the Principal Applicant was found to be a Convention refugee or that his criminal conviction was 17 years ago. 39 The H&C Guidelines provide that, when assessing criminal inadmissibility and an exemption for it, an officer is required to take into account a series of factors. One of the key factors is the likelihood of re-offend- ing. 11.4. Criminal inadmissibilities When considering the H&C factors, officers should assess whether the known inadmissibility, for example, a criminal conviction, out- weighs the H&C grounds. They may consider factors such as the applicant’s actions, including those that led to and followed the conviction. Officers should consider: • the type of criminal conviction; Abid v. Canada (Minister of Citizenship & Immigration) Judith A. Snider J. 153

• what sentence was received; • the length of time since the conviction; • whether the conviction is an isolated incident or part of a pattern of recidivist criminality; and • any other pertinent information about the circumstances of the crime 11.4 Interdiction de territoire pour criminalité Quand il examine les circonstances d’ordre humanitaire, l’agent doit evaluer´ si l’interdiction de territoire connue, par exemple, une décla- ration de culpabilité, l’emporte sur celles-ci. Il peut tenir compte de facteurs comme les actes du demandeur, y compris ceux ayant con- duit a` la déclaration de culpabilité et l’ayant suivie. L’agent doit ex- aminer: • le type de déclaration de culpabilité; • la peine infligée; • le temps ecoul´´ e depuis la déclaration de culpabilité; • si la déclaration de culpabilité est un incident isolé ou si elle fait partie d’un profil de comportement récidiviste; • tout autre renseignement pertinent sur les circonstances du crime. 40 In this case, the Officer failed to have regard to many of the relevant factors surrounding the particular situation of the Principal Applicant.

V. Conclusion 41 In sum, the Officer’s determination of criminal equivalency is reasonable; no intervention from this Court is warranted on that basis. How- ever, the decision refusing an H&C exemption is not reasonable. On this basis, the application for judicial review will be allowed and the matter sent back for re-consideration. The re-consideration will be limited to the determination of whether the Principal Applicant should be granted an exemption on H&C grounds. On the re-consideration, the Applicants should be given the opportunity to make further written submissions. 42 Neither party proposed a question for certification.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. The application for judicial review is dismissed with respect to the Officer’s section 36(1)(b) of IRPA finding; 154 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

2. The application for judicial review is allowed with respect to the Officer’s decision that there were insufficient H&C grounds to warrant an exemption; that portion of the Officer’s decision is quashed; and the matter referred back to Citizenship and Immigra- tion Canada for reconsideration by a different immigration officer; and 3. No question of general importance is certified Application granted. Canada v. Lin 155

[Indexed as: Canada (Minister of Public Safety & Emergency Preparedness) v. Lin] The Minister of Public Safety and Emergency Preparedness, Applicant and Xiao Ling Lin, Respondent Federal Court Docket: IMM-3680-10 2011 FC 431 D.G. Near J. Heard: February 14, 2011 Judgment: April 7, 2011 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Evidence — General principles –––– Refugee claimant claimed that he fled China after police found banned Falun Gong material in his bookstore — Claimant submitted evidence, including business licence, search warrants, notice of store closure, and summons, to Ref- ugee Protection Division of Immigration and Refugee Board — Process of verifying documents began — Board determined that claimant was Convention refugee — Minister of Public Safety and Emergency Preparedness was informed by Chinese government that they had no record of business or of police officers with names as set out on summons — Board dismissed Minister’s application to vacate claimant’s refugee status — Minister applied for judicial review — Ap- plication dismissed — Board disagreed that Minister’s evidence led to conclusion that claimant misrepresented relevant facts, due to concerns with credibility of alleged persecutor’s assessment of claimant’s evidence of persecution — Concerns with source of and method by which Minister obtained evidence properly impacted its probative value — As Board did not find claimant’s evidence was tainted, it did not have to analyse claim based on remaining evidence — Personal information could only be disclosed to foreign governments for use consistent with purpose for which information was obtained — Framing issue as general immigration purposes was too broad — Manner in which verification was conducted had to respect claimant’s right to privacy and ensure his life was not endangered — Verification of documents could have occurred without revealing claimant’s name to Chinese authorities that Board found would persecute him — Board’s decision was justified and intelligible. Cases considered by D.G. Near J.: Canada (Minister of Citizenship & Immigration) v. Chery (2008), 2008 Car- swellNat 3165, 2008 FC 1001, 74 Imm. L.R. (3d) 132, 334 F.T.R. 148 (Eng.), 2008 CF 1001, 2008 CarswellNat 5074 (F.C.) — followed 156 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Canada (Minister of Public Safety & Emergency Preparedness) v. Kahlon (2005), 2005 CarswellNat 2255, 2005 FC 1000, 35 Admin. L.R. (4th) 213, 2005 CF 1000, 2005 CarswellNat 5610, [2006] 3 F.C.R. 493, 278 F.T.R. 254 (F.C.) — considered Igbinosun v. Canada (Minister of Citizenship & Immigration) (1994), 87 F.T.R. 131, 1994 CarswellNat 1818, [1994] F.C.J. No. 1705 (Fed. T.D.) — considered Mansoor v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 420, 2007 CarswellNat 919, 2007 CarswellNat 5531, 2007 CF 420, 61 Imm. L.R. (3d) 227, [2007] F.C.J. No. 571 (F.C.) — followed Moin v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4798, 2007 CarswellNat 1018, 2007 CF 473, 2007 FC 473, [2007] F.C.J. No. 639 (F.C.) — considered 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, 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, 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 New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 109 — considered s. 109(1) — pursuant to s. 109(2) — pursuant to Sched., Article 1F — referred to Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to

APPLICATION for judicial review of dismissal of application by Minister of Public Safety and Emergency Preparedness to vacate refugee claimant’s refugee status. Canada v. Lin D.G. Near J. 157

Nimanthika Kaneira, for Applicant Lorne Waldman, for Respondent

D.G. Near J.:

1 This is an application for judicial review of the decision of the Refu- gee Protection Division (the Board) dated June 10, 2010 dismissing an application by the Minister of Public Safety and Emergency Prepared- ness (the Minister) to vacate the Respondent’s claim for refugee protection. 2 Based on the reasons below, this application is dismissed.

I. Background A. Factual Background 3 The Respondent, Xiao Ling Lin, is a citizen of China. He arrived in Canada and sought refugee protection on February 7, 2007. He claimed to have a well-founded fear of persecution because he sold Falun Gong books and CDs in his bookstore in Changle City, Fujian Province, China. The store was searched by the police in November 2006. Although he kept the banned materials out of sight, the police found the Falun Gong materials. The Respondent claimed to have escaped while the search was being conducted and later fled to Canada. 4 Fourteen (14) days in advance of the Respondent’s hearing before the Immigration and Refugee Board, the Respondent submitted copies of his license to operate a bookstore, alleged Public Security Bureau (PSB) search warrants, a notice of closure of his bookstore from the Industry and Business Administrational Management Bureau and three summons requiring him to report to Chinese authorities. Despite the fact that this was outside of the 20-day period for disclosure, the tribunal accepted the evidence pursuant to its discretion to do so under the rules. On January 14, 2009 the tribunal concluded that, on a balance of probabilities, the Respondent was involved in the sale of Falun Gong materials which came to the attention of the Chinese authorities, giving rise to more than a mere possibility that the Respondent would face persecution in China. A notice of decision was issued the following day, and written reasons followed on February 19, 2009. 5 Prior to the hearing, the Hearings Officer began the process of attempting to verify the authenticity of the Respondent’s documents. The documents were sent to the “Migration Integrity Officer” in Guangzhou, 158 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

China in December 2009. January 22, 2009 the Consulate General of Canada in Guangzhou forwarded the documents to the Consular and Cul- tural Division of the Foreign Affairs Office of Fujian Provincial People’s Government. On March 31, 2009 the Minister was informed by the Chi- nese government via diplomatic note that investigations by the pertinent authorities failed to find any record on file concerning the submitted Business License and that the Changle PSB had no police officers match- ing the names of the police officers on the submitted summons. 6 As a result of this information, the Minister brought an application to vacate the Respondent’s Convention Refugee (CR) status on June 30, 2009. The Minister based his application on the grounds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter which, if known to the tribunal, could have resulted in a different determination.

B. Impugned Decision 7 The Board held the vacation hearing on January 15, 2010. The Min- ister took the position that the Chinese authorities had concluded that the Respondent’s documents were fraudulent and that there was therefore no basis upon which the tribunal could have determined that the Respondent was a CR. The Minister argued that the Respondent’s claim was false and that he misrepresented facts relating to a relevant matter. 8 By way of reasons dated June 10, 2010, the Board dismissed the Min- ister’s application. 9 The Board made two findings. First the Board found that the Minister sought the views of the alleged persecutor with respect to the merits of the application and the Respondent’s designation as a CR. The Board found that the evidence of the Chinese authorities might be either true or false, and it would be the panel hearing the refugee claim that would be in the best position to weigh the evidence and make that determination. 10 Secondly, the Board found that the Minister approached the Chinese authorities without regard for the protected status of the Respondent as a CR, and failed to take appropriate steps to protect the Respondent. In the view of the Board, this was fatal to the Minister’s application.

II. Issues 11 The Applicant raises the following issues: (a) Did the Board err with respect to its analysis under subsection 109(1) of the Immigration and Refugee Protection Act, SC 2001, c Canada v. Lin D.G. Near J. 159

27 [IRPA] by not properly considering the Minister’s new evidence? (b) Did the Board err by not conducting an analysis under subsection 109(2) of the IRPA with respect to the remaining evidence that would support the Respondent’s CR status? 12 The Respondent raises the following issues: (a) Did the Board err in concluding that the Minister’s evidence was insufficient for the Minister to meet the onus of proof and establish the facts to a balance of probabilities with respect to the misrepresentation? (b) Was the disclosure in this case a breach of the Respondent’s rights under the Privacy Act? (c) Was the Board correct in dismissing the application after finding that there was an abuse of process? 13 In my view, the issues are best summarized as: (a) Did the Board err in concluding that the Minister’s evidence was insufficient to establish misrepresentation? (b) Did the Board err in dismissing the application after finding that there was an abuse of process?

III. Legislative Scheme 14 Section 109 of the IRPA allows the Minister to apply to vacate a decision to allow a claim for refugee protection if the decision was obtained as a result of misrepresentation: Vacation of refugee protection 109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. Rejection of application (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. 160 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Allowance of application (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. Demande d’annulation 109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d’asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant a` un objet pertinent, ou de réticence sur ce fait. Rejet de la demande (2) Elle peut rejeter la demande si elle estime qu’il reste suffisam- ment d’éléments de preuve, parmi ceux pris en compte lors de la dé- cision initiale, pour justifier l’asile. Effet de la décision (3) La décision portant annulation est assimilée au rejet de la demande d’asile, la décision initiale etant´ dès lors nulle.

IV. Standard of Review 15 Decisions rendered pursuant to section 109 of the IRPA are decisions of mixed fact and law, and as such are entitled to deference by the Court. The appropriate standard of review is the standard of reasonableness (Canada (Minister of Citizenship & Immigration) v. Chery, 2008 FC 1001, 334 F.T.R. 148 (Eng.) (F.C.) at para 19). The Court will not dis- turb the Board’s finding so long as the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47).

V. Argument and Analysis A. Did the Board Err in its Analysis Under Section 109? 16 The Minister submits that the Board failed to engage in a proper analysis of the Minister’s evidence under either subsection 109(1) or 109(2). It is the Minister’s contention that instead of engaging in the analysis required by the statute, the Board focused on the entirely extraneous and irrelevant consideration of how the Minister obtained the evidence. The Minister posits that by focusing on the Respondent’s privacy rights, the Board examined an issue that was not before it and was not within the Canada v. Lin D.G. Near J. 161

scope of the Board’s duty at the vacation hearing. The Minister’s position seems to be that the Board did not actually consider the credibility or sufficiency of the new evidence, and such failure amounts to an error of law. 17 The Respondent takes the view that the reasons of the Board reveal that the Board did in fact consider the evidence and determined, on a balance of probabilities, that the Minister did not meet the burden of showing that the Respondent misrepresented a material fact. 18 As I read the reasons, it is clear that the Board considered the Min- ister’s evidence. The Board was aware that the Minister took the communication from the Chinese authorities to lead to the indubitable conclusion that the Respondent directly misrepresented facts relating to relevant matters, namely, the existence of the bookstore, the search of the prem- ises and seizure of the material and the summonses requiring the Respon- dent to appear. However, the Board did not share this view. The Board stated at paras 27 and 28: In the context of the determination of the refugee claim itself, the panel hearing that case would be in a position to weigh such evidence in the context of the evidence overall, and deal with it in a way which would be not only appropriate, but sensitive to the issues of credibility and trustworthiness arising generally in the case. Evidence going to the question of inclusion should be dealt with, as much as possible, within the process of determination of the claim, rather than as a post-hearing application to vacate. It is in the process of the actual determination of the claim that the strengths and weaknesses of evidence going to inclusion can best be dealt with. For instance, it is clear that what the Respondent says about his treatment by the Chinese authorities, in particular the PSB, is either true or false. Similarly, what the Chinese authorities say in their communication to the Canadian authorities is either true or false. However, if what the Respondent said about the Chinese authorities is true, then that might be a reason to consider that what the Chinese authorities say about the Respondent is false. That is, these matters are inextricably intertwined. It is the panel hearing the refugee claim who is in the best position to understand the body of evidence as a whole, and to make the appropriate determination. 19 Perhaps it is not as clear as the Minister would like, but it is obvious that the Board found the Minister’s evidence to be insufficient to meet the requirement of section 109. The evidence was, in the mind of the Board, not irrefutable. The Board did not find itself in a position to be 162 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

able to say it preferred the Minister’s evidence over that of the Respon- dent. Although the Board does not spell it out as clearly as the Respon- dent does in his submissions, the Board did not find, on a balance of probabilities, that the Minister’s evidence showed that the Respondent misrepresented relevant facts to the tribunal. 20 The Supreme Court has recently reiterated that the onus is on the Minister to provide sufficient evidence to terminate a previously recognized refugee status, stating in N´emeth c. Canada (Ministre de la Jus- tice), 2010 SCC 56, 91 Imm. L.R. (3d) 165 (S.C.C.) at para 109, “under the Refugee Convention, persons who have established that they meet the refugee definition should not bear the burden of proving that they continue to do so.” Specifically, at para 110, “the IRPA makes it clear that it is up to the Minister of Citizenship and Immigration (MCI) to apply for the order that refugee protection has ceased and to advance the reasons in support of the application.” In the present case, the Board expressed dissatisfaction with the reasons advanced by the Minister in support of the application. 21 Furthermore, contrary to the Minister’s submissions, the Board made it quite clear that it was concerned with the credibility of the Minister’s evidence, given its provenance. The Board noted at para 26 that “What the Canadian authorities did do, however, was involve the alleged persecutor in an assessment of the evidence of the claims which had been brought by the claimant, or respondent.” The Board very clearly expressed its concern with the source and method by which the Minister obtained the evidence. Though the Minister argues that this is an irrelevant consideration, I disagree. It clearly has an impact on the probative value that may be assigned to the evidence. And it is trite law that the Board is in the best position to weigh and evaluate the submitted evidence. More specifically, findings in a vacation hearing are entitled to the highest level of deference, as they are based on an assessment of the claimant’s credibility and on the weighing of the evidence submitted by both parties (Mansoor v. Canada (Minister of Citizenship & Immigra- tion), 2007 FC 420, 61 Imm. L.R. (3d) 227 (F.C.) at para 24). 22 The Respondent submits that the Board made a decision that was reasonably open to it based on the totality of the evidence. The Board considered the findings of the previous tribunal, the new evidence and the procedures followed in obtaining the communications from the Chinese authorities, and concluded that the Minister did not advance sufficient evidence to warrant vacating the Respondent’s CR status. I agree with Canada v. Lin D.G. Near J. 163

the Respondent. The outcome falls within the range of acceptable, defensible outcomes. 23 The Minister further submits that the Board erred in not conducting a review of the untainted evidence to determine whether there was sufficient evidence to support a convention refugee finding for the Respon- dent, as mandated by subsection 109(2). 24 There is no basis for this argument. It is logically untenable to hold that the Board must nonetheless analyze whether the Respondent would be able to maintain a claim for CR status based on the remaining untainted evidence even after concluding that it is not in a position to prefer the Minister’s evidence over that of the Respondent. The Board never came to the conclusion that the Respondent’s evidence was “tainted” in the first place, thus, there was no need to analyze a claim based on the remaining evidence. The test for vacation is clear. As stated by Justice Yves de Montigny in Mansoor, above, at para 23: [23] The parties do not dispute the proper approach to an application to vacate a decision granting refugee status. The tribunal must first conclude the decision granting refugee protection was obtained as a result of direct or indirect misrepresentations, or of withholding material facts relating to a relevant matter. Having found so, it may nevertheless deny the application if there remains sufficient evidence considered at the time of the determination of the claim for refugee protection to justify refugee protection: see, for example, Canada (Minister of Citizenship and Immigration) v. Pearce, [2006] F.C.J. No. 646, 2006 FC 492; Naqvi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1941, 2004 FC 1605 [Emphasis added] 25 I find no reviewable error in the Board’s section 109 analysis.

B. Did the Board Err in Considering How the Minister Obtained the Evidence? 26 The Board found fault with the way in which the Minister obtained the evidence given the protected status of the Respondent, writing at para 37: The protection of persons is at the core of the refugee determination system. The identification of those who genuinely need protection is critical to [the] integrity of that system. In investigating the merits, bona fides or veracity of claims brought before the Division, the Minister must balance, and be seen to balance, the need to protect the individual, including those who have been determined to be Conven- 164 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

tion refugees, against the need, in the public interest, to detect and prevent fraud. In this case, there is no evidence that any care was taken to protect the Convention refugee, a protected person. This is fatal to the Minister’s application. 27 The Minister submits that a consideration of the method by which the Minister obtained the evidence is irrelevant and not at issue. The Min- ister argues that the protocol followed by the Minister in obtaining the evidence was consistent with the case law and did not violate the Re- spondent’s privacy rights. The Minister submits that the Board erroneously and microscopically read the case law and mischaracterized what the Minister was attempting to do in verifying the documents. 28 The Respondent argues that the Board did not err in determining that the Respondent’s privacy rights under the Privacy Act, RSC 1985, c P-21 were violated by the Minister’s disclosure of personal information to the agents of persecution since the disclosure of personal information in this case was not consistent with the purpose of determining a refugee claim. The Respondent further argues that the Minister’s vacation application constitutes an abuse of process in that he failed to ask for a postponement and the subsequent challenging of the evidence deprived the Respondent of an opportunity to integrate that evidence into his claim. 29 The Minister relied on two cases to illustrate that this Court has found it acceptable to verify documents with foreign governments, even those alleged to be the claimant’s persecutors. The Board examined these cases, excerpting a section from Moin v. Canada (Minister of Citizenship & Immigration), 2007 FC 473, 157 A.C.W.S. (3d) 603 (F.C.). There, the Federal Court found, relying on the decision of the Court in the case of Igbinosun v. Canada (Minister of Citizenship & Immigration) (1994), 87 F.T.R. 131, 51 A.C.W.S. (3d) 918 (Fed. T.D.), that disclosure to the state authorities, the alleged persecutors, was essential to determine if the Re- spondent fell within the exclusion provisions of Article 1F (war crimes, serious non-political crimes) of the Schedule to the IRPA: [35] According to s. 8(1) of the Privacy Act, the person who provides the government with personal information must consent for the government to subsequently disclose the information. S. 8(2) then lists exceptions to that general rule. One of those exceptions, at paragraph 8(2)(a), allows the government to disclose information so long as the act of disclosure is for the same purpose, or one consistent with, the purpose of originally collecting the information. [36] In the present case, the purpose for which Mr. Moin’s personal information was collected may be expressed as general immigration Canada v. Lin D.G. Near J. 165

purposes or, more specifically, as admissibility and refugee determination purposes. Under either interpretation, using the information to determine whether Mr. Moin might be excluded from Convention refugee status was a reflection of the same purpose or, in the alternative, a purpose consistent with that which originally justified the collection: Rahman v. Canada (Minister of Employment and Immigra- tion), [1994] F.C.J. No. 2041 (F.C.T.D.) (QL). [37] Mr. Moin indicated in his refugee intake interview that he was charged with corruption and misuse of public office, thereby raising the possibility of exclusion under Article 1(F)(b) of the Convention. Appropriate inquiries were made to determine whether he was excluded from the refugee definition. There is no evidence that authorities in Pakistan were advised Mr. Moin had made a claim for asylum. In any event, the disclosure was essential to determine if he fell within Article 1(F). I believe the following paragraph taken from the decision reached by Justice Donna McGillis in Igbinosun v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1705 (F.C.T.D.) (QL), is a complete answer to Mr. Moin’s argument: 6. In the present case, the evidence establishes that the identity of the applicant was disclosed to Nigerian police officials to determine whether he had been charged with the offence of murder. There is no evidence to indicate that any confidential information given by the applicant in his personal information form was disclosed. The objection to the admissibility of the telex on the basis that the Privacy Act was violated has been advanced in the absence of a proper evidentiary framework and, as a result, must be rejected. Alternatively, even if Canadian officials did provide confidential information from the applicant to the Nigerian police, the disclosure was made for the purpose of permitting the Minister to formulate an opinion as to whether the claim of the applicant raised a matter within the exclusionary provision in subsection F(b) of Article 1 of the Convention. [See subparagraph 69.1(5)(a)(ii) of the Immigration Act.] Since the applicant provided the information for immigration purposes, its use, if any, by the Minister or his representatives was clearly “for a use consistent with that purpose” within the meaning of paragraph 8(2)(a) of the Privacy Act. [38] In light of the foregoing, I agree with the Minister that the Board was not required to address Mr. Moin’s arguments concerning his refugee sur place claim. A tribunal is not required to address such an argument where the applicant has been judged not to have presented 166 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

any credible evidence substantiating his claim: Barry v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 266, 2002 FCT 203; Ghribi v. Canada (Minister of Citizenship and Immi- gration), [2003] F.C.J. No. 1502, 2003 FC 1191; Lai v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 230, 2005 FC 179. 30 The Board distinguished the cases from the present matter in two ways. In Moin and Igbinosun, above, the information was sought to determine whether or not the claimants were excluded under Article 1F. The Board found that making inquiries regarding potential exclusion to be essentially different from making inquiries from the alleged persecutor regarding matters internal to the refugee claim, such as an assessment of the evidence. Secondly, the inquiries made in Moin and Igbinosun, above, were made prior to the determinations of the claims, and the results were disclosed before the hearing in each case. 31 The Minister argues that the Board distinguished these cases in a blind fashion. The Minister submits that the Board read the cases microscopically to hold that the Minister may only make inquiries in the case of exclusions. The Minister emphasizes that the Minister is able to make an application to vacate CR status at any time, so the fact that the inquiries in the present matter were made after the hearing is not in any way significant. 32 I do not read the reasons of the Board the same way as the Minister. Like the Respondent and the Board, I share the view that in principle the Minister has the right to send documents to foreign governments to be verified. However, at issue in this matter is the manner in which the documents were verified. This is a legitimate concern to which the Board rightfully turned its attention. 33 While cognizant of the fact that, in accordance with the legislation, personal information can be disclosed for a use consistent with the purpose for which the information was obtained, the Board nonetheless determined that the Respondent’s privacy rights had been violated because “seeking the views of the alleged persecutor or perpetrator on the quality, provenance or credibility of the evidence alleged against that person, institution or state” was, in this case, not a use consistent with the purpose of determining a refugee claim. The Board did not conclude that inquiries could only be made with respect to exclusions, rather, that consistent with the case law, disclosure or personal information must be consistent with the purpose of determining a refugee claim. Canada v. Lin D.G. Near J. 167

34 I agree with the Respondent that framing the issue as general immigration purposes, as suggested by the Minister, might be too broad. The Board focused largely on the fact that inquiries were made after the Re- spondent had been granted protective status. In this specific instance, it is hard to see how providing the Respondent’s documents to a government known to be repressive without first taking steps to protect the Respon- dent’s identity would be in line with the objectives of the IRPA, which the Board reproduced: Objectives — refugees (2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;[...] 35 The Minister maintains that the Respondent’s documents were provided to the Chinese authorities for immigration purposes, and the fact, acknowledged by the Board, that the Minister did not disclose that the Respondent had made a refugee claim or was granted convention refugee status means that the appropriate protocol was followed. This directly contradicts the Board’s findings that “no steps were taken, or criteria applied to protect the protected person.” 36 Again, the Minister fails to raise a reviewable error. Having rightly determined that the Respondent’s privacy rights were in issue, the Min- ister had a duty to ensure that the disclosure was appropriately limited and proportionate. As Justice Dani`ele Tremblay-Lamer wrote in Canada (Minister of Public Safety & Emergency Preparedness) v. Kahlon, 2005 168 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

FC 1000, 278 F.T.R. 254 (F.C.) at para 37, “The RPD should consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the right to privacy.” The Minister took no steps. The Minister’s submission that redacting the Respondent’s name from the documents would be counter-productive strikes me as spurious. The Respondent’s identity was never at issue, only the authenticity of the documents was questioned. Their genuineness could have been examined without revealing the Respondent’s name to the Chinese authorities, whom, a tribunal had already concluded, were more than merely likely to persecute him. 37 I, the Board and the Respondent recognize that in principle the Min- ister has the duty to uphold the integrity of the Canadian refugee determination system and accordingly the right to verify documents. However, I accept the Respondent’s submission that the manner in which the verification is conducted must be tailored to ensure that the claimant’s right to privacy is respected and that his life is not endangered by the disclosure. 38 I do not accept the Minister’s argument that the Board turned its mind to irrelevant and extraneous considerations and thus committed a reviewable error. The decision is justified and intelligible. I see no reason for this Court to intervene. 39 The Respondent submitted that the Minister’s vacation application constituted an abuse of process. I do not feel the need to comment on these submissions, other than to say that vacation applications should not be used as a more convenient timeline within which to challenge the veracity of documents that are internal to a claimant’s refugee determination process. That asking for an adjournment would pose scheduling in- conveniences for the Minister is not a valid rebuttal to this point.

VI. Conclusion 40 Submissions were received with respect to possible questions for certification but given my findings with respect to this matter, I have decided that it would not be appropriate to certify any questions. 41 In consideration of the above conclusions, this application for judicial review is dismissed.

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. Application dismissed. Bokhari v. Canada 169

[Indexed as: Bokhari v. Canada (Minister of Citizenship & Immigration)] Taqi Hassan Shah Bokhari, Syed Ali Hassan Bokhari, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3907-10 2011 FC 354 Sean Harrington J. Heard: March 3, 2011 Judgment: March 22, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Applicants were father and son who lived in Punjab and were Shia Muslims — Son was sexually abused by vice-principal at his school — When father found out about it, he protested loudly, putting in issue vice-principal’s integrity and sexuality — Vice-principal said son was gay and that he was merely giving him “moral instruction” — Vice-principal’s brother was Sunni Mulvi — He persuaded local Mufti to issue fatwa against applicants — Vice-principal and his brother complained to police — Applicants fled to Canada — Member of Refugee Protection Division of Immigration and Refu- gee Board held applicants were not Convention refugees and not in need of protection, as there was viable internal flight alternative available to them in Paki- stan, in city of Karachi — Applicants brought application for judicial review — Application granted — Cornerstone of member’s decision was finding that “verbal edicts by local clerics only have local influence,” and, although Mulvi was alleged to be member of terrorist organization, member found that organization was less active than other Jihadi organizations and level of threat from it was low — Decision resulted from procedural unfairness in that member relied on extrinsic evidence which was not put before claimants and there was serious possibility that evidence before member was that Mulvi was member of two terrorist organizations — Given that homosexuality was serious crime in Paki- stan, and that there may well have been testimony that Mulvi was member of extremist Sunni group, consideration had to be given by member as to likelihood of two Shias being pursued in Karachi. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division. 170 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

Cases considered by Sean Harrington J.: Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.) — followed C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Education Board v. Rice (1911), [1911] A.C. 179, [1911-13] All E.R. Rep. 36 (U.K. H.L.) — considered Gilbert v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1186, 2010 CarswellNat 5188, 2010 CarswellNat 4462, 2010 FC 1186, [2010] F.C.J. No. 1484, [2010] A.C.F. No. 1484 (F.C.) — referred to Liyanagamage v. Canada (Secretary of State) (1994), (sub nom. Liyanagamage v. Canada (Minister of Citizenship & Immigration)) 176 N.R. 4, 1994 Car- swellNat 1327, [1994] F.C.J. No. 1637 (Fed. C.A.) — referred to Mancia v. Canada (Minister of Citizenship & Immigration) (1998), [1998] 3 F.C. 461, 45 Imm. L.R. (2d) 131, 1998 CarswellNat 2069, 161 D.L.R. (4th) 488, 226 N.R. 134, 147 F.T.R. 307 (note), 1998 CarswellNat 811, [1998] F.C.J. No. 565 (Fed. C.A.) — considered Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706, 140 N.R. 138, 1991 CarswellNat 162, 1991 CarswellNat 162F, [1991] F.C.J. No. 1256 (Fed. C.A.) — considered Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 160, 1993 CarswellNat 1351, 22 Imm. L.R. (2d) 241, 109 D.L.R. (4th) 682, [1994] 1 F.C. 589, 163 N.R. 232, [1993] F.C.J. No. 1172 (Fed. C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 81 — referred to Refugee Protection Division Rules, SOR/2002-228 R. 29(2) — considered Bokhari v. Canada Sean Harrington J. 171

Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1A “refugee” — referred to

APPLICATION for judicial review of decision of member of Refugee Protec- tion Division of Immigration and Refugee Board which found applicants were not Convention refugees and not in need of protection.

Dan Bohbot, for Applicants Patricia Nobl, for Respondent

Sean Harrington J.:

1 It is well established in our law that in order to be a refugee, one must be at risk throughout his country, not simply in the region in which he lives. The concept of a viable internal flight alternative (IFA) is inherent in the determination of whether a person is a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees or otherwise in need of Canada’s protection (sections 96 and 97 of the Im- migration and Refugee Protection Act; Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706, [1991] F.C.J. No. 1256 (Fed. C.A.); Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 589, [1993] F.C.J. No. 1172 (Fed. C.A.)). 2 The presiding member of the Refugee Protection Division of the Im- migration and Refugee Board of Canada (IRB) found the applicants, father and son, to be at risk where they lived in the Punjab, but held that they were not Convention refugees and not in need of protection as there was a viable IFA available to them in Pakistan, in the city of Karachi. This is the judicial review of that decision.

The Facts 3 Although the member had some concern with the applicants’ story, he found on the balance of probabilities that they were speaking the truth. Credibility was not put in issue before me. 4 Young Syed was sexually abused by the vice-principal at his school. When his father found out about it, he protested loudly, putting in issue the vice-principal’s integrity and sexuality. Unfortunately, as so often 172 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

happens, the predator blamed the victim. The vice-principal said that Syed was gay and that he was merely giving him “moral instruction.” 5 The vice-principal’s brother was a Sunni Mulvi, i.e. a religious cleric. He persuaded the local Mufti to issue a fatwa against the applicants. The Mufti is an authority on Islamic law and tradition and a fatwa has been described as an “advisory opinion” which could extend so far as to a suggestion that the subject of the fatwa be killed. 6 The vice-principal and his brother complained to the police. Various incidents adversely affected the applicants. Fearing for their lives, they fled to Canada.

Standard of Review 7 The IFA is a finding of fact, only to be set aside on judicial review if unreasonable. The applicants submit that the record clearly reveals that the member’s premise was based on misinterpretation of a key issue, which was the status of the police investigation against the applicants. As a result, he erroneously concluded that the local police were not taking the vice-principal’s complaint seriously, so that there was no serious possibility that the applicants would be pursued in Karachi. 8 More importantly, however, the applicants allege procedural unfairness. When it comes to matters of natural justice, including procedural unfairness, this Court owes no deference to the Tribunal whose decision is under review. Indeed, the standard of review is not applicable at all, although some might say that the standard is correctness (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 (S.C.C.), at paragraphs 99 and 100).

Analysis 9 A cornerstone of the decision was the finding, based on documentary evidence, which was not cited, that “verbal edicts by local clerics only have a local influence.” Furthermore, although the Mulvi was alleged to be a member of a terrorist organization, the member found that that organization was less active than other Jihadi organizations and the level of threat from it was low. In reaching that conclusion, the member relied upon a United Kingdom Country of Origin Report which was not in the National Documentation Package, and which was not put before the applicants in order to give them an opportunity to respond. 10 Moreover, there is no transcript for part of the proceedings. The matter was heard in March 2009 and in May 2010. Part of the March 2009 Bokhari v. Canada Sean Harrington J. 173

hearing was, undoubtedly due to an administrative error, not recorded, and so could not be transcribed. This only came to light after leave to proceed to a judicial review was granted by Mr. Justice Martineau. This led Syed, in an affidavit signed in January of this year, to say that during the portion of the first hearing which was not taped his father testified that the Mulvi was not a member of one, but rather two terrorist organizations. 11 The member correctly set out the pre-requisites to a finding that a claimant has an IFA. There must be no serious possibility of the claimant being persecuted or, on the balance of probabilities, at risk of harm or cruel or unusual punishment or torture, in that part of the country where the IFA exists. Secondly, the conditions in that area must be such that it would not be objectively unreasonable for the claimant to seek refuge there (Rasaratnam, above). 12 As enunciated in Rasaratnam, and many other cases, the burden rests with the claimant. 13 There is no need for me to analyze the alleged errors with respect to the significance of the complaint laid with the police. I am satisfied that the decision resulted from procedural unfairness in that the member relied on extrinsic evidence which was not put before the claimants and that there is a serious possibility that the evidence before the member was that the Mulvi was a member of two terrorist organizations. The more important a fact is to a claimant’s case, the greater the need for the member to refer to it in his reasons (Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (Fed. T.D.)). 14 The applicants are Shia Muslims, while the vast majority of Pakis- tanis, including the vice-principal, and his brother, the Mulvi, are Sunni. Some Sunni organizations have great animosity against Shias. 15 It may well be that if they chose, the vice-principal and his brother, could track the applicants down in Karachi. However, the issue is whether they, with connections to terrorist organizations, have the will to do so. The member was of the view that once the applicants left their local community in the Punjab there would be no interest in pursuing them in Karachi. 16 One of the bases of this decision was that the Mufti who issued the fatwa did so orally. The member said “according to the documentary evidence, verbal edicts by local clerics only have a local influence.” The applicants complain that no authority was stated for that proposition. 174 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

However, and while it might have been better to cite authority, that statement is justified by the record. According to the IRB’s Responses to In- formation Requests, PAK40294.E and PAK102658.E issued in 2002 and 2007, literally thousands of fatwas are issued on a daily basis. If the fatwa is given by an unknown local Mufti, in a mosque, no one outside will know. However, if the Mufti is a radical or militant leader, people will know about it and the fatwa may be publicized. The more the Mufti is politicized, the greater the danger for the named individuals. The influence of the fatwa depends on the stature of the person who issues it, and in this case the status of the Mulvi who induced him to act. 17 The applicants do not know the name of the Mufti who issued the fatwa. However, this is understandable in that he is a Sunni, and the Bokharis, as Shias, did not attend his mosque. 18 Nevertheless, the member accepted the applicants’ testimony that the Mufti was a member of a Jihadi organization (Harkat-ul-Mujahideen (HuM)), formed in 1985 and previously known as Harkat-ul-Ansar. It was officially banned by the United States in 2001 due to its links to al- Qaeda. He concluded, however, that it was “less active than other Jihadi organizations and the level of threat from HuM itself is low.” The member justified that statement by referring to the National Documentation Package for Pakistan, U.K. Country of Origin Information Report — Pa- kistan, Annex C, Terrorist Organizations, page 213, dated 18 January 2010. 19 The Minister acknowledges that such a report exists, but it was not in the National Documentation Package at the time of the hearing, it is not in the package to this very day, and it was not put before me. 20 Counsel for the Minister speculates that this reference may simply have been a clerical error in that the same information appears in Annex C of the U.K. July 2009 Report which states in Annex 3: HARKAT-UL-MUJAHIDEEN (HuM) (Formerly Harkat-ul- Ansar (HuA)) Formed in 1985 and previously known as the Harkat-ul-Ansar (HuA). Officially banned by the US in 2001 due to its links with al- Qaeda. [61a] Less active than other jihadi organisations and the level of threats from HuM itself is low. However former members have joined other more dangerous groups, or operate in different guises. [36] Bokhari v. Canada Sean Harrington J. 175

21 The applicants put in the November 2008 Report, in its entirety. The entry is somewhat different. It reads: HARKAT-UL-MUJAHIDEEN (HuM) (Formerly Harkat-ul- Ansar (HuA)) Formed in 1985 and previous known as the Harkat-ul-Ansar (HuA). Officially banned by the US in 2001 due to its links with Al-[Q]aeda. 22 Not only do I not have the 2010 report before me, but the text relating to the HuM in the 2009 report contains two footnotes which also are not before me. Annex C is found at page 213 of the 2010 version, page 190 of the 2009 version and page 160 of the 2008 version. Obviously new material has been added. I can only conclude that the member relied on a document which was not in the available documentation package, and which is not before me. We can only speculate as to what might be in the report. The only report before me in its entirety, the 2008 version, makes no mention, at least in its index, of any terrorist organization except the Taliban. 23 I find that the decision was tainted with procedural unfairness. In Mancia v. Canada (Minister of Citizenship & Immigration), [1998] 3 F.C. 461, [1998] F.C.J. No. 565 (Fed. C.A.), Mr. Justice D´ecary pointed out that if a board is to rely on extrinsic evidence not brought forth by the applicant himself, an opportunity must be given to respond thereto. At paragraph 16, he quoted from a speech of Lord Loreburn in Education Board v. Rice, [1911] A.C. 179 (U.K. H.L.), at page 182: They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statements prejudicial to their view [...]. 24 One cannot say that the U.K. 2010 report was merely an update without novel and significant information as per paragraph 22 of Mancia. 25 Syed also testified that during that part of the first day of hearing, which was not recorded, his father stated that the Mulvi was also a member of Lashkar-E-Jhangvi (LEJ). In both the 2008 and 2009 annex C before me, that group is described as a Sunni extremist breakaway group of the Sipah-E-Hahaba Pakistan (SSP), formed in 1996. 26 Syed was not cross-examined. The Minister takes the position that his evidence was hearsay and not admissible on a final hearing in accordance with rule 81 of the Federal Courts Rules, and that in any event he was contradicted by the transcript of the second hearing which related only to the HuM. In my view, Syed’s evidence was not hearsay. He was 176 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d)

present at the hearing and was in as good a position as his father to swear as to what was said. It would be quite different if Syed had not been in the room and said in his affidavit that his father told him what he had said at the hearing. The issue is not whether the Mulvi is a member of the LEJ but rather whether, as a matter of fact, it was stated at the hearing that he was (see Bryant, Lederman and Fuerst, The Law of Evidence in Canada, 3d ed. (Markam, Ont: LexisNexis, 2009), at 229 and following). 27 Furthermore, although the Minister does not take the position that Syed is lying, he concludes that he must be mistaken given the fact that only one terrorist organization was referred to at the second hearing. I believe the principle set out in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.), is applicable. If a party wishes to undermine the credibility of a witness by introducing contrary or inconsistent evidence that party should bring the evidence to the witness’ attention during cross examination. As Lord Herschell LC stated: [I]t seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is possible for him to explain, as perhaps he might be able to do if some questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that his is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is still in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. [My Emphasis.] 28 This possible contradiction should have been put to Syed in cross- examination. 29 In any event, the Minister emphasizes, quite correctly, that the burden was on the applicants to establish that either of these terrorist organizations had outreach into Karachi. However, it is always difficult to know in advance what level of proof will satisfy a decision maker. All I need to say in this case is that the record does not establish how the member concluded that HuM was local in nature, and there is nothing in the record with respect to LEJ other than it is a Sunni extremist group. Given Bokhari v. Canada Sean Harrington J. 177

that homosexuality is a serious crime in Pakistan, and given that there may well have been testimony that the Mulvi was a member of an extremist Sunni group, consideration had to be given by the member as to the likelihood of two Shias being pursued in Karachi.

Certified Questions 30 At the close of the hearing, counsel for the applicants stated that he would propose one or more serious questions of general importance which could be certified in order to support an appeal. He was given a delay to reduce those questions to writing, and counsel for the Minister was given a further delay to reply. 31 The applicants proposed two questions: a. Can the Immigration and Refugee Board, Refugee Protection Di- vision, in the context of a refugee claim, legitimately use extrinsic evidence to question credibility? b. Must the Immigration and Refugee Board, Refugee Protection Di- vision Member, render a decision and reasons for each co-applicant, despite the fact that co-applicants share the same narrative, when each co-applicant has a distinct fear of persecution? 32 The short answer is that, among other things, the question must be determinative of the appeal (Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (Fed. C.A.)). Since the applicants have succeeded in their judicial review, and since the Minister posed no questions for certification, my decision is final. 33 In any event I do not consider that the member used extrinsic evidence to question credibility. The jurisprudence is quite clear as to when extrinsic evidence may be used. Furthermore, counsel for the Minister submits rule 29 (2) of the Refugee Protection Division Rules which provides: 29. Disclosure of documents by the Division - (2) If the Division wants to use a document at a hearing, the Division must provide a copy to each party. 29. Communication de documents par la Section - (2) Pour utiliser un document a` l’audience, la Section en transmet une copie aux parties. 34 Furthermore I do not consider the second question to be a serious question of general importance. Although the claims were joined, an application to sever could have been made (see Gilbert v. Canada (Minister 178 IMMIGRATION LAW REPORTER 96 Imm. L.R. (3d) of Citizenship & Immigration), 2010 FC 1186, [2010] F.C.J. No. 1484 (F.C.)).

Order FOR REASONS GIVEN; THIS COURT ORDERS that: 1. The judicial review is allowed. 2. The matter is referred back to another member of the Refugee Protection Division of the Immigration and Refugee Board for redetermination. 3. There is no serious question of general importance to certify. Application granted.