IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 28 (Cited 28 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 28 (Cited 28 Imm. L.R. (4th))

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Case Comment: Baba v. New Brunswick (Minister of Post- Secondary Education, Training and Labour) Randolph K. Hahn Katherine Yang

The decision is clearly one involving ministerial discretion. This was a part of the reasoning of Mr. Justice Morrison of the New Brunswick Court of Queen’s Bench in the recent case of Baba v. New Brunswick (Minister of Post-Secondary Education, Training and La- bour),1 wherein an application for judicial review challenging the Gov- ernment of New Brunswick’s refusal of an application for a Provincial Nominee Certificate was dismissed. This highlights the way in which decisions taken by provincial authorities, under the various provincial nominee programs, can be difficult to challenge. In Baba, the applicant was refused a nomination certificate by the Prov- ince of New Brunswick, as the immigration officer had concerns with respect to the applicant’s ability to demonstrate adequate personal net worth. Further, the officer was not satisfied with the applicant’s source of funds. Mr. Baba had applied to the New Brunswick nominee program. In due course, he was invited to submit a formal application. After he did so, the Province expressed concerns about Mr. Baba’s ability to pay the necessary deposit and indeed also had concerns about the source of his funds. Mr. Baba’s counsel did provide documentation, but that was considered to be insufficient and the application was refused. As the Court noted, the decision being challenged was pursuant to a federal-provincial agreement and not pursuant to a provincial statute. It was in the context of making that observation that Mr. Justice Morrison noted that the case is clearly one involving ministerial discretion. Mr. Baba had argued that a federal operational bulletin, which addressed the issue of the source of funds, should apply. The Court concluded otherwise. It de-

12014 NBBR 218, 2014 NBQB 218 (N.B. Q.B.) [Baba], below at p. 212. 210 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th) cided that the federal operational bulletin was only to be a guide for federal immigration officials, and in any event it didn’t necessarily preclude consideration of the source of funds. The Court looked to the agreement between New Brunswick and the federal government, in particular, the part outlining the respective roles and responsibilities. That agreement notes that “[p]rovinces have the authority and responsibility to establish their own criteria for nomination, insofar as the criteria are not incompatible with national immigration policy, while the federal government maintains its responsibility for applying statutory admissibility criteria and exercising selection authority as described by the Regulations.”2 Reference was made to another recent case from the New Brunswick Court of Queen’s Bench: Rihawi v. New Brunswick (Minister of Post Secondary Education, Training and Labour).3 In that case, the Court noted that the Province had discretion as to who it could nominate and that indeed the provincial official who had interviewed Mr. Rihawi “. . . was performing a policy-making discretionary function.”4 Immigration lawyers may hope for consistency and objectivity in decisions involving the selection of immigrants. We can get frustrated when clients receive decisions that appear to be arbitrary and where courts are reluctant to intervene because deference should be given to a decision- maker’s finding of facts or exercise of discretion. But, of course, we can get no less frustrated when an officer in our view is applying the law rigidly without what we believe to be the appropriate degree of latitude and flexibility that circumstances require. In some ways, effort has been made to make the criteria for prospective immigrants more objective. For example, in a recent webinar for practi- tioners about the new Express Entry system, a Citizenship and Immigra- tion Canada official noted that the lack of subjectivity is a key part of the new system. “It doesn’t think” is how he described the new system. But in the cases of provincial nominations, the system can be far from objective. For the most part, the criteria are set out in policy rather than

2Canada-New Brunswick Agreement on Provincial Nominees, s. 7.2, cited as para. 23. 32014 NBQB 199 (N.B. Q.B.). 4Ibid, at para. 26. Case Comment: Baba v. New Brunswick 211 in legislation or regulations, the appeal processes vary and in any event are generally administrative rather than legal, and as noted here, there is certainly reluctance on the part of provincial courts to review the decisions of the provincial officials. Given the increasing role that provincial nomination programs play in the selection of immigrants to Canada, it is worth considering whether this is, in fact, a good thing. 212 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

[Indexed as: Baba v. New Brunswick (Minister of Post- Secondary Education, Training and Labour)] Ali Haji Baba, Applicant and The Province of New Brunswick, as represented by the Minister of Post-Secondary Education, Training and Labour, Respondent New Brunswick Court of Queen’s Bench Docket: F/M/11/14 2014 NBBR 218, 2014 NBQB 218 Terrence J. Morrison J. Heard: September 8, 2014 Judgment: September 22, 2014 Immigration and citizenship –––– Admission — Immigrants — Business — Miscellaneous –––– Claimant applied to program allowing immigration for business immigrants, where province screened candidates and made recommenda- tions to federal government — Program representatives expressed concern about claimant’s ability to pay deposit, source of funds and lack of documentation — Application rejected due to lack of funds — Claimant brought application for judicial review — Application dismissed — Determination met standard of reasonableness — Procedural fairness not violated — Decision was made pursuant to federal-provincial agreement and not pursuant to provincial statute, and clearly involved ministerial discretion — Decision was important to claimant, but it conferred no rights as final decision rested in hands of ministerial agent — There was no guarantee that claimant would be accepted even if he met all criteria — Claimant could re-apply after two years — Decision-making process was governed by clear set of criteria — Reason for refusal was made clear — Pro- vincial representatives were not prevented from examining source of funds — Although federal operatives were not to second guess determinations of provincial agents, this did not prevent provincial agents from ascertaining source of funds. Cases considered by Terrence J. Morrison J.: Chez Couture et Ami(es) Inc. v. New Brunswick (Minister of Social Develop- ment) (2012), 2012 NBBR 356, 2012 NBQB 356, 2012 CarswellNB 786, 2012 CarswellNB 787, 1035 A.P.R. 318, 399 N.B.R. (2d) 318 (N.B. Q.B.) — referred to Jiang v. Manitoba (Minister of Labour and Immigration) (2013), 2013 MBQB 107, 2013 CarswellMan 221, 292 Man. R. (2d) 76, 17 Imm. L.R. (4th) 202 (Man. Q.B.) — followed Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 213

Jiang v. Manitoba (Minister of Labour and Immigration) (2014), 24 Imm. L.R. (4th) 68, 2014 MBCA 27, 2014 CarswellMan 100, [2014] 5 W.W.R. 507, 303 Man. R. (2d) 213, 600 W.A.C. 213 (Man. C.A.) — referred to McLaughlin v. New Brunswick (Department of Environment) (2010), 939 A.P.R. 94, 56 C.E.L.R. (3d) 293, 365 N.B.R. (2d) 94, 2010 NBQB 321, 2010 Car- swellNB 514 (N.B. Q.B.) — referred to Rihawi v. New Brunswick (Minister of Post Secondary Education, Training and Labour) (2014), 2014 CarswellNB 408, 2014 NBQB 199 (N.B. Q.B.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Rules considered: Rules of Court, N.B. Reg. 82-73 R. 69 — pursuant to

APPLICATION by claimant for judicial review of determination dismissing immigration claim.

Hazen F. Calabrese, for Applicant Denis G. Theriault, for Respondent

Terrence J. Morrison J.: I. Introduction 1 This is an application for judicial review of a decision of the Province of New Brunswick as represented by the Minister of Post-Secondary Ed- ucation, Training and Labour (the “respondent”) pursuant to Rule 69 of the Rules of Court. The applicant, Ali Haji Baba (the “applicant”) asks the Court to quash the decision refusing his application for a Provincial Nominee Certificate under the New Brunswick Provincial Nominee Pro- gram (the “Decision”) and to reinstate the applicant at step five of the nominee process. The respondent opposes the application.

II. Facts 2 The Province of New Brunswick (the “Province”) entered into an agreement with the federal government through Citizenship and Immi- gration Canada (“CIC”) with respect to the selection of certain immigrants. Pursuant to the agreement which is authorized by the Immigration and Refugee Protection Act, SC 2001, c.27, the Province invites applica- 214 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

tions from prospective immigrants known as “business applicants”. These applicants are assessed by the Province pursuant to criteria established by the Province. At the end of the process a successful applicant is issued a Provincial Nominee Certificate. As the Province does not have jurisdiction to grant immigration status to an applicant, the Provincial Nominee Certificate is, in effect, a recommendation to CIC. 3 An operational bulletin entitled “OB 7B” (the “Operational Bulletin”) states that under the Provincial Nominee Program the Province has the authority and responsibility to establish its own criteria for determining the value of an applicant’s economic contribution to the province (Ex- hibit “B” to Dhayagude affidavit, sections 7.2 and 7.6). The criteria established by the Province are set out in the “Guide for Business Appli- cants” (Exhibit “A” to Baba affidavit). It sets out a nine step process and explains the criteria used to assess the applicant. The Province can nominate no more than 625 applicants per year and the Guide clearly states that meeting eligibility requirements does not guarantee nomination. In short, it is a competitive process. 4 While the application process consists of nine steps it actually comprises two discreet application phases. In the first phase the applicant submits a preliminary application and requests an invitation for an exploratory business trip to New Brunswick. The preliminary application is reviewed by a program officer and if it meets the eligibility criteria the program officer recommends that the applicant be invited for a business trip to New Brunswick. Applicants are also required to participate in an interview with a program officer during their exploratory visit. After the interview the program officer determines whether or not an applicant will be invited to submit an application for permanent residency through the Provincial Nominee Program. The applicant may then submit an application for permanent residence which includes information with respect to a proposed business plan, financial assets and a net worth statement among other information. This second application is then reviewed and successful applicants are issued a Provincial Nominee Certificate. Once the Provincial Nominee Certificate is issued the file is referred to CIC for consideration regarding the issuance of a permanent residence visa. 5 The applicant applied to the program on January 6, 2011 using an immigration consultant and representative Mohammad Kazemi. The application proceeded through the first four steps of the application process: the applicant completed the New Brunswick exploratory business meeting and the interview. On April 23, 2012 the respondent sent an e- Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 215

mail to the applicant inviting him to submit an application for permanent residence and directing him to a website where a complete application kit was available. On October 15, 2012 the applicant, through his representative Mr. Kazemi, submitted documentation in support of his application for permanent residence which included a Business Plan, a Declaration of Commitment, Accumulation of Asset Statement and a Personal Net Worth Statement (see Exhibits “K” and “L” to the Dhayagude affidavit). On March 21, 2013 the respondent sent an e-mail to the applicant expres- sing concern about the limited amount of cash in the applicant’s bank accounts and questioned his ability to pay the $75,000.00 deposit. The correspondence also makes it clear that the respondent was not satisfied with the documentation provided by the applicant in connection with these matters. On April 7, 2013 the applicant’s consultant, Mr. Kazemi, replied with assurances that the applicant was able to pay the required deposit but he provided no documentation. 6 On April 8, 2013 Ms. Lilian Wo, an immigration officer employed by the respondent, responded to the applicant indicating that the information provided was not sufficient to demonstrate that the applicant had the necessary funds and that further documentation was required. The correspondence states in part: We cannot take words like this. As you know, everything must be documented in the immigration process. He is not only required to show he has the funds. He is also required to show the source of the funds. (emphasis added) On or about August 2, 2013 the respondent received a letter on behalf of the applicant dated July 30, 2013 providing documents that had previously been submitted by the applicant. No new documentation was submitted. In that correspondence Mr. Kazemi, on behalf of the applicant, offers an explanation regarding the lack of funds for deposit by stating that a bank account is “a snapshot, of a particular day” and made asser- tions that the applicant was able to pay the deposit. On August 27, 2013 Ms. Wo responded by e-mail advising that the documentation submitted in support of the applicant’s net worth was not acceptable and asked that the appropriate documentation be provided as soon as possible. By letter dated October 10, 2013 (received by the respondent on October 15, 2013) the applicant enclosed bank statements dated April 6, 2013 which had already been previously submitted. The correspondence does not ad- 216 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

dress the other issues raised in Ms. Wo’s correspondence of August 27, 2013. 7 On November 15, 2013 Ms. Wo concluded that the application must be refused and prepared a document entitled “Refusal Reason — Per- sonal Net Worth Is Not Adequate” (the “Refusal Reason”). This document was reviewed by management of the respondent for a final decision and on November 25, 2013 a letter advising the applicant of the refusal of his application was sent to him. In her Refusal Reason Ms. Wo noted that the reason for the refusal is that the applicant does not have an adequate personal net worth. The basis for this conclusion is that the applicant did not provide acceptable documentation required to demonstrate the adequacy and source of the funds supporting his net worth. The Re- fusal Reason states: Consultant simply said that his client (applicant) is ready and able to make $75,000.00 deposit at any time, but cannot provide any evidence. Therefore, officer is not satisfied and convinced that applicant has fully disclosed his personal net worth. Also, officer is not convinced by his source of the funds. (emphasis added) 8 In this Notice of Application Mr. Baba advanced the following as the grounds for his application: 3. The Applicant shall argue that the Respondent breached the rules of natural Justice or in the alternative the duty to act fairly in that: (a) The Respondent did not enunciate what requirements caused the refusal; (b) The Respondent did not provide any justification of its decision that the Applicant did not demonstrate that the Applicant “has a strong likelihood of becoming economically established in New Brunswick; and (c) The Respondent did not provide any reasons why it was not convinced that the Applicant did not meet all requirements of the New Brunswick Provincial Nominee Program. 9 In his pre-hearing brief and at the hearing itself the applicant’s grounds changed. The applicant now asserts that the respondent failed in its duty of fairness by relying on the applicant’s source of funds as a criterion for assessing his application when the source of funds is an irrelevant consideration pursuant to the provisions of Operatonal Bulletin. In short, the applicant argues that the process was tainted and is ultra vires the agreement between the Province and the federal government Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 217

because it violates the Operational Bulletin and therefore the decision violates the principles of fairness. 10 I return to the Notice of Application. There is no allegation that the respondent acted unreasonably. There is no reference in the pleadings whatsoever to the reasonableness of the respondent’s decision and the matter was not addressed by the applicant’s counsel in argument. Not- withstanding that reasonableness was not pleaded I feel compelled to submit the Decision to the judicial scrutiny normally given to such matters when judicial review is sought. Preliminarily, that will entail a determination of whether reasonableness or some other criteria is the appropriate standard of review. 11 I will deal first with the duty of fairness and then turn to a consideration of the appropriate standard of review.

III. Analysis and Decision (a) The Duty of Fairness 12 In Rihawi v. New Brunswick (Minister of Post Secondary Education, Training and Labour), 2014 NBQB 199 (N.B. Q.B.) the trial judge was confronted with an application under the very same program which is the subject matter of this application. The case involved very similar if not identical issues to those being raised in this case albeit the factual basis for the applications are somewhat different. In that case Garnett, J. discussed the duty of fairness at paragraph 14 to 17: [14] He submits that the Province “breached the common law duty of fairness” and that it was unreasonable. As I have stated before, the role of a Court in assessing whether a decision is reasonable is different from the role when assessing whether the process has been fair. In the former, the Judge examines the record or the reasons given by the tribunal or Government official and asks whether they are justified, transparent and intelligible (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.) In the second, the Court examines the process followed by the Government body and asks whether it was fair. In this case, Rihawi has submitted that the Province has been both unfair and unreasonable. The Duty to be Fair [15] Where the issue before the Court relates to procedural fairness, it is unnecessary to determine a standard of review. See Moreau-B´er- ub´e v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at par- 218 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

agraph 74 and C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539. [16] When the question relates to procedural fairness, the issues are; did the particular Respondent have a duty to be fair and, if so, did it fulfill the duty? [17] In Principles of Administrative Law by Jones and de Villars, (fifth edition) the authors state at page 255: Thus, the duty to be fair has evolved so that it now applies to every public authority making an administrative decision which affects the rights, privileges or interests of an individual... 13 And at paragraph 20: [20] The concept of fairness is flexible and variable. In Baker v. Can- ada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817, Madame Justice L’Heureux-Dub´e enunciated some of the relevant factors to be considered in determining the content of the duty of fairness. These factors were summarized in Jones and de Villars, at pages 256 and 257, as follows: 1. The nature of the decision being made and the process followed in making it. The closer the administrative process is to judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required. 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. The role of the decision in the statutory scheme helps determine the content of the duty of fairness. Greater procedural protections are required when there is no appeal procedure or the decision determines the issue and further requests cannot be submitted. 3. The importance of the decision to the individual or individuals affected. The more important or the great impact the decision has, the more stringent are the procedural protections. This is a significant factor. The court commented: The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections will be mandated. 4. The legitimate expectations of the person challenging the decision. The doctrine of legitimate expectations is part of the doctrine of procedural fairness. If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires this procedure to be followed. If a claim- Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 219

ant has a legitimate expectation that a certain result will be reached, fairness may require more extensive procedural rights than might otherwise be accorded. The doctrine of legitimate expectations does not create substantive rights outside the procedural domain. The “circumstances” affecting procedural fairness take into account the promises or regular practices of the administrative decision-makers to act contrary to their representations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights. 5. The choices of procedure made by the agency itself, particularly if procedure is a matter of discretion or if the agency possesses expertise in determining appropriate procedures. Important weight must be given to the choice of procedures made by the agency and its institutional restraints. 14 The decision in this case was made pursuant to the federal-provincial agreement discussed above and not pursuant to a provincial statute. The decision is clearly one involving ministerial discretion. While the decision is important to the applicant in pursuing residency, it confers no rights upon the applicant as the final decision rest in the hands of CIC. Furthermore, even if the applicant satisfied all the criteria there was no guarantee that he would be issued a nominee certificate. While there is no right of appeal, an unsuccessful applicant may re-apply after two years. The decision-making process was governed by a clear set of criteria and procedure developed by the respondent and communicated to the applicant. 15 The applicant was well aware of the criteria for nomination under the Provincial Nominee Program. Those criteria are detailed in the Guide for Business Applicants to which the applicant was directed. Furthermore, the applicant accessed and completed all of the forms provided to him for the application process. The applicant attended New Brunswick on an exploratory business meeting and met with program officers during the interview process. He was assisted throughout by a professional consultant. The correspondence passing between the applicant and the respondent between March and October 2013 made it very clear to the applicant that the respondent was not satisfied with the information he provided with respect to both the amount and source of his funds. Despite given several opportunities to provide the required documentation, the applicant failed to do so. In my view, the respondent’s conduct went above 220 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

and beyond what the duty of fairness required. In short, I conclude that the applicant was treated fairly. 16 In addition to the general duty of fairness, the applicant raised a very specific argument which, at its heart, is that the decision was based on an improper or irrelevant consideration. He argues that the respondent’s officer, Ms. Wo, became focused on verification of the source of the applicant’s funds. The applicant says that the source of funds is a specifically excluded consideration under the Operational Bulletin and therefore the respondent acted both unfairly and without authority in relying on this irrelevant consideration in refusing his application. 17 In support of his argument the applicant refers to the Guide for Busi- ness Applicants (Exhibit “C” to Dhayagude affidavit), and ancillary document (Exhibit “B” to Baba affidavit) where the eligibility requirements are set out. Having satisfied the requirements justifying an exploratory visit and an interview the applicant maintains that the only two outstand- ing eligibility requirements were that he have a net worth of $300,000.00 and be able to pay the $75,000.00. The applicant says that rather than focusing on his actual net worth the respondent, through its officer Ms. Wo, became focused on the applicant verifying the source of his net worth. 18 The applicant maintains that Ms. Wo is governed by the requirements of the Operational Bulletin. He refers specifically to page six of that document under the heading “Schedule 4A — Economic Classes — Provin- cial Nominees — Business Nominees” and more particularly the following passage: Schedule 4A is designed to address this gap. Application should not be refused simply because the source of the applicant’s funds is unclear, nor should they be refused for non-compliance simply because the applicant refuses to reveal their source of funds since the Immi- gration and Refugee Protection Act (IRPA) does not require that the officer consider this information for selection purposes, it could be difficult to defend refusals based purely on a failure to provide information. 19 The applicant argues that the above mentioned sections of the Opera- tional Bulletin prohibit the respondent’s reviewing officer from investi- gating the source of an applicant’s funds and prohibits refusal on that basis. There is no dispute that the respondent’s decision to refuse the application was based, at least in part, on the applicant’s inability to verify the source of his funds. Accordingly, the applicant argues that the Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 221

respondent acted unfairly by relying on an irrelevant and prohibited consideration in denying his application. 20 The applicant’s argument in this regard turns on whether the Opera- tional Bulletin applies to the application process administered by the Province. The respondent maintains it does not. The respondent argues that the Operational Bulletin is a document which governs the activities of the federal department and is neither applicable to nor relevant to the functions of Ms. Wo. 21 The agreement between the Province and the federal government explicitly provides that the Province will develop and follow its own criteria and procedures for assessing candidates. (see section 5.1 and 5.3 of federal/provincial agreement, Exhibit “A” to Dhayagude affidavit). The Guide for Business Applicants and the forms which comprise the application were developed by the Province. 22 The Operational Bulletin is issued by CIC, a federal entity. In my view, a fair reading of the document clearly indicates that it is an operational bulletin issued to federal immigration/visa officers to provide gui- dance in the processing of applications emanating from the provinces under the various provincial nominee programs. Reference is made to section 5 and 7.6: 5. Departmental policy The provincial nominee rules recognize that provincial governments are best positioned to determine their specific economic needs with respect to immigration. Immigration officers can assume that a candidate nominated by a province does, in the view of the provincial officials, intend to reside in the nominating province and has a strong likelihood of becoming economically established in Canada. However, the immigration officer may become aware of information that might bring these assumptions into question. In these cases, it is open to the immigration officer to ultimately refuse to issue a visa to the provincial nominee. Refusals of provincial nominees are discussed in Section 7.6 of this chapter. 7.6 Processing the application When a visa office receives a certificate of nomination under the provincial nominee class, the officer should proceed to issue medical instructions and carry out normal security screening procedures as soon as possible, provided a complete application has been received. 222 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

23 It is also clear to me that the federal government delegated to the Province the authority to determine the economic viability of the applicants. Reference is made to section 7.2: 7.2 Roles and responsibilities Provinces have the authority and responsibility to establish their own criteria for nomination, insofar as the criteria are not incompatible with national immigration policy, while the federal government maintains its responsibility for applying statutory admissibility criteria and exercising ultimate selection authority as described in the Regulations. CIC is responsible for: • assessing the candidates’ admissibility; • assessing their eligibility under R87; and • rendering a final decision on their eligibility as members of the provincial nominee class (R87(2)). 24 I conclude that the Operational Bulletin is a set of instructions to federal visa officers on how to process visa applications for those applicants who have already received a Provincial Nominee Certificate from the Province. It therefore operates only after the Provincial Nominee Certifi- cate has issued and therefore can have no application or binding effect on the provincial process or the officer of the respondent. Accordingly, the purported prohibition against inquiring into “the source of the applicant’s funds” relied upon by the applicant does not and cannot govern the conduct of the respondent’s officers in assessing applications under the provincial program. 25 In any event, I am not convinced that Schedule 4A of the Operational Bulletin prohibits the consideration of source of funds. In my view the isolated passage upon which the applicant relies must be read in the context of the entire section. When read in context, the passage takes on an entirely different meaning. The passage in its entirety reads as follows: The Schedule 4A — Economic Classes — Provincial Nominees — Business Nominees” form The Schedule 4A form has been developed to capture: • background information about applicants nominated in a business, entrepreneur, self-employed or similar stream; and • details of their business experience and proposed business activities in Canada. Officers should remember that it is within the province’s mandate to make a determination as to the likelihood that a nominated individual Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 223

will make an economic contribution to the province The purpose of the information captured on Schedule 4A is not to encourage reas- sessment of the province’s nomination decision. Rather, the information provided on this form should be examined for consistency with the rest of the application and the applicant should be invited to address any concerns which arise. If the officer is concerned that the applicant may have provided different information to CIC than to the province, the province should be consulted. If the applicant possesses wealth which appears to be inconsistent with their business and personal history, the officer should request further clarification. In contrast to federally-selected investors and entrepreneurs (R88(1)), there is no explicit legal requirement for provincial nominee applicants, even those applying in a business or similar stream, to show that their assets were legally obtained. As a result, until now, detailed information has not been collected about provincial nominees’ business experience and acquisition of assets. This has made it difficult at times to assess some aspects of admissibility. Schedule 4A is designed to address this gap. Applications should not be refused simply because the source of the applicant’s funds is unclear, nor should they be refused for non-compliance simply because the applicant refuses to reveal their source of funds. Since the Immigration and Refu- gee Protection Act (IRPA) does not require that the officer consider this information for selection purposes, it could be difficult to defend refusals based purely on a failure to provide information. However, all applicants, including provincial nominee class candidates, must establish that they are not inadmissible. In this regard, they should be required to account for their activities and the source of their funds when questions about admissibility arise and officers should insist on receiving satisfactory information. Operational instructions published in RIM 03-072 provide more detailed information; visa offices with questions about source of funds are welcome to consult National Headquarters (NHQ). NHQ will support refusals in cases where an officer is not satisfied as to the applicant’s admissibility and has provided the applicant with the opportunity to address these concerns. 26 When read in its entirety, the section is in actuality a reminder to federal visa officers that it is not their responsibility to confirm the source of funds for applicants coming to them through the Provincial Nominee Program. They are to rely on provincial agencies to make the economic and financial determinations. The Operational Bulletin makes a clear distinction between the Provincial Nominee Program and the Federally Se- lected Investors Program. In the latter federal officers are required to confirm the source of funds as “legally obtained”. In short, all the Opera- 224 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

tional Bulletin does is to direct federal visa officers not to “second guess” the financial determinations made by the Province. Furthermore, the Op- erational Bulletin contains no language which prohibits the Province from inquiring into the source of funds. Indeed, it is clear that the respondent has made the legality of the source of the applicant’s funds a criterion to be investigated and assessed. I refer specifically to the “Accumu- lation of Asset Statement” which is one of the forms which the applicant was required to complete in connection with his application. It provides as follows: You and your spouse or common law partner, whether accompanying you to Canada or not, must provide information that all personal net worth has been legally accumulated. (emphasis added) 27 In summary, the Operational Bulletin does not apply to the respondent. In any event, I have concluded that the Operational Bulletin does not contain a prohibition against inquiring into the source of funds of applicants under the Provincial Nominee Program. The responsibility for assessing the economic viability of candidates rests in the hands of the respondent and the respondent has specifically provided that the source of the funds is a relevant consideration. I reject the applicant’s contention that the respondent acted unfairly by relying on the applicant’s failure to identify the source of funds as a reason for rejecting his application. 28 Finally, I will deal with the applicant’s assertion that the respondent failed in its duty of fairness by failing to provide reasons and/or justification for its decision. This ground was not pursued in argument either at the hearing of the matter or in the applicant’s pre-hearing brief. In fact, the issue was not raised at all by the applicant’s legal counsel. In any event, I find the assertion to be without merit. As mentioned, the applicant was well aware of the criteria and the process, he had professional assistance, he visited New Brunswick and he attended an interview with program officers. In addition, the deficiency in the applicant’s supporting documentation was made clear to him in the correspondence passing between the parties between March and October 2013. While the notifica- tion letter of November 25, 2013 (Exhibit “Z” to Dhayagude affidavit) is not expansive (it merely states that the application did not meet the eligibility criteria and selection factors for the program) it must be viewed in light of the above mentioned circumstances. In that context, it is incon- ceivable to me that the applicant did not fully understand the reason for the refusal of his application. Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 225

(b) Standard of Review 29 In my view, this is clearly a case of involving ministerial discretion. The respondent set out an application process and criteria upon which to assess whether an applicant met the policy objectives of the program: the applicant’s ability to contribute to the economic development of the province. In cases involving ministerial discretion the standard of review is that of reasonableness (McLaughlin v. New Brunswick (Department of Environment), 2010 NBQB 321 (N.B. Q.B.) and Chez Couture et Ami(es) Inc. v. New Brunswick (Minister of Social Development), 2012 NBQB 356 (N.B. Q.B.)). 30 The Provincial Nominee Program operating in the Province of Mani- toba was the subject of judicial comment in Jiang v. Manitoba (Minister of Labour and Immigration), 2013 MBQB 107 (Man. Q.B.) affirmed on appeal 2014 MBCA 27 (Man. C.A.). In that case, as in this, the Court was asked to review the Minister’s refusal to issue a Certificate of Nomi- nation. In that case the Court determined that the standard of review is that of reasonableness. In Rihawi, supra, which dealt with the identical program which is the subject of this application, Garnett, J. stated at paragraph 28: As stated above, the standard of review is reasonableness. Before Dunsmuir supra a Minister’s discretionary decision was reviewed against the standard of patent unreasonableness (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.) Since Dunsmuir, the standard is reasonableness. A Court reviewing a decision of this kind must exercise a high degree of deference. The decision makers are applying Government policy in making their selec- tions. In addition, in this particular situation, they are aware of the qualifications of the competing applicants. 31 The standard of review applicable to this matter is that of reasonableness. The question becomes whether the Decision was reasonable. As mentioned earlier, the decision-making process employed by the respondent arises from the federal/provincial agreement. Pursuant to that agreement the Province has the authority and responsibility to establish its own criteria for nomination which the Province did. Those criteria are set out in the Guide for Business Applicants which was made available to the applicant. At the core of the program is the verification of the applicant’s ability to contribute to the economic development of the Province. Central to this determination are two factors: 1) the applicant’s business acumen and experience; and 2) the applicant’s financial resources. Clearly, it was reasonable for the respondent to probe and verify the ap- 226 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

plicant’s financial integrity. Indeed, as mentioned earlier, the respondent made it clear that the applicant must provide information that his financial resources were legally accumulated. In short, both the amount and source of the applicant’s funds were critical to the respondent’s decision- making process. 32 After reviewing the material and information provided by the applicant the respondent was not satisfied as to the applicant’s financial integrity. In particular, on March 21, 2013 the respondent questioned the applicant’s documentation in support of his ability to pay the $75,000.00 deposit and sought verification of the source of his funds. Despite several opportunities to satisfy the respondent’s requests for further information and documentation the applicant failed to do so. In my view the decision to refuse the applicant’s application was principled in that it was based on known and clearly articulated criteria and performed by an impartial decision maker with expertise in the area. There is no allegation by the applicant of any bias. 33 In Jiang, supra, Keyser, J. states at paragraphs 40 - 41: 40. The court in Dunsmuir @ para. 47 said the following: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 41. I come to the conclusion that the decision to deny the nomination was within the realm of reasonable, possible outcomes. Not everyone who meets all of the criteria is guaranteed nomination by the Prov- ince because of the quota system. In this case, there still remained legitimate concerns about retention. Baba v. N.B. (Minister of Post-Secondary Education) Terrence J. Morrison J. 227

34 I have come to the same conclusion as Keyser, J. in Jiang. The decision is discretionary, grounded on public policy and even applicants who meet all of the criteria are not guaranteed the issuance of a certificate. The respondent’s decision is, in my view, within the realm of reasonable, possible outcomes. In short, I find that the Decision meets the test of reasonableness.

IV. Conclusion 35 The Minister’s decision to refuse the applicant’s application for a Certificate of Nomination did not breach the duty of fairness and meets the test of reasonableness. The application is dismissed with costs to the respondent of $1,000.00. Application dismissed. 228 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

[Indexed as: Gama Sanchez v. Canada (Minister of Citizenship and Immigration)] Noe Gama Sanchez, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-315-13 2014 FCA 157 Nadon, David Stratas, Scott JJ.A. Heard: June 10, 2014 Judgment: June 10, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Alien, citizen of Mexico, arrived in Canada and made Convention refugee claim — Alien had been convicted in United States of America of equivalent to Canadian offences of conspiracy to traffic in methamphetamine and trafficking in methamphetamine — At time of commission of above-noted offences, maximum sentence for those offences was significantly less than maximum sentence at time alien brought refugee claim — Refu- gee Protection Division considered impact of offences on basis of current maximum sentence — Claim was dismissed on basis that alien was member of inadmissible class as having been convicted of serious non-political offence outside of Canada — Alien’s application for judicial review was dismissed and alien appealed — Appeal dismissed — Division was entitled to consider current maximum sentence when determining if offences were “serious” — Conspiracy and drug trafficking were prima facie serious, and fact that at time of their commission alien would likely have received more lenient sentence did not automat- ically render offences less so — Having regard to Division’s expertise and appropriate standard of review, no reason existed to interfere with decision of Division and appeal was accordingly properly dismissed. Cases considered by David Stratas J.A.: Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CAF 324, 357 D.L.R. (4th) 343, 2012 CarswellNat 5870, 2012 Car- swellNat 5012, 2012 FCA 324, (sub nom. Febles v. Canada (Minister of Citizenship and Immigration)) 442 N.R. 290, [2012] F.C.J. No. 1609 (F.C.A.) — considered Jayasekara v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 5525, 76 Imm. L.R. (3d) 159, 2008 CAF 404, 305 D.L.R. (4th) 630, 2008 FCA 404, 2008 CarswellNat 4718, 384 N.R. 293, [2009] 4 F.C.R. 164, [2008] A.C.F. No. 1740, [2008] F.C.J. No. 1740 (F.C.A.) — followed Gama Sanchez v. Canada (MCI) David Stratas J.A. 229

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 98 — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(b) — considered

APPEAL by alien from judgment reported at Gama Sanchez v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 913, 2013 Car- swellNat 3102, 2013 CF 913, 2013 CarswellNat 4746, 19 Imm. L.R. (4th) 275 (F.C.), dismissing alien’s application for judicial review of decision of Refugee Protection Division dismissing alien’s claim to Convention refugee status.

Warren Puddicombe, for Appellant R. Keith Reimer, for Respondent

David Stratas J.A. (orally):

1 This is an appeal from the judgment of the Federal Court (per Justice Russell) dated August 29, 2013: 2013 FC 913 (F.C.). The Federal Court dismissed the appellant’s application for judicial review from the Refu- gee Protection Division’s decision dated October 30, 2012. 2 In its decision, the Refugee Protection Division found that the Appli- cant had committed a “serious non-political crime” outside Canada and, thus, was excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees and section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 The central issue before the Federal Court was when the seriousness of the crime under article 1F(b) of the Convention should be assessed. Should it be assessed at the time of the commission of the crime or at the time of the Refugee Protection Division’s determination? The Federal Court concluded that the relevant time for assessment is the time of determination. 4 One factor to be assessed when considering the seriousness of the crime is to examine the penalty in Canada for an equivalent crime. In this case, at the time of the Division’s determination, the penalty in Canada for the equivalent crime was much higher than it was at the time the appellant committed the crime abroad. 230 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

5 On this point, we substantially agree with the Federal Court’s reasons and conclusion at paragraphs 59-62 of its reasons. 6 In assessing the seriousness of the crime, the Refugee Protection Di- vision must consider all relevant considerations pertaining to the factors set out in Jayasekara v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 404, [2009] 4 F.C.R. 164 (F.C.A.) at paragraph 44. In assessing the penalty for the equivalent crime under Canadian law, the Refugee Protection Division cannot close its eyes to the law that is on the books at the time of its determination. 7 The appellant submitted that this Court in Hernandez Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324 (F.C.A.) at paragraph 52 held that the seriousness of the crime should be assessed at the time of commission. But in making that comment, this Court was responding to the submission that the offender’s later rehabili- tation could affect the assessment of the seriousness of the crime. This Court did not deal with the question before us, which is the relevance of a later change in the penalty for the equivalent crime in Canada. 8 The appellant accepts that if the Federal Court’s decision on this point is correct, the decision of the Refugee Protection Division was reasonable. 9 Accordingly, despite the able submissions of counsel for the appellant, we will dismiss the appeal. We will answer the certified question as follows: Question: When assessing the Canadian equivalent of a foreign offence in the context of exclusion under Article 1F(b) of the Conven- tion Relating to the Status of Refugees and the Jayasekara factors, should the Refugee Protection Division Member assess the seriousness of the crime at issue at the time of commission of the crime or, if a change to the Canadian equivalent has occurred in the interim, at the time when the exclusion is being determined by the Refugee Pro- tection Division? Answer: If a change to the penalty for the Canadian equivalent offence has occurred, the assessment should be done at the time when the Refugee Protection Division is determining the issue of the section 1F(b) exclusion. 10 There are no special reasons for an award of costs in this case and so there will be no award of costs. Appeal dismissed. Zhang v. Canada (MCI) 231

[Indexed as: Zhang v. Canada (Minister of Citizenship and Immigration)] Xiong Lin Zhang, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-444-12 2013 FCA 168, 2013 CAF 168 Eleanor R. Dawson, Johanne Gauthier, Johanne Trudel JJ.A. Heard: June 19, 2013 Judgment: June 27, 2013 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Applicant was citizen of China — Applicant had been selected for immigration under Quebec’s Investor Program — Applicant’s family consisted of his wife and three dependent children, including one son who was diagnosed as having moderate mental retardation — Even though son was not accompanying applicant, applicant was deemed inadmissible on grounds that son suffered from health condition that might reasonably be expected to cause excessive demand on health and social services — Applicant’s application for judicial review was dismissed — Applicant appealed — Appeal dismissed — Precondition to applicant’s right of appeal was not met — Question certified by judge did not meet test for certification — Question proposed did not raise any serious question of general importance that should be certified — Precondition to applicant’s right of appeal was not met. Cases considered: Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 50 Imm. L.R. (3d) 40, 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 340 N.R. 102, 259 D.L.R. (4th) 244, 33 Admin. L.R. (4th) 1, [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58 (S.C.C.) — considered 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 Varela v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 145, 2009 CarswellNat 2726, 2009 CAF 145, 80 Imm. L.R. (3d) 1, [2010] 1 F.C.R. 129, 2009 CarswellNat 1228, 391 N.R. 366, [2009] F.C.J. No. 549 (F.C.A.) — considered Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 232 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 38(1)(c) — referred to s. 38(2) — referred to s. 42 — referred to s. 74(d) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 23 — considered s. 23(b)(iii) — considered

APPEAL by applicant from judgment reported at Zhang v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1093, 2012 CarswellNat 3526, 13 Imm. L.R. (4th) 95, 2012 CF 1093, 2012 CarswellNat 4190, [2012] F.C.J. No. 1179 (F.C.), dismissing applicant’s application for judicial review of decision determining that applicant was inadmissible to Canada.

Stephen James Fogarty, for Appellant Genevi`eve Bourbonnais, Daniel Latulippe, for Respondent

Per curiam:

1 Mr. Zhang appeals from the judgment of the Federal Court which dismissed his application for judicial review of the decision of a visa officer. The visa officer found Mr. Zhang and his accompanying family members to be inadmissible pursuant to paragraph 38(1)(c) and section 42 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), on the ground that Mr. Zhang’s son, Zhang Xia Di, suffers from a health condition that might reasonably be expected to cause excessive demands on the health and social services in Canada (2012 FC 1093, [2012] F.C.J. No. 1179 (F.C.)). 2 Mr. Zhang did not contest that Zhang Xia Di is a dependent child and family member within the meaning ascribed to those words in the Immi- gration and Refugee Protection Regulations, SOR/2002-227 (Regula- tions). Nor did he contest that Zhang Xia Di might reasonably be ex- Zhang v. Canada (MCI) 233

pected to cause excessive demand on social services so that he would be medically inadmissible should he apply to immigrate to Canada. Rather, Mr. Zhang submitted that it was a complete answer to these concerns that he intended to leave Zhang Xia Di in China with another family member. 3 The visa officer found Mr. Zhang’s plan to leave Zhang Xia Di in China was undermined by Mr. Zhang’s signed Declaration of Ability and Intent dated July 8, 2010 in which he agreed to pay for social services in Canada. Indeed, Mr. Zhang signed a number of confused and contradic- tory declarations of intent: a. On September 28, 2008, Mr. Zhang signed a declaration in which he stated: [...] [Xia Di] cannot accompany me to immigrate to Canada neither. [...] Meanwhile, I state here, once I settle down in Canada, I’m willing to reserve the qualification to guarantee him to Can- ada in future. b. On May 4, 2010, Mr. Zhang declared: [...] I state here, once the other family members who accompany me for application and I settle down in Canada, I will fully authorize my younger sister ZHANG Po Mei, who is the aunt of my son ZHANG Xia Di, to take charge of caring for the daily life of my son ZHANG Xia Di in China. c. On July 8, 2010, he declared: I hereby declare that I will assume responsibility for arrang- ing the provision of the required social services in Canada and that I am including a detailed plan of how these social services will be provided, along with appropriate financial documents that represent a true picture of my financial situation over the entire duration of the required services. 4 Contrary to the July 8, 2010 declaration, no plan was included. 5 The Judge found as a fact that Mr. Zhang failed to provide a credible individualized plan for mitigating the excessive demand on social services in Canada (per Hilewitz v. Canada (Minister of Citizenship & Im- migration), 2005 SCC 57, [2005] 2 S.C.R. 706 (S.C.C.)). 6 The Judge went on to find that the visa officer conducted an individualized assessment and came to a reasonable conclusion supported by the evidence on the record. The Judge also noted that the visa officer did not err in law in her interpretation of the various applicable sections of the Act and the Regulations. 234 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

7 Paragraph 74(d) of the Act contains an important “gatekeeper” provision: an appeal to this Court may only be made if, in an application for judicial review brought under the Act, a Judge of the Federal Court certi- fies that a serious question of general importance is raised and states the question. 8 In the present case, the Judge certified the following question: In the aftermath of Hilewitz v. Canada (Minister of Citizenship & Immigration) 2005 SCC 57, [2005] 2 S.C.R. 706, when an applicant is required to submit an individualized plan to ensure that his family member’s admission will not cause an excessive demand on social services, is it acceptable for this applicant to state that the inadmissible family member will not be accompanying him to Canada, considering that he could be sponsored in the future without regard to his inadmissibility pursuant to [subsection] 38(2) of the Immigration and Refugee Protection Act? [emphasis added] 9 It is trite law that to be certified, a question must (i) be dispositive of the appeal and (ii) transcend the interests of the immediate parties to the litigation, as well as contemplate issues of broad significance or general importance. As a corollary, the question must also have been raised and dealt with by the court below and it must arise from the case, not from the Judge’s reasons (Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4, 51 A.C.W.S. (3d) 910 (Fed. C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (F.C.A.) at paragraphs 11-12; Varela v. Canada (Minister of Citizenship & Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 (F.C.A.) at paragraphs 28, 29 and 32). 10 In Varela, this Court stated that it is a mistake to reason that because all issues on appeal may be considered once a question is certified, therefore any question that could be raised on appeal may be certified. The statutory requirement set out in paragraph 74(d) of the Act is a precondition to the right of appeal. If a question does not meet the test for certification, so that the necessary precondition is not met, the appeal must be dismissed. 11 In the present case, the question certified by the Judge was a question proposed by the respondent as an alternative submission to his main position that this case did not raise any serious question of general importance that should be certified. Before us, the respondent reiterated that the Minister’s main position remains that the question does not meet the Zhang v. Canada (MCI) 235

test for certification given that this matter clearly turns on its own set of facts. We agree. 12 The question certified by the Judge could not, in our view, be determinative of this appeal. Whether something is “acceptable” or not is irrelevant. It has no relation to the applicable standard of review to be applied to the decision of the visa officer. The issue before the Federal Court was whether the decision of the visa officer was reasonable. 13 Additionally, given the conflicting declarations signed by Mr. Zhang, and the Judge’s finding of fact that no credible plan was provided to the visa officer, the certified question does not arise from the evidentiary record before the Federal Court. There was no unequivocal statement that Zhang Xia Di would remain in China and would not come to Canada. 14 Finally, Hilewitz teaches that in every case in which the issue of inadmissibility based on an excessive demand on health or social services in Canada is raised, there must be an individualized assessment of the particular circumstances of each applicant. In such a context, it is difficult to envisage how the adequacy of any individualized plan could raise a question of general importance. To illustrate, in a case where detailed ar- rangements were in place for a child to remain out of Canada and a visa officer was satisfied that the child could not, or would not, travel to Can- ada, this might be viewed to be an adequate individualized plan. Other facts could lead to the opposite conclusion. Neither fact scenario by itself raises an issue that transcends the interests of the immediate parties to the litigation. 15 This is underscored by section 23 of the Regulations which prescribes the circumstances in which a foreign national is inadmissible on the grounds of the inadmissibility of a family member. Pursuant to subpara- graph 23(b)(iii), in circumstances where a child is in the legal custody of someone other than an applicant or an accompanying family member of an applicant, a visa officer might conclude that the child’s inadmissibility does not render the applicant inadmissible. 16 It follows that the question certified by the Judge does not meet the test for certification and the precondition to the appellant’s right of appeal has not been met (Varela, paragraph 43). The appeal will, therefore, be dismissed. Appeal dismissed. 236 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

[Indexed as: Cortes v. Canada (Minister of Citizenship and Immigration)] Myriam Rocha Cortes, Gabriela Patricia Fernandez Rocha, Maria Del Transito Cortes Jimenez, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2613-13 2014 FC 598, 2014 CF 598 Cecily Y. Strickland J. Heard: June 9, 2014 Judgment: June 23, 2014 Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — Implausibility –––– Applicant were citizens of Colombia who alleged fear of persecution by FARC guerillas — FARC member had attended at principal applicant’s real estate office and demanded to lease property directly behind police station — Principal applicant reported this to police who allegedly did not take report, told her this was common practice and to contact them if anything further happened — Property was not leased to FARC and applicant alleged that she was subsequently threatened by FARC which also demanded war tax payment of 45 million pesos from her — Applicant did not report these incidents to police as she was warned by FARC not to — Applicant sold business and relocated to her daughter’s home — FARC attempted to kidnap daughter and this was reported to police — Applicant alleged that FARC again demanded payment of war tax, threatening claimant with death if it were not paid and warning applicant not to report threat to police — Applicant and daughter fled to Canada and claimed refugee protection — Board found that applicant had not rebutted presumption of state protection and — Board dismissed applicants’ claims for refugee protection — Applicants brought application for judicial review — Application granted — It was not implausible that police officer did not feel that report was warranted when applicant made report of FARC wishing to lease house behind police station — Facts presented were not outside realm of what could reasonably be expected in these circumstances, nor did documentary evidence demonstrate that events could not have happened in manner asserted by applicant — Accordingly, Board’s plausibility finding was not made in clearest of cases — Board’s finding that applicants failed to provide clear and convincing evidence to rebut presumption of state protection was influenced by its finding that they did not approach state at all — Therefore, two findings were inextricably linked — As Board’s disbelief of applicant’s story Cortes v. Canada (MCI) 237 was based on its flawed credibility findings which permeated its state protection analysis, state protection analysis was also rendered unreasonable. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Efforts to access state protection –––– Applicant were citizens of Colombia who alleged fear of persecution by FARC guerillas — FARC member had attended at principal applicant’s real estate office and demanded to lease property directly behind police station — Principal applicant reported this to police who allegedly did not take report, told her this was common practice and to contact them if anything further happened — Property was not leased to FARC and applicant alleged that she was subsequently threatened by FARC which also demanded war tax payment of 45 million pesos from her — Applicant did not report these incidents to police as she was warned by FARC not to — Applicant sold business and relocated to her daughter’s home — FARC attempted to kidnap daughter and this was reported to police — Applicant alleged that FARC again demanded payment of war tax, threatening claimant with death if it were not paid and warning applicant not to report threat to police — Applicant and daughter fled to Canada and claimed refugee protection — Board found that applicant had not rebutted presumption of state protection and — Board dismissed applicants’ claims for refugee protection — Appli- cants brought application for judicial review — Application granted — It was not implausible that police officer did not feel that report was warranted when applicant made report of FARC wishing to lease house behind police station — Facts presented were not outside realm of what could reasonably be expected in these circumstances, nor did documentary evidence demonstrate that events could not have happened in manner asserted by applicant — Accordingly, Board’s plausibility finding was not made in clearest of cases — Board’s finding that applicants failed to provide clear and convincing evidence to rebut presumption of state protection was influenced by its finding that they did not approach state at all — Therefore, two findings were inextricably linked — As Board’s disbelief of applicant’s story was based on its flawed credibility findings which permeated its state protection analysis, state protection analysis was also rendered unreasonable. Cases considered by Cecily Y. Strickland J.: Abdul v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CFPI 260, 2003 FCT 260, 2003 CarswellNat 489, 2003 CarswellNat 1991, [2003] F.C.J. No. 352 (Fed. T.D.) — referred to Adu v. Canada (Minister of Employment & Immigration) (1995), 1995 Car- swellNat 2559, [1995] F.C.J. No. 114 (Fed. C.A.) — referred to Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de 238 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — referred to Andrade v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CF 1490, 2012 CarswellNat 5414, 2012 FC 1490, 2012 CarswellNat 4992, [2012] F.C.J. No. 1594, [2012] A.C.F. No. 1594 (F.C.) — referred to Bains v. Canada (Minister of Employment & Immigration) (1993), 63 F.T.R. 312, 1993 CarswellNat 99, 20 Imm. L.R. (2d) 296, [1993] F.C.J. No. 497 (Fed. T.D.) — referred to De Uma˜na v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CarswellNat 877, 9 Imm. L.R. (4th) 334, 2012 FC 326, 2012 CarswellNat 1568, 2012 CF 326, [2012] F.C.J. No. 371 (F.C.) — referred to Divsalar v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 1351, 2002 FCT 653, 2002 CFPI 653, 2002 CarswellNat 3606, [2002] F.C.J. No. 875 (Fed. T.D.) — referred to Feradov v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 180, 2007 FC 101, 2007 CF 101, 2007 CarswellNat 2179, [2007] F.C.J. No. 135 (F.C.) — referred to Grewal v. Canada (Minister of Employment & Immigration) (1983), 1983 Car- swellNat 1367, [1983] F.C.J. No. 129 (Fed. C.A.) — referred to Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — referred to Lubana v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 116, 26 Imm. L.R. (3d) 292, 228 F.T.R. 43, 2003 CarswellNat 262, 2003 CFPI 116, 2003 CarswellNat 2163, [2003] F.C.J. No. 162 (Fed. T.D.) — referred to Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Ortega v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 611, 2012 CarswellNat 1553, 2012 CarswellNat 4050, 2012 CF 611 (F.C.) — referred to Cortes v. Canada (MCI) Cecily Y. Strickland J. 239

Saeedi v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 146, 2013 CarswellNat 307, 2013 CarswellNat 462, 2013 CF 146, [2013] F.C.J. No. 173 (F.C.) — referred to Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, 2001 Car- swellNat 5929, [2001] A.C.F. No. 1131, [2001] F.C.J. No. 1131 (Fed. T.D.) — referred to Yada v. Canada (Minister of Citizenship & Immigration) (1998), 140 F.T.R. 264, 1998 CarswellNat 48, 1998 CarswellNat 4209, [1998] F.C.J. No. 37 (Fed. T.D.) — referred to Zhou v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 619, 2013 CarswellNat 2581, 2013 FC 619, 2013 CarswellNat 1974 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — pursuant to s. 97 — pursuant to

APPLICATION for judicial review of decision by Board rejecting applicants’ application for refugee protection.

D. Clifford Luyt, for Applicants Charles Julian Jubenville, for Respondent

Cecily Y. Strickland J.:

1 The Applicants seek judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated March 11, 2013, in which it concluded that they were not Convention refugees nor persons in need of protection pursuant to sections 96 or 97, respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).

Background 2 The Principal Applicant, Myriam Rocha Cortes, her daughter Gabriela Patricia Fernandez Rocha, and her mother Maria del Transito Cortes Jimenez are citizens of Columbia. They claim to fear persecution by the Fuerzas Armadas Revolucionarias de Colombia (FARC) guerrillas. 3 The Applicants claim that the Principal Applicant was the owner of a real estate company in Santa Marta. In May 2010, a man came to the 240 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

office and applied to lease a house located directly behind the police station. A few days later, he returned and identified himself as a member of the FARC and indicated that the FARC required that the house be leased to it. The Principal Applicant reported this to the police on the same day. The police stated that this was not the first time that this had occurred as the FARC always sought to be close to the police. Further, that a denun- ciation was not necessary but that she should be careful and call if anything else happened. On May 21, 2010, the FARC called the Principal Applicant and demanded that the house be leased to them by May 30, 2010 and to remember that squealers died. Following this, she began to work from home. 4 She was threatened again at a later date and was told that as she had not provided the house, she had to pay a war tax of 45 million pesos. If she complied, the FARC would guarantee her safety and that of her mother whose farm had previously been occupied by the FARC, but who had not provided them with the documentary rights to it. The Principal Applicant did not report these events to the police because the FARC warned her not to do so. 5 The Principal Applicant moved in with a friend and closed her office on May 31, 2010. She provided a power of attorney to another person to address matters arising, but not to operate the business. On June 20, 2010, she moved with her mother to her daughter’s home in Bogota. She sold her business on July 10, 2010. 6 On August 19, 2010, there was an attempt to adduct her daughter which was reported to the police. On August 21, 2010, the Principal Ap- plicant received a call from the FARC and was told that the Applicants could not escape, acknowledging the failed abduction attempt, stating that if she did not pay the war tax in fifteen days the Applicants would pay with their lives, and, to remember that squealers died. The Principal Applicant again did not report this to the police. On August 23, 2010, the Principal Applicant’s daughter resigned from her job. They fled to Can- ada on September 3, 2010 and sought refugee protection upon arrival. Subsequently, the Principal Applicant learned that the FARC visited her old office on two occasions asking about her and her mother and claim- ing that they owed a debt to the FARC.

Decision Under Review 7 The RPD stated that the determinative issue was state protection and analyzed this and credibility together. Essentially, the RPD did not be- Cortes v. Canada (MCI) Cecily Y. Strickland J. 241

lieve that the Applicants were approached by the FARC or that they approached the police for protection. 8 The RPD stated that, given the historical relationship between the police and the FARC, it could not understand the nonchalant police response as described by the Principal Applicant when she sought to report the FARC’s interest in leasing the house. Based on the documentary evidence, which the RPD found to demonstrate that the police take the FARC much more seriously than portrayed by the Principal Applicant, it concluded that she concocted the story of being approached by the FARC to bolster her claim for refugee status. Further, that she did not present corroborative evidence, such as a police report, to support her allegations that she had problems with the FARC in Columbia. 9 The RPD noted that the Principal Applicant had not reported the threats received following the first encounter with the FARC. It found her testimony, that the police had stated that what occurred was not a crime, was contrary to the documentary evidence which revealed that extortion, threats and kidnapping are crimes that are investigated. It did not believe that she had any problems with the FARC or that she asked for protection. However, if she had encountered the problems as she alleged, the police would have protected her. The RPD also found that the Princi- pal Applicant omitted from her Personal Information Form (PIF) narrative that she requested protection and that her explanation, that she reported an “August 18th” incident, did not answer why it was omitted, was evasive, undermined her credibility and was unreasonable. The RPD noted that she was represented by experienced counsel, amendments had been made to the PIF, and, that information omitted went to the heart of her claim, being state protection. 10 The RPD acknowledged that the Principal Applicant’s daughter had reported the attempted abduction to the police, but found that there was nothing in the daughter’s PIF that stated that the police told her that they would not provide protection. As to the Principal Applicant’s explanation that the police told her daughter that attempted kidnapping is not a crime and that they would not protect her, the RPD found that this did not explain why her daughter did not include the information. It found that on a balance of probabilities, the daughter did not report the incident to the police and she did not do so because there was no attempt to kidnap her. Again, this was an effort to bolster the refugee claims. Further, the daughter stated she made a report on August 20, 2010, but she fled on September 23, 2010. Therefore, it was unreasonable to expect immediate 242 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

prosecution or conviction. The RPD concluded that the Applicants had not provided clear and convincing evidence that state protection in Co- lumbia is inadequate because they had not taken all reasonable steps to seek protection. The presumption of state protection had not been rebutted. 11 Under a separate section entitled state protection, the RPD referred to various country condition reports. It recognized that there are inconsistencies in the documentary evidence, but found that the preponderance of the evidence suggests, that, although not perfect, there is adequate state protection for victims of crime and that Columbia is making serious efforts to address criminality. The RPD also reviewed the evidence concerning guerrilla and paramilitary activities and noted that the United Na- tions High Commission for Refugees has identified certain groups who face a particular risk of persecution or serious harm in Columbia. The Board recognized that the FARC commit human rights abuses and that the documentary evidence concerning its reach and influence is mixed. It therefore had to rely on the personal circumstances of claimants in relation to the documentary evidence to consider whether the FARC would choose to continue pursuing a relocated individual. The documentary evidence suggested that this would depend on their value to the FARC. Members of the political elite, business class, academic or professional class targeted for extortion or coercion to cooperate would render them a high value target.

Standard of Review 12 Credibility findings are essentially pure findings of fact that are reviewable on a reasonableness standard (Zhou v. Canada (Minister of Citizenship and Immigration), 2013 FC 619 (F.C.) at para 26 [Zhou]; Aguebor v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 732 (Fed. C.A.)). Similarly, the weighing of evidence and the interpretation and assessment of evidence is also reviewed on a reasonableness standard (Zhou, above, at para 26). That standard also applies to determinations of state protection (Hinzman, Re, 2007 FCA 171 (F.C.A.) at para 38; Ortega v. Canada (Minister of Citizenship & Immigration), 2012 FC 611 (F.C.) at para 7). 13 Reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes defensible Cortes v. Canada (MCI) Cecily Y. Strickland J. 243

in respect of the facts and law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47 [Dunsmuir]).

Positions of the Parties Applicants’ Position 14 The Applicants submit that the RPD’s determinations as to credibility and state protection were unreasonable. The RPD doubted their testimony without any reason to do so (Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.)). It found it implausible that the police, when advised by the Principal Appli- cant that the FARC had approached her seeking to lease a property located near the police station, did not take a report. This was speculation unsupported by the evidence and is inappropriate for Columbian conditions. Plausibility findings should be made only in the clearest of cases and the RPD should not apply Canadian paradigms uncritically to different countries and cultures (Divsalar v. Canada (Minister of Citizenship & Immigration), 2002 FCT 653 (Fed. T.D.) at para 24; Yada v. Canada (Minister of Citizenship & Immigration) (1998), 140 F.T.R. 264 (Fed. T.D.); Bains v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 497 (Fed. T.D.)). Therefore, its credibility finding which is based on such reasoning is unreasonable. Further, that the RPD made a number of other reviewable errors in its credibility analysis, including requiring corroborating evidence when they submitted evidence which was ignored.

Respondent’s Position 15 The Respondent submits that the Board exercised its jurisdiction and expertise, citing well-accepted principles and bases for disbelieving the Applicants (Lubana v. Canada (Minister of Citizenship & Immigration), 2003 FCT 116 (Fed. T.D.) at paras 7-8; Grewal v. Canada (Minister of Employment & Immigration), [1983] F.C.J. No. 129 (Fed. C.A.)). The Board reasonably found several material parts of the Applicants’ story to be implausible. It looked at the relationship between the FARC and the police and noted the Applicants’ own documentary evidence concerning brutal attacks against police stations, and found their lack of response was unreasonable. There were also significant omissions from the Princi- pal Applicant’s PIF that supported its decision, and any minor errors did not detract from its overall conclusion. 244 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Analysis 16 In reviewing the RPD’s decision in this matter, it is important to note that while the RPD identifies state protection as the determinative issue, it analyzes state protection and credibility together. As a result, and because the RPD essentially disbelieved the Applicants’ entire claim, credibility was also determinative in effect. In my view, the errors in the credibility analysis impacted the state protection finding. 17 The presumption that an applicant’s sworn testimony is true can be rebutted if there is reason to doubt his or her truthfulness (Adu v. Canada (Minister of Employment & Immigration), [1995] F.C.J. No. 114 (Fed. C.A.) at para 1; Maldonado, above). However, in this case, it appears that the Applicants’ testimony and evidence were disregarded mainly because of the RPD’s plausibility findings or inferences. 18 The RPD’s principal concern pertained to the Principal Applicant’s evidence that she reported the FARC’s interest in the leased house to the police. It stated that it could not understand how the police would react nonchalantly to this given the historical relationship between the police and the FARC and the documentary evidence in that regard. Based on this, the RPD found that the police would have taken the report far more seriously, as dictated by self-interest, which would be more consistent with common sense and rationality. 19 Where the RPD finds a lack of credibility based on inferences, including inferences concerning the plausibility of the evidence, there must be a basis in the evidence supporting the inferences (Abdul v. Canada (Minister of Citizenship & Immigration), 2003 FCT 260, [2003] F.C.J. No. 352 (Fed. T.D.) at para 15). Plausibility findings should only be made in the clearest of cases i.e. if the facts presented are outside the realm of what could reasonably be expected or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant (Valtchev v. Canada (Minister of Citizenship & Immigration), 2001 FCT 776 (Fed. T.D.) at paras 7, 17), and with a clear explanation for those findings (Saeedi v. Canada (Minister of Citizenship and Immigration), 2013 FC 146 (F.C.) at para 30). 20 Here, the RPD does refer to documentary evidence in finding that it was unlikely that the police would react nonchalantly to the prospect of a house next to the police being rented by the FARC. This was comprised of articles describing FARC attacks on various police stations. From this, it determined that the Applicants made up the story. However, the refer- Cortes v. Canada (MCI) Cecily Y. Strickland J. 245

enced documentary evidence does not address the police response to information provided at a front counter indicating that the FARC have taken an interest in the police. Rather, the RPD draws an inference that because of prior attacks on police stations, a report would have been prepared. That is, that the police officer at the police station that the Princi- pal Applicant visited did not respond to her complaint in the manner that the RPD felt that it should. However, it must be recalled that she im- parted information as to the FARC’s interest in a leased house. Her evidence was that the police had previously leased that very house so they would certainly know its proximity to them. It also seems unlikely that mere interest by the FARC in leasing the house would amount to a crime. Further, the Principal Applicant had not been threatened at that stage. 21 Given the above, it is not implausible that the police officer did not feel that a report was warranted at that time as the Principal Applicant asserts. Further, the officer’s internal treatment of the information is un- known, but for the purposes of the police’s self-interest, this too would not necessarily require a report from the Principal Applicant. Thus, the facts presented are not be outside the realm of what could reasonably be expected in these circumstances nor does the documentary evidence demonstrate that the events could not have happened in the manner asserted by the Principal Applicant. In my view, this plausibility finding was not made in the clearest of cases. 22 Further, the RPD states that the Principal Applicant’s daughter was allegedly physically assaulted (the attempted kidnapping) which was reported to the police, but that there was nothing in the daughter’s PIF indicating that the police declined to provide protection. The RPD re- minded “...itself that the claimant is required to include in her PIF the result of any report she made to the authority in there country”. It found the Principal Applicant’s explanation that the police told her daughter that an attempted kidnapping is not a crime and that they would not protect her was evasive. Further, she did not explain why her daughter did not include the information. On this basis, the RPD found on a balance of probabilities that her daughter did not make any report to the police and that she did not do so because there was no attempt to kidnap her. The RPD found that the Applicants also concocted this aspect of their story to bolster their claim for refugee status. 23 The RPD’s reasons are inconsistent as it states both that the daughter did report the attempted kidnapping, and, that she did not make a report. The latter finding grounds its determination that the report was not made 246 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

because the attempted kidnapping did not take place. However, the daughter did in fact make a report to the police and that report was on the record before the RPD. It clearly states the particulars of the attempted abduction, the questions the police asked her and her responses. Further, the daughter’s PIF clearly stated “PLEASE SEE STATEMENT OF MY MOTHER MYRIAM ROCHA CORTES”. Therefore, the RPD also erred in finding that the daughter’s PIF omitted the information concerning the police declining to offer protection as the daughter relied on her mother’s PIF narrative. In the Principal Applicant’s narrative, she states that her daughter went to the police to request protection and that the police stated that they were unable to protect her. The RPD explicitly based its negative credibility determination on these findings, which were in error. 24 I would also note that while the RPD recognized that the Principal Applicant approached the police after the FARC visited her office on March 18, 2010, which it stated in error was on August 18, it found that “nowhere” in the Principal Applicant’s “original or amended Personal Information Form (PIF) narratives does it say that she went to seek state protection”. While it noted her explanation that she recited her PIF in general terms and that she included relevant information, it found her explanation to be unreasonable and, based on this, it drew an adverse inference as to her credibility. In my view, it was unreasonable to find that the Principal Applicant did not seek state protection simply because her PIF did not explicitly describe the visit to the police as such. 25 Given these credibility findings and inconsistencies, viewed in whole, the decision is unreasonable (Dunsmuir, above). 26 As to state protection, as indicated above, the RPD’s credibility and state protection analysis was intertwined. While state protection is often dispositive of an application (Andrade v. Canada (Minister of Citizenship and Immigration), 2012 FC 1490 (F.C.) at para 2), so too is credibility. In this case, the RPD’s finding that the Applicants failed to provide clear and convincing evidence to rebut the presumption of state protection was influenced by its finding that they did not approach the state at all. There- fore, the two findings are inextricably linked. As the RPD’s disbelief of the Applicants story was based on its flawed credibility findings which permeated its state protection analysis, the state protection analysis is also rendered unreasonable in these circumstances (De Uma˜na v. Canada (Minister of Citizenship & Immigration), 2012 FC 326 (F.C.) at para 29; Cortes v. Canada (MCI) Cecily Y. Strickland J. 247

Feradov v. Canada (Minister of Citizenship & Immigration), 2007 FC 101 (F.C.) at para 23). 27 As the Board found that the Applicants were not at a risk from the FARC due to an erroneous credibility finding, it also did not properly assess their risk profile in connection with the FARC.

Judgment THIS COURT’S JUDGMENT is that 1. The application for judicial review is allowed, the decision is to be remitted to a different panel of the Immigration and Refugee Board for reconsideration; and 2. No question of general importance is certified. Application granted. 248 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

[Indexed as: Cuevas Mendoza v. Canada (Minister of Citizenship and Immigration)] Jose Luis Cuevas Mendoza, Alejandro Malsonado Flores, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3980-13 2014 FC 715, 2014 CF 715 Roger T. Hughes J. Heard: July 17, 2014 Judgment: July 17, 2014 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Applicants were citizens of Ciudad Juarez, Mexico — Applicants alleged fear of persecution by Zetas gang — Applicants had refused in 2008 to pay substantial extortion demand by Zetas gang, fled Mexico, came to Canada and made refugee claim — Claim was rejected three times as each time Member determined that applicants had internal flight alternative in Mex- ico — On current judicial review, Member found that there was internal flight alternative for claimants in Mexico City and that applicants had not established that they would be subject to risk of life or risk of cruel or unusual punishment from Zetas in Mexico City — Member dismissed claim — Applicants brought application for judicial review — Application granted — Matter was sent for re- determination for fourth time — Evidence was that Zetas were extremely violent, that applicants had been menacingly threatened and that Zetas had capacity, whether through isolated cells or communicating cells, to find applicants — Member had ignored evidence and engaged in speculation, based on credibility of applicants — There were no credibility issues raised at hearing and member on previous hearing had raised no credibility concerns. Cases considered by Roger T. Hughes J.: Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, 2001 Car- swellNat 5929, [2001] A.C.F. No. 1131, [2001] F.C.J. No. 1131 (Fed. T.D.) — considered

APPLICATION for judicial review of decision by Board denying applicants’ application for refugee protection. Cuevas Mendoza v. Canada (MCI) Roger T. Hughes J. 249

Bjorn Harsanyi, for Applicants, Jose Luis Cuevas Mendoza and Alejandro Mal- sonado Flores Camille Audain, for Respondent

Roger T. Hughes J.:

1 This is the third time that this matter has come before this Court from judicial review and, for a third time, it will be returned for re-determination by a different Member. The matter should not become a ping-pong matter between the Court and the Refugee Protection Division (RPD), it should be done right this time. 2 The Applicants are a husband and wife, both citizens of Mexico. They resided in Ciudad Juarez, arguable one of the most violent places in that country if not in much of the world. They are educated people, he is an engineer and she has an MBA. The undisputed evidence is that they were approached by a violent group known as the Zetas who demanded, and were not paid, a substantial sum of money; an extortion demand. The Applicants fled Mexico and came to Canada where they claimed refugee protection. That claim has been rejected three times as, each time the Member hearing the case, determined that the Applicants has an Internal Flight Alternative (IFA) in Mexico. The first time the IFA was said to be Mexico City, the second time Ensenada, the third time, Mexico City again. 3 The first decision of the RPD was, by the Minister’s own assessment, flawed. On the motion of the Minister and consent of the Applicants the matter was sent back for re-determination. There is little on the record concerning this first decision except the decision itself dated 17 June, 2011. The Member (paragraph 12) accepted that the Applicants have, in- dividually, been targeted through the criminality of gang members which were, later in the reasons, identified as the Zetas. 4 The second decision of the RPD was made by a different Member. It was dated 30 March, 2012. The Member (paragraph 33) found the Appli- cants to be credible. Concerning the Zetas the Member made certain findings, including the following: [52] The Zetas are notoriously the most violent of all the cartels in Mexico. The Zetas are a sophisticated criminal enterprise with more than 1,000 members. Drawing on military-style skills and a penchant for the gruesome, the group has expanded its illegal activities and has established itself as the most feared and destructive player in the Mexican drug trade. The Zetas have ruthlessly seized market share, 250 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

raged a bloody campaign against the authorities, and use coercion and bribery to hollow out government institutions from within. They have done more than any other entity to foster the cycle of violent chaos, in which the country is currently trapped. [53] The Zetas have distinguished themselves not only with their au- dacity but also with their savagery. The Zeta operatives subject their captives to prolonged torture before executing them, often by decapi- tation, immolation, strangulation, and other grizzly methods. The Ze- tas kill huge numbers of persons at once and bury their victims in mass graves. [54] I find that the Zetas truly do have the capacity to hunt down anyone they want to hunt down and they are ruthless. The Zetas have this capability. They could use government databases, their own technological networks, and personnel to search out the claimants anywhere in Mexico. It is possible for the Zetas to find the claimants in Mexico. 5 Thus the Member found that the Zetas were very violent, had capability and the technology to track down anyone in Mexico. The conclusion reached was that it was possible for the Zetas to find these Applicants in Mexico. 6 Strangely however the Member then took a turn in the reasons. I repeat only a portion: [61] The evidence of penetration into a certain region does not answer the question of whether the claimants would be subjected on a balance of probabilities to a risk to life in Ensenada. ... [63] I have looked through the documentary evidence presented in this case and I cannot find one example of any cartel searching out such low level persons like the claimants — and I am only using the word “low level” in terms of their risk of harm that a person faces. I cannot find that the Zetas would be so incensed about the claimants not following through on paying them after the principal claimant was asked to do so, that the Zetas would use their muscle to hunt the claimants down anywhere in Mexico, and especially in Ensenada where the Zetas do not control. [64] In this case, the Zetas are not missing cash, drugs or guns because of the claimants. Their sense of honour has not been violated by any action done by the claimants. The claimants do not know persons within the Zeta organization that would make the Zetas personally angry at them. The claimants have not been sexually involved with any Zeta member or a girlfriend of a Zeta member. Cuevas Mendoza v. Canada (MCI) Roger T. Hughes J. 251

[65] The claimants merely were asked to turn over money, as count- less persons have been asked to do, in Ciudad Juarez. [66] The claimants have alleged that businesses are closing and many persons are fleeing Ciudad Juarez since there cannot comply with the Zetas’ demands. There is no evidence that such persons are later hunted down in Mexico, in cross border areas of the United States or in Canada. [67] I do not find that the claimants have irked the Zetas sufficiently that they would search for them anywhere in Mexico. [68] The evidence is that a local Zeta gang had pursued the claimants at their home several years after they left the city. I find that this kind of search for claimants simply represents the efforts of a local Zeta gang to obtain money from a known source, that is the claimants. The Zetas use isolated cells that maintain control over a certain slice of the turf. [69] Once the claimants left the area, the Zetas attempted to threaten them in a desperate act by breaking into their home and hanging out at the associated claimant’s family’s home. They still wanted easy money, right in the town where the local gang lives. The local zetas, who may have actually been associated with the local police force, asked the associated claimant’s sister if she knew where the claimants were living. If the claimants’ had been in Ciudad Juarez that day, or the day the Zetas had broken into their home, I find that the Claimants could have been killed. But since they were not in Ciudad Juarez, and because the claimants will not return to Ciudad Juarez, I find that the claimants are simply off the local Zetas’ active list of targets. The local Zetas simply will look for other available cash cows locally, to gather all the money they can from the local citi- zenry of Ciudad Juarez. This is the claimants’ evidence. [70] Ciudad Juarez is one of the most dangerous cities in all of Mex- ico. The Zetas will stop at nothing in their attempt to make money there. [71] To search for the claimants in Ensenada or anywhere would, in fact, be distraction from the Zeta’s core business — making easy money. The claimants’ utility to the Zetas is now over. Out of sight and a person’s wealth or business loses their utility to the Zetas unless the Zetas are especially perturbed. The claimants did not annoy the Zetas to such a degree that the Zetas would use their arsenal to find the claimants. The claimants have not raised the ire of the Zetas; they just skipped town. [72] I asked the claimants if their many family members in Mexico City had been contacted by the Zetas in all these years in search to 252 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

find out where the claimants are. The principal claimant testified that no one has contacted their extended family in search to find out where the claimants are living. Likewise the Zetas have not contacted the associated claimant’s parents who are residing in the very same state of Chihuahua, the same state where Ciudad Juarez is located. [73] There are hot spots of violence, like Ciudad Juarez, and there are also places like Ensenada, where drug violence has diminished. As the Sinaloa cartel has tightened its control in Baja California, violence there has dropped in Ensenada. [74] For these reasons, I find on a balance of probabilities that the claimants do not face a risk to their lives in Ensenada, the designated IFA. 7 This reasoning was analyzed by Justice Kane of this Court in reviewing the decision. (IMM-4016-12, December 20, 2012). She found that it was speculative and the matter should be sent back for re-determination. She wrote in part: In this case, the Board’s assessment of the risk faced by the applicants and their need for protection in the proposed IFA is based, to a great extent, on speculation. This Court has cautioned against speculative reasoning in several recent cases. ... In this case the Board speculated that the applicants “are simply now off the local Zetas’ active list of targets” and that they “did not annoy the Zetas to such a degree” that the Zetas would want to track them down. As noted above, such speculation is illogical given the Board’s acceptance of the brutality of this gang and its capacity to track down and harm anyone in Mexico. The Board had also accepted as a fact that the applicants had no previous connection with the Zetas, yet they had been targeted for extortion and threatened. The Board had also found that the Zetas could have killed them if they had been found. The Board’s finding that the applicants would not be at risk because the Zetas had no quarrel with them in inconsistent with the fact that the applicants were targeted for extortion and threatened, despite the Zetas having no quarrel or connection with the applicants in the first place. This speculation about how the Zetas would operate vis a` vis the applicants is illogical and unreasonable. ... Because I have found that the decision regarding the IFA was unreasonable, it is not necessary to determine if the Board erred in refusing Cuevas Mendoza v. Canada (MCI) Roger T. Hughes J. 253

to consider the humanitarian and compassionate factors in assessing the reasonableness of the IFA. For the reasons noted above, the Board’s finding that there was no serious possibility of the applicants being persecuted in the proposed IFA (Ensenada), on a balance of probabilities, was not reasonable. Given the evidence the Board accepted and the applicants’ evidence which was found to be credible, the decision, which relied on speculation, was not justified or intelligible and it did not fall within a range of acceptable outcomes. 8 Turning to the third decision of the Board, the one under review here, we find that, notwithstanding the Board’s statement that speculation would constitute a reasonable error, it does just that. I repeat part of the reasons: [8] I have reviewed the Court’s judgment and I am cognizant that speculation on my part would constitute a reviewable error. I am also mindful that there is an appearance of inconsistency to say on the one hand, that the Zetas have the capacity to hurt anyone in Mexico and yet say on the other hand, that these particular claimants would not be at risk in the proposed IFA. In the reasons to follow, I will respond to this apparent inconsistency. I will rely on the facts of this case and where there is speculation, I will accord the appropriate weight to that particular evidence. ... [16] The claimants were targeted by the Zetas in Ciudad Juarez. The Board’s documents indicate that although the Zeta organization has a presence throughout large regions of Mexico, the Zetas organization is “a network comprised of isolated cells that all maintain control over a certain slice of turf”. The claimants have not demonstrated that it is more likely than not that the Zetas would be motivated or inclined to seek the claimants, outside their “slice of turf,” that is, Ciudad Juarez. [17] The events occurred mostly in 2008, approximately five years ago. There is little persuasive evidence that members of the Zetas are still motivated or inclined to seek the claimants today, to harm them. The claimants testified that the Zetas left a cardboard note in their abandoned home, demanding the extortion payment. This occurred shortly after the claimants’ flight to Canada. It is probable that the Zetas did this, as a follow up to the original threat. The claimants testified that members of the Zetas have repeatedly gone to the other family members, inquiring about the claimants’ whereabouts. I find this implausible, based on the documents which demonstrate that the Zetas are notorious and brutal. 254 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

[18] They (the Zetas) can and do resort to bribery, but they lean toward intimidation and violence. Their mode of operation tends to be far less subtle than that of their Sinaloa counterparts, and with a lead- ership composed of former special operations soldiers, they are quite effective in employing force and fear to achieve their objectives. [19] Based on the information on hand, and based on the claimants’ own fear of the Zetas, it is more likely than no that the Zetas would have resorted to brutal intimidation tactics on the family members to force the claimants to pay the extortion, or as a punishment for not paying, rather than occasionally checking up on the family members over a period of five years to inquire about the claimants. Further- more, the claimants testified that to their knowledge, the Zetas have not extorted the family members while in their pursuit of the claimants. This makes the story that the Zetas are still looking for the claimants even less credible. The statements made by the family members is not probative and so that testimony can only be assessed in light of the documents, which state clearly that the Zetas have no compunction towards violence, thus making the family members’ allegations less believable, since they have not been harmed or extorted themselves in the past five years since the claimants fled. [20] The claimants have family members living in the Mexico City. There was no evidence presented that the family members in the Mexico City have been approached by members of the Zetas to indicate that they were still looking for the claimants. [21] The burden of proof in this instance is a balance of probabilities, which in the circumstances of this case, have not been established. There is the passage of time since theses incidents occurred. There is the credibility factor that the Zetas have repeatedly contacted the family members in pursuit of the claimants, without themselves facing consequences. Then there is the fact that the family members in Mexico City have not been contacted by the Zetas in the past five years. These factors combined do not establish the risk to the claimants to that of a balance of probability. [22] I have considered the evidence, and notwithstanding the testimony of the claimants, I determine that there is an IFA for the claimants in Mexico City. Therefore, under the first prong of the IFA test, the claimants has not established, on a balance of probabilities, that they would be subject personally to a risk to life or to a risk of cruel and unusual treatment or punishment in Mexico City members of the Zetas. 9 Thus the Member has done precisely what Justice Kane has said not to do, engaged in speculation. The Member is not “balancing” the evi- Cuevas Mendoza v. Canada (MCI) Roger T. Hughes J. 255

dence, the Member is ignoring it. The evidence in this particular case us that the Zetas are extremely violent, that the Applicants have been menacingly threatened and that the Zetas have the capacity, whether through isolated cells or communicating cells, to find the Applicants. 10 In paragraph 19 and again in paragraph 21 the Member is basing his speculation on credibility. In paragraph 19 he says that the Applicants says that the Zetas are still looking for them is “less credible”. In paragraph 21 the Member, in considering the “balance of probabilities” refers to the “credibility factor”. 11 In considering credibility in these contexts the Member should have been mindful of two things. First, as stated by this Court in Valtchev v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1131 (Fed. T.D.) at paragraph 7 plausibility, i.e. credibility, findings should only be made in the clearest of cases. The second is that the Member, at the outset of the hearing, announced that credibility would not be an issue unless he raised it at the hearing. There was no credibility issues raised at the hearing. I repeat what the Member said at the outset of the hearing: PRESIDING MEMBER: Okay. This hearing is a return from the Federal Court. The Court found fault with the Board’s past decision and sent the hearing back to the Board for another hearing. Counsel, we’re going to raise the same issues essentially that were raised in the last hearing. And we’ll have a discussion on that before we proceed with the rest of the hearing. Credibility was defined at the last hearing. The member didn’t have any credibility concerns, or didn’t express any credibility concerns. Credibility is always an issue in refugee hearings. But I will accept the finding of the past member, unless I have my own concerns that are raised in this hearing. COUNSEL: I will note they were found credible at their first hearing as well. PRESIDING MEMBER: Okay. COUNSEL: There was no issues at either hearing. PRESIDING MEMBER: Okay. Okay so given that, we won’t have to cover again the material aspects of their testimony. 12 Therefore the matter must go back for re-determination for a fourth time. The Member hearing the matter must be mindful that: (1) Do not speculate 256 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

(2) Credibility is not an issue unless clearly raised and discussed at the hearing. 13 No party requested certification.

Judgment THIS COURT THEREFORE ADJUDGES that: 1. The application is allowed; 2. The matter is to be re-determined by a different Member mindful of the Reasons and those of Justice Kane; 3. No question is certified; and 4. No Order as to costs. Application granted. Diaby v. Canada (MCI) 257

[Indexed as: Diaby v. Canada (Minister of Citizenship and Immigration)] Nafi Diaby, Applicant and The Minister of Citizenship and Immigration, Respondent Nafi Diaby, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-13236-12, IMM-13237-12 2014 FC 742, 2014 CF 742 Russell J. Heard: March 31, 2014 Judgment: July 24, 2014 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Risk of harm –––– Applicant claimed that she was from Sierra Leone — Applicant claimed that she fled that country under severe circumstances and without proper documentation — Ap- plicant filed unsuccessful refugee claim shortly after she arrived in Canada — Applicant brought pre-removal risk assessment application and application for permanent residence on humanitarian and compassionate grounds, both of which were denied by officer — Applicant brought application for judicial review of officer’s decisions — Application granted — Officer failed to consider hardship faced by applicant if she was returned to Sierra Leone and failed to conduct best interests of child analysis — Officer also breached procedural fairness by failing to respond to applicant’s request for interview, and then totally disregarding applicant’s sworn evidence about her nationality. Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Miscellaneous –––– Applicant claimed that she was from Sierra Leone — Applicant claimed that she fled that country under severe circumstances and without proper documentation — Applicant filed unsuccessful refugee claim shortly after she arrived in Canada — Appli- cant brought pre-removal risk assessment (PRRA) application and application for permanent residence on humanitarian and compassionate grounds, both of which were denied by officer — Applicant brought application for judicial review of officer’s decisions — Application granted — Minister of Citizenship and Immigration consented to order regarding PRRA application on grounds 258 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

that officer erred by failing to assess risks facing applicant in country of prospective removal. Cases considered by Russell J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Ainab v. Canada (Minister of Citizenship & Immigration) (2014), 2014 Car- swellNat 2289, 2014 FC 630 (F.C.) — followed Alcin v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 1242, 2013 CarswellNat 5382, 2013 CarswellNat 4743, 2013 FC 1242 (F.C.) — referred to Alvarado v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 255, 2002 CarswellNat 519, 2002 CarswellNat 1952, 2002 CFPI 255, [2002] F.C.J. No. 333 (Fed. T.D.) — referred to Arfaoui v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 549, 2010 CarswellNat 2924, 2010 CarswellNat 1419, 2010 FC 549, [2010] F.C.J. No. 653 (F.C.) — referred to Awolope v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2288, 2010 CF 540, 89 Imm. L.R. (3d) 79, 2010 FC 540, 2010 CarswellNat 1398, 368 F.T.R. 165 (Eng.) (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.) — referred to Bernard v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 2194, 2001 FCT 1068, 2001 CFPI 1068, 2001 CarswellNat 6120, [2001] F.C.J. No. 1474 (Fed. T.D.) — considered C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Chekroun v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 738, 2013 CarswellNat 3752, 2013 FC 738, 2013 CarswellNat 2319 (F.C.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 973, 2009 FC 379, 2009 CF 379, 2009 CarswellNat 6672 (F.C.) — considered Diaby v. Canada (MCI) 259

Cunningham v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 90 Imm. L.R. (3d) 1, 2010 CF 636, 2010 CarswellNat 1773, 2010 FC 636, 2010 CarswellNat 2642, 370 F.T.R. 157 (Eng.) (F.C.) — referred to Daniel v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 797, 2011 CarswellNat 2534, 2011 FC 797, 2011 CarswellNat 3630, 393 F.T.R. 50, [2011] A.C.F. No. 1005, [2011] F.C.J. No. 1005 (F.C.) — referred to Duka v. Canada (Minister of Citizenship & Immigration) (2010), 92 Imm. L.R. (3d) 255, 2010 FC 1071, 2010 CF 1071, 2010 CarswellNat 5924, 2010 Car- swellNat 4084, [2010] F.C.J. No. 1334 (F.C.) — referred to Gamez Blas v. Canada (Minister of Citizenship and Immigration) (2014), 2014 CarswellNat 2255, 2014 FC 629 (F.C.) — followed Guxholli v. Canada (Minister of Citizenship and Immigration) (2013), 2013 Car- swellNat 4759, 2013 CF 1267, 2013 CarswellNat 5445, 2013 FC 1267, [2013] F.C.J. No. 1369 (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.) — referred to Irimie v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 2810, 10 Imm. L.R. (3d) 206, 2000 CarswellNat 6353, [2000] F.C.J. No. 1906 (Fed. T.D.) — referred to Jung v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 678, 2009 CarswellNat 1939, 2009 CF 678, 2009 CarswellNat 5867, [2009] F.C.J. No. 845 (F.C.) — referred to Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 113, 2014 CarswellNat 1435, 372 D.L.R. (4th) 539, [2014] F.C.J. No. 472 (F.C.A.) — followed Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Latifi v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 3834, 2006 FC 1388, 58 Imm. L.R. (3d) 118, 2006 CF 1388, 2006 CarswellNat 5886, [2006] F.C.J. No. 1738 (F.C.) — referred to Legault v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 747, 212 D.L.R. (4th) 139, 288 N.R. 174, 20 Imm. L.R. (3d) 119, 223 F.T.R. 159 (note), [2002] 4 F.C. 358, 2002 CAF 125, 2002 CarswellNat 746, 2002 FCA 125, [2002] F.C.J. No. 457 (Fed. C.A.) — referred to 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, [2008] F.C.J. No. 1608, [2008] A.C.F. No. 1608 (F.C.) — referred to 260 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Owusu v. Canada (Minister of Citizenship & Immigration) (2003), [2003] 3 F.C. 172, 2003 FCT 94, 2003 CFPI 94, 2003 CarswellNat 1577, 228 F.T.R. 19, 2003 CarswellNat 225, 27 Imm. L.R. (3d) 114, [2003] F.C.J. No. 139 (Fed. T.D.) — referred to Patel v. Canada (Minister of Citizenship & Immigration) (1997), 1997 Car- swellNat 91, 36 Imm. L.R. (2d) 175, [1997] F.C.J. No. 54 (Fed. T.D.) — considered Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171, 1989 CarswellNat 906, [1989] F.C.J. No. 505 (Fed. C.A.) — referred to Sebbe v. Canada (Minister of Citizenship & Immigration) (2012), 414 F.T.R. 268 (Eng.), 2012 CarswellNat 2169, 2012 FC 813, 2012 CF 813, 2012 Car- swellNat 2911, 10 Imm. L.R. (4th) 321 (F.C.) — followed Serrano Lemus v. Canada (Minister of Citizenship and Immigration) (2014), 2014 CarswellNat 1362, 2014 FCA 114, 372 D.L.R. (4th) 567 (F.C.A.) — followed Shafi v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 714, [2006] 1 F.C.R. 129, 277 F.T.R. 104 (Eng.), 2005 CarswellNat 1404, 48 Imm. L.R. (3d) 283, 2005 CF 714, 2005 CarswellNat 3486, [2005] F.C.J. No. 896 (F.C.) — referred to Shaikh v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1318, 2012 CarswellNat 4447, 2012 CF 1318, 2012 CarswellNat 4972 (F.C.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 11, 2009 FC 11, 2009 CarswellNat 452, 2009 CarswellNat 453, 340 F.T.R. 29 (Eng.), [2009] F.C.J. No. 4 (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.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — referred to Diaby v. Canada (MCI) Russell J. 261

Vidal v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 123, 41 F.T.R. 118, 49 Admin. L.R. 118, 1991 CarswellNat 35, [1991] F.C.J. No. 63 (Fed. T.D.) — referred to Zokai v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 2262, 2005 FC 1103, 2005 CarswellNat 6645, 2005 CF 1103, [2005] F.C.J. No. 1359 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — considered s. 25 — considered s. 25(1) — considered s. 72(1) — pursuant to s. 95(1)(c) — considered s. 97(1) — considered s. 112(1) — considered s. 113 — considered s. 113(a) — considered s. 113(c) — considered

APPLICATION for judicial review of officer’s decisions refusing applicant’s pre-removal risk assessment application and applicant’s application for permanent residence on humanitarian and compassionate grounds.

Andrew Brouwer, for Applicant Lorne McClenaghan, for Respondent

Russell J.: Introduction 1 This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of two decisions of a Senior Immigration Officer [Officer], both dated November 30, 2012, which refused the Applicant’s Pre-Removal Risk Assessment [PRRA] application and her application for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds.

Background 2 The Applicant claims to be from Sierra Leone, but her nationality was the main issue in the two decisions under review. She says she fled that country under severe circumstances and without proper documentation, but the Officer was not satisfied that she had done enough in the circum- 262 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

stances to prove her identity. The Applicant has two Canadian-born children, who were 11 years-old and 10 years-old at the time of the hearing. She says she is very fearful of what will happen to her and the children if she is forced to return to Sierra Leone. 3 The Applicant says she was born in the rural village of Blama in Si- erra Leone on or around November 19, 1971. At the age of 11, she was subjected to female genital mutilation by village elders. 4 The Applicant’s family moved to Freetown in 1996, when her father got a job as a driver for the newly elected President, Ahmad Tejan Kab- bah. However, the civil war in Sierra Leone was ongoing. The Applicant says that in May 1997 armed rebels came to the family’s home and killed her father, her mother, and her brother. The Applicant was gang raped and then taken by the rebels to a camp, where she was tied to a bed, beaten and raped repeatedly by other rebels. Remarking that her circum- cision had been only partially completed, the rebels decided to “finish the job” with a knife. 5 The Applicant says she managed to escape when the rebels took her to the market to buy food so that she could cook for them. She asked to go to the washroom and escaped out the window in the commotion caused by the rebels’ presence. She got on a truck filled with people fleeing to safety and was taken to Conakry, Guinea, where many other refugees were already gathered at the Sierra Leonean embassy. She was interviewed by consular officials and given an affidavit in lieu of a birth certificate. She had no other identity documents. 6 While at the embassy, the Applicant says she met a man she now believes was a people smuggler. He said he would help her if she agreed to come live with him as his “girlfriend.” She agreed out of desperation, fearful that the rebels would come to the embassy. The man said he would help her to go to Canada, and after a few weeks he took her to some men at the port whom he said were his friends. They put her on a ship, where she was placed in a room and repeatedly raped until the ship reached New York. She was then put on a train to Montreal. She says she slept most of the way and does not recall going through a border check. 7 In Montreal, the Applicant sought out someone who spoke her language and eventually found a couple who agreed to help her. She lived with them for about a year, and has maintained a relationship with the man, who is the father of her two children. She says he only sees the children occasionally when he visits Toronto where she now lives, or Diaby v. Canada (MCI) Russell J. 263

takes them to his home for a weekend, and provides only intermittent support. 8 The Applicant filed a refugee claim shortly after her arrival. Her claim was denied in June 1998, as she was found not to be a credible witness. Her application for leave to challenge that decision in this Court through judicial review was denied. 9 The Applicant says she was terrified to return to Sierra Leone, and met a man at a community meeting who advised her to change her story and her identity and attempt another refugee claim. He provided her with a fake Guinean birth certificate. Before her new claim was heard, immigration officials discovered the lie and arrested her. She spent over four months in detention in Laval, Quebec, and was eventually released on a bond paid by a friend. 10 The Applicant moved to Toronto soon after this, and gave birth to her two children in 2002 and 2004. She says she has supported them mainly by doing hair braiding in her home. 11 The Applicant filed her PRRA and H&C applications in September 2006, and both applications were denied by the same Officer on Novem- ber 30, 2012, after repeated discussions with the Applicant’s counsel on the issue of identity and nationality. 12 The Applicant attests that she is terrified of returning to Sierra Leone due to the trauma she allegedly experienced there, and even more afraid of what will happen to her children. She says that while her children are Canadian citizens and have the right to remain in Canada, she is their sole caregiver, and in practical terms they will have to go with her if she is deported.

Decisions under Review 13 The Officer provided separate reasons for each of the two decisions under review, but the analysis on the issue of the Applicant’s identity is essentially the same. 14 The Officer noted that at the time of her refugee claim, the Applicant provided no documents concerning her time in Sierra Leone or the United States or her entry into Canada. She provided only an affidavit, of which she was the author, allegedly made at the Sierra Leonean Embassy in Guinea in May 1997. The Officer noted that the document was an undated photocopy, had no particular Embassy letterhead, and the space for the name of the person to whom it was sworn was blank. While it did 264 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

bear a stamp and signature (both illegible) from the Head of Chancery, the Officer found this only confirmed that it was signed at the Embassy. The affidavit was made by the Applicant and the information was provided by her. The Officer noted that the Embassy of Sierra Leone in the United States, in correspondence to the Applicant, stated that further verification of this document was needed before it would issue her a passport. The Officer therefore assigned the affidavit no weight in terms of establishing the Applicant’s identity and nationality. 15 The Officer acknowledged the difficulty involved in obtaining identity documents “for a country that has been through a difficult time” and to which the Applicant claimed to have no remaining ties. However, the Officer found that the Applicant had other options to establish her nationality. 16 For example, while the President of Sierra Leone for whom the Ap- plicant’s father allegedly worked was pushed out in a coup around the time of the alleged attack on her family’s home, he was reinstated in 1998 and remained President until 2007. The Officer found that the Ap- plicant could have tried to contact the entourage of this former President or a member of her family in order to obtain identity documents. 17 Furthermore, the Officer found that while the Applicant stated she did not go to school in Sierra Leone, she lived in a small village, worked as a hairdresser in Freetown, and attended religious institutions there. The Of- ficer found that while it may be difficult to re-establish contacts after several years, the Applicant claimed to have lived in Sierra Leone for over 20 years and failed to demonstrate any particular effort to establish her identity and citizenship. 18 The Applicant contacted the Sierra Leonean Embassy in the United States, which refused to issue a passport without further verification of her identity, and stated that she could deal directly with the authorities in Sierra Leone. However, the Officer found that the Applicant did not submit any evidence that she had taken steps to do so, or any explanation to that effect. 19 The Officer noted the Applicant’s second refugee claim in which she stated she was Guinean. In view of this and the absence of identity documents, the Officer had “several contacts spread out over several months - years even - with the applicant’s counsel in which the importance of es- Diaby v. Canada (MCI) Russell J. 265

tablishing the identity and nationality of the Applicant was emphasized.” The Officer observed: Indeed, in light of this second refugee claim and the presence of a birth certificate submitted at that time, and considering the languages spoken by the applicant and the absence of any document from Sierra Leone, the applicant’s counsel was told that if she could demonstrate her Guinean nationality, this could be a significant positive element for consideration (given that it would establish a nationality) in the review of the present application. Nevertheless, the applicant reaf- firmed to us that she was a citizen of Sierra Leone... 20 The Officer assigned only “the slightest weight” to an affidavit from a Canadian citizen originally from Sierra Leone, Ahmed Kabba, attesting that he recalled the Applicant’s family in Blama, as he was from a nearby village and had family in Blama. The Officer observed that Mr. Kabba did not reside in Blama, did not meet the Applicant there, and provided very few details other than vaguely recalling having a discussion with the Applicant’s brother, who would have only been four or five years-old when Mr. Kabba left the country. He also did not indicate whether his family still lived there or whether he or the Applicant had attempted to contact them. 21 The Officer also assigned only “slight weight” to a supportive letter from the Concerned Citizens and Friends of Sierra Leone. While this letter stated that the Applicant was of Sierra Leonean origin, it did not state how the author came to that conclusion. 22 In the PRRA decision, the Officer concluded on the issue of nationality as follows: I must observe that the applicant has not submitted any probative documentation establishing her identity or nationality for me. Thus, in light of the foregoing, I find that the applicant has failed to establish on the balance of probabilities that she is a national of Sierra Leone. Accordingly, I cannot pronounce on the risks alleged with respect to her potential return to Sierra Leone as I do not have any probative evidence demonstrating that she is a national of that country. 23 In the H&C decision, the Officer went on to consider the Applicant’s establishment in Canada, the best interests of her children, and the evidence regarding the Applicant’s psychological condition. 24 Regarding establishment, the Officer found that the more than 15 years the Applicant has spent in Canada is not due to circumstances beyond her control, but rather is mainly due to her failure to comply with 266 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Canadian law and to cooperate with immigration authorities toward establishing her identity. The Officer also found that the information regarding the Applicant’s employment was more than 2 years old, and that the documents available did not allow a conclusion that she had recently been financially independent or had demonstrated a recent history of employment stability. While the Applicant had developed some relation- ships and ties to her community, they were not such as to cause unusual and undeserved or disproportionate hardship if she were required to leave so as to justify an exemption from the normal rules. 25 Regarding the best interests of the Applicant’s children, the Officer observed that this was only one of many important factors to be considered. The Applicant’s psychological report dated January 13, 2012 indicates that the children are at a crucial moment in their development, but does not indicate that the author ever met with the children or had any particular familiarity with Sierra Leone. The Officer assigned “a certain amount of weight” to this report with respect to the best interests of the children, but noted it was being considered “in the context of the applicant’s situation as a whole.” 26 The Officer observed that, while the Applicant did not indicate that the children’s father plays a significant role in their lives, it had “not been demonstrated that the father could not take his children and be responsible for their financial, emotional, psychological and social well- being.” The Officer found that “given that the applicant’s identity and nationality have not been established I cannot make any presumption as to the potential impact on the children if their mother were removed from Canada and they had to go with her.” While acknowledging that separa- tion from their mother is not in the children’s best interests, and that their interests were an important factor, the Officer found that it was “not the only one and cannot outweigh the other factors... assessed in this case, including the fact that the applicant has failed to establish her identity and has not made reasonable efforts to do so.” 27 Regarding the two psychological reports submitted by the Applicant, dated November 14, 2007 and January 13, 2012, the Officer found that while the reports described symptoms of post-traumatic stress disorder, they were based on information reported by the Applicant, and did not support a conclusion that these symptoms were the result of the allegations made by the Applicant about her past. The Officer noted that the Applicant’s arrival in Canada, the length of her residency and the possibility that she might be separated from her children could have certain Diaby v. Canada (MCI) Russell J. 267

effects on her psychological status. There was no indication of psychological treatment between 2007 and 2012. While the 2012 report states that the Applicant attends a support group and was undergoing “therapy for rape victims and therapy for PTSD as well as therapeutic support following the death of her family members in 1997, personal therapy, and therapy for depression,” the Officer noted that the Applicant had “not submitted any document that might indicate treatment or therapy since that time.” The Officer concluded on this point: In light of the forgoing, and considering that the applicant has not established that she is a Sierra Leonean national, I assign only slight weight to these documents concerning mental health problems related to her past in Sierra Leone. 28 Based on all of the above, the Officer was not satisfied that having to file an application for permanent residence from outside of Canada would cause unusual and undeserved or disproportionate hardships for the Applicant. 29 The Officer also discussed the psychological reports in the PRRA decision, and found that, in light of the fact that the Applicant had not established that she is a Sierra Leonean national, the reports warranted only “slight weight” concerning mental health problems related to her past in Sierra Leone. 30 With respect to the risks the Applicant might face on return to Sierra Leone, the Officer observed: I cannot pronounce on the alleged risks of a potential return to Sierra Leone, since I have no probative evidence demonstrating that the applicant actually holds citizenship in that country. 31 Regarding risks to the children, the Officer stated: I note that the applicant’s children are Canadian citizens and do not have to leave Canada. Furthermore, I find that the applicant has not established her nationality and her identity. 32 With respect to the PRRA application as a whole, the Officer concluded: To the extent that the applicant has not established that she is Sierra Leonean, and considering that there are no probative documents in her name for Sierra Leone, I find that the applicant has not demonstrated that there would be more than a mere possibility that she would be persecuted in that country or that there are serious reasons to believe that she would personally face a risk of torture, a threat to her life or the risk of cruel and unusual treatment or punishment. 268 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Issues 33 The Applicant raises the following issues in this matter. First, with respect to the H&C decision: (a) Did the Officer err in law by refusing to make a finding of nationality on a balance of probabilities? (b) Did the Officer err in law by refusing to assess hardship in the country of removal? (c) Did the Officer err in law and make unreasonable findings in her analysis of the best interests of the children? (d) Did the Officer err in law by failing to convoke an interview? (e) Did the Officer render an unreasonable and perverse decision? 34 Second, with respect to the PRRA decision: (a) Did the Officer err in law by refusing to make a finding of nationality on a balance of probabilities? (b) Did the Officer err in law by failing to assess risk in the country of prospective removal? (c) Did the Officer err in law by failing to convoke an interview?

Standard of Review 35 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48. 36 With respect to the H&C decision, the Officer’s assessment of the evidence and conclusion about whether an H&C exemption should be granted is reviewable on a standard of reasonableness: Alcin v. Canada (Minister of Citizenship and Immigration), 2013 FC 1242 (F.C.) at para 36; Daniel v. Canada (Minister of Citizenship & Immigration), 2011 FC 797 (F.C.) at para 12; Jung v. Canada (Minister of Citizenship & Immi- Diaby v. Canada (MCI) Russell J. 269

gration), 2009 FC 678 (F.C.) at para 19. The question of whether the Officer applied the proper legal test and legal threshold to the H&C determination is reviewable on a standard of correctness: see Guxholli v. Canada (Minister of Citizenship and Immigration), 2013 FC 1267 (F.C.) at paras 17-18; Awolope v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 540 (F.C.) at para 30. 37 Absent an error in procedural fairness, the standard when reviewing a PRRA decision is reasonableness: Shaikh v. Canada (Minister of Citizenship and Immigration), 2012 FC 1318 (F.C.) at para 16; Cunningham v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 636 (F.C.) at para 15. 38 The Applicant alleges, with respect to both decisions, that the Officer erred in law by failing to convoke an interview before rejecting the Ap- plicant’s affidavit evidence regarding her identity and nationality. As I read it, this raises a question of procedural fairness that is reviewable on a standard of correctness: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.) at para 100; Sketchley v. Canada (Attorney Gen- eral), 2005 FCA 404 (F.C.A.) at para 53. Although my decision does not turn on this, I realize that the jurisprudence on this point has changed since I heard the matter. In view of the Federal Court of Appeal’s decisions in Kanthasamy v. Canada (Minister of Citizenship and Immigra- tion), 2014 FCA 113 (F.C.A.) at para 30 and Serrano Lemus v. Canada (Minister of Citizenship and Immigration), 2014 FCA 114 (F.C.A.) at para 18, the standard of review that applies when determining whether the tribunal applied the proper test to the H&C decision is now reasonableness, though as set out in my recent decisions in Ainab v. Canada (Minister of Citizenship & Immigration), 2014 FC 630 (F.C.) at paras 17- 18 and Gamez Blas v. Canada (Minister of Citizenship and Immigration), 2014 FC 629 (F.C.) at paras 17-23, the range of reasonable outcomes available to the officer is constrained by the established principles set out in the jurisprudence regarding s. 25(1) of the Act. 39 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at para 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the 270 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 40 The following provisions of the Act are applicable in these proceedings: Application before entering Canada 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. [...] Humanitarian and compassionate considerations — request of foreign national 25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. [...] Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when [...] (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. [...] Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, Diaby v. Canada (MCI) Russell J. 271

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [...] Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). [...] Consideration of application 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that 272 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [...] (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; [...] Visa et documents 11. (1) L’étranger doit, préalablement a` son entrée au Canada, demander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. [...] Séjour pour motif d’ordre humanitaire a` la demande de l’étranger 25. (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire, soit ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada qui demande un visa de résident permanent, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations appli- cables, s’il estime que des considérations d’ordre humanitaire rela- tives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. [...] Asile 95. (1) L’asile est la protection conférée a` toute personne dès lors que, selon le cas: [...] c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). [...] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa Diaby v. Canada (MCI) Russell J. 273

race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1). [...] 274 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Examen de la demande 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ ements de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circon- stances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; [...] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 a` 98; [...]

Argument Applicant 41 The Applicant argues that the Officer’s finding regarding her identity and nationality is unreasonable. The Officer purported to go through a process of assigning weight to the evidence, the Applicant says, giving “no weight” to the affidavit from the Embassy in Conakry, Guinea, the “slightest weight” to the affidavit of Ahmed Kabba, and “slight weight” to the letter from a Sierra Leonean community organization. However, the Officer made no finding about the weight to be assigned to the sworn evidence of the Applicant herself. The Applicant says there were only two possible nationalities - Sierra Leonean and Guinean - and that the only evidence assigned any weight indicated that the Applicant is from Sierra Leone. There was therefore no other reasonable conclusion. 42 The Applicant also argues that the Officer erred by failing to assess the hardship or risk she would face in the prospective country of removal. The Officer appears to have accepted that the Applicant would be removed to Sierra Leone following the negative decisions, but having refused to find that the Applicant was a national of that country, declined to consider the risk she would face there. Even if the Applicant has not established her nationality on a balance of probabilities (which the Appli- cant denies), it was incumbent on the Officer, under s. 7 of the Charter and Canada’s human rights obligations as well as the Protected Persons, Chapter 3 (PP3)-Pre-removal risk assessment Manual (PP3 PRRA Man- ual) and the Inland Processing, Chapter 5 (IP5) - Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds Manual, to assess the risk and hardship the Applicant faces in that country. Diaby v. Canada (MCI) Russell J. 275

43 The Applicant quotes the PP3 PRRA Manual as follows: IRPA does not explicitly require a risk assessment with respect to any other country to which the individual may be removed. However, both our domestic and international legal obligations require the consideration of risk in any country to which an individual is to be removed, whether it is the individual’s country of citizenship or former habitual residence or not. 44 The Applicant also quotes from this Court’s decision in Chen v. Canada (Minister of Citizenship & Immigration), 2009 FC 379 (F.C.) at para 55: I believe the Officer was correct to conclude that, notwithstanding the continuing identity problems, she was still obliged to assess risk against the country of removal. The failure to establish identity means that there is no need to proceed further with an analysis of persecution. See: Najam v. Canada (Minister of Citizenship and Im- migration), [2004] F.C.J. No. 516at paragraph 16; Su v. Canada (Minister of Citizenship and Immigration), 2007 FC 680at paragraph 14; Elmi v. Canada (Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 4; Jin at paragraph 26; Liu at paragraph 18. I do not read this line of cases as suggesting that a PRRA officer need go no further in assessing risk if identity is a continuing problem, and the Officer in this case did proceed beyond the identity issue. 45 The Applicant says that the Officer also erred by failing to be alert, alive and sensitive to the best interests of the children, citing Justice Zinn’s analysis in Sebbe v. Canada (Minister of Citizenship & Immigra- tion), 2012 FC 813 (F.C.) at paras 15-17 [Sebbe]. Rather than even ap- proaching a balanced and sensitive analysis, the Applicant argues, the Officer simply refused to consider the grave hardships and risks facing the children in Sierra Leone, including female genital mutilation. Instead, the Officer relied upon pure, unsupported speculation that the children’s father should be able to care for them, despite the absence of any evidence to support this finding and in the face of sworn evidence indicating that the father is not involved in raising the children and has previously refused to care for them. 46 The Applicant also argues that it is well established in law that, where credibility lies at the heart of a PRRA or H&C decision, natural justice and s. 113 of the Act require that a hearing be convoked. At the very least, she argues, the Officer was obligated to respond to the request for an interview with a reasonable decision on that request, which the Of- ficer did not do: Shafi v. Canada (Minister of Citizenship & Immigra- 276 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

tion), 2005 FC 714 (F.C.) at paras 19-24; Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177 (S.C.C.) [Singh]; Liban v. Canada (Minister of Citizenship & Immigration), 2008 FC 1252 (F.C.) at para 14; Arfaoui v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 549 (F.C.) at para 20 [Arfaoui]; Zokai v. Canada (Minister of Citizenship & Immigration), 2005 FC 1103 (F.C.) at paras 11-12 [Zokai]; Latifi v. Canada (Minister of Citizenship & Immigration), 2006 FC 1388 (F.C.) at paras 51, 63.

Respondent 47 The Respondent argues that the Officer reasonably assessed the evidence and concluded that the Applicant was not entitled to an exemption on H&C grounds under s. 25 of the Act. 48 The Respondent emphasizes that s. 25 is not designed to provide an alternative route to permanent residence: Vidal v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 63, 41 F.T.R. 118 (Fed. T.D.);Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125 (Fed. C.A.) [Legault]. Rather, such relief is available only in exceptional circumstances, and only if the Applicant can demonstrate unusual and undeserved or disproportionate hardship: Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para 17 [Baker]; Legault, above, at para 23; Hawthorne v. Canada (Minister of Citizenship & Immigration), 2002 FCA 475 (Fed. C.A.) at paras 9, 30; Singh v. Canada (Minister of Citizenship & Immigration), 2009 FC 11 (F.C.) at para 19; Irimie v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 1906 (Fed. T.D.) at para 26, (2000), 10 Imm. L.R. (3d) 206 (Fed. T.D.) (TD). 49 Furthermore, the Respondent argues, in the absence of reviewable error, it is not for the Court to substitute its view of the merits of a s. 25 decision, or to re-weigh the factors or the evidence: Owusu v. Canada (Minister of Citizenship & Immigration), [2003] 3 F.C. 172, 2003 FCT 94 (Fed. T.D.) (TD); Alvarado v. Canada (Minister of Citizenship & Im- migration), 2002 FCT 255 (Fed. T.D.) (TD); Legault, above, at para 11. In the present case, the Respondent says, the Officer considered the Ap- plicant’s case and all of the relevant factors and reasonably determined that no exemption from the legislative requirements was warranted. The Applicant merely disagrees with the negative result. 50 The Respondent says that the Officer reasonably determined that there was insufficient evidence of the Applicant’s identity. The embassy Diaby v. Canada (MCI) Russell J. 277

staff of her alleged country of nationality confirmed as much, consistently refusing to issue a travel document to the Applicant due to a lack of proof. 51 Moreover, the Respondent argues, the Officer did not find that the Applicant was Guinean, but simply found there was not enough evidence to make any determination about her nationality. The Applicant bore the burden of proving her nationality and failed to do so. 52 The Respondent says that it is especially inappropriate that this particular Applicant should demand that her declarations of citizenship be accepted, since there was a valid determination by the Immigration and Refugee Board [IRB] that she lacked credibility, and thereafter she fraudulently commenced a second refugee claim under a false identity. 53 There being no satisfactory evidence that the Applicant is from Sierra Leone, the Respondent argues, there was no basis for the Officer to consider evidence of potential hardship to the Applicant in that country. There is no basis for concluding that Sierra Leone is a country of removal, since to date the Applicant has been unsuccessful in obtaining a travel document from the responsible authorities. 54 With respect to the best interests of the Applicant’s children, the Re- spondent says that the Applicant declined to provide any substantial information regarding the possible assumption of the children’s care by their father. She dismissively states that only she can care for them, but this is not sufficient: Bernard v. Canada (Minister of Citizenship & Im- migration), [2001] F.C.J. No. 1474 (Fed. T.D.) at paras 37-38, 2001 FCT 1068 (Fed. T.D.) (TD) [Bernard]; Patel v. Canada (Minister of Citizenship & Immigration), [1997] F.C.J. No. 54, 36 Imm. L.R. (2d) 175 (Fed. T.D.) (TD) [Patel]. The psychological evidence that the Applicant did provide regarding the children’s best interests was assessed appropri- ately and accurately, the Respondent says. The report, while entitled to some weight, did not require the Officer to approve the Applicant’s application. 55 The Respondent also submits that there was no basis for approving the Applicant’s application based on establishment, as her establishment evidence was extremely weak and demonstrated that the Applicant is not economically established in Canada. 56 As regards the PRRA decision, the Respondent does not oppose the application and agrees that the PRRA Officer erred by failing to assess the risks facing the Applicant in the country of prospective removal (ie. 278 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Sierra Leone). The parties have now submitted a consent order on IMM- 13237-12 for the Court’s approval and signature.

Applicant’s Reply Submissions 57 The Applicant argues in reply that the evidence before the Officer regarding the Applicant’s nationality was not the same as the evidence before the IRB, and it is therefore wrong for the Respondent to suggest that the Refugee Protection Division’s conclusion on this issue should be determinative here. Furthermore, the Applicant argues, the s. 25 process exists specifically to provide flexibility where the strict application of the law would lead to unanticipated results or unusual and undeserved hardship. The Officer neither convoked an interview to satisfy herself about the credibility of the Applicant’s sworn affidavit evidence, nor seriously considered the impact the decision would have on the Applicant and her children. 58 The Respondent’s assertion that there is no basis for concluding that Sierra Leone is the reference country of removal is directly contradicted by the record. Upon being served with the refusal of her application the Applicant was immediately asked to sign an application for a Sierra Le- onean travel document: Affidavit of Kezia Speirs, Applicant’s Record at p. 26. It is therefore clear that Sierra Leone is the primary country of prospective removal. 59 With respect to the best interests of the children, the Applicant says that the evidence before the Officer, including her own sworn evidence, consistently referred to her as a single mother and stated that the children’s father had no real role in their lives. There was absolutely no evidence contradicting this, and no reason to doubt its veracity. The Appli- cant says that the Officer’s finding that the children’s father could care for them is pure conjecture, and does not meet the threshold of being “alert, alive and sensitive” to the children’s best interests: Satiacum v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 505, 99 N.R. 171 (Fed. C.A.); Baker, above; Sebbe, above. The Bernard and Patel decisions cited by the Respondent are in no way relevant to the issue, the Applicant argues, and in no way diminish the strength of the Applicant’s arguments.

Analysis 60 As regards IMM-13237-12, the Respondent has advised the Court that it does not oppose the application and consents to the order re- Diaby v. Canada (MCI) Russell J. 279

quested by the Applicant on the grounds that the PRRA Officer erred by failing to assess the risks facing the Applicant in the country of prospective removal. The Respondent, however, feels that redetermination should not occur immediately because the Applicant’s nationality remains a live issue and a new PRRA can only be decided once that issue is resolved. The parties have provided the Court with a consent order to deal with IMM-13237-12 which the Court accepts and which will be issued on that file. 61 It is my view that the H&C decision also contains several reviewable errors. In particular, the Officer failed to consider the hardship faced by the Applicant if she is returned to Sierra Leone and failed to conduct a best interests of the child [BIOC] analysis that takes into account that there is no evidence to support a finding that the father would take the children in Canada, and that the children will face grave hardships and risks - including female genital mutilation - if they accompany the Appli- cant back to Sierra Leone. The Officer also breached procedural fairness by simply failing to respond to the Applicant’s request for an interview, and then totally disregarding the Applicant’s sworn evidence about her nationality. 62 It was unreasonable for the Officer not to assess hardship in this case because it is clear on the evidence that the Applicant either comes from Sierra Leone or Guinea, and the Guinea claim was clearly fraudulent. Hence, it is obvious that the Applicant will either be retuned to Sierra Leone or she will remain as a stateless person in Canada. The Respon- dent has accepted, for purposes of the PRRA decision, that the same Of- ficer should have assessed risk against Sierra Leone even if nationality has not been clearly established. The fact that the Applicant did not establish to the Officer’s satisfaction that she is a citizen of Sierra Leone does not mean she will not be exposed to risks and hardship when she is returned there. And, if the Applicant remains in Canada, then the Officer should have assessed the hardship she will face as a stateless person. 63 The Applicant provided a sworn affidavit outlining her background and the horrendous treatment she experienced before she managed to find her way to Canada. Over 15 years ago, the Convention Refugee De- termination Division of the Immigration and Refugee Board of Canada found her narrative not credible on the basis of the record available at that time. But there is now a significant amount of evidence as to what women experienced in Sierra Leone at the time when the Applicant says she was raped, mutilated, witnessed the death of her family and was 280 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

forced to flee. That evidence lends considerable support to the Appli- cant’s claim that she is from Sierra Leone (and she provided supportive and consistent medical and psychological evidence from Canada). If the Officer did not believe the Applicant’s sworn evidence then she should have convoked an interview as requested by the Applicant. There is no explanation in the H&C decision as to why the Applicant’s affidavit was ignored and discounted, or why the Officer did not even respond to the Applicant’s request for an interview so that, in a situation where identity cannot be clearly established with the usual documentation, the Appli- cant would have an opportunity to deal with the Officer’s concerns. This was a breach of procedural fairness. See Duka v. Canada (Minister of Citizenship & Immigration), 2010 FC 1071 (F.C.) at para 13; Zokai, above, at paras 11-12; Arfaoui, above, at para 20; Chekroun v. Canada (Minister of Citizenship and Immigration), 2013 FC 738 (F.C.) at para 72; Singh, above, at para 59. 64 As the Respondent concedes, if the Applicant is telling the truth, then this is an extremely compelling case. Given the obvious difficulties of providing documentation from Sierra Leone to establish identity it was most unfair of the Officer not to respond to the Applicant’s request for an interview. 65 The Officer finds unreasonably that “the applicant could have tried to contact the entourage of this ex-president or a member of her family in order to obtain certain documents that could have confirmed her identity.” This leaves out of account the Applicant’s evidence that she comes from a rural village, has no formal education, her family was murdered, her birth was never registered, her home was destroyed and she has no contact with anyone in Sierra Leone who she could turn to for assistance. 66 In assessing the best interests of the children, the Officer says: The applicant does not indicate that the father plays a significant role, but I do not know what particular relationship the children have with their father or the support that he provides or could provide. On the other hand, it has not been demonstrated that the father could not take the children and be responsible for their financial, emotional, psychological and social well-being. 67 The sworn evidence before the Officer was that: Even worse is the thought of what will happen to my children if we go back. I know that as Canadian citizens my children have the legal right to remain in Canada, but practically speaking if I am deported they will have to come with me. I am their mother and their only Diaby v. Canada (MCI) Russell J. 281

caregiver. There is no one in Canada who could take care of them were I to be sent away, as Tanjura has always said he would not do so and he is in my opinion not in a position to do so in any event. What’s more, I could not bear to leave my children without a mother. My own family was taken away from me when I was young; I know what that feels like and refuse to do the same to my own children. At the same time, going back to Sierra Leone would place them at very grave risk. It is a violent place. My children would be exposed to this violence, to rape, to disease, and to extreme poverty. They would not have access to education or medical care anywhere near the level to which they are entitled as Canadians. They would have no future. Even worse, I know that FGM is still very, very common there, and many girls bleed to death when it is performed on them. Yet as a single mother there with no family to rely on for assistance or protection, I would be powerless to prevent Goundoba from being subjected to this atrocity. [Emphasis added] 68 The Applicant made it very clear that she is the sole custodian of the two Canadian children and that their father provides only intermittent support but has played no parenting role and has made it clear that he never will. If the Officer did not believe this clear evidence that the children cannot turn to their father, or anyone else in Canada, for support, the Officer should have responded to the Applicant’s request for an interview. As a consequence, there was no meaningful assessment of the best interests of the children. 69 Counsel agree that, if the application is granted, there is no question for certification and the Court concurs. 70 The Court has decided that this matter must be returned for reconsideration, but the Applicant has also asked the Court for special instructions to guide reconsideration given the extraordinary features of this case and the length of time it has taken. Counsel have asked for an opportunity to confer and advise the Court on this issue before the final order is issued. 71 Upon reviewing counsel’s further written submissions, the Court is of the view that the humanitarian considerations that arise on this application are so compelling that an effort is required to reach a resolution as soon as reasonably possible. 72 The long delay in reaching an H&C decision cannot be entirely attrib- uted to the Minister. Just as Sierra Leone is difficult from the Applicant’s perspective, it is also difficult for the Minister who has to assess an appli- 282 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

cation where the country of reference is so chaotic that normal procedures for establishing identity are not available. In addition, it was the Applicant (no doubt ill-advised and out of desperation) who submitted a second refugee claim in which she stated that she was Guinean. This certainly caused significant problems for the Minister and impeded the process. 73 Given the complications, however, the Officer in the case would not even respond to the request for an interview, which could well have provided valuable information and progress towards a timely resolution for a process that, in humanitarian terms, has really gone on far too long. This suggests that we cannot just leave this matter to run its course and that some direction, and perhaps supervision, might be helpful to both sides. 74 With this in mind, the Court has concluded that the matter should be returned for reconsideration with the following directions: i. The Minister shall either accept Sierra Leone as the country of reference, on the basis of the record before the Court, for the purposes of assessing hardship in the country of prospective removal and the best interests of the children; or the Minister shall assess hardship on the basis of de facto statelessness in Canada if, following an oral interview with the Applicant and counsel, the Of- ficer finds that, on a balance of probabilities, the Applicant is not a national of Sierra Leone and so will not be removed to that country; ii. The Applicant shall have 30 days to provide the Minister with updated application forms and such further evidence and written material as the Applicant deems appropriate; iii. The Minister shall render and communicate to the Applicant and counsel a fresh first stage decision on H&C grounds within 60 days of receiving the Applicant’s updated materials; iv. If the fresh decision is positive, the Minister shall waive the requirement for further documentation or evidence with respect to identity and/or nationality, including the requirement to provide a passport, and shall render a final decision on the permanent residence application as soon as possible, and in any event within 60 days of the first stage decision; 75 The Court recognizes that, given the complexities of this case, the above deadlines may not be easy to meet. However, given the unaccept- able approach of the Officer who decided the decision under review, and Diaby v. Canada (MCI) Russell J. 283

the compelling humanitarian factors at play, there is a real need to conclude this matter in a timely way. Hence, failing agreement by the parties, the above deadlines may only be extended by further order of this Court. Upon the advice of counsel and for this purpose, I will remain seized of the matter to ensure that any deviations from the schedule are reasonable and required in the circumstances. 76 The Applicant has asked for costs in this matter. I am of the view that this mater has not been dealt with in a timely manner. However, the delays cannot be entirely laid at the feet of the Minister. This is a complex case and the Applicant must assume some responsibility for the complications which she introduced into the process with the second refugee claim based upon Guinean nationality. Consequently, I don’t think I can find the “special reasons” required for an award of costs at this point. I think that the timetable set out above is a sufficiently clear message to the Minister that this matter requires resolution in a timely manner. How- ever, I remain seized of this matter and future conduct may give rise to cost considerations that will be dealt with as may arise.

Judgment THIS COURT’S JUDGMENT is that: 1. The application in file IMM-13236-12 is allowed. The decision is quashed and the H&C matter is returned for reconsideration by a different officer in accordance with my reasons. 2. In reconsidering this matter the following conditions shall apply: i. The Minister shall either accept Sierra Leone as the country of reference, on the basis of the record before the Court, for the purposes of assessing hardship in the country of prospective removal and the best interests of the children; or the Minister shall assess hardship on the basis of de facto statelessness in Canada if, following an oral interview with the Applicant and counsel, the Officer finds that, on a balance of probabilities, the Applicant is not a national of Si- erra Leone and so will not be removed to that country; ii. The Applicant shall have 30 days to provide the Minister with updated application forms and such further evidence and written material as the Applicant deems appropriate; iii. The Minister shall render and communicate to the Appli- cant and counsel a fresh first stage decision on H&C 284 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

grounds within 60 days of receiving the Applicant’s updated materials; iv. If the fresh decision is positive, the Minister shall waive the requirement for further documentation or evidence with respect to identity and/or nationality, including the requirement to provide a passport, and shall render a final decision on the permanent residence application as soon as possible, and in any event within 60 days of the first stage decision; and v. Failing agreement by the parties, the above deadlines may only be extended by further order of this Court. For this purpose, I will remain seized of the matter to ensure that any deviations from the schedule are reasonable and required in the circumstances. 3. No costs are awarded at this time but may be considered in future as set out in my reasons. 4. There is no question for certification. Application granted. Mahjoub, Re 285

[Indexed as: Mahjoub, Re] In the Matter of a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act [“IRPA”] In the Matter of the referral of a certificate to the Federal Court of Canada pursuant to subsection 77(1) of the IRPA In the Matter of the conditions of release of Mohamed Zeki MAHJOUB [“Mr. Mahjoub” or the “Applicant”] Federal Court Docket: DES-7-08 2014 FC 720, 2014 CF 720 Simon Noel J. Heard: July 8, 2014 Judgment: July 18, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Terrorists –––– Applicant was first detained under security certificate in 2000 — Applicant was released under strict conditions after nearly seven years — Applicant was named in second security certificate in 2008 — In January 2013, some of applicant’s conditions of release were repealed and others were softened considerably — No changes were made when matter was last considered in December 2013 — Second security certificate was found to be reasonable around that time — Applicant brought application for order repealing most release conditions — Application dismissed — Conditions of release were required and proportional to danger identified — Applicant’s record regarding his most recent conditions of release had not been exemplary — Applicant had breached his conditions of release by, inter alia, not giving proper notice of acquisition and use of telephone and fax services — Applicant’s recent attitude, action, and behaviour were also indicative of unwillingness to collaborate and co-operate with supervisors — Fact that underlying proceedings were long and complex did not in itself support less strict conditions of release. Cases considered by Simon Noel J.: Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 Car- swellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — followed 286 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Harkat, Re (2009), 2009 CarswellNat 600, 2009 FC 241, 339 F.T.R. 104 (Eng.), 2009 CF 241, 2009 CarswellNat 6706, [2009] F.C.J. No. 316 (F.C.) — followed Harkat, Re (2014), 2014 SCC 37, 2014 CSC 37, 24 Imm. L.R. (4th) 1, 2014 CarswellNat 1463, 2014 CarswellNat 1464, 10 C.R. (7th) 225, [2014] S.C.J. No. 37 (S.C.C.) — followed Harkat v. Canada (Minister of Citizenship and Immigration) (2013), 2013 Car- swellNat 2621, 2013 FC 795, [2013] F.C.J. No. 860, 2013 CF 795, 2013 CarswellNat 3953 (F.C.) — followed Harkat v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 871, 2007 FC 416, 2007 CF 416, 2007 CarswellNat 3878, (sub nom. Harkat, Re) 312 F.T.R. 50 (Eng.), [2007] F.C.J. No. 540 (F.C.) — considered Mahjoub, Re (2011), [2011] F.C.J. No. 936, 2011 FC 506, 2011 CarswellNat 2355, 389 F.T.R. 47 (Eng.) (F.C.) — referred to Mahjoub, Re (2013), 2013 FC 10, 2013 CarswellNat 142, 2013 CarswellNat 1181, 2013 CF 10, 277 C.R.R. (2d) 1, 425 F.T.R. 1 (Eng.), [2013] F.C.J. No. 77 (F.C.) — referred to Mahjoub, Re (2013), 2013 FC 1095, [2013] F.C.J. No. 1216 (F.C.) — referred to Mahjoub, Re (2014), 2014 CarswellNat 2505, 2014 FC 479 (F.C.) — referred to R. v. Vu (2013), 302 C.C.C. (3d) 427, 6 C.R. (7th) 1, 365 D.L.R. (4th) 601, 345 B.C.A.C. 155, 589 W.A.C. 155, [2013] 3 S.C.R. 657, 2013 SCC 60, 2013 CarswellBC 3342, 2013 CarswellBC 3343, 451 N.R. 199, [2013] S.C.J. No. 60 (S.C.C.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 2 — considered s. 7 — considered s. 8 — considered s. 12 — considered s. 24 — considered Criminal Code, R.S.C. 1985, c. C-46 s. 127 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 79 — considered s. 82(4) — pursuant to s. 82(5)(b) — pursuant to s. 124(1)(a) — referred to

APPLICATION for order repealing release conditions made under security certificate. Mahjoub, Re Simon Noel J. 287

Mr. Bernard Assan, Ms Mahan Keramati, Mr. Christopher Ezrin, Ms Balqees Mihirig, for Applicants, Minister of Citizenship and Immigration and Min- ister of Public Safety Ms Johanne Doyon, Mr. Yavar Hameed, for Respondent, Mohamed Zeki Mahjoub

Simon Noel J.: I. Introduction 1 Mr. Mahjoub seeks from this Court that it releases him from and re- peals all of his conditions of release from detention, save the usual conditions, pursuant to subsection 82(4) and paragraph 82(5)(b) of the Immi- gration and Refugee Protection Act, SC 2001, c 27 [the “IRPA”].

A. Facts — A brief history of the proceedings and previous reviews of the conditions of release from detention 2 The Applicant was named in a security certificate in June 2000 and put under detention on June 26 of that same year. 3 The Applicant was released from detention, after nearly seven years, under strict conditions, and he was made the object of a second security certificate in 2008. 4 Several reviews of the Applicant’s conditions of release from detention were made over the years. The most recent hearing for the review of these conditions of release was held before the late Justice Blanchard on October 16, 2013, following which orders were rendered on December 17, 2013 (Mahjoub (Re), 2013 FC 1257 [the “December 17, 2013 review of conditions order”]) and January 24, 2014 (Mahjoub (Re), in docket DES-7-08, dated January 24, 2014 [the “January 24, 2014 review of conditions order”]). 5 Justice Blanchard’s December 17, 2013 review of conditions order renewed and maintained his previous review of conditions order, dated January 7, 2013, which had repealed a number of conditions imposed on the Applicant and softened other conditions considerably. 6 In the meantime, the Applicant contested the reasonableness of the security certificate issued against him. However, Justice Blanchard declared this security certificate reasonable on October 25, 2013 — the reasons of this decision were released later, on December 6, 2013 (Mahjoub, Re, 2013 FC 1095 (F.C.) [the “Reasonableness Decision”]). 288 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

7 Since the last review of the conditions of release from detention, and more specifically on March 24, 2014, the Ministers sought to have the Applicant’s conditions modified in order to, among other things, gain access to all of the Applicant’s passwords. Following an oral hearing on May 15, 2014, I ordered that the Applicant was to provide the Ministers with all of his passwords upon request and that the other elements sought by the Ministers were to be addressed at the following review of the conditions of release from detention, i.e. this review.

II. Applicant’s submissions 8 The Applicant seeks to have all of his conditions of release from detention repealed, save for the following usual conditions: • Mr. Mahjoub shall keep the peace and be of good conduct; • Mr. Mahjoub shall report change of address; • Mr. Mahjoub shall comply and agree to comply with each of the conditions set out in this order; • Mr. Mahjoub’s passport and all travel documents, if any, shall remain surrendered to the Canada Border Services Agency [the CBSA]. Without the prior approval of the CBSA, Mr. Mahjoub is prohibited from applying for, obtaining or possessing any passport or travel document. For clarity, this shall not prevent Mr. Mahjoub from traveling within Canada, as long as proper notice is given to the CBSA pursuant to paragraph 8 of these Conditions; • If Mr. Mahjoub is ordered to be removed from Canada, he shall report as directed for removal. He shall also report to the Court as it from time to time may require; • Mr. Mahjoub shall not possess any weapon, imitation weapon, noxious substance or explosive, or any component thereof; • A breach of this order shall constitute an offence within the meaning of section 127 of the Criminal Code and shall constitute an offence pursuant to paragraph 124(1)(a) of the IRPA; • The conditions of this Order may be amended at any time by the Court upon the request of any party or upon the Court’s own motion with notice to the parties.

A. The evidence in support of the motion 9 In addition to adducing new evidence, the Applicant relies on the evidence already on file, including certificates and expert reports produced Mahjoub, Re Simon Noel J. 289

by Professor St´ephane Leman-Langlois, as well as several other expert psychiatric reports by Dr. Donald Payne and an expert report by Vaughan Barrett. 10 As for the new evidence in support of his claims, the Applicant claims that they can be split into five categories, as follows: 1) The psychological impacts of the conditions of release from detention on the Applicant (major depression, anxiety and PTSD symptoms): A certificate and an expert psychiatric report prepared by Dr. Payne and dated June 2, 2014. 2) The recurring problems faced by the Applicant with the CBSA with the implementation of the conditions of release from detention: Various exchanges between the Applicant and the Depart- ment of Justice and the CBSA. 3) The Applicant’s activities in taking language courses and his inability to move forward in that regard because of the conditions of release from detention: Evidence of the Applicant studying En- glish as a second language. 4) The Applicant’s need for regular medical attention and the negative impact the conditions of release from detention have had in this regard: Medical letters attesting the Applicant’s latent serious medical conditions. 5) The new evidence with respect to the unfairness and/or unreliabil- ity or insufficiency of the allegations and the process against the Applicant: Articles on the worsening of the situation in Egypt.

B. The arguments in support of the motion 11 At the outset of his submissions, the Applicant reminds this Court that the Ministers bear the burden of proving the necessity of the imposed conditions and that they are also held to numerous constitutional requirements in this regard. The Applicant also argues that for a lack of evidence, his current conditions of release from detention must be changed greatly in order for them to be proportionate, reasonable and respectful of his Charter-protected rights and freedoms, particularly, sections 2, 7 and 8. Furthermore, according to the evidence, these current conditions are harmful to the Applicant and must therefore be changed in order to respect sections 7 and 12 of the Charter. 12 The Applicant puts forward four main arguments in support of his claims. 290 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

(1) Lack of evidence of the danger posed by the Applicant 13 The most recent review of conditions of release order (dated Decem- ber 17, 2013) presented a series of errors which, when taken into consideration, explain the necessity of repealing all the conditions imposed on the Applicant. In this order, Justice Blanchard failed to provide any explanation as to why he still considered that the Applicant posed a threat to the security of Canada. At that time, despite bearing the onus of proving said threat, the Ministers had presented no evidence on the current threat level of the Applicant, whereas the evidence on file, including Pro- fessor Leman-Langlois’ reports, effectively suggests that the Applicant could not be a threat. There is actually no evidence of the Applicant presenting any current threat whatsoever. Justice Blanchard also dismissed Professor Leman-Langlois’ report as well as the then-submitted medical reports by Dr. Payne for no reason and despite their relevance to the Applicant’s claim. The December 17, 2013 review of conditions order also failed to take into consideration the length of time covered by the reasons and, what is more, it concluded that the Applicant could not be trusted to respect his conditions of release because of a single incident — it had been found that the Applicant had changed his telephone and fax services without informing the CBSA in a timely fashion — , thereby ignoring the fact that the Applicant has been observant of all his conditions of release from detention for numerous years. 14 What is more important, however, is that the Reasonableness Deci- sion actually dismisses the majority of the allegations made over the years against the Applicant. Moreover, as Justice Blanchard rendered his review of conditions of release order on December 13, 2013, the Appli- cant was not provided with the opportunity to address the Reasonable- ness Decision’s findings (dated December 6, 2013) and their impact on the review of conditions of release. Also, in light of the findings of this Reasonableness Decision, all of the Applicant’s conditions of release from detention, save the usual conditions, should be repealed as these conditions are inter alia rationally disconnected to controlling the alleged danger the Applicant represents.

(2) The Applicant’s health, and the impact the conditions have had and will continue to have on his well-being 15 For this argument, the Applicant relies on Dr. Payne’s report dated June 2, 2014, which states that the various conditions to which the Appli- cant is held — as well as the numerous incidents that have happened in Mahjoub, Re Simon Noel J. 291

implementing these conditions — have a great and cumulative effect on the Applicant’s physical and psychological health. 16 According to Dr. Payne, the Applicant’s current conditions regarding the interception of his mail, the use of computers and telephones and the access to internet, his travel restrictions, and his obligation to report weekly to the CBSA and to notify the CBSA prior to moving have put him in situations which intensify his depression, wear him down psychologically and lead to a social stigma and isolation. The Applicant has also experienced frustration, loneliness, acute stress and PTSD symptoms, all of which lead to a limitation in his quality of life. 17 In addition, Dr. Payne’s report enounces several factors which aggravate the Applicant’s situation. Indeed, the Applicant having been falsely accused of denying the CBSA access to his home, he has been left in a state of constant vigilance and preoccupation. Also, the physical surveil- lance of which he is the object has given the Applicant a feeling of impo- tence and a lack of autonomy. Furthermore, the Applicant feels mentally, emotionally and psychologically tortured by the Department of Justice, and he has experienced threats and harassment because he has been publicly identified as a security threat. 18 These psychological hardships also have important consequences on the Applicant’s various physical conditions.

(3) The passage of time, the absence of any reprehensible act from the Applicant, the delays and the anticipated length of appeal 19 All the above-mentioned social, psychological, educational and func- tional difficulties resulting from the current conditions of release from detention have had a cumulative impact which is disproportionate, and they must be repealed because the Applicant has consistently complied with the laws of Canada and his conditions of release. In addition, the Applicant has appealed the Reasonableness Decision, but this process is far from being complete. It is not reasonable to let these entire conditions stand during such a long period. 20 The Applicant also addresses the Ministers’ motion to amend section 10 of the conditions which was the object of a hearing on May 14, 2014. As mentioned above, the issues raised by the motion on which the Court has yet to decide are to be addressed in this review of conditions. The following is a summary of the Applicant’s arguments in support of his contention that the amendments sought by the Ministers should not be given: 292 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

a) The amendments perpetuate and aggravate the unprotofied intru- sion into Mr. Mahjoub’s private life, his right to privacy and storage of personal information that is inimical to the principles enunciated by the Supreme Court in R. v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60 (S.C.C.) [Vu]; b) The existing conditions including the new ones are too broad and are not rationally connected to a danger; c) When the conditions were decided, the issues being raised as part of the new conditions were known and not raised by the Ministers and were not imposed by the Court. 21 The Applicant affirms that he has never used Dropbox or any other storage service or any software or browser or tool to hide his activities on the internet, and that he had no knowledge that such technology existed. He is cooperating with the CBSA pursuant to the conditions. 22 Public counsel for the Applicant has also submitted an affidavit of Jeremy Cole, a technological consultant, which in essence says that a forensic examination (which the CBSA can do on its own) can detect and inspect the content of external memory but also examine the information contained in the computer. As for the use of a Dropbox website as claimed by the CBSA, Mr. Cole says that no logs referred to indicate that Mr. Mahjoub had accessed such website. 23 It is submitted that all of the Ministers’ requests are not necessary since a CBSA forensic investigation can access all of the computer activities even those that use other technology communications to prevent access and, more importantly, that Mr. Mahjoub has not used any of that new technology to prevent a proper access to his computer and that he has respected the conditions ordered on January 24, 2014.

(4) The necessity of protecting the Applicant’s constitutional rights 24 The Applicant’s conditions of release from detention must be lifted because there is no evidence linking the Applicant to criminal or dangerous activity, and these conditions constitute prima facie violations of the Applicant’s constitutional rights. In particular, the Supreme Court of Canada, in Vu, above, recently ruled that the search of a person’s house or home computer is a highly intrusive invasion. Consequently, the conditions should be repealed as they clearly constitute Charter violations. Mahjoub, Re Simon Noel J. 293

III. The Ministers’ submissions 25 The Ministers argue that the current conditions of release from detention continue to be necessary to neutralize the threat to Canada posed by the Applicant. 26 At the outset of their submissions, the Ministers contend that the Ap- plicant’s affidavit should be afforded no weight as it contains legal arguments as well as opinion statements which are either unsupported by evidence or contradicted by the record. In addition, the Court has previously found that the Applicant had not been truthful in many regards, and this lack of credibility also suggests that the Applicant’s affidavit should be set aside. 27 What is more, this Court should afford little weight to most of the evidence presented by the Applicant. Dr. Payne’s medical report dated June 2, 2013 contains a number of inaccuracies and relies on facts not found in the record. For example, the medical report claims that the CBSA is responsible for the Applicant no longer being able to communicate with his family, however this is not the case; in fact, an exception was added to the Applicant’s conditions to allow the Applicant to have visual electronic communications with his family members in Egypt. Other inaccuracies in the medical report relate to the Applicant’s conditions of release from detention as they concern his change of residence and the use of a cell phone. What is more, the medical report also posi- tively portrays the Applicant’s past employment whereas the Court has seriously taken issue with the Applicant’s past employment situation. In sum, as Dr. Payne’s medical report’s findings do not appear to be based on actual facts, they should be afforded little weight. 28 The same treatment should be afforded to the Applicant’s evidence produced by Professor Leman-Langlois as the Court already addressed this evidence during the previous review of conditions of release and afforded it little weight back then due to numerous shortcomings. 29 The Ministers then address the actual conditions of release from detention and state that they are necessary to neutralize the danger which the Applicant represents for Canada. The Ministers submit that the passage of time and the Applicant’s history of compliance do not warrant a removal of the conditions but simply prove that these conditions are working effectively. Also, during the last review of the conditions of release, the Court has held that the Applicant still poses a threat, a significantly reduced threat but a threat nonetheless, and the Applicant has pro- 294 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

vided no evidence of a change in the situation in this regard, especially in the light of the Reasonableness Decision. 30 In fact, the Applicant’s actions and lack of cooperation with the authorities favour the maintaining of the current conditions of release, as the Applicant cannot be trusted to respect his conditions of release. Sev- eral incidents involving the CBSA support this claim. On one occasion, the Applicant traveled outside the GTA without providing the CBSA with an accurate itinerary. The Applicant has also shown a lack of cooperation with regard to the communication of his Startec telephone toll records and when the CBSA tried to examine his computer. 31 Contrary to the Applicant’s claim, the time required to process the appeal of the Reasonableness Decision is not a factor that should weigh against the Ministers because the Applicant is still entitled to regular reviews of his conditions of release and the Ministers have not shown any lack of diligence during the proceedings. 32 The Ministers contend that the Applicant’s current conditions of release from detention remain necessary to ensure that he does not communicate with prohibited persons or acquire or re-establish contacts that might threaten Canada’s security. 33 The condition regarding the verification of the Applicant’s in-person communications and activities is necessary because the Applicant no longer wears a tracking bracelet and he has already failed to provide his accurate itinerary to the CBSA with respect to one of his travels. It is also necessary to maintain the condition of obtaining telephone toll records, as the interception of calls has ceased and this is the only manner for the authorities to verify this type of communications with the least interruption for the Applicant. 34 The condition restricting the use of the internet should also be maintained. In this regard, the Ministers claim that communications by the Applicant over the internet by e-mail should not be allowed because the Applicant failed to submit any substantiated argument on the issue or to prove that he has made efforts to overcome his alleged difficulties. Alter- natively, communications over the internet by e-mail should be permitted under certain conditions: the Applicant must agree 1) to grant the CBSA access to his e-mail account; 2) to provide his username and password to the CBSA; 3) not to alter or delete any sent, received or drafted e-mails from his account; 4) not to engage in any communication over which he may claim solicitor-client or litigation privilege; and 5) to access his e- mail though non-web based email tools, such as Outlook. As for the use Mahjoub, Re Simon Noel J. 295

of social networking websites, the Applicant has simply provided no ex- planations as to why he should have access to them. With regard to the use of Skype, the Applicant claims that he needs to obtain an e-mail address in order to access the service, but he should have raised this issue before this review of conditions hearing. It remains open for the Appli- cant to contact the Ministers to determine whether it is possible to come to an agreement. 35 Furthermore, it remains necessary to examine the Applicant’s computer, especially considering the Applicant’s actions and lack of cooperation in this regard during the last examinations. Also, the interception of the Applicant’s mail remains necessary in order to verify his communications, as do the conditions of keeping the peace and being of good behaviour and the conditions associated with performance bonds. 36 In his submissions, the Applicant submits arguments on constitutional issues. However these issues have already been addressed and rejected by the Court — they should not be addressed again. 37 With respect to the motion that was heard by this Court on May 14, 2014 and by which they tried to amend section 10 of the conditions, the Ministers rely on their memorandum filed on March 24, 2014. The following paragraphs are a summary of these claims. 38 The Ministers are asking that paragraph 10(f) of his conditions of release be amended as follows: 10(f) Mr. Mahjoub shall permit any employee of the CBSA or any person designated by it to examine his modem and his computer, including the hard drive and the peripheral memory; and seize the computer, modem, and any peripheral memory devices for such examination, without notice. Mr. Mahjoub shall provide any and all peripheral memory to the CBSA immediately upon request. (The underlining indicates the new additions.) and that the following conditions of release be added: 10(i) Mr. Mahjoub shall not take any action that would circumvent the CBSA’s examination of his computer. Such action, includes, but is not limited to use of encryption hardware or software, use of vola- tile memory, or access to any random access memory [“RAM”] drive software. 10(k) Mr. Mahjoub shall not access or use any form of program or online service which allows him or others to create, store or share files on the Internet. Such services include, but are not limited to, “Dropbox”, “Google Drive”, “Microsoft SkyDrive”, and “iCloud”. 296 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

39 An amendment to paragraph 10(f) and the addition of paragraphs 10(i) and 10(k) to the conditions of release are being sought because on August 21, 2013, officers from the CBSA visited Mr. Mahjoub in order to collect his computer for examination pursuant to paragraph 10(f) of the conditions of release dated January 24, 2013 and a virtual machine of the computer was then created to enable the viewing of the computer content as if it were operating. As a result of this operation, it is the CBSA’s opinion that Mr. Mahjoub “[...] has likely access to the drop box file hosting service.” A Dropbox file cannot be accessed through a forensic examination (purpose of proposed paragraph 10(k)). Furthermore, the CBSA considers that another method to circumvent a forensic examination is the use of random access memory (RAM), another memory with the hard disk drive (H.D.D.), which dissolves the information when the computer is turned off. Therefore, the CBSA is seeking a condition to forbid such use (purpose of proposed paragraph 10(i)). Finally the proposed amendment to paragraph 10(f) of the conditions of release is to broaden the scope of access to the computer information and to specifically obligate Mr. Mahjoub to provide upon request all of the information such as peripheral memory and modem. 40 The Ministers then submitted that amending paragraph 10(f) and ad- ding the new proposed conditions is necessary because of Mr. Mahjoub’s lack of cooperation with the CBSA, but also to ensure that he does not circumvent section 10 of his conditions of release by accessing without authorization websites, software or hardware which are difficult to moni- tor and by communicating with persons. 41 The Ministers also suggest that these are not new conditions that would add to the already specified restrictions; they merely clarify and specify the already existing parameters of Mr. Mahjoub’s internet and computer usage, which were already set out in my colleague Justice Blanchard’s January 24, 2014 review of conditions order. 42 Lastly, the Ministers seek to add a condition relating to the Appli- cant’s residence: No other person may occupy Mr. Mahjoub’s residence without notice to the Court. 43 This provision is rendered necessary because the Applicant has received mail addressed to another individual, and he has failed to provide any explanation on the issue. The Ministers wish the Applicant be required to give notice prior to someone else occupying his residence. Mahjoub, Re Simon Noel J. 297

IV. Analysis 44 In order to make the proper determination in the present review of the conditions of release, it is the intention of this Court to proceed with its analysis by relying on the criteria established in Harkat v. Canada (Minister of Citizenship and Immigration), 2013 FC 795 (F.C.) at para 26, [2013] F.C.J. No. 860 (F.C.), and in Charkaoui, Re, 2007 SCC 9 (S.C.C.) at paras 110-121, [2007] S.C.J. No. 9 (S.C.C.), which are as follows: A. Past decisions relating to the danger and the history of the procedures pertaining to reviews of detention, release from detention with conditions and the decisions made; B. The Court’s assessment of the danger to the security of Canada associated with the Applicant in light of all the evidence presented; C. The decision, if any, on the reasonableness of the certificate; D. The elements of trust and credibility related to the behaviour of the Applicant after having been released with conditions and his compliance with them; E. The uncertain future as to the finality of the procedures; F. The passage of time (in itself, not a deciding factor — see Harkat v. Canada (Minister of Citizenship & Immigration), 2007 FC 416 (F.C.), at para 9, [2007] F.C.J. No. 540 (F.C.)); G. The impact of the conditions of release on the Applicant and his family and the proportionality between the danger posed by the Applicant and the conditions of release.

A. Past decisions relating to the danger and the history of the procedures pertaining to reviews of detention, release from detention with conditions and the decisions made 45 As the certificate procedures were evolving, there have been numerous reviews of Mr. Mahjoub’s detention prior to his release and, since his release under conditions, numerous reviews of these conditions. Mr. Mahjoub remained in detention from June 26, 2000 until April 11, 2007, when he was released with strict conditions. On March 17, 2009, as his wife and stepson decided to cancel their supervising sureties (an important condition of release), Mr. Mahjoub was once again put under detention until his release under conditions on March 11, 2010. Since then, there have been periodic reviews of his conditions of release. 298 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

46 The consistent pattern has always been that Mr. Mahjoub was associated to a danger to the security of Canada and that, when he was released under conditions, this danger, although it diminished with time, when considering other factors, still required important conditions of release in order to be neutralized.

B. The Court’s assessment of the danger to the security of Canada associated with the Applicant in light of all the evidence presented 47 In Mahjoub, Re, 2011 FC 506 (F.C.) at para 59, [2011] F.C.J. No. 936 (F.C.), the danger associated to the Applicant was described as follows: [...] The threat posed relates essentially to Mr. Mahjoub’s alleged past activities and contacts with persons and organizations involved in international terrorism; and the concern that he espouses extrem- ism and is likely to radicalize others and is prepared to resort to violence and direct others to violence if asked to do so by terrorist leaders. [...] 48 After holding hearings for the review of the Applicant’s conditions of release from detention in October 2013 where both parties had the full opportunity to present their case, the Court found that although the level of danger was significantly diminished, there was still a threat associated to Mr. Mahjoub which required to be neutralized by conditions. Thus, the Court in the December 17, 2013 review of conditions order concluded as follows, at para 6: I remain satisfied that Mr. Mahjoub poses a threat to the security of Canada as described in my Reasons for Order dated January 7, 2013. I would consider the significantly diminished threat described at that time to be unchanged. 49 This finding shows that the assessment of the threat associated to the Applicant by the Court was made in January 2013 and confirmed again in December 2013, and that although this threat diminished significantly, it remained important enough to require conditions to be neutralized. A little over six months has passed since the last review of conditions and, as such, the question to be asked is what has changed since that time that could justify maintaining the conditions of release or, as the Applicant seeks, cancelling the most important conditions. 50 The Ministers are relying on a non-updated threat assessment dated November 2, 2011. In addition, it is argued that the security certificate was found to be valid, that Mr. Mahjoub’s behaviour and lack of candour with the supervising agency of the conditions of release, i.e. the CBSA, Mahjoub, Re Simon Noel J. 299

and the lack of evidence of a change in his ideology all render the then- determined danger unchanged, and that the conditions of release should, too, remain unchanged. They submit that the above-mentioned elements are sufficient to meet their burden. 51 The Applicant considers that the threat assessment is outdated, that there is no danger of which to speak, that he has complied with his conditions of release, and that the medical and other evidence shows that the existing conditions of release are not in proportion with the danger sup- posedly associated to him. 52 As it will be seen, this Court considers that the Court’s January 2013 finding regarding the danger level associated with the Applicant, confirmed by the December 17, 2013 review of conditions order, at para 6, remains valid. In addition, the Reasonableness Decision was based on solid findings of fact and concluded that the certificate was reasonable. Furthermore, Mr. Mahjoub’s behaviour in relation to his conditions of release, the supervision of them by the CBSA, and his general attitude were not such as to indicate to this Court that the danger level found to be associated to him in January 2013 should be changed. 53 As a side note, I wish to respond to the Applicant’s argument that the Court, when it issued its December 17, 2013 review of conditions order, committed a breach to the duty of fairness by not informing the Appli- cant of its findings of fact in the Reasonableness Decision. This Court finds no legal basis to such an argument. The Reasonableness Decision was issued publicly on December 6, 2013, a little more than six weeks after the hearing for the review of conditions (held on October 16, 2013) where both parties were invited to fully present their case. The decision on this matter was under reserve up until the time of issuance, specifically December 17, 2013, a little less than two weeks after the Reasona- bleness Decision was made public. To pretend that Mr. Mahjoub did not have an opportunity to address the impact of the Reasonableness Deci- sion’s findings on the review of conditions is unfounded. He had the opportunity to present his case in October 2013: he became knowledgeable of the Reasonableness Decision’s findings in early December 2013 and despite having had more than ten (10) days to do so, at no time did he make a request to the Court to address this matter. In any event, it was known to all that at the time of the hearing on the review of conditions of release that the Reasonableness Decision was under reserve since the last ex parte in camera hearing of January 27, 2013. 300 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

C. The decision, if any, on the reasonableness of the certificate 54 When considering the Applicant’s record as well as his written and oral submissions, the resulting impression is that Mr. Mahjoub is mini- mizing the key findings made in the Reasonableness Decision. It is true that some allegations made by the Ministers were not found to be factually founded, but the findings actually made are important not only in substance but also for their legal impact on the tests required to conclude that the certificate is reasonable. Here are some of them: [627] Upon considering the evidence holistically, and on the basis of substantiated and reasonable inferences, I find that the Ministers have established reasonable grounds to believe that Mr. Mahjoub is a member of the AJ and its splinter or subtest group, the VOC. [628] In so determining I rely on my findings set out above which include: that the AJ and VOC existed as terrorist organizations at the relevant times; Mr. Mahjoub had contact in Canada and abroad with AJ and VOC terrorists; Mr. Mahjoub used aliases to conceal his terrorist contacts; Mr. Mahjoub was dishonest with Canadian authorities to conceal his terrorist contacts; Mr. Mahjoub worked in a top executive position in a Ben Laden enterprise alongside terrorists in Sudan at a time when key terrorist leaders were in Sundan; Mr. Mahjoub was dishonest in concealing from Canadian authorities the nature of his position at Damazine Farm; Mr. Mahjoub traveled to and from Sudan at the same time as AJ and Al Qaeda elements, and [Some of the direct evidence] that Mr. Mahjoub was a member of the AJ and Mr. Mahjoub’s intercepted conver- sations support the Ministers’ allegation. [629] In my determination, I have also relied upon the following inferences relating to Mr. Mahjoub’s travels and activities. These include: Mr. Mahjoub’s contacts were of a terrorist nature; Mr. Mahjoub had a close and long-lasting relationship with a number of his terrorist contacts; Mr. Mahjoub was trusted by Mr. Bin Laden on the basis of his ties to the Islamic extremist community; Mahjoub, Re Simon Noel J. 301

Mr. Mahjoub was aware of and complicit in Al Qaeda weapons training occurring at Damazine Farm, and Mr. Mahjoub’s travels to and from Sudan at the same time as AJ elements were not coincidental. [669] I find that these facts establish reasonable grounds to believe that prior to his arrest, as a member of the AJ and its splinter or subtest group the VOC, Mr. Mahjoub was a danger to the security of Canada. [Reasonableness Decision, above] 55 Such findings were determinative for the conclusion that the certificate issued by the Ministers was reasonable, and they cannot be qualified as being not that important or relatively not important when considering all the allegations made. They are substantive findings which go to the essence of what terrorism is all about and how it can be articulated worldwide but also in Canada. The determination regarding the danger must also be read as being important since it concludes that prior to his arrest, Mr. Mahjoub was found to be a danger to the security of Canada. This finding related to the danger is to be read with the most recent assessment made as of December 2013 where this danger was found to be significantly less important but still existing and requiring conditions of release to be neutralized. At the time of his arrest in 2000, it was decided that the danger was such that it required the detention of Mr. Mahjoub for a little less than seven years and again later in 2009 for close to one year. 56 During the period spent released from detention, the conditions evolved: they were strict and restrictive at first and, as the circumstances called for it, they became less strict and restrictive, and as of December 2013, they became significantly less so. Having noted that, the danger associated to Mr. Mahjoub remains and the conditions of release must be enacted to neutralize it as it will be seen in the following paragraphs.

D. The elements of trust and credibility related to the behaviour of the Applicant after having being released with conditions and his compliance with them 57 The behaviour of an individual with respect to the conditions of his release is an important factor to consider when considering amending 302 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

them or some of them. In Harkat, Re, 2009 FC 241 (F.C.) at para 92, [2009] F.C.J. No. 316 (F.C.), the Court had this to say on this factor: [92] Credibility and trust are essential considerations in any judicial review of the appropriateness of conditions. When considering whether conditions will neutralize danger, the Court must consider the efficacy of the conditions. The credibility of and the trust the Court has in a person who is the subject of the conditions will likely govern what type of conditions are necessary. 58 Mr. Mahjoub’s record regarding his most recent conditions of release has not been exemplary, as noted by the Court in its December 17, 2013 review of conditions order, when it concluded that Mr. Mahjoub had breached his condition of release by not giving proper notice of the acquisition and use of the telephone and fax services. It was found that: “[...] Mr. Mahjoub cannot be relied upon to respect his conditions of release.”(December 17, 2013 review of conditions order at para 18). 59 In that same decision, again as recently as December 2013, the Court also found that in relation to the cutting of the GPS bracelet and not per- mitting the CBSA to remove the bracelet without being damaged, Mr. Mahjoub’s actions were: “[...] indicative of an unwillingness to cooperate with the CBSA.” (see para. 17) 60 Mr. Mahjoub’s recent attitude, action and behaviour are also indicative of an unwillingness to collaborate and cooperate with the supervision duty of the CBSA that the Court has imposed. Here are a few exam- ples of this: A. January 2014 — Mr. Mahjoub, although obligated to do so by section 7 of his conditions of release, did not give correct information to the CBSA concerning his travel from Toronto to Ottawa. Through counsel, the Applicant gave the wrong departure time which prevented the CBSA from assuming its supervisory role. The reasons given to explain this failure, to the effect that it was the error of counsel and that the CBSA should have informed Mr. Mahjoub of the discrepancy, are not accepted. Mr. Mahjoub was required by section 7 of his conditions of release to give accurate information when traveling, and it is not for the CBSA to compen- sate for a lack of accuracy. Still, because of that blatant failure by Mr. Mahjoub to provide accurate factual information, the CBSA was rendered unable to assume its supervisory role as the Court so required. This is another indication showing a lack of collaboration and cooperation on his part. Mahjoub, Re Simon Noel J. 303

B. Mr. Mahjoub has failed to provide the Startec toll records as requested by the CBSA pursuant to paragraph 11(b) of the conditions of release for the period of use between January 31, 2014 and February 21, 2014, and he has yet to do so. This matter was submitted to the Court sometime in late spring 2014. Paragraph 11(b) of the conditions of release is clear: Mr. Mahjoub has the obligation to supply the Startec toll records for this three-week period. Again, this is another example of Mr. Mahjoub’s lack of collaboration and cooperation. As for the Startec toll records for the year 2013, pursuant to paragraph 11(a) of the January 31, 2013 conditions of release, even though being asked to consent, Mr. Mahjoub still has not given consent. The reason he gives is that the CBSA should not gain retroactive access to these toll records. Furthermore, the Applicant has not given notice that he was using Startec as required by that condition of release. He argues that the CBSA knew of this account and should have asked them earlier. This argument does not relieve Mr. Mahjoub of his obligation to consent to the release of these toll records as required by the Court pursuant to paragraph 11(a) of his conditions of release. Again, this is not an attitude that shows collaboration and cooperation as the conditions of release so require. By acting in such a way again, Mr. Mahjoub decides that the CBSA will not assume its supervisory role as requested by the Court. C. Pursuant to paragraph 10(f) of the 2014 conditions of release, Mr. Mahjoub must give full access to his computer to the CBSA without notice, which includes the hard drive and the peripheral memory, and the CBSA may seize the computer for such purpose. On April 24, 2014, when requested by the CBSA, Mr. Mahjoub did not give the immediate access. He had the CBSA representative wait at the door and, as he went back to his computer, he appeared to be seen for a period of two minutes to be doing something to his computer. The condition compels Mr. Mahjoub to give access and control to the CBSA without notice. He did not. He also objected to the taking of photographs by the CBSA, when the purpose of the picture is to wire the computer in the same way when it is brought back and to document any damage on the computer. This is standard procedure for the CBSA and an understandable policy to be followed. In addition, Mr. Mahjoub refused to provide any USB devices for inspection as required by paragraph 10(f) of his conditions of release which stipulates not only the ex- 304 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

amination of the computer but also all peripheral memory devices. This is very close to a breach of the condition if not a breach. Finally on this matter, Mr. Mahjoub objected to giving his password to access his computer. This Court wrote Reasons for Order and Order obligating Mr. Mahjoub to do so (see Mahjoub, Re, 2014 FC 479 (F.C.) and more specifically paragraph 21). To this Court, it was evident that the password had to be given for the purpose of examining the computer. What was evident to this Court, however, was not to Mr. Mahjoub. This type of attitude can only show a lack of collaboration and cooperation, and not only is this is not helpful to Mr. Mahjoub’s interest, but it also compli- cates and possibly makes it impossible for the CBSA to assume its supervisory role as the Court requires in the Conditions of Release of both 2013 and 2014. 61 Mr. Mahjoub explains that his attitude is intended to ensure that his conditions of release are limited to what they are and that his privacy is respected. These are, to some degree, valid grounds, but they must not be used to the point of taking the essence of the conditions of release away from their purposes and preventing the supervision of the use of communication devices, computers and other modes of transmission of data, information and images. Without proper supervision by the CBSA, conditions of release become useless. 62 Through his behaviour, Mr. Mahjoub may give to a neutral observer of this situation an impression that he has something to hide. This is not only hurtful to the condition of release but it also impacts negatively on Mr. Mahjoub, should his intention be to eventually have the least conditions of release possible imposed on him. The trust and credibility com- ponents related to the behaviour of the Applicant when dealing with conditions of release are factors to be considered. It is in the interest of Mr. Mahjoub that he collaborates and cooperates in making sure that the conditions of release are complied with and that the supervisory role of the CBSA confirms the compliance.

E. The uncertain future of the finality of the procedures 63 As long as there are robust, periodic reviews of detention or of conditions of release, long periods of detention or of release with conditions that impact on the life and rights of an individual do not constitute violations of the Charter (see Charkaoui, Re, 2007 SCC 9 (S.C.C.) at para 123, [2007] S.C.J. No. 9 (S.C.C.)). Mahjoub, Re Simon Noel J. 305

64 The Court has rendered the Reasonableness Decision as well as other decisions concerning the Applicant, including on the abuse of process and a permanent stay of the proceedings. The procedures have now been moved in good part to the appeal level, and the Federal Court of Appeal will be dealing eventually with any issues arising from the Notice of Ap- peal or from the appeal itself. The Applicant is benefiting from the appeal procedure and time has to be reserved for such process. 65 There have been and continues to be ongoing reviews of the conditions of release of Mr. Mahjoub. Reviews of the conditions of release were held and decisions were rendered in January 2013, December 2013 and January 2014 and in the summer 2014 (the current decision). Over a period of a little more than 18 months, Mr. Mahjoub has had three hearings dealing with reviews of the conditions of release and three decisions. 66 Undertaking robust reviews of the conditions of release from detention does not necessarily mean granting Mr. Mahjoub what he wants. It requires a careful examination of the conditions of release and their necessity, i.e. ensuring not only that they are required to neutralize the assessed danger but that they impact minimally on the rights and freedom of the Applicant. In order to go along with less invasive conditions, it must be shown (1) that the danger has diminished and (2) that the conditions neutralize the lessened danger. In this regard, the Applicant has a strong interest in collaborating and cooperating so that the supervision of the conditions shows that they are respected. With such evidence, then it can be argued that the conditions are not necessary. This is what a robust review is all about.

F. The passage of time 67 These procedures are lengthy, complex and subject to numerous legal issues and challenges. The fact that they are long and complex does not in itself support less strict conditions of release. The passage of time has to be considered along with other factors. In the present circumstances, the proceedings began in 2000 with the first certificate, and thereafter with the second certificate issued and which was found reasonable in Oc- tober 2013. There will now be a time period for the appeal process and, most likely, other periods for other reasons. 68 On a more specific point, as shown earlier, in the previous section, there have been three reviews of the conditions of release. 306 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

69 On this factor, the passage of time does not justify abolishing or amending the conditions of release as suggested.

G. The impact of the conditions of release on the Applicant and his family, and the proportionality between the danger posed by the Applicant and the conditions of release 70 I do not have any hesitation in saying that the conditions of release do somewhat impact the psychological health of the Applicant. In fact, the Court has recognized this in Mahjoub, Re, 2013 FC 10 (F.C.) at para 38, [2013] F.C.J. No. 77 (F.C.). 71 To a certain extent, Dr. Payne’s opinion on this matter reflects this Court’s point of view. Having said that, I have noted that a similar yet adapted opinion was filed for the purposes of the late 2012 and early 2013 review of the conditions of release. In the December 17, 2013 review of conditions order, at para 11, the Court considered that the conditions of release as analyzed by Dr. Payne were essentially the ones as perceived by Mr. Mahjoub. The Court also noted that certain facts used were not in the record and that some circumstances were not described accurately. The Court concluded that such weaknesses gave little weight to the impact of the changes in the conditions of release. 72 I also afford little weight to Dr. Payne’s opinion report for the same reasons. Mr. Mahjoub can communicate with his family pursuant to the conditions of release. The fact that he cannot communicate with his ex- wife and children is the result of two distinct orders (the no-contact order and a peace bond) issued by the Ontario Court of Justice and not a result of his ordered conditions of release from detention. This was not mentioned in Dr. Payne’s opinion. Furthermore, it is erroneous to say in the report that the conditions of release require Mr. Mahjoub to obtain the CBSA’s approval for a change of residence. Section 24 of his conditions of release requires a prior notice of a change of residence to the CBSA, not an approval. It is also misleading to say in the doctor’s report that Mr. Mahjoub cannot use a cell phone except on the conditions imposed by the CBSA. Firstly, it is not factually accurate to write that the CBSA imposes conditions of release when it is the Court that imposes them. Secondly, Mr. Mahjoub had without giving proper notice used a cell phone for a period of three weeks in the early part of the present year. The real reason why Mr. Mahjoub is not able to use a cell phone is his own reluctance to provide consent to the release of toll records. Such was not reflected in Dr. Payne’s report. Finally, it is telling that Dr. Payne’s Mahjoub, Re Simon Noel J. 307

report mentions that at an earlier time Mr. Mahjoub had a respected job as the deputy general manager of an agricultural business without giving any indication of the Reasonableness Decision’s findings on this particular matter. This decision concludes that there was terrorists’ training on the farm while Mr. Mahjoub was a key manager and a trusted collabora- tor of Bin Laden, that he was aware of such training because of his executive job, and that he was complicit in the terrorist training. This reality was not mentioned. For all of these inaccuracies, errors and one-sided views, I find that Dr. Payne’s report is of limited use when he comments and assesses the impact of the recent conditions of release on Mr. Mahjoub. 73 Again, the Applicant filed the same report of Professor Leman-Lan- glois that was used in previous reviews of the conditions of release. In Mahjoub (Re), 2013 FC 1257 at paras 9 and 10, the Court concluded that the opinion on the threat posed by the Applicant was of little assistance and thus given little weight. It also found that the part dealing with the methodology of the SIR was useful. However, while this part was somewhat useful for the Reasonableness Decision, it is of no use for the purposes of this review of conditions of release. Therefore, I give it little weight. 74 I also reviewed carefully Mr. Mahjoub’s affidavit. I have found that it contains large portions on legal arguments and gives opinions on numerous issues that are the subject matters of the determinations and findings to be made by this Court. I have not read any undertaking on his part to respect and abide with the conditions of release and to collaborate and cooperate with the CBSA in ensuring its supervisory role as requested by the Court. Such an undertaking may have been useful. Although I do understand that Mr. Mahjoub is entitled to his own opinion, this Court must also consider all of the evidence including the findings of the Court in the Reasonableness Decision on the credibility of Mr. Mahjoub such as: “[...] omissions and lies by Mr. Mahjoub are crafted and designed to consistently conceal any facts that could connect Mr. Mahjoub to known terrorists, terrorist activities or known terrorist related enterprises such as Althemar.” (See Reasonableness Decision at paras 619-620.) 75 As for the proportionately between the assessed danger, which I found to be similar to the one determined in the December 17, 2013 review of conditions order, at para 6, and the conditions of release issued in the January 24, 2014 review of conditions order, I find them to be required and proportional to the danger identified for the same reasons as 308 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

the Court so decided in the previous reviews of the Court, subject to the following comments. 76 It is clear that the Court in the January 2013 review of conditions order, at para 47 wanted to “[...] prevent Mr. Mahjoub from acquiring or reacquiring terrorist contacts to ensure that Mr. Mahjoub does not re- acquire terrorist contacts. Mr. Mahjoub’s communications shall be re- stricted.” This objective remains valid and I have not found any evidence that would trigger a different conclusion. 77 That being said, a brief review of the conditions of release of January 2014, which shall remain in existence subject to added supervisory clarification, are directed at ensuring that Mr. Mahjoub will not communicate with terrorist contacts. Such is the case with the in-person communications and activities (sections 6 to 9 of the conditions), obtaining telephone tolls (section 11 of the conditions), restriction on internet use (section 10 of the conditions), use of Skype (see Order dated July 17, 2013), examination of the computer (paragraph 10(f) of the conditions), interception of mail (section 13 of the conditions), keeping peace and good behaviour (section 23 of the conditions), performance bonds (sections 2 and 3 of the conditions). All of these conditions are still required as they are directly related and proportional to the danger as it was assessed. It goes without saying that most of these conditions require supervision by the CBSA, and that if this role cannot be properly articulated the Court will not be able to consider lessening the conditions of release. 78 The communication over the internet will only be considered by the Court if the parties can agree on modes of satisfactory supervision. The parties are invited to discuss the subject matter and if the Court can be of some help, it shall gladly get involved as long as the parties are serious about it and have shown significant progress. The CBSA is invited to have an open mind about this. 79 For the sake of clarification and as a follow-up to the Minister’s motion to amend condition 10 of the conditions of release which was only granted in part subject to the present review of conditions, it is the opinion of this Court that the supervision of the communications via the computer must include Mr. Mahjoub’s modem/router. This will permit a bet- ter supervision by the CBSA and show that Mr. Mahjoub complies with the conditions of release. Finally on this, any use of the computer must be subject to supervision. If a program does not permit supervision, it must not be used by Mr. Mahjoub. Mahjoub, Re Simon Noel J. 309

80 Furthermore, the Ministers requested that Mr. Mahjoub gives a notice of the names of other persons that may occupy his residence. At this time, this Court does not want to impose such an obligation, but if in the future it becomes an issue complicating any of the conditions of release, it may have to be reviewed. 81 In his submissions, at paragraphs 147-153, Mr. Mahjoub raised simply and without any well-thought or developed arguments, a number of arguments concerning his constitutional rights. Trying to verse criminal law into immigration certificate law is inappropriate considering that Parliament has codified the certificate procedure and that specific jurisprudence is developing on this particular subject matter. This Court considers that the certificate procedure is constitutional as it has been found to be so by the Supreme Court recently in Harkat, Re, 2014 SCC 37, [2014] S.C.J. No. 37 (S.C.C.). 82 As a last word to the CBSA, it is your duty and obligation to super- vise the conditions of release as the Court so requires. Having said that, I offer this suggestion: please assume your duty and obligations without creating a spectacle and drawing the attention of the neighbourhood on your activities and, by way of consequence, on Mr. Mahjoub. This Court understands that it is not an easy job, but with your professional input and delicateness, you should succeed in the interests of justice but also in the interest of Mr. Mahjoub. It goes without saying that the cooperation of Mr. Mahjoub would be of assistance in this regard. 83 Lastly, the Applicant submitted the following questions for certification pursuant to section 79 of the IRPA: • May conditions be constitutionally or lawfully imposed on a person when a declaratory order was also issued finding that the right to a fair process was violated in the same process underlying the certificate or the inadmissibility? Or does the imposition of conditions in such circumstances violate section 7 of the Charter? • Can the Ministers establish a prima facie case or justify the imposition of conditions by its reliance on previous inadmissibility or release conditions orders when such orders were rendered after the violation of the right to a fair process as recognized by declaratory judgment? • Does a declaratory order concluding that the right to a fair process was violated in the same process underlying the certificate or inadmissibility constitute a clear and compelling reason to depart from previous decisions to impose conditions? 310 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

• In presence of a declaratory judgment that the right to a fair process was violated in the process underlying the certificate and/or inadmissibility ruling, must the judge grant a remedy to abolish the conditions under the law or under section 24 of the Charter? 84 The Ministers object to the certification of any of the Questions (see letter dated July 18, 2014). I agree. 85 These questions are not certifiable for the following reasons: • Counsel for Mr. Mahjoub did not substantially present arguments relating to the findings made by Justice Blanchard concerning the violation to the right to a fair process in Mahjoub (Re) (DES-7-08 (October 25, 2013)); see also submissions of the Applicant on the necessity of protecting constitutional rights at paras 147-156). It was briefly referred to in the oral submissions but no more than that; • The wording of the questions are such that they are asking this Court to sit on appeal of a decision of Justice Blanchard (referred to above), which is not the role of a judge dealing with reviews of conditions; • The reviews of conditions are not final since they can be revised periodically at the request of the parties. As noted earlier, there have been three reviews of conditions in the past 18 months.

Order THIS COURT ORDERS that: 1. The conditions of release of January 24, 2014 remain, subject to the amendments already made concerning passwords, but also with the amendments to be made which shall reflect the present reasons. 2. The parties are invited to jointly and/or separately prepare a draft Order providing for the implementation of the above reasons for the Court’s consideration within 30 days of the date of this Order. 3. No question will be certified. Application dismissed. Servellon Melendez v. Canada (MCI) 311

[Indexed as: Servellon Melendez v. Canada (Minister of Citizenship and Immigration)] Rosa Virginia Servellon Melendez, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-12490-12 2014 FC 700, 2014 CF 700 James Russell J. Heard: February 20, 2014 Judgment: July 15, 2014 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Generalized risk –––– Appli- cant claimed that she and her family suffered threats, extortion and violence at hands of criminal gang members over course of two decades — Refugee Protec- tion Division of Immigration and Refugee Board (RPD) refused applicant’s application to be deemed Convention refugee or person in need of protection — RPD concluded applicant’s fears were not linked to one of Convention refugee grounds — RPD found risk applicant faced was generalized — RPD concluded applicant failed to rebut presumption of state protection — Applicant brought application for judicial review — Application granted — RPD failed to conduct individualized inquiry required — RPD was not cognizant of need to consider nature and degree of risk faced by applicant if she were to return to country of origin in light of pattern of attacks and targeting experienced by her and her family — RPD did not seriously consider whether applicant faced same risk as others who were perceived to be wealthy or whether applicant faced different risk because of pattern of personal targeting — Evidence contradicted RPD’s conclusion on state protection and made conclusion unreasonable. Cases considered by James Russell J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — referred to 312 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Aguilar Zacarias v. Canada (Minister of Citizenship & Immigration) (2011), 95 Imm. L.R. (3d) 187, 2011 CarswellNat 226, 2011 FC 62, 2011 CF 62, 2011 CarswellNat 749, [2011] A.C.F. No. 144, [2011] F.C.J. No. 144 (F.C.) — referred to Al-Busaidy v. Canada (Minister of Employment & Immigration) (1992), 16 Imm. L.R. (2d) 119, 139 N.R. 208, 1992 CarswellNat 24, [1992] F.C.J. No. 26 (Fed. C.A.) — distinguished Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — referred to Arevalo Pineda v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 493, 2012 CarswellNat 1266, 2012 CarswellNat 1961, 2012 FC 493, [2012] F.C.J. No. 520 (F.C.) — referred to Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 635, 2006 CF 359, 2006 FC 359, 2006 CarswellNat 4738, (sub nom. Avila v. Canada (Minister of Citizenship and Immigration)) 295 F.T.R. 35 (Eng.), [2006] F.C.J. No. 439, [2006] A.C.F. No. 439 (F.C.) — referred to Avila Rodriguez v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CF 1291, 14 Imm. L.R. (4th) 89, 2012 FC 1291, 2012 CarswellNat 4283, 2012 CarswellNat 5477 (F.C.) — referred to Baires Sanchez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 993, 2011 CarswellNat 3876, 2011 CarswellNat 4807, 2011 FC 993, [2011] F.C.J. No. 1358, [2011] A.C.F. No. 1358 (F.C.) — referred to British Columbia (Securities Commission) v. McLean (2013), (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Ad- min. L.R. (5th) 237, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 2013 SCC 67, [2014] 2 W.W.R. 415, 366 D.L.R. (4th) 30, (sub nom. McLean v. British Columbia Securities Commission) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67 (S.C.C.) — referred to Camacho v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 830, 2007 CarswellNat 3782, 2007 FC 830, 2007 CarswellNat 2555, [2007] F.C.J. No. 1100 (F.C.) — referred to Camargo Vivero v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 138, 2012 CarswellNat 285, 2012 FC 138, 2012 CarswellNat 784, Servellon Melendez v. Canada (MCI) 313

(sub nom. Vivero v. Canada (Minister of Citizenship and Immigration)) 404 F.T.R. 294 (F.C.) — referred to Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T- 708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, (sub nom. Canada (Human Rights Comm.) v. Canada (Attorney General)) 73 C.H.R.R. D/30, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53 (S.C.C.) — referred to Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 94, 69 Imm. L.R. (3d) 309, 2008 CAF 94, (sub nom. Flores Carrillo v. Canada (Minister of Citizenship & Immigration)) [2008] 4 F.C.R. 636, 2008 CarswellNat 1953, 2008 CarswellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — referred to Celgene Corp. v. Canada (Attorney General) (2011), 2011 CarswellNat 34, 2011 CarswellNat 35, 2011 SCC 1, 327 D.L.R. (4th) 513, 410 N.R. 127, 14 Admin. L.R. (5th) 1, [2011] 1 S.C.R. 3, 89 C.P.R. (4th) 1, [2011] S.C.J. No. 1 (S.C.C.) — referred to Chalita Gonzalez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 3540, 2011 FC 1059, 2011 CF 1059, 2011 CarswellNat 4264, [2011] F.C.J. No. 1278 (F.C.) — referred to Chavez Fraire v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 763, 2011 CarswellNat 3627, 2011 FC 763, 2011 CarswellNat 2406, [2011] F.C.J. No. 967 (F.C.) — referred to Corado Guerrero v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1210, 2011 CarswellNat 4291, 2011 CF 1210, 2011 CarswellNat 5327, 5 Imm. L.R. (4th) 74, (sub nom. Guerrero v. Canada (Citizenship and Immigration)) [2013] 3 F.C.R. 20, [2011] F.C.J. No. 1477 (F.C.) — referred to Correa v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 252, 2014 CarswellNat 627, 23 Imm. L.R. (4th) 193, 2014 CF 252, 2014 CarswellNat 1935 (F.C.) — considered Desir v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 828, 2011 CF 225, 2011 CarswellNat 1164, 2011 FC 225 (F.C.) — referred to Dominguez Hernandez c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2007), 2007 CarswellNat 4969, 2007 CF 1211, 2007 Car- swellNat 4318, 2007 FC 1211, [2007] F.C.J. No. 1563 (F.C.) — referred to Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, (sub nom. Doré v. 314 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Barreau du Qu´ebec) 255 C.R.R. (2d) 289, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12 (S.C.C.) — referred to Escamilla Marroquin v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1114, 2012 CarswellNat 3535, 2012 CF 1114, 2012 Car- swellNat 4274, [2012] F.C.J. No. 1198 (F.C.) — referred to Fernandez Ramirez v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CarswellNat 129, 2012 FC 69, 2012 CarswellNat 340, 2012 CF 69, (sub nom. Ramirez v. Canada (Minister of Citizenship and Immigration)) 403 F.T.R. 154 (F.C.) — referred to Gabriel v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3823, 2009 FC 1170, 2009 CarswellNat 5434, 2009 CF 1170, [2009] F.C.J. No. 1545 (F.C.) — considered Garcia Vasquez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 477, 99 Imm. L.R. (3d) 166, 2011 CarswellNat 1232, 2011 CF 477, 2011 CarswellNat 2632, [2011] F.C.J. No. 595 (F.C.) — referred to Gilvaja v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 598, 2009 CarswellNat 1725, 2009 CarswellNat 4051, 2009 CF 598, 81 Imm. L.R. (3d) 165, [2009] A.C.F. No. 784, [2009] F.C.J. No. 784 (F.C.) — referred to Gonsalves v. Canada (Minister of Citizenship & Immigration) (2008), 73 Imm. L.R. (3d) 311, 2008 CarswellNat 2328, 2008 FC 844, 2008 CarswellNat 6456, 2008 CF 835 (F.C.) — referred to Gonzalez v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 898, 2013 CF 898, 2013 CarswellNat 3368, 2013 CarswellNat 3760, [2013] F.C.J. No. 970 (F.C.) — referred to Hernandez Lopez v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CarswellNat 2406, 2013 CarswellNat 1695, 2013 FC 592, 2013 CF 592, 433 F.T.R. 257 (Eng.), [2013] F.C.J. No. 614 (F.C.) — referred to Innocent c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 FC 1019, 2009 CarswellNat 5795, 2009 CF 1019, (sub nom. Innocent v. Canada (Minister of Citizenship & Immigration)) 364 F.T.R. 17 (Eng.), 2009 CarswellNat 3195, [2009] F.C.J. No. 1243 (F.C.) — referred to Jaroslav v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 634, 2011 CarswellNat 2106, 2011 CF 634, 2011 CarswellNat 3891, 29 Ad- min. L.R. (5th) 35, (sub nom. Spacil v. Canada (Minister of Citizenship & Immigration)) 390 F.T.R. 248 (Eng.), [2011] A.C.F. No. 816, [2011] F.C.J. No. 816 (F.C.) — considered Kaaker v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1401, 2012 CarswellNat 4687, 2012 CarswellNat 5242, 2012 CF 1401, 15 Imm. L.R. (4th) 37, [2012] F.C.J. No. 1512 (F.C.) — referred to Kang v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 2328, 2005 FC 1128, 2005 CF 1128, 2005 CarswellNat 5772, [2005] F.C.J. No. 1400 (F.C.) — referred to Servellon Melendez v. Canada (MCI) 315

Katwaru (Litigation Guardian of) v. Canada (Minister of Citizenship & Immi- gration) (2007), 2007 FC 612, 2007 CarswellNat 1563, 62 Imm. L.R. (3d) 140, 2007 CarswellNat 4997, 2007 CF 612, [2007] F.C.J. No. 822 (F.C.) — referred to Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services) (2009), 2009 CarswellOnt 4494, 2009 CarswellOnt 4495, 2009 SCC 39, (sub nom. Nolan v. Ontario (Superintendent of Financial Services)) 253 O.A.C. 256, 49 E.T.R. (3d) 159, 76 C.C.E.L. (3d) 55, 76 C.C.P.B. 1, (sub nom. Kerry (Canada) Inc. v. DCA Employees Pension Committee) 102 O.R. (3d) 319, (sub nom. Nolan v. Kerry (Canada) Inc.) [2009] 2 S.C.R. 678, (sub nom. Nolan v. Ontario (Superintendent of Financial Services)) 391 N.R. 234, 92 Admin. L.R. (4th) 203, (sub nom. DCA Employees Pension Committee v. Ontario (Superintendent of Financial Services)) 309 D.L.R. (4th) 513, [2009] S.C.J. No. 39 (S.C.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Kim v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1126, 2005 CarswellNat 2443, 2005 CF 1126, 2005 CarswellNat 4054, [2005] F.C.J. No. 1381 (F.C.) — referred to Kraitman v. Canada (Secretary of State) (1994), 81 F.T.R. 64, 27 Imm. L.R. (2d) 283, 1994 CarswellNat 240, [1994] F.C.J. No. 1063 (Fed. T.D.) — referred to Lovato v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 143, 2012 CarswellNat 242, 2012 CF 143, 2012 CarswellNat 373, [2012] F.C.J. No. 149 (F.C.) — considered Lozandier v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 770, 2009 CarswellNat 5689, 2009 CF 770, 2009 CarswellNat 6592, [2009] F.C.J. No. 931 (F.C.) — referred to Lozano Navarro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 768, 2011 CarswellNat 2407, 2011 FC 768, 2011 CarswellNat 3294, (sub nom. Navarro v. Canada (Minister of Citizenship & Immigra- tion)) 392 F.T.R. 239 (Eng.), [2011] A.C.F. No. 968, [2011] F.C.J. No. 968 (F.C.) — referred to Martinez de la Cruz v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 1068, 2013 CarswellNat 3788, 2013 CF 1068, 2013 Car- swellNat 3976, [2013] A.C.F. No. 1150, [2013] F.C.J. No. 1150 (F.C.) — considered Meza Varela v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 4927, 2011 FC 1364, 2011 CF 1364, 2011 CarswellNat 5374, [2011] F.C.J. No. 1663 (F.C.) — referred to 316 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Ndegwa v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 847, 2006 CarswellNat 1892, 55 Imm. L.R. (3d) 108, 2006 CarswellNat 3753, 2006 CF 847, [2006] F.C.J. No. 1071 (F.C.) — distinguished New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Ocampo Lopez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1176, 2010 CF 1176, 2010 CarswellNat 4912, 2010 CarswellNat 4913, [2010] A.C.F. No. 1589, [2010] F.C.J. No. 1589 (F.C.) — referred to Olvera v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1048, 2012 CarswellNat 3396, 417 F.T.R. 255 (Eng.), 2012 CF 1048, 2012 CarswellNat 4094, 12 Imm. L.R. (4th) 308, [2012] F.C.J. No. 1128, [2012] A.C.F. No. 1128 (F.C.) — considered Paz Guifarro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 182, 2011 CarswellNat 356, 2011 CF 182, 2011 CarswellNat 1350, [2011] A.C.F. No. 222, [2011] F.C.J. No. 222 (F.C.) — considered Pineda c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2007), 2007 CarswellNat 789, 2007 CF 365, 2007 CarswellNat 3468, 2007 FC 365, 65 Imm. L.R. (3d) 275, [2007] F.C.J. No. 501 (F.C.) — referred to Ponce Uribe v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1164, 2011 CarswellNat 4152, 2011 CarswellNat 5168, 2011 FC 1164, 4 Imm. L.R. (4th) 342, (sub nom. Uribe v. Canada (Minister of Citizenship and Immigration)) 398 F.T.R. 165 (Eng.), [2011] A.C.F. No. 1431, [2011] F.C.J. No. 1431 (F.C.) — referred to Portillo v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 3344, 2012 CF 678, 43 Admin. L.R. (5th) 183, 409 F.T.R. 290 (Eng.), 9 Imm. L.R. (4th) 260, 2012 CarswellNat 1742, 2012 FC 678, [2012] F.C.J. No. 670 (F.C.) — considered Proph`ete v. Canada (Minister of Citizenship & Immigration) (2009), 78 Imm. L.R. (3d) 163, 387 N.R. 149, 2009 FCA 31, 2009 CarswellNat 282, 2009 CarswellNat 1393, 2009 CAF 31, [2009] F.C.J. No. 143, [2009] A.C.F. No. 143 (F.C.A.) — followed Public Performance of Musical Works, Re (2012), 38 Admin. L.R. (5th) 1, 2012 CarswellNat 2378, 2012 CarswellNat 2379, 2012 SCC 35, 102 C.P.R. (4th) 204, (sub nom. Shaw Cablesystems G.P. v. Society of Composers, Authors and Music Publishers of Canada) 347 D.L.R. (4th) 235, (sub nom. Rogers Communications Inc. v. Society of Composers, Authors and Music Servellon Melendez v. Canada (MCI) 317

Publishers of Canada) 432 N.R. 1, (sub nom. Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada) [2012] 2 S.C.R. 283, [2012] S.C.J. No. 35, [2012] A.C.S. No. 35 (S.C.C.) — referred to Ralda Gomez c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 94 Imm. L.R. (3d) 17, 2010 CarswellNat 4118, 2010 CF 1041, 2010 FC 1041, 2010 CarswellNat 4665 (F.C.) — considered Rodriguez v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 11, 2012 CarswellNat 11, 2012 CarswellNat 497, 2012 CF 11, 403 F.T.R. 1, [2012] F.C.J. No. 6 (F.C.) — referred to Rodriguez Perez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1029, 2009 CarswellNat 5885, 2009 FC 1029, 2009 CarswellNat 3187, [2009] F.C.J. No. 1275 (F.C.) — considered Rubiano v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1170, 2011 CF 106, 96 Imm. L.R. (3d) 293, 2011 CarswellNat 231, 2011 FC 106 (F.C.) — referred to Surajnarain v. Canada (Minister of Citizenship & Immigration) (2008), 336 F.T.R. 161 (Eng.), 2008 CF 1165, 2008 CarswellNat 4572, 2008 Car- swellNat 3782, 2008 FC 1165, 75 Imm. L.R. (3d) 200, [2008] F.C.J. No. 1451 (F.C.) — referred to Tomlinson v. Canada (Minister of Citizenship & Immigration) (2012), 414 F.T.R. 285 (Eng.), 2012 FC 822, 2012 CarswellNat 2493, 2012 CF 822, 2012 CarswellNat 3135, [2012] F.C.J. No. 955, [2012] A.C.F. No. 955 (F.C.) — considered Valdez Mendonza v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 387, 2008 FC 387, 2008 CarswellNat 805, 2008 CarswellNat 1926, [2008] F.C.J. No. 481 (F.C.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — referred to Wilson v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 103, 2013 CarswellNat 145, 2013 CF 103, 2013 CarswellNat 522, [2013] F.C.J. No. 78 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 96 — considered s. 97 — considered s. 97(1) — considered 318 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

s. 97(1)(b) — considered s. 97(1)(b)(ii) — considered

APPLICATION for judicial review of decision by Board rejecing applicant’s application for refugee protection.

Alla Kikinova, for Applicant Rachel Hepburn Craig, for Respondent

James Russell J.: Introduction 1 This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD or the Board], dated October 31, 2012 [Decision], which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under ss. 96 and 97 of the Act.

Background 2 The Applicant is a 30-year-old citizen of El Salvador, who came to Canada on August 17, 2010, after unsuccessfully attempting to claim refugee protection in the United States [US]. She claims that she and her family have suffered threats, extortion, violence and murder at the hands of criminal gang members (Maras) over the course of the past two decades, and that she will be in danger from these same Maras if she re- turns to El Salvador now. 3 The Applicant’s problems with the Maras began in 1993. Members of the Mara Salvatrucha [MS] gang tried to extort money from the Appli- cant’s father, and when he refused to pay, they killed him. The Appli- cant’s uncle was also shot during this incident and he reported it to police, but while they promised to investigate, he did not hear from them again. The Applicant’s mother opened a convenience store in the family home, but in 1995 the same MS members began to extort her as well. She could only pay them part of what they demanded, and in 1996 they came to the house and took all of her money and some goods from the store. The threats and extortion continued. In 1998, the Applicant’s mother sold what she had and fled to the US, where she remains on a renewable temporary work permit, leaving the Applicant and her five siblings with their grandmother in a rural area. The Maras found them Servellon Melendez v. Canada (MCI) James Russell J. 319

there and continued to make demands for money. They threatened to kidnap or kill the Applicant. 4 The Applicant says she called the police “about three times” regarding these threats. The first time they thought it was a joke, and the other times they told her she had to come to their office to make a report. The Applicant says she was too afraid and did not go to make a report. 5 The demands from the Maras continued to increase. On one occasion, they forced their way into the house and demanded $5,000 USD — a much larger amount than before — as they knew the Applicant’s mother was now in the US. Her brother started to shout, attracting the neighbours, and the Maras left. Approximately three months later, in 1999, the Maras again accosted the Applicant while she was leaving the house. They demanded money and took some jewellery. The Applicant ran to the bus. She says she never reported this incident as she was afraid they would take vengeance. 6 In 2003, the Applicant went to the US with her mother’s help and applied for refugee status at the border. After she left El Salvador, the Maras tried to rape her sister, but left when a bus came along. Her sister left for the US in 2004, and her brother Tito left in 2006, because of the continued extortion demands of the Maras. In August 2005, an uncle who had just started a business was attacked with a knife by the Maras and almost died. The Applicant says it was the same Maras, and they asked her uncle about her and her family and when they were coming back. Her uncle reported this incident and two young people were arrested and detained for three months. 7 The Applicant says her brother Tito and a cousin were deported from the US to El Salvador in early 2012. The cousin opened a restaurant business and was attacked and killed at that business on July 7, 2012. The Applicant says the employees who were there have told her the Maras asked about her. Tito is moving from place to place around the country, and three other brothers continue to live with their grandmother, without a business or a job. 8 The Applicant’s refugee claim in the US was denied in July 2009, and her appeal was denied in August 2010, and the Applicant received a de- portation order. Afraid to go back to El Salvador, the Applicant crossed into Canada at Windsor, Ontario in August 2010 with the help of Free- dom House, and filed for refugee protection. 320 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Decision Under Review 9 The RPD found that the determinative issues in the claim were nexus, credibility, generalized risk and state protection. The RPD concluded that the Applicant’s fears were not linked to one of the five Convention refugee grounds, that the risk she faces in El Salvador is a generalized one, and that, in the alternative, she had failed to rebut the presumption of state protection with clear and convincing evidence. 10 With respect to nexus, the Board rejected the Applicant’s submission that she was a member of a “particular social group” for the purposes of s. 96 of the Act, as a member of a family who had rejected demands from gang members, or as a young female who did not have the protection of her father. The RPD found that the family faced threats from criminal gang members, and that this had no nexus to the Convention refugee definition. As such, the Applicant was not a member of a particular social group, but rather a victim of crime, and her claim was to be considered under s. 97(1) of the Act. 11 The RPD had some credibility concerns regarding why the Applicant did not go and report the extortion demands to the police, but was prepared to accept for the purposes of the Decision that MS gang members had threatened her family with extortion. The Board proceeded to consider whether the risk the Applicant faced was a generalized risk, and whether there was adequate state protection for her in El Salvador. 12 The RPD found that the risk the Applicant faced was a risk faced generally by others in El Salvador, and therefore, by virtue of s. 97(1)(b)(ii) of the Act, protection could not be extended to her. It found that, according to the country documents, extortion is a crime commonly committed by criminal gang members in El Salvador, and is accompa- nied by other widespread crimes such as robbery, murder and kidnapping. The problem of extortion is widespread, and affects those who are perceived to have or do have wealth: [T]he risk to life in El Salvador relating to extortion faced by the claimant is a wide-spread common risk generally faced by others in the country. The fact that the claimant was actually personally targeted by criminals for extortion does not mean her risk was, or would be upon a return to El Salvador, not a generalized risk... Servellon Melendez v. Canada (MCI) James Russell J. 321

13 The Board reviewed some of the jurisprudence of this Court and the Federal Court of Appeal dealing with generalized risk, and concluded as follows: The documentary evidence suggests that this type of extortion covers almost any age, gender, type of employment and, that the primary criteria apparently is whether or not the criminals, rightly or wrongly, believe their target might have some money. The fact that an identified person would face retaliation if they stopped complying with the demands of the criminals still does not remove the risk from the exception if it is one faced generally by others according to this cited case law. As extortion by gangs and criminal and the risks associated with non-payment is a risk many other citizens also face in El Salva- dor, the panel finds that the risk faced by this claimant is a generalized one. 14 The RPD went on to consider the issue of state protection “in the alternative,” looking at “whether or not there is adequate state protection in El Salvador, whether or not the claimant took all reasonable steps to avail herself of that protection and whether she has provided clear and convincing evidence of the state’s inability to protect.” 15 The Board found that, “on a balance of probabilities, the claimant has not established that state protection is unavailable for her in El Salva- dor.” It found there is a presumption that a state is capable of protecting its citizens, which a claimant must rebut with “clear and convincing” proof, and that the onus is on the claimant to approach the state for protection in situations where it might be reasonably forthcoming. The burden for a claimant to prove an absence of state protection is directly proportional to the level of democracy of the state, and “[i]n an established democracy, such as El Salvador, the claimant must do more than merely show that he or she went to see members of the police force, and that those efforts were unsuccessful.” 16 The Board found that the Applicant did not report the extortion demands or jewellery theft to the police at the police station as they had advised her to do. While she claimed that she was afraid to do so because the extortionists would know, the Board found that: A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection. The claimant did not go to the police because she was “afraid”. The panel considers this to be 322 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

unreasonable. In coming to this conclusion, the panel has considered the following documentary evidence and while it is acknowledged that the issue of criminal gang behaviour is prevalent, the panel considers the evidence to be persuasive that there is adequate state protection in El Salvador. 17 The Board then reviewed some of the documentary evidence relating to state protection from criminal gangs in El Salvador, and drew the following conclusions: The panel recognizes that the documentary evidence is mixed but it does confirm that the state is taking serious efforts to combat gang violence and criminality and that those efforts are producing results... [...] It is after considering this evidence and the particular circumstances of this claimant that the panel finds that were she to return to El Sal- vador today there are courses of action that would be reasonably available to her. The claimant has not established that if she chose to seek protection that it would not be reasonably forthcoming or that it would be objectively unreasonable for her to seek that protection.

Issues 18 The Applicant states a number of issues in her submissions, but in my view the Respondent has more accurately stated what is at issue: (a) Did the RPD err in finding that the risk faced by the Applicant had no nexus to a Convention refugee ground? (b) Did the RPD err in finding that the risk faced by the Applicant is a generalized risk excluded from protection by 97(1)(b)(ii) of the Act? (c) Did the RPD err in finding that the Applicant had failed to rebut the presumption that state protection is available to her in El Salvador?

Standard of Review 19 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be in- Servellon Melendez v. Canada (MCI) James Russell J. 323

consistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48. 20 The Respondent argues that a standard of reasonableness applies when reviewing the RPD’s conclusions regarding whether a claimant faces a generalized risk (Paz Guifarro v. Canada (Minister of Citizenship & Immigration), 2011 FC 182 (F.C.) [Paz Guifarro]), whether adequate state protection is available to the claimant (Valdez Mendonza v. Canada (Minister of Citizenship & Immigration), 2008 FC 387 (F.C.)), and whether an applicant’s fear of persecution has a nexus to a Convention ground of refugee protection (Lozandier v. Canada (Minister of Citizenship & Immigration), 2009 FC 770 (F.C.) at para 17). The Appli- cant disagrees regarding the standard of review applicable to the generalized risk finding, arguing that this is a question of legal interpretation to which a standard of correctness applies: Portillo v. Canada (Minister of Citizenship & Immigration), 2012 FC 678 (F.C.) [Portillo]. The Respon- dent replies that the Court in Portillo declined to make a finding regarding the standard of review, as it was unnecessary to the decision. 21 While I recognize there is mixed jurisprudence on this point, I think the preponderance of authority is that the RPD’s interpretation and application of s. 97(1)(b) of the Act regarding whether a risk is a generalized risk is subject to review on a standard of reasonableness: see Paz Guifarro, above, at paras 18-19; Lozano Navarro v. Canada (Minister of Citizenship & Immigration), 2011 FC 768 (F.C.) at paras 15 and 16; Garcia Vasquez v. Canada (Minister of Citizenship & Immigration), 2011 FC 477 (F.C.) at paras 13 and 14; Correa v. Canada (Minister of Citizenship and Immigration), 2014 FC 252 (F.C.) at para 19 [Correa]; contra Chalita Gonzalez v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 1059 (F.C.) at para 29; Innocent c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 1019 (F.C.) at para 37. 22 More importantly, it is clear from a long and growing line of Supreme Court of Canada cases that there is a presumption that an administrative decision-maker’s interpretation of its home statute or a closely-connected statute is a question of statutory interpretation that is entitled to deference on judicial review: Dunsmuir, above, at para 54; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) [Khosa]; Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 324 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

2009 SCC 39 (S.C.C.) at para 34; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1 (S.C.C.) at para 34; Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at para 26; Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.) at paras 18, 23 and 24; Dor´e c. Qu´ebec (Tribunal des professions), 2012 SCC 12 (S.C.C.) at paras 46-47, (2012), 343 D.L.R. (4th) 193 (S.C.C.); A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.) at para 34; British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.) at paras 21- 22 [McLean]. This presumption is not “set in stone” (McLean, above, at para 22; Public Performance of Musical Works, Re, 2012 SCC 35 (S.C.C.) at para. 16), but the Court must have a principled reason for departing from it, and none has been identified here. As such, in my view, each of the issues that arise here is reviewable on a standard of reasonableness. 23 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 24 The following provisions of the Act are applicable in these proceedings: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Servellon Melendez v. Canada (MCI) James Russell J. 325

Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; 326 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times - sauf celles infligées au mépris des normes in- ternationales - et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.

Argument Applicant Nexus to a Convention refugee ground 25 On the issue of nexus, the Applicant says the jurisprudence estab- lishes that membership in a family can constitute membership in a social group for the purposes of refugee protection: Ndegwa v. Canada (Minister of Citizenship & Immigration), 2006 FC 847 (F.C.) at para 9 [Ndegwa]; Al-Busaidy v. Canada (Minister of Employment & Immigra- tion) (1992), 139 N.R. 208 (Fed. C.A.) [Al-Busaidy]. She also argues that the RPD failed to provide any reasons why she had not established a nexus as a young female, which was specifically argued at the hearing.

Generalized risk finding 26 The Applicant argues that the RPD’s interpretation of s. 97(1)(b) on the issue of generalized risk was both incorrect and unreasonable, and in particular the Board’s finding that “the fact that the claimant was actually personally targeted by criminals for extortion does not mean that her risk was, or would be upon a return to El Salvador, not a general risk.” The Applicant says the two parts of this statement simply cannot coexist: if an individual is personally targeted, then the risk they face is no longer general. Thus, the RPD acted unreasonably in applying the generalized risk exception to her when it had accepted that she had been personally targeted: Tomlinson v. Canada (Minister of Citizenship & Immigration), 2012 FC 822 (F.C.) [Tomlinson]; Portillo, above; Kaaker v. Canada Servellon Melendez v. Canada (MCI) James Russell J. 327

(Minister of Citizenship and Immigration), 2012 FC 1401 (F.C.); Petrona Quintanilla De Rivas v Canada (Minister of Citizenship and Immigra- tion), IMM-4180-11, March 20, 2012 (FC). 27 The Applicant argues that it is unreasonable to turn a particularized risk into a generalized one simply because others would be subject to the same risk. The fact that others may be subjected to the same particularized risk does not change the nature of the risk faced by the Applicant: Hernandez Lopez v. Canada (Minister of Citizenship and Immigration), 2013 FC 592 (F.C.). She quotes Olvera v. Canada (Minister of Citizenship and Immigration), 2012 FC 1048 (F.C.) at para 40, where Justice Shore followed Justice Gleason’s reasoning from Portillo, above: [40] ... Firstly, it is problematic to accept that a person who has been specifically targeted faces a risk that is faced generally by other individuals. The risk of an individual who is being targeted is qualita- tively different from the risk of an individual who has a strong likelihood of being targeted. As such, the former cannot be faced generally... 28 If the Board’s finding is correct, the Applicant argues, it is unlikely that there would ever be a situation in which s. 97(1) would provide protection for crime-related risks, contrary to the Court’s direction in Lovato v. Canada (Minister of Citizenship & Immigration), 2012 FC 143 (F.C.) [Vaquerano Lovato] that: [14] As noted in Vivero, section 97 must not be interpreted in a manner that strips it of any content or meaning. If any risk created by “criminal activity” is always considered a general risk, it is hard to fathom a scenario in which the requirements of section 97 would ever be met. Instead of focusing on whether the risk is created by criminal activity, the Board must direct its attention to the question before it: whether the claimant would face a personal risk to his or her life or a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from the country. Because the Board failed to properly undertake this inquiry in this case, the decision must be set aside. 29 The Applicant says the RPD in this case misunderstood the requirements of s. 97(1), and erred by focusing on the reasons for the persecution, which are not at issue under s. 97(1). The mere existence of personalized risk should be enough to secure protection under that provision. The issue is not why the Applicant was targeted, but how she was targeted. 328 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

30 The Applicant argues that the issue of whether a risk is generalized is not determined by the fact that the Maras target the population generally, but by the fact that she was personally targeted. The Board had a duty to carry out an individual inquiry regarding her forward-looking risk, and failed to do so: Prophète v. Canada (Minister of Citizenship & Immigra- tion), 2009 FCA 31 (F.C.A.) [Prophète FCA]; Pineda c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2007 FC 365 (F.C.) [Martinez Pineda]; Vaquerano Lovato, above. The generalized risk exclusion should apply only in extreme situations such as a general disas- ter, the Applicant argues, and is therefore not applicable here: Surajnarain v. Canada (Minister of Citizenship & Immigration), 2008 FC 1165 (F.C.). 31 The Applicant says that an applicant who has been specifically targeted and subjected to repeated threats and attacks is subjected to a greater risk than that faced by the population in general and is entitled to s. 97 protection: Aguilar Zacarias v. Canada (Minister of Citizenship & Immigration), 2011 FC 62 (F.C.); Martinez Pineda, above. The same is true of persons specifically and personally targeted for death by a gang in circumstances where others generally are not: Corado Guerrero v. Canada (Minister of Citizenship & Immigration), 2011 FC 1210 (F.C.); Ponce Uribe v. Canada (Minister of Citizenship & Immigration), 2011 FC 1164 (F.C.). 32 In this case, the Applicant submits, the RPD misstated the nature of her risk. The Maras’ persecution against her started not because she was perceived to be wealthy, but because her father resisted the Maras’ demands and was killed. The Maras specifically targeted the family, and continued to do so even after the Applicant’s mother sold all she had, left the country and moved her children to a rural area, and after the family ceased to be “wealthy.” The Board’s failure to address the specific nature of the threat she faced led it to wrongly conflate that risk with one faced generally in El Salvador: Portillo, above; Arevalo Pineda v. Canada (Minister of Citizenship & Immigration), 2012 FC 493 (F.C.); Martinez de la Cruz v. Canada (Minister of Citizenship and Immigration), 2013 FC 1068 (F.C.) [Martinez De La Cruz].

State protection finding 33 The Applicant argues that the RPD’s conclusion that she had not rebutted the presumption of state protection was also unreasonable. Servellon Melendez v. Canada (MCI) James Russell J. 329

34 Applicants need not risk their lives in seeking state protection merely to demonstrate its ineffectiveness, the Applicant argues: Gonsalves v. Canada (Minister of Citizenship & Immigration), 2008 FC 844 (F.C.) at para 16; Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.), at 724; Rubiano v. Canada (Minister of Citizenship & Immigration), 2011 FC 106 (F.C.); Katwaru (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration), 2007 FC 612 (F.C.). In this case, the Applicant made several attempts to contact the police, and they did not take her seriously, but merely requested her to go to the police station personally. The Applicant says the police clearly demonstrated an unwillingness to make any attempt to investigate, which makes the RPD’s conclusion unreasonable: Kraitman v. Canada (Secretary of State) (1994), 81 F.T.R. 64, 27 Imm. L.R. (2d) 283 (Fed. T.D.). 35 The Applicant notes that the test for state protection is adequacy (Carrillo v. Canada (Minister of Citizenship & Immigration), 2008 FCA 94 (F.C.A.) [Flores Carrillo]). Efforts in themselves are not sufficient; the tribunal must give an “indication of the effectiveness of the protection mechanisms”: Ralda Gomez c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2010 FC 1041 (F.C.) at para 28. In other words, “serious and genuine efforts” is not the test: Ocampo Lopez v. Canada (Minister of Citizenship & Immigration), 2010 FC 1176 (F.C.) at para 8 [Lopez 2010]. Those efforts must have “actually translated into adequate state protection”: Jaroslav v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 634 (F.C.) at para 75 [Jaroslav]; Gilvaja v. Canada (Minister of Citizenship & Immigration), 2009 FC 598 (F.C.) at para 39; Lopez 2010, above, at para 8. An assessment of adequacy includes determining whether, in practice, the remedies available are useful: Dominguez Hernandez c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2007 FC 1211 (F.C.); Avila c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2006 FC 359 (F.C.). 36 The Applicant also argues that the RPD applied the wrong test for the adequacy of state protection, focusing mainly on efforts that the government is making to combat the Maras. Evidence of improvement in the country does not fully address the particular situation of the Applicant, and does not specifically answer the question of whether a person targeted by the Maras would have adequate state protection in El Salva- dor. The RPD failed to examine state protection from the viewpoint of the specific risk faced by the Applicant, and therefore its analysis was unreasonable: Avila Rodriguez v. Canada (Minister of Citizenship and 330 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

Immigration), 2012 FC 1291 (F.C.); Gonzalez v. Canada (Minister of Citizenship and Immigration), 2013 FC 898 (F.C.). It also failed to address how the efforts El Salvador is making to combat the Maras are translating into adequate state protection: Meza Varela v. Canada (Minister of Citizenship & Immigration), 2011 FC 1364 (F.C.). 37 The Applicant says she provided extensive documentary evidence demonstrating that victims of the Maras cannot obtain adequate state protection, and that the state’s anti-gang efforts are not translating into adequate protection. She says the Board’s own National Documentation Package for El Salvador shows the same. The portions quoted by the Board show that the “law to protect victims and witnesses needs to be modified to adequately protect victims,” and that protection is only offered “at the trial stage” for those who come forward to make complaints about the Maras.

Respondent 38 The Respondent argues that the Board’s findings on generalized risk and state protection were both reasonable, and that each was sufficient on its own to dispose of the claim.

Nexus to a Convention refugee ground 39 The Respondent argues that an individual who is a victim of crime or a personal vendetta cannot generally establish a link between their fear of persecution and the grounds of refugee protection (Kang v. Canada (Minister of Citizenship & Immigration), 2005 FC 1128 (F.C.); Desir v. Canada (Minister of Citizenship & Immigration), 2011 FC 225 (F.C.)), and that the Board’s finding that the Applicant was a victim of crime and did not establish a nexus to the s. 96 grounds was reasonable. The cases cited by the Applicant on this point — Ndegwa and Al-Busaidy, above — can both be distinguished, the Respondent argues. The applicants’ family members in those cases were targeted based on the s. 96 grounds of gender and nationality respectively, and the applicants were found to have a nexus based on membership in the family of a person who feared persecution on Convention grounds. In the present case, the risk to the Appli- cant’s family was one of extortion and criminality that had no connection to a s. 96 ground. Furthermore, the Applicant’s own evidence was that she feared she would be targeted for extortion on return to El Salvador due to her perceived wealth after living abroad. Servellon Melendez v. Canada (MCI) James Russell J. 331

Generalized risk finding 40 The Respondent says that the test under s. 97 of the Act is conjunctive: an applicant must establish both that she faces a personalized risk and that the risk is not faced generally by other individuals in or from that country. This means that the risk cannot be faced by a significant subset of the population: Paz Guifarro, above, at para 32; Baires Sanchez v. Canada (Minister of Citizenship & Immigration), 2011 FC 993 (F.C.) at para 27 [Baires Sanchez]. 41 The Applicant does not contest the finding that extortion by the MS and related violence are risks generally faced by others in El Salvador, but argues that the generalized risk exception does not apply because she was personally targeted. The Respondent says this is an attempt to reduce the conjunctive test to a single element, which has been rejected by this Court. For example, the Court in Paz Guifarro upheld the Board’s decision, which accepted that the applicant was subjected personally to risk, but rejected the claim since extortion was a widespread risk for all citizens in Honduras: Paz Guifarro, above, at para 32; see also Fernandez Ramirez v. Canada (Minister of Citizenship & Immigration), 2012 FC 69 (F.C.) [Fernandez Ramirez]; Rodriguez v. Canada (Minister of Citizenship & Immigration), 2012 FC 11 (F.C.); Wilson v. Canada (Minister of Citizenship and Immigration), 2013 FC 103 (F.C.) [Wilson]. These cases make it clear that personal targeting is not enough to take the Applicant outside of the generalized risk exception. She also had to show that the risk she faced was not shared by a large sub-group of the population: Baires Sanchez, above. Instead, her evidence was that anyone perceived to have wealth was at risk of extortion in El Salvador. 42 The argument that the Board misstated the nature of the Applicant’s risk reflects a selective review of the reasons and the evidence. The Board noted that the Applicant’s father was targeted because he refused to accede to the demands of the MS, but found that this did not remove the risk from the generalized risk exception, since “extortion by gangs and criminals and the risk associated with non-payment is a risk many other citizens also face in El Salvador.” The Applicant’s own evidence showed that her family was targeted because individual family members were perceived to have money, and she testified that she would be targeted by the Maras upon her return due to her perceived wealth when returning from abroad. These are generalized risks in El Salvador as shown by the documentary evidence and the Applicant’s own evidence, the Respondent argues. The risk to the Applicant did not cease to be gen- 332 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

eralized because her family was targeted for failing to comply with the demands of the MS, nor because she herself was targeted: Paz Guifarro, above; Chavez Fraire v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 763 (F.C.); Wilson, above.

State protection finding 43 The Respondent argues that the Board’s finding on state protection was reasonable in light of the documentary evidence and the Applicant’s own failure to approach the state for protection. 44 The Applicant’s submission that the police were unwilling to help her is unsupported by the record. She stated that she telephoned the police three times, and was asked to come to the station to make a formal report. She failed to do so, and there is no evidence that she asked the police to come to her home and they refused. The Board considered the Applicant’s explanation for her failure to make a formal report — that she was afraid to go to the police station — and found it to be unreasonable. At best, it showed a subjective reluctance to engage the state, and more is required to rebut the presumption of state protection: Kim v. Canada (Minister of Citizenship & Immigration), 2005 FC 1126 (F.C.). The Respondent says the Board also considered the country condition documentation and found that this evidence did not rebut the presumption of state protection. 45 The argument that the RPD applied the wrong test by focusing on the efforts of the state to address gang violence is without merit for two reasons. First, it is an attempt to reverse the onus on the question of state protection. It was not for the Board to question whether the laws and programs discussed in the country documents had in fact been imple- mented. Rather, it was for the Applicant to show that, in spite of these laws and programs, state protection was inadequate, which she failed to do: Flores Carrillo, above; Camacho v. Canada (Minister of Citizenship & Immigration), 2007 FC 830 (F.C.). Second, the reasons show that the Board considered both the existence of laws and their implementation. The documentary evidence quoted by the Board discussed the successful capture and arrest of many members of the MS, and there were reports of a significant reduction in criminal activity by the Maras and other gangs as a result of the deployment of soldiers to assist the police. In the case of the attack on the Applicant’s uncle, the RPD noted that the assault was reported to police and two individuals were arrested. Thus, the finding Servellon Melendez v. Canada (MCI) James Russell J. 333

that the Applicant failed to rebut the presumption of state protection was reasonable.

Analysis 46 The Applicant seeks refugee protection against the widespread extortion and gang violence that exists in El Salvador. This is entirely understandable, but refugee protection is not available for all risks that a claimant might face in their home country. While acknowledging the problems in El Salvador, the Board found that the Applicant did not face s.96 persecution or s.97 risk. 47 The Applicant says that the Board failed to address her nexus argument that she was a young female who did not have the protection of her father. The issue is dealt with in paragraph 8 of the Decision: In her PIF evidence, the claimant bases her fear of persecution pursuant to section 96 of the Immigration and Refugee Protection Act on her membership in a particular social group. In submissions, counsel suggested that the nexus to section 96 was the claimant’s family, specifically a family who had rejected orders from gang members, or, failing that, a young female who did not have the protection of her father. The panel respectfully disagrees with this as the perpetrators of the acts against the claimant (and her family) are illegal gang members, identified as possible Mara. As the panel concludes that what the family faced did not have a nexus to the definition, then so to, the claimant cannot be a member of a particular social group, namely that of family. The panel finds that the claimant is indeed a victim of crime with no established link to a Convention refugee ground under section 96 of the Immigration and Refugee Protection Act. Therefore, the claim is being considered pursuant to the subsection 97(1) of the Immigration and Refugee Protection Act based on the claimant’s PIF and oral evidence and her alleged risk to life or a risk of cruel and unusual treatment of punishment or a danger of torture. [footnote omitted] 48 The Board specifically mentions the young female without the protection of her father ground for nexus, and rejects it for the reasons given. The risks that the Applicant faces are not linked to her identity as an unprotected woman. The Applicant did raise sexual violence in her narrative, but it is clear from the record and the Board’s reasons that there was no convincing basis for saying that she was targeted by the Maras because she was an unprotected female. The evidence did suggest that 334 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

members of her family have been consistently targeted and this is why the Board concludes that “what the family faced did not have a nexus to the definition” so that “the claimant cannot be a member of a particular social group, namely that of family.” 49 The evidence shows that different family members have been targeted but, in my view, the evidence suggests that, in each case, they have been targeted because they are perceived to have wealth. I do not think the Board’s findings on this issue can be said to be unreasonable or that the Board failed to consider the Applicant’s nexus claims. 50 On generalized risk, the Applicant feels that the Board failed to address the specific degree and kind of targeting that she faced and, in particular, the fact that Maras persist in looking for her and asking about her even while she is out of the country. She says that the issue is the degree of the hunt for her and its persistence, and that motive is not the issue; it is rather the degree of targeting.

Recent case law on generalized risk 51 In Correa, above, I identified two errors of reasoning that risk empty- ing s. 97 of any protection for the victims of criminal gangs, contrary to the Court of Appeal’s direction in Proph`ete FCA, above. The first results from treating the threats and violence described by applicants as personal targeting - often reprisals for failure to comply with gang demands - as merely an “extension of” or “consequential harm” arising from the generalized risk of extortion experienced by large segments of the population, such as those perceived as having wealth: see Correa, above, at para 53. The second results from over-extending the valid observation made in Gabriel v. Canada (Minister of Citizenship & Immigration), 2009 FC 1170 (F.C.) that “a generalized risk could be one experienced by a subset of a nation’s population”: Correa, above, at para 64. 52 It is the first of these two errors that is most relevant here. The problem with treating an escalation of threats and violence resulting from the refusal of gang demands as merely an “extension of,” or “consequential harm” arising from, the generalized risk of extortion is that it erases all Servellon Melendez v. Canada (MCI) James Russell J. 335 distinctions based on the degree or proximity of the risk. This was explained in Correa as follows: [54] The Court appeared to give some credence to this view when it stated in Romero v. Canada (Minister of Citizenship and Immigra- tion), 2011 FC 772 [Romero] that: [18] Counsel, creatively, argues that the fact that the applicant sought to resist the extortion by reporting it to the police makes him unique, or brings him within a unique or discreet sub-group of the general population and hence within subsection 97(1)(b)(ii). In my view, the risk or threat of reprisal cannot be parsed or severed from the demand for payment. The act of criminality is established on the demand of payment and implicit or explicit threat of reprisal for failure to pay. The fact that the threat is imple- mented or the victim reports the extortion does not bring them outside of the operative words of subsection 97(1)(b)(ii), namely whether the threat they face is generalized. [Emphasis added] [55] In my view, this analysis from Romero, above, has been super- seded by subsequent cases, including some very incisive analysis by Justice Rennie himself (see Vivero, Lovato, Marroquin, all above), and no longer represents a valid approach for this Court or the RPD to follow. [56] The problem with this approach lies in assigning too much importance to the initial reasons for the threat. In doing so, it seems to improperly import elements of the s. 96 test into the s. 97 context. Under s. 96, the reason one is targeted is at the heart of the analysis, because of the requirement to establish a nexus to Convention grounds of protection. Under s. 97, by contrast, it has very little relevance at all. Someone may be initially targeted for extortion because he/she is a shopkeeper, but that is irrelevant to the risk faced now and in the future except to the extent that it provides clues to the nature and extent of the threat objectively considered. It does not matter what personal characteristic of the victim prompted the perpetrator to target them (e.g. youth, perceived wealth or ownership of a business) or what motivates the perpetrator to target anyone in the first place (e.g. increasing wealth through extortion or acquiring “drug mules” through forced recruitment). [57] The analysis under s. 97 is objective and forward looking. We should not be concerned with what is in the mind of the perpetrator, except to the degree it assists with that analysis. It may well play a 336 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

role in that sense: if a gang always kills those who report them to police, it will be quite relevant to a risk analysis that this is the “reason” the gang is currently targeting an applicant. However, it seems to me that it is completely inappropriate to refer to the motivation of the perpetrator to box the victim into a category of persons subject to a “generalized risk,” such that subsequent or “consequential” harms cannot “remove them from the exception.” There is no “consequential”or “resulting” risk under s. 97, there is only risk, objectively and prospectively considered. The question is not whether others with similar characteristics could find themselves in the Applicant’s position; it is whether others “generally” are in that position now. 53 Other members of the Court have also emphasized that it is an error to conflate the reason for the risk (or the reason an individual was targeted) with the risk itself: see Vaquerano Lovato, above, at para 13; Camargo Vivero v. Canada (Minister of Citizenship & Immigration), 2012 FC 138 (F.C.) at para 29; Corado Guerrero v. Canada (Minister of Citizenship & Immigration), 2011 FC 1210 (F.C.) at para 29 [Guerrero]. 54 Contrary to the “consequential risk” logic, both the nature and the degree of risk must be considered in determining whether the applicant in any given case faces the same risk experienced by a broad segment of the population in their country of origin: Escamilla Marroquin v. Canada (Minister of Citizenship and Immigration), 2012 FC 1114 (F.C.) at para 11; and Martinez de la Cruz, above, at para 41; Correa, above, at para 61. As Justice Mactavish explained in Tomlinson, above, at para 18: The Board further erred in stating that what mattered was whether the risk faced by Mr. Tomlinson was “a type of risk that is also faced by a generality of others in Jamaica...” The question for determination was not just the type of risk faced but also the degree of risk. As in Portillo, the Board erred in conflating a highly individualized risk faced by Mr. Tomlinson with a generalized risk of criminality faced by others in Jamaica. [Emphasis added] 55 Justice Zinn employed similar reasoning in Guerrero, above, at para 34, in drawing a distinction between a heightened risk of random or indiscriminate violence (because of perceived wealth in that case), which may still be a generalized risk, and personal targeting that gives rise to a risk not faced generally by others: [34] I do not accept that protection under the Act is limited in the manner submitted by the respondent. This is not to say that persons who face the same or even a heightened risk as others face of random Servellon Melendez v. Canada (MCI) James Russell J. 337

or indiscriminate violence from gangs are eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not, then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met.

Did the Board err in its generalized risk analysis? 56 The RPD’s reasons in the present case show that it never really engaged with the question of whether the pattern of attacks and targeting experienced by the Applicant and her family meant that she faced a risk different from the general risk of extortion. On the contrary, while acknowledging the “general credibility” of her allegations (para 11), and accepting that she was personally targeted (para 13), or at least “believes she has been personally targeted” (para 18), the only risk considered by the Board is the general risk of extortion faced by those who are perceived to have money. 57 The Board observed at para 12 that “Extortion is a crime commonly committed by criminal gang members in El Salvador.” especially members of MS and M18, and that “The problem of extortion is widespread and affects those people who are perceived to have or do have wealth.” 58 At para 13, the Board observed that “the risk to life in El Salvador relating to extortion faced by the claimant is a wide-spread common risk generally faced by others in the country,” and that “The fact that the claimant was actually personally targeted by criminals for extortion does not mean her risk was, or would be upon a return to El Salvador, not a generalized risk.” 59 The Board observed at para 14 that “The fact that the victim of generalized violence has an identity and that their identity is or becomes known to the perpetrator does not mean that they are not a victim of generalized violence.” Among other cases, the RPD pointed to the Court’s decision in Rodriguez Perez v. Canada (Minister of Citizenship & Immigration), 2009 FC 1029 (F.C.) as being applicable to the current circumstances. The Board described that case as finding that “the risk of violence and crime is a generalized risk faced by individuals perceived to have money,” and even if the applicant in that case “was more at risk because he was a small business owner or a member of a particular economic sector, it still did not transform a generalized risk of criminal violence into a personal one” (Decision at para 15). 338 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

60 The Board went on to find that (Decision at para 17): [17] The documentary evidence suggests that this type of extortion covers almost any age, gender, type of employment and, that the primary criteria apparently is whether or not the criminals, rightly or wrongly, believe their target might have some money. The fact that an identified person would face retaliation if they stopped complying with the demands of the criminals still does not remove the risk from the exception if it is one faced generally by others according to this cited case law. As extortion by gangs and criminals and the risks associated with non-payment is a risk many other citizens also face in El Salvador, the panel finds that the risk faced by this claimant is a generalized one. 61 While stating that it was “cognizant of the direction provided by Mr. Justice Zinn in Guerrero,” the Board does not discuss the implications of that case for the present one. Rather, it simply falls back on an assertion that the risk of extortion is faced by all who are perceived to have money, and appears to view any increased risk due to personal targeting as simply flowing from the “modus operandi” employed by the gangs in carrying out extortion: [18] The panel, however, is also cognizant of the direction provided by Mr. Justice Zinn in Guerrero. The panel accepts that the claimant believes she has been personally targeted for extortion demands. The documentary evidence supports that the risk of this criminal activity, if the claimant was to return to El Salvador, might well continue. As previously noted, the documentary evidence, even through a general reading, speaks to the criminal element targeting anyone who they perceive might be wealthy. The modus operandi is that the demand for money is made and if the victim does not provide payment the severity of the gang’s threats will increase to try and force compliance to their demands. This risk, however, based on the extent to which is appears to be widespread throughout El Salvador, falls within the generalized exception of the Immigration and Refugee protection Act. 62 In my view, this analysis treats the increased risk faced by the Appli- cant as a result of personal targeting as simply “consequential harm” or “resulting risk” flowing from the initial extortion demands coupled with the modus operandi employed by the gangs, which was one of the errors identified in Correa, above. The Board never seriously considers whether, in fact, the Applicant faces the same risk as others who are perceived to be wealthy, or whether she faces a different risk because of the pattern of personal targeting. The Board equated the Applicant’s risk to Servellon Melendez v. Canada (MCI) James Russell J. 339

the risk of extortion faced generally by those perceived to have money in El Salvador, and found (quite reasonably) that the latter was a risk faced generally by others in that country. 63 In sum, the reasons reveal that the Board was not cognizant of the need to consider both the nature and the degree of risk faced by the Ap- plicant if she were to return to El Salvador, in light of the pattern of attacks and targeting experienced by her and her family. 64 This is similar to the error observed by Justice de Montigny in Martinez de la Cruz, above, where he emphasized that the inquiry into individual circumstances required under s.97(1)(b)(ii) must be sensitive to the pattern of events and the connections between them. In that case, the applicants believed they were initially targeted because of their perceived wealth, but the situation evolved after they refused the gang’s demands and reported them to police. Justice de Montigny found that the Board failed to consider or take a firm position on how the events described by the applicants were connected, and therefore mischaracterized the risk they faced: [40] It may well be that no single incident would be sufficient on its own to ground a risk under section 97 of IRPA. At the same time, it is not at all clear that when they are considered as a whole and as a chain of events, they can be characterized as another instance of criminality and violence. In many respects, this case bears many sim- ilarities with many instances where the Board casually concluded that the Applicants merely experienced general criminality and violence despite having been repeatedly assaulted, threatened, stalked and intimidated: see, for example, Portillo; Guerrero v. Canada (MCI), 2011 FC 1210; Pineda v. Canada (MCI), 2012 FC 493; Zacarias v. Canada (MCI), 2011 FC 62; Tobias Gomez v. Canada (MCI), 2011 FC 1093. While the Member understood the facts of the claim before her in a general sense, she did not address the true nature of the risk faced by the Applicants. This is a fatal error... [41] As a result of this error, the Member could not properly compare the risk faced by the Applicants to that faced by the general population or a significant group thereof in the country to determine whether the risks are of the same nature and degree. If, as the Appli- cants claim, the risk they face is not simply to be susceptible of being targeted to work for the Zetas or to be extorted because they are perceived as successful businesspeople, but rather a fear of retaliation for defying the Zetas and even reporting them to the police, then that risk is not of the same significance than the risk to which the general population or a significant group of that population is exposed. 340 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

[Emphasis added] 65 In my view, a similar error occurred in the present case, amounting to a failure to conduct the individualized inquiry mandated by Proph`ete FCA, above.

State Protection 66 The Board found it to be unreasonable that the Applicant did not go to the police station to file a report (as requested when she called to report the threats) because she was afraid. However, this failure to approach the state for protection only matters if adequate protection would have been reasonably forthcoming in the circumstances. 67 The very pervasiveness of violent crime at the hands of MS and M18, cited by the Board as evidence that the risk faced by the Applicant is a generalized risk, is an indication that adequate state protection may not be available for those targeted by these gangs. The Board observes earlier in its reasons (at para 12) that: Extortion is a crime commonly committed by criminal gang members in El Salvador according to the documents. This crime is accom- panied by other widespread crimes that they perpetuate in the country, such as robbery, murder and kidnapping. There are further numerous references to the fact that the MS and M18 are the largest gangs in the country and are involved not only in killing, robbery and kidnapping but in extortion and dealing drugs... The problem of extortion is widespread and affects those people who are perceived to have or do have wealth. 68 Was there evidence that adequate state protection is available to persons specifically targeted by MS? The Board acknowledged that the documentary evidence was “mixed,” but found that “the state is taking serious efforts to combat gang violence and criminality and that those efforts are producing results.” The Board then quoted extensive passages from Responses to Information Requests (RIRs) from the Board’s Research Directorate. One of these included the observation that: According to the [U.S. Overseas Security Advisory Council], the [Salvadoran National Civil Police (Polic´ıa Nacional Civil)] still needs to improve in order to function as an effective organization that can protect the public (US 20 Apr. 2010). Among other things, the techniques for routine patrols and efforts to suppress crime and gangs are ineffective (ibid.). According to the OSAC, equipment shortages limit the ability of police officers to respond effectively to crime (ibid.). Servellon Melendez v. Canada (MCI) James Russell J. 341

[RIRs, SLV103445.FE (3 June 2010)] 69 The same RIR cites a deployment of 6,500 soldiers to work with police “to fight delinquency in the country,” but in terms of results, it says only that “Additional information on the outcome of the police and army intervention could not be found among the sources consulted by the Re- search Directorate.” 70 A victim and witness protection program was described in the same RIR as providing “good results,” but also as having “legal deficiencies,” lacking “human resources to help protect victims and witnesses” and needing “to be modified to adequately protect victims.” The RIR also stated that victims of extortion are offered protection “only at the trial stage.” 71 A later RIR also quoted by the Board (RIRs, SLV103773.E (13 July 2011)) discusses a new anti-gang law and cites news reports that “Presi- dent Funes has initiated a number of measures to combat crime in El Salvador, including the deployment of the army to assist the National Civil Police.” The Attorney General’s office indicated that the results of the anti-gang legislation would “not come very fast” and “instead of conducting large-scale raids, they would [translation] ‘concentrate on ex- haustive investigations.’” The RIR discusses a number of arrests of gang members, including MS members, and then observes: Voces, a digital news source based in San Salvador, reports the De- fence Minister as stating that the deployment of 3,000 soldiers in the 29 high-crime areas has [translation] “helped to reduce the criminal activities of maras and gangs by 70 percent” (Voces 7 Jan. 2011). Elsalvador.com also notes that since the army began monitoring the streets on 6 November 2009, homicide rates in the 20 most violent municipalities has started to decrease [translation] “considerably” (Elsalvador.com 26 Feb. 2011). However, [translation] “[t]he military presence in these places forced the exodus of the gangs to areas that did not have problems with maras or even a lot of crime” (ibid.). 72 The document then goes on to discuss proposals and future initiatives not yet undertaken. 73 This evidence supports the Board’s observation that “the state is taking serious efforts to combat gang violence and criminality,” but of course that is not the test for state protection. Nor is the issue whether those efforts “are producing results” in terms of arrests and prosecutions. The question is whether they have translated into adequate protection on 342 IMMIGRATION LAW REPORTER 28 Imm. L.R. (4th)

the ground for persons in the Applicant’s circumstances: Jaroslav, above, at para 75; Lopez 2010, above, at para 8. 74 The RPD did not provide an analysis of the evidence quoted, but simply concluded: [25] It is after considering this evidence and the particular circumstances of this claimant that the panel finds that were she to return to El Salvador today there are courses of action that would be reasonably available to her. The claimant has not established that if she chose to seek protection that it would not be reasonably forthcoming or that it would be objectively unreasonable for her to seek that protection. 75 In my view, this is an unreasonable conclusion that is not supported by the evidence quoted by the Board. 76 The question is whether adequate state protection would have been available, or would in the future be available, for someone in the Appli- cant’s circumstances, who is being specifically targeted by the MS. The only evidence directly on that point cited by the Board indicates that the national police force “still needs to improve in order to function as an effective organization that can protect the public,” and that a witness protection program, while delivering some positive results, had insufficient resources to adequately protect victims and provided protection to victims of extortion only during trials. 77 This evidence contradicts the Board’s conclusion, and makes that conclusion unreasonable. 78 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is referred back for reconsideration by a different Board Member. 2. There is no question for certification. Application granted.