IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 40 (Cited 40 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 40 (Cited 40 Imm. L.R. (4th))

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[Indexed as: Siddiqui v. Canada (Minister of Citizenship and Immigration)] Obaidullah Siddiqui, Appellant and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-205-15 2016 FCA 134 M. Nadon, Donald J. Rennie, Mary J.L. Gleason JJ.A. Heard: April 19, 2016 Judgment: April 29, 2016 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Cessation of refugee status –––– OS fled Afghanistan in 1987 to live in Pakistan — In 2010, OS was accepted for resettlement to Can- ada as member of source country class and he became permanent resident on January 25, 2011 — Afghan passport was issued to OS on October 19, 2011 and he subsequently took three trips to Afghanistan — Final trip was for six months from July 24, 2013 to January 20, 2014 — OS further used his Afghan passport to take business trips to China, for identification when checking into hotels, and to obtain visas to travel to India — On November 6, 2013, Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigra- tion filed application for order that OS’s refugee status cease and be rejected on basis that he had reavailed himself of protection of his country of nationality — Refugee Protection Division (RPD) granted Minister’s application, OS’s claim for refugee protection was deemed rejected, and thus OS ceased to be Conven- tion refugee — Federal Court dismissed OS’s application for judicial review — OS appealed — Appeal dismissed — Judge correctly held that RPD decision to grant Minister’s application for cessation was question of mixed fact and law, and thus attracted reasonableness standard, as did RPD’s interpretation of relevant provisions of Immigration and Refugee Protection Act (IRPA) — Reading of IRPA leads to unequivocal conclusion that cessation provisions of s. 108 of IRPA apply to both Convention refugees and country of asylum or resettlement class — Section 95 of IRPA provides protection to both Convention refugees 2 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

and members of county of asylum class — What ceases under s. 108 of IRPA is protection that is conferred under s. 95 and Parliament expressly crafted s. 108 of IRPA so as to apply cessation provisions to “protected persons,” regardless of means by which protection is granted — There was no reason why principle of reavailment and its associated criteria should vary according to route by which status as protected person was originally obtained. Cases considered by Donald J. Rennie J.A.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 2011 SCC 61, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1 (S.C.C.) — considered Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 SCC 36, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, [2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — referred to Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (2014), 2014 SCC 68, 2014 CSC 68, 2014 CarswellNat 4175, 2014 CarswellNat 4176, 376 D.L.R. (4th) 387, (sub nom. Febles v. Canada (Minister of Citizenship and Immigration)) 464 N.R. 7, (sub nom. Febles v. Canada (Citizenship and Immigration)) [2014] 3 S.C.R. 431, 30 Imm. L.R. (4th) 1 (S.C.C.) — followed Nsende v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 531, 2008 CarswellNat 1253, 2008 CF 531, 2008 CarswellNat 2311, 327 F.T.R. 315 (Eng.), [2009] 1 F.C.R. 49, [2008] F.C.J. No. 689 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12(3) — considered s. 46(1)(c.1) [en. 2012, c. 17, s. 19(1)] — considered s. 95 — considered s. 95(1)(a) — considered s. 95(2) — considered s. 108 — considered s. 108(1)(a) — considered Siddiqui v. Canada (MCI) Donald J. Rennie J.A. 3

s. 108(1)(a)-108(1)(d) — referred to s. 108(1)(e) — considered s. 108(2) — considered s. 109(1) — referred to Words and phrases considered: country of asylum refugee A country of asylum refugee is a foreign national abroad, who is selected for resettlement in Canada.

APPEAL by OS from judgment reported at Siddiqui v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 329, 2015 CarswellNat 969, 2015 CF 329, 2015 CarswellNat 2337, [2015] 4 F.C.R. 409 (F.C.), dismissing his application for judicial review of decision from Refugee Protection Division, granting Minister of Public Safety and Emergency Preparedness’s application deeming his protection claim to be rejected.

Douglas Cannon, for Appellant Helen Park, Brett Nash, for Respondent

Donald J. Rennie J.A.:

1 This is an appeal from a decision of the Federal Court, (2015 FC 329 (F.C.) per No¨el J.), dismissing an application for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada. In that decision, the RPD granted the Min- ister’s application for an order under paragraph 108(1)(a) of the Immi- gration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), that the appellant’s status as a protected person and permanent resident had ceased. At the conclusion of his reasons, the judge certified the following question for determination by this Court: [... D]o the same or substantially the same legal considerations, precedents and analysis apply to persons found to be Convention refugees as to persons found to be in need of protection as members of the Country of asylum class? 2 I would answer the question in the affirmative. However, a brief review of the facts which underlie this appeal provides helpful context to the issue raised by the certified question. 3 The appellant was born in Afghanistan. In 2010, he was accepted for re-settlement in Canada under the “country of asylum” or “humanitarian 4 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

protected person abroad” class, a category of refugee protection distinct from Convention refugees and more commonly known as the re-settlement program. The re-settlement program is a discretionary program which extends refugee protection to persons who are determined to be in need of protection but are outside of Canada: see Citizenship and Immi- gration Canada Processing Manual - OP5: Overseas Selection and Processing of Convention Refugees Abroad and Members of the Human- itarian Protected Person Abroad Classes. He became a permanent resident of Canada in January, 2011. 4 The appellant obtained an Afghani passport in October, 2011, and between then and the end of 2013 made three trips to Afghanistan. The first trip was in 2012 for six weeks with his two sons. On the second, in 2013, he travelled alone to Afghanistan for nine weeks. The third, in July of 2013, lasted six months. This later trip, on which his son accompanied him, was for business and to enrol his son in school in Afghanistan. He also travelled to China and India on his Afghani passport and used his Afghani passport for identification when checking into hotels. 5 In November 2013, the Minister of Citizenship and Immigration initi- ated cessation proceedings pursuant to paragraph 108(1)(a) of the IRPA. This section provides: Rejection 108 (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; Rejet 108 (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne a` protéger dans tel des cas suivants: a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité; 6 The RPD granted the Minister’s application. The RPD applied the established three-part test to determine whether a Convention refugee has reavailed himself of his country of nationality, and found all three criteria to be satisfied: Nsende v. Canada (Minister of Citizenship & Immigra- tion), 2008 FC 531, [2009] 1 F.C.R. 49 (F.C.). Consequently, pursuant to paragraph 108(1)(a), the appellant was found to have reavailed himself of Afghanistan’s protection, and pursuant to subsection 108(2) his refugee protection ceased. So too did his status as a permanent resident. Siddiqui v. Canada (MCI) Donald J. Rennie J.A. 5

7 The appellant applied to the Federal Court for judicial review of the RPD’s decision. He argued that paragraph 108(1)(a) did not apply to him as a member of the humanitarian protected person abroad class, and that by virtue of his permanent resident status which he gained on arrival in Canada, was excluded from cessation proceedings. He contended that the RPD decision was flawed as the Board did not correctly understand that the appellant was not a Convention refugee, but was a member of the country of asylum class. In support, he points to various paragraphs of the RPD decision where the appellant is described as a Convention refugee, a refugee or a protected person. He urges that the RPD incorrectly understood the appellant to be a Convention refugee, and since the cessation provisions in section 108 do not apply to the country of asylum class, there was no legal basis to make a cessation order. He also argued that the RPD erred in not considering whether paragraph 108(1)(e) applied. Unlike cessation orders under paragraphs 108(1)(a)-(d), a finding of cessation of protection under paragraph 108(1)(e) does not trigger a loss of permanent residency. 8 The Federal Court dismissed the application, finding that paragraph 108(1)(a) does apply to country of asylum refugees, and that on a finding of cessation, country of asylum refugees lose their permanent resident status pursuant to paragraph 46(1)(c.1). This provision reads: Permanent resident 46 (1) A person loses permanent resident status [...] (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d); [...] Résident permanent 46 (1) Emportent perte du statut de résident permanent les faits suivants: [...] c.1) la décision prise, en dernier ressort, au titre du paragraphe 108(2) entraˆınant, sur constat des faits men- tionnés a` l’un des alinéas 108(1)a) a` d), la perte de l’asile; [...] 9 The Court also declined to hear argument with respect to paragraph 108(1)(e) as that ground had not been raised before the RPD. 6 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

10 The appellant maintains these arguments before this Court. 11 The task of this Court on an appeal from an application for judicial review is to assess whether the judge correctly selected and applied the standard of review in the decision below: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.). Here, the judge correctly held that the RPD decision to grant the Minister’s application for cessation is a question of mixed fact and law, and thus attracted a reasonableness standard, as did the Board’s interpretation of the relevant provisions of IRPA. 12 The answers to the challenges to the decision lie in a principled reading of the statute. If the relevant provisions of IRPA are read in their grammatical and ordinary sense, harmoniously with the scheme of the Act, it is clear that there is no merit to the appellant’s arguments. The statutory scheme demonstrates that the cessation provisions of section 108 are not limited to Convention refugees or persons in need of protection but encompass “persons in similar circumstances” such as members of the country of asylum class. 13 The starting point of this analysis is subsection 12(3) of IRPA which provides: Refugees 12 (3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada’s humanitarian tradition with respect to the displaced and the persecuted. Réfugiés 12 (3) La sélection de l’étranger, qu’il soit au Canada ou non, s’effectue, conformément a` la tradition humanitaire du Canada a` l’égard des personnes déplacées ou persécutées, selon qu’il a la qual- ité, au titre de la présente loi, de réfugié ou de personne en situation semblable. 14 A country of asylum refugee is a foreign national abroad, who is selected for re-settlement in Canada. He is thus a “person in similar circumstances.” Once selected for re-settlement in Canada, paragraph 95(1)(a) confers refugee protection on that person: Conferral of refugee protection 95 (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Conven- tion refugee or a person in similar circumstances Siddiqui v. Canada (MCI) Donald J. Rennie J.A. 7

under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Conven- tion refugee or a person in need of protection; or [...] [Emphasis added] Asile 95 (1) L’asile est la protection conférée a` toute personne dès lors que, selon le cas: a) sur constat qu’elle est, a` la suite d’une demande de visa, un réfugié au sens de la Convention ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaˆıt la qualité de réfugié au sens de la Convention ou celle de personne a` protéger; [...] [je souligne] 15 Further, subsection 95(2) makes clear that section 108, the cessation provision, applies to protected persons, regardless of the route or mecha- nism by which they obtain status as a protected person: Protected person 95 (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). Personne protégée 95 (2) Est appelée personne protégée la personne a` qui l’asile est conféré et dont la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). 8 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

16 Subsection 108(2) also expressly links the cessation provisions back to section 95. Importantly, it does not refer to Convention refugee status, but to “refugee protection”: Cessation of refugee protection 108 (2) On application by the Minister, the Refugee Protection Divi- sion may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). [Emphasis added] Perte de l’asile 108 (2) L’asile visé au paragraphe 95(1) est perdu, a` la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1). [je souligne] 17 In sum, a reading of IRPA leads to the unequivocal conclusion that the cessation provisions of section 108 apply to both Convention refugees and country of asylum or re-settlement class. Section 95 provides protection to both Convention refugees and members of the county of asylum class. What ceases under section 108 is the protection that is conferred under section 95 and Parliament expressly crafted section 108 so as to apply the cessation provisions to “protected persons,” regardless of the means by which protection is granted. 18 I see no reason why the principle of reavailment and its associated criteria should vary according to the route by which status as a protected person is originally obtained. It must be remembered that all refugee protection is surrogate protection, the presumption at international law being that a person’s country of nationality will protect its nationals. The application of the principle of reavailment to country of asylum class refugees is consistent with this principle. 19 This disposes of the appellant’s principal arguments, but it also demonstrates why the nomenclature used by the RPD to describe the appellant is of no consequence. For the purposes of cessation orders, subsection 12(3) and section 95 effectively merge Convention refugees, the county of asylum class or “persons in similar circumstances” into a sin- gle category of protected persons. As section 108 applies to protected persons, the means or vehicle by which protection was conferred is irrelevant. 20 I turn to the appellant’s second argument. The appellant says that as a country of asylum class member, he had permanent resident status on Siddiqui v. Canada (MCI) Donald J. Rennie J.A. 9

arrival in Canada, whereas a Convention refugee claimant does not. It could not have been Parliament’s intention, having granted permanent residency on arrival, that status could be lost through reavailment. Any act that could have triggered cessation must, he contends, have occurred prior to the granting of permanent resident status. 21 This argument has no foundation in the legislative scheme. Paragraph 46(1)(c.1) expressly provides that permanent resident status is lost after a successful application pursuant to subsection 108(2). The appellant’s argument that paragraph 46(1)(c.1) would not apply to him as a member of the country of asylum class would render the provision meaningless. 22 In an effort to avoid the clear language of the Act, the appellant urges that the cessation provision be read narrowly, so as to exclude country of asylum class refugees from the cessation provisions. The appellant contends that this interpretation would be consistent with the objectives of IRPA and the Convention. But it is settled law that where the language of Parliament is unequivocal, as it is here, no resort can be had to principles of international law to undermine what Parliament has expressly provided. As noted in Hernandez Febles v. Canada (Minister of Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431 (S.C.C.), broad statements of purposes and objectives, whether found in international or domestic statute, do not justify interpretations that are unsupported by, or inconsistent with the language of Parliament. 23 The appellant also contends that his status as a protected person was lost when he was granted permanent resident status, and, as such, section 108 cannot apply. 24 This argument has no support in the statute. Paragraph 95(1)(a) provides that refugee protection is conferred “when” the person becomes a permanent resident. It is illogical to suggest that a person gains and loses refugee protection at the very moment that they become a permanent resident. Once protected person status has been granted it may be lost under the IRPA in one of two ways: a cessation order under subsection 108(2) or pursuant to the vacation provisions in subsection 109(1). 25 I conclude with the appellant’s argument that the Board erred in not considering whether cessation could have been made under paragraph 108(1)(e). 26 No error arises in the decision of the RPD not to entertain a ground of cessation which was neither advanced by the Minister or the appellant. Indeed, as noted by the judge, the appellant objected before the RPD to any reference to paragraph 108(1)(e). In A.T.A. v. Alberta (Information & 10 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.), the Court noted that a court has a discretion not to consider an issue raised for the first time on judicial review. Here, the absence of both an evidentiary foundation and the views of the tribunal of first instance on that record strongly militate against consideration of this issue in the Federal Court. The judge below committed no reviewable error in declining to consider the issue upon judicial review. 27 I would answer the certified question in the affirmative and dismiss the appeal with costs.

M. Nadon J.A.:

I agree

Mary J.L. Gleason J.A.:

I agree Appeal dismissed. Canada (MCI) v. Bermudez 11

[Indexed as: Canada (Minister of Citizenship and Immigration) v. Bermudez] The Minister of Citizenship and Immigration, Appellant and Jose de Jesus Bermudez, Respondent Federal Court of Appeal Docket: A-280-15 2016 FCA 131 C. Michael Ryer, D.G. Near, Richard Boivin JJ.A. Heard: March 16, 2016 Judgment: April 27, 2016 Immigration and citizenship –––– Exclusion and removal — Loss of status — Permanent residents — General principles –––– Respondent B was admitted to Canada as refugee from Colombia in 2006, after being target of paramilitary violence in his homeland — B became permanent resident of Can- ada as result — B made two separate trips back to Colombia in 2008 and 2009, in hopes of marrying his fiancee — Engagement was terminated — B applied for Canadian citizenship in 2011, declaring his trips to Colombia as part of his application — B was brought to attention of Canada Border Service Agency (CBSA) after returning from trip to Mexico in 2014 — CBSA applied to have refugee status revoked, claiming B had reavailed himself of protection of home state — B applied for judicial review of CBSA decision, claiming that CBSA was required to consider humanitarian and compassionate (H&C) grounds — B’s application was granted — Crown appealed from judicial review — Appeal allowed — Hearing officer had minimal duty of fairness — Hearing officer did not have to gather additional information — Hearing officer in this case made some consideration of material presented by B and his counsel — Under legislative framework, officer did not have discretion to consider H&C factors — Evi- dence of policy adviser supported this view, although this evidence was not accepted by reviewing judge — Governing statute did not provide for H&C considerations — Permanent residents such as B were properly subject to this law, and could face removal. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Miscellaneous –––– Respondent B was admitted to Canada as refugee from Colombia in 2006, after being target of paramilitary violence in his homeland — B became permanent resident of Canada as result — B made two separate trips back to Colombia in 2008 and 2009, in hopes of marrying his fiancee — Engagement was terminated — B applied for Cana- dian citizenship in 2011, declaring his trips to Colombia as part of his applica- 12 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

tion — B was brought to attention of Canada Border Service Agency (CBSA) after returning from trip to Mexico in 2014 — CBSA applied to have refugee status revoked, claiming B had reavailed himself of protection of home state — B applied for judicial review of CBSA decision, claiming that CBSA was required to consider humanitarian and compassionate (H&C) grounds — B’s application was granted — Crown appealed from judicial review — Appeal allowed — Hearing officer had minimal duty of fairness — Hearing officer did not have to gather additional information — Hearing officer in this case made some consideration of material presented by B and his counsel — Under legislative framework, officer did not have discretion to consider H&C factors — Evi- dence of policy adviser supported this view, although this evidence was not accepted by reviewing judge — Governing statute did not provide for H&C considerations — Permanent residents such as B were properly subject to this law, and could face removal. Cases considered by Richard Boivin J.A.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 SCC 36, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, [2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — followed Baker v. Canada (Minister of Citizenship & Immigration) (1999), [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, 1 Imm. L.R. (3d) 1, 14 Admin. L.R. (3d) 173, [1999] 2 S.C.R. 817, [1999] F.C.J. No. 39 (S.C.C.) — considered Canada (Minister of Public Safety and Emergency Preparedness) v. Tran (2015), 2015 FCA 237, 2015 CarswellNat 5677, 392 D.L.R. (4th) 351, (sub nom. Tran v. Canada (Minister of Public Safety and Emergency Prepared- ness)) 478 N.R. 165, 2015 CAF 237, 2015 CarswellNat 9252, 38 Imm. L.R. (4th) 175, [2015] F.C.J. No. 1324 (F.C.A.) — considered Contrevenant no. 10 c. Canada (Procureur g´en´eral) (2016), 2016 CAF 42, 2016 CarswellNat 356, [2016] F.C.J. No. 176 (F.C.A.) — considered Faci v. Canada (Minister of Public Safety & Emergency Preparedness) (2011), 2011 FC 693, 2011 CarswellNat 2276, 2011 CF 693, 2011 CarswellNat 4280, [2011] F.C.J. No. 893 (F.C.) — considered French v. R. (2016), 2016 FCA 64, 2016 CarswellNat 472, [2016] F.C.J. No. 238 (F.C.A.) — considered Hernandez v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 429, 2005 CarswellNat 825, 45 Imm. L.R. (3d) 249, 2005 CF 429, 2005 CarswellNat 3370, [2006] 1 F.C.R. 3, 271 F.T.R. 257, [2005] F.C.J. No. 533 (F.C.) — distinguished Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2015), 2015 SCC 61, 2015 CSC 61, 2015 CarswellNat 6500, 2015 CarswellNat 6501, 93 Admin. L.R. (5th) 1, 36 Imm. L.R. (4th) 1, 391 D.L.R. (4th) 644, 479 N.R. 103, [2015] S.C.J. No. 61, [2015] 3 S.C.R. 909 (S.C.C.) — considered Canada (MCI) v. Bermudez 13

Khuabi c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2012), 2012 CF 141, 2012 CarswellNat 268, 2012 FC 141, 2012 CarswellNat 830, [2012] F.C.J. No. 1517 (F.C.) — considered Knight v. Indian Head School Division No. 19 (1990), [1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489, [1990] 3 W.W.R. 289, 30 C.C.E.L. 237, 90 C.L.L.C. 14,010, 43 Admin. L.R. 157, 83 Sask. R. 81, 106 N.R. 17, 1990 Carswell- Sask 146, 1990 CarswellSask 408, [1990] S.C.J. No. 26, EYB 1990-67929, D.T.E. 90T-475 (S.C.C.) — considered Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, EYB 2005- 95306, [2005] S.C.J. No. 31, 258 D.L.R. (4th) 193, 339 N.R. 1, [2005] 2 S.C.R. 539, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1 (S.C.C.) — considered Olvera Romero v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 671, 2014 CarswellNat 2507, 26 Imm. L.R. (4th) 123, 2014 CF 671, 2014 CarswellNat 4047, 86 Admin. L.R. (5th) 48, 458 F.T.R. 239, (sub nom. Romero v. Canada (Citizenship and Immigration)) [2015] 3 F.C.R. 265, [2014] F.C.J. No. 720 (F.C.) — considered Richter v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 806, 2008 CarswellNat 2182, 2008 CF 806, 2008 CarswellNat 3180, 73 Imm. L.R. (3d) 131, [2008] F.C.J. No. 1033, [2009] 1 F.C.R. 675 (F.C.) — considered Spencer v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 990, 2006 CarswellNat 2620, 2006 CF 990, 2006 CarswellNat 4368, 298 F.T.R. 267 (Eng.), [2006] F.C.J. No. 1269 (F.C.) — considered Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (2016), 2016 CarswellNat 1065, 2016 CarswellNat 1066 (S.C.C.) — referred to Turmel v. R. (2016), 2016 FCA 9, 2016 CarswellNat 126, [2016] F.C.J. No. 77 (F.C.A.) — considered Varga v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 394, 2006 CarswellNat 4183, 57 Imm. L.R. (3d) 159, 2006 CAF 394, 2006 CarswellNat 5120, 357 N.R. 333, [2006] F.C.J. No. 1828, 277 D.L.R. (4th) 762, [2007] 4 F.C.R. 3 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25 — considered s. 25(1) — considered s. 25(1.2)(c) [en. 2012, c. 17, s. 13(3)] — considered s. 25(1.21)(b) [en. 2012, c. 17, s. 13(3)] — considered s. 30(1) — considered s. 40.1 [en. 2012, c. 17, s. 18] — considered s. 44 — considered 14 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

s. 44(1) — considered s. 46 — considered s. 46(1)(c.1) [en. 2012, c. 17, s. 19(1)] — considered s. 48(2) — considered s. 63(3) — considered s. 74(d) — considered s. 108 — considered s. 108(1) — considered s. 108(1)(a)-108(1)(d) — referred to s. 108(2) — considered s. 108(3) — considered s. 110(2)(c) — considered s. 231(1) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to

APPEAL by Crown from judicial review reported at Bermudez v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 639, 2015 Car- swellNat 1753, 2015 CF 639, 2015 CarswellNat 4329, 35 Imm. L.R. (4th) 40, [2016] 1 F.C.R. 301 (F.C.), overturning Canada Border Service Agency (CBSA) decision recommending removal of respondent permanent resident.

Banafsheh Sokhansanj, Mary Murray, for Appellant Peter Edelmann, Jennifer Ellis, for Respondent

Richard Boivin J.A.: I. Introduction 1 At issue in this appeal is whether a Canada Border Services Agency (CBSA) Hearings Officer (Hearings Officer) has the discretion to consider circumstances or factors that are not explicitly listed in section 108 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], more precisely humanitarian and compassionate factors and the best interests of the child (H&C), when assessing whether an application for cessation of refugee protection (cessation application) should be submitted to the Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) for a determination that refugee protection has ceased for any of the reasons described in subsection 108(1) of the IRPA, particularly in instances involving a refugee who acquired permanent resident status in Canada. Canada (MCI) v. Bermudez Richard Boivin J.A. 15

2 In a decision dated June 8, 2015 (2015 FC 639 (F.C.)), a Federal Court Judge (the Judge) held that a Hearings Officer has the discretion to consider H&C factors when assessing whether a cessation application should be filed with the RPD. On this basis, the Judge granted Mr. Bermudez’ (respondent) application for judicial review and set aside the decision made by the Hearings Officer to submit a cessation application to the RPD for determination as to whether the respondent’s refugee protection had ceased: In my view, a Hearings Officer retains the discretion not to make a cessation application when she is of the view that the evidence before her does not support a reavailment determination under section 108. To arrive at that determination, she must have regard to the submissions of the individual concerned and not simply to their travel history. The Officer in this instance failed to consider relevant submissions and for that reason the application must be granted and the matter remitted for reconsideration by another Officer. (Judge’s reasons, at para. 39) 3 In so doing, the Judge agreed that the Hearings Officer, a delegate of the Minister of Citizenship and Immigration (Minister) under the IRPA, was not compelled to submit a cessation application in any and all of the circumstances listed under subsection 108(1) of the IRPA and in fact had discretion to refrain from making a cessation application on the basis of H&C considerations. By failing to do so in the present case, the Hearings Officer fettered her discretion and committed a reviewable error, according to the Judge. 4 In reaching this conclusion, the Judge emphasized that the respondent not only had refugee protection under the IRPA but also acquired permanent resident status when he entered Canada. The Judge accepted the respondent’s argument to the effect that permanent residence is a status “‘that attracts much greater stability, longevity and associated rights’ than that of a foreign national” (Judge’s reasons, at para. 30). 5 This appeal is brought by the Crown and comes to our Court by way of paragraph 74(d) of the IRPA. The Judge, in rendering his judgment, certified that a serious question of general importance, that is one that is dispositive of this appeal, was at issue. The certified question reads as follows: Does the CBSA hearings officer, or the hearings officer as the Min- ister’s delegate, have the discretion to consider factors other than those set out in s. 108(1), including H&C considerations and the best 16 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

interests of a child, when deciding whether to make a cessation application pursuant to s. 108(2) in respect of a permanent resident? 6 Neither the issues raised before the Judge, nor the decision on appeal, nor the submissions of the parties contemplate specific factors beyond those set out in subsection 108(1) other than H&C considerations and the best interests of the child. As such, I would reformulate the certified question as follows: Does the CBSA Hearings Officer, or the Hearings Officer as the Minister’s delegate, have the discretion to consider H&C factors and the best interests of a child, when deciding whether to make a cessation application pursuant to subsection 108(2) in respect of a permanent resident? 7 For the reasons that follow, I propose to allow the appeal. The certified question should be answered in the negative and the decision of the Hearings Officer should stand.

II. Factual Background and Procedural Context 8 The respondent was approved for refugee protection from within his native Colombia, where he was the victim of paramilitary violence and members of his family were killed in a massacre on May 31, 2001. He entered Canada on August 18, 2006 and, as a member of the “Source Country” refugee class, he acquired permanent resident status upon arrival. 9 The respondent subsequently returned to Colombia in 2008 and 2009. On both occasions, he took measures to avoid detection in Colombia. The purpose of his trips to Colombia was to meet and marry his then fianc´ee. The wedding was postponed due to his fianc´ee’s mother’s health and, ultimately, their engagement was terminated. 10 In June 2011, the respondent applied for Canadian citizenship and declared his 2008 and 2009 trips to Colombia as part of his citizenship application. 11 On February 5, 2014, the respondent entered Canada following a trip to Mexico and was questioned by a CBSA Officer. The CBSA Officer noted that the respondent was carrying a Colombian passport that contained evidence of his two previous trips to Colombia. On that basis, the respondent’s file was brought to the attention of the CBSA Hearings Of- ficer for cessation consideration. 12 On May 26, 2014, the respondent’s counsel filed written submissions with the CBSA Hearings Officer requesting that a cessation application Canada (MCI) v. Bermudez Richard Boivin J.A. 17

not be made for H&C reasons. Included as part of the respondent’s submissions was his affidavit sworn on May 26, 2014, articles and reports relating to the massacre in Colombia and the current status of paramilitary groups, as well as letters of support from many of the respondent’s family members. 13 The respondent’s submissions proved unsuccessful and, on July 7, 2014, the Hearings Officer submitted the cessation application to the RPD under subsection 108(2) of the IRPA for a determination as to whether the respondent’s refugee protection had ceased. The cessation application indicated the following grounds in support of the contention that the respondent had voluntarily reavailed himself of the protection of his country of nationality and that refugee protection had accordingly ceased: 4. At the time of his landing, the Respondent was in possession of a passport issued by the Republic of Colombia on November 9, 2005. 5. The Respondent used this passport to travel to Colombia on the following occasions: a. From December 9 2008 to January 8 2009; and b. From December 12 2009 to February 15 2010. 6. The latter entry to Columbia [sic] on December 12 2009 is not established by a passport stamp, but was indicated by the Respondent himself in submissions provided to CBSA through his counsel on May 26, 2014. The exit stamp from Columbia [sic] on this latter trip (February 15 2010) does not appear in the Respondent’s passport. 7. The Respondent also used this passport to enter the United States of America on at least eight occasions, and used it to enter Mexico once in 2014. 8. On the basis of the attached evidence, the Minister submits that the Respondent has voluntarily re-availed herself [sic] of the protection of her [sic] country of nationality, and is a person described in [the] IRPA [paragraph] 108(1)(a). (Appeal Book, at p. 281) 14 The respondent sought judicial review of that decision in the Federal Court. As explained earlier, the Judge granted the application for judicial review and the Crown now appeals the Judge’s decision pursuant to paragraph 74(d) of the IRPA. 18 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

III. Relevant Statutory Provisions 15 The circumstances under which cessation of refugee protection occurs are set forth under the IRPA at section 108: 108 (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; (b) the person has voluntarily reacquired their nationality; (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or (e) the reasons for which the person sought refugee protection have ceased to exist. (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). (3) If the application is allowed, the claim of the person is deemed to be rejected. (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. 108 (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne a` protéger dans tel des cas suivants: a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité; b) il recouvre volontairement sa nationalité; b) il recouvre volontairement sa nationalité; c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité; d) il retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel il a de- mandé l’asile au Canada; e) les raisons qui lui ont fait demander l’asile n’existent plus. Canada (MCI) v. Bermudez Richard Boivin J.A. 19

(2) L’asile visé au paragraphe 95(1) est perdu, a` la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1). (3) Le constat est assimilé au rejet de la demande d’asile (4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant a` des persécutions, a` la torture ou a` des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré. 16 A final determination pursuant to subsection 108(2) results in inadmissibility pursuant to section 40.1 of the IRPA: 40.1 (1) A foreign national is inadmissible on a final determination under subsection 108(2) that their refugee protection has ceased. (2) A permanent resident is inadmissible on a final determination that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d). 40.1 (1) La décision prise, en dernier ressort, au titre du paragraphe 108(2) entraˆınant la perte de l’asile d’un etranger´ emporte son interdiction de territoire. (2) La décision prise, en dernier ressort, au titre du paragraphe 108(2) entraˆınant, sur constat des faits mentionnés a` l’un des alinéas 108(1)a) a` d), la perte de l’asile d’un résident permanent emporte son interdiction de territoire. 17 Section 44 relates to reports on inadmissibility: 44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guaran- tee for compliance with the conditions, that the officer or the Divi- sion considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order. 20 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

44 (1) S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut etablir´ un rapport circonstancié, qu’il transmet au ministre. (2) S’il estime le rapport bien fondé, le ministre peut déférer l’affaire a` la Section de l’immigration pour enquête, sauf s’il s’agit d’un rési- dent permanent interdit de territoire pour le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans les circonstances visées par les règlements, d’un etranger;´ il peut alors prendre une mesure de renvoi. (3) L’agent ou la Section de l’immigration peut imposer les conditions qu’il estime nécessaires, notamment la remise d’une garantie d’exécution, au résident permanent ou a` l’étranger qui fait l’objet d’un rapport ou d’une enquête ou, etant´ au Canada, d’une mesure de renvoi. 18 Finally, paragraph 46(1)(c.1) provides that permanent resident status is lost when a positive cessation decision occurs: 46 (1) A person loses permanent resident status ... (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d) 46 (1) Emportent perte du statut de résident permanent les faits suivants: [...] c.1) la décision prise, en dernier ressort, au titre du paragraphe 108(2) entraˆınant, sur constat des faits men- tionnés a` l’un des alinéas 108(1)a) a` d), la perte de l’asile;

IV. Issues 19 I would frame the issues raised in this appeal as follows: 1) Was the judicial review application before the Judge premature? 2) Does the Hearings Officer have discretion to consider H&C factors when deciding whether to make a cessation application pursuant to subsection 108(2) in respect of a permanent resident? 3) Did the Hearings Officer breach a duty of procedural fairness?

V. Standard of Review 20 Because this is an appeal from a decision of the Federal Court on an application for judicial review, the role of this Court is to determine whether or not the Judge correctly identified the standard of review and, then, whether or not he properly applied it (Agraira v. Canada (Minister Canada (MCI) v. Bermudez Richard Boivin J.A. 21

of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.), at paras. 45-57). 21 Regarding the first issue set forth above, i.e. whether the judicial review application was premature, this involves the exercise of discretion. An appellate court will only interfere in the absence of a legal error or an error in legal principle, if it can be shown that there is a readily apparent error that could change the result of the case (French v. R., 2016 FCA 64, [2016] F.C.J. No. 238 (F.C.A.); Contrevenant no. 10 c. Canada (Procureur g´en´eral), 2016 CAF 42, [2016] F.C.J. No. 176 (F.C.A.); Turmel v. R., 2016 FCA 9, [2016] F.C.J. No. 77 (F.C.A.)). As per Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 (S.C.C.) [Kanthasamy], at paragraphs 43 and 44, the second issue, stemming from a certified question is one of statutory interpretation and is reviewable on a standard of reasonableness (see also Canada (Minister of Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237, [2015] F.C.J. No. 1324 (F.C.A.), leave to appeal to S.C.C. granted, 36784 (April 14, 2016) [2016 Car- swellNat 1065 (S.C.C.)]). Finally, the third issue, which relates to the principles of procedural fairness, was first raised by the Judge. As such, whether or not these principles were properly applied, it attracts the standard of correctness.

VI. Analysis A. Legislative Framework 22 Cessation of refugee protection is a concept that has formed part of Canada’s immigration law since it first ratified the United Nations Con- vention Relating to the Status of Refugees, July 28, 1951, Can TS 1969, No. 6. Its current incarnation is expressed at section 108 of the IRPA and is based on the premise that refugee protection is a temporary remedy against persecution. It is no longer available when the circumstances enumerated in subsection 108(1) of the IRPA arise. 23 The circumstances enumerated in subsection 108(1) of the IRPA include cases in which a person has voluntarily reavailed themselves of the protection of their country of nationality, including by travelling to that country or by travelling elsewhere using that country’s passport. Such circumstances can trigger a cessation application which leads to a determination by the RPD. Prior to 2012, as in the case of the respondent, the law was such that a cessation of refugee protection did not affect a person’s permanent residence status. 22 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

24 However, since 2012, legislative amendments enacted by Parliament through the Protecting Canada’s Immigration System Act, S.C. 2012, c. 1, ss. 18-19 (2012 amendments) now provide that when a CBSA Officer submits a cessation application to the RPD, that in turn can lead the RPD to a final determination that refugee protection has ceased pursuant to paragraphs 108(1)(a) to (d), and loss of permanent residence status ensues — i.e. one becomes inadmissible under the IRPA (section 40.1 and paragraph 46(1)(c.1) of the IRPA). 25 In addition, the 2012 amendments provide that cessation of refugee protection also entails the following under the IRPA: • the refugee claim in question is deemed to have been rejected (s. 108(3)); • the person at issue no longer has the right to work or study without a permit (s. 30(1)); • the person at issue has no right of appeal to the Refugee or Immi- gration Appeal Divisions (para. 110(2)(c), s. 63(3)); • the person at issue is not entitled to a statutory stay of removal pending their judicial review of a cessation decision (ss. 231(1)); and • the person at issue is subject to removal from Canada “as soon as possible” (s. 48.2). 26 Against this legislative background, I now turn to the issues raised in this appeal.

B. Was the Judicial Review Application before the Judge Premature? 27 The Crown placed considerable emphasis on the prematurity argument, asserting that the Judge erred in law in failing to exercise his discretion to dismiss the judicial review application on the grounds that it was premature. However, considering the issues put before the Judge, as well as the fact that a number of the provisions to be considered in this case (such as section 40.1 and paragraph 46(1)(c.1)) were brought as amendments to the IRPA in 2012, I am not prepared to conclude that the Judge made an error in exercising his discretion and that it was premature to address the issues at bar.

C. Cessation of Refugee Protection under the IRPA 28 I would define the central issue in this appeal - i.e. whether the CBSA Hearings Officer has discretion to consider H&C factors when deciding Canada (MCI) v. Bermudez Richard Boivin J.A. 23

to submit a cessation application to the RPD pursuant to subsection 108(2) - as one of interpretation of the IRPA’s refugee protection cessation regime. This, in turn, requires a consideration of the respective roles and powers of the Hearings Officers and the RPD in addressing the cessation of refugee protection under the IRPA. 29 The Judge in the present case held that the Hearings Officer had discretion to consider H&C factors to forestall a cessation application. He did so by implying that Hearings Officers are directed to consider the evidence as a whole outside the scope of the circumstances listed under section 108, including, in this case, H&C considerations. With respect, I am of the view that this interpretation is unreasonable as it injects considerations into section 108 of the IRPA which were not intended by Parlia- ment. In my view, the Judge’s conclusion also fails to give due weight to key evidence in this case. 30 First, as part of his analysis, the Judge relied on the Citizenship and Immigration Canada Enforcement Manual — 24 — Ministerial Interven- tions (ENF-24 manual) published in 2005 and considered the factors listed in Table 5 which apply to the exercise of discretion by the Hear- ings Officer. At the time of the judicial review before the Judge, the ENF-24 manual had not been updated in order to reflect the 2012 amendments to the IRPA. The ENF-24 manual has since been replaced by the CBSA Operational Bulletin: Procedures for Filing a Cessation Applica- tion at the RPD PRG-2015-07 (PRG-2015-07 manual) on February 5, 2015. On the basis of the factors listed in the ENF-24 manual, including “establishment”, the Judge concluded at paragraph 38 of his reasons that the Hearings Officer is directed to consider factors of an “H&C nature”, such as “establishment”: The manual [ENF-24] contemplates that a cessation application need not be pursued if the individual in question is a permanent resident. Even where the individual is not a permanent resident, the Officer is directed to consider factors of an H&C nature such as establishment .... 31 The Judge thus held that the factors listed in the ENF-24 manual ex- tended to include H&C considerations on the basis that the manual di- rects the Hearings Officer to consider “establishment” as a relevant factor. 32 Yet, this finding is contradicted by the evidence of a Senior Citizen- ship and Immigration Canada (CIC) Policy Advisor, Mr. Aaron Smith, who mentioned that the factors listed in the ENF-24 manual speak spe- 24 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

cifically to cessation criteria and are not of an H&C nature in their proper application in this context (Transcript of the Cross-Examination of Aaron Smith, Appeal Book, Vol. I, Tab 5, at pp. 184-187). Mr. Smith explained that establishment “is a factor to consider in the assessment of whether or not ... the provisions under 108(1) have been met” (Ibid, at p. 187, lines 30-32). Whereas establishment from an H&C perspective would mean giving independent weight to the extent to which the person is settled in Canada (factors such as whether or not the person has a spouse or children in Canada and whether or not they are employed or involved in the community), establishment in a cessation perspective is only relevant in so far as it suggests that the person has established themselves in Canada and, as such, has not re-established themselves in their country of origin. The Judge did not address this pertinent evidence in his reasons and did not explain why he ignored it. 33 Second, the exercise of H&C discretion being exceptional by nature, there are very few references to H&C discretion under the IRPA. The main provision that addresses H&C discretion is section 25. The relevant portions of section 25 read as follows: 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. ... (1.2) The Minister may not examine the request if ... (c) subject to subsection (1.21), less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected, determined to be withdrawn after substantive evidence was heard or determined to be abandoned by the Refugee Protection Division or the Ref- ugee Appeal Division. Canada (MCI) v. Bermudez Richard Boivin J.A. 25

(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national ... (b) whose removal would have an adverse effect on the best interests of a child directly affected. 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 — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 — , soit ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — 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 applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. (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 — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 — , soit ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — 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 applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. [...] (1.2) Le ministre ne peut etudier´ la demande de l’étranger faite au titre du paragraphe (1) dans les cas suivants: [...] c) sous réserve du paragraphe (1.21), moins de douze mois se sont ecoul´´ es depuis le dernier rejet de la demande d’asile, le dernier prononcé de son retrait après que des el´´ ements de preuve testimoniale de fond aient et´´ e en- tendus ou le dernier prononcé de son désistement par la Section de la protection des réfugiés ou la Section d’appel des réfugiés. 26 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

(1.21) L’alinéa (1.2)c) ne s’applique pas a` l’étranger si l’une ou l’autre des conditions suivantes est remplie: [...] b) le renvoi de l’étranger porterait atteinte a` l’intérêt supérieur d’un enfant directement touché. 34 In Kanthasamy, the Supreme Court of Canada very recently addressed section 25 of the IRPA, albeit in circumstances different from the ones at issue. 35 In that case, following a rejection of a pre-removal risk assessment, Mr. Kanthasamy filed an H&C application under section 25 of the IRPA seeking to apply for permanent resident status outside of Canada. It is worthy of note that section 25 of the IRPA was squarely engaged in Kanthasamy and the existence of the Officer’s discretion was not challenged. 36 Specifically, the issue in Kanthasamy was not whether the Officer had discretion to consider H&C factors under section 25, but rather whether the Officer had properly assessed the circumstances as a whole in exercising the discretion conferred by section 25 of the IRPA. 37 Turning to the present matter, I note that the certified question uses language inspired by section 25 of the IRPA. The Court must thus consider whether H&C discretion as contemplated by section 25 should have been exercised in the context of a cessation application filed by the Hear- ings Officer. I am of the view that this question must be answered in the negative. 38 Section 25 of the IRPA includes specific delegations of the Minister’s authority to a limited class of individuals to exercise H&C discretion under clearly and expressly defined circumstances. It follows that non- citizens, whether they be foreign nationals or permanent residents, do not have the right to have H&C considerations imported and read into every provision of the IRPA, the application of which could jeopardize their status (Varga v. Canada (Minister of Citizenship & Immigration), 2006 FCA 394, [2006] F.C.J. No. 1828 (F.C.A.), at para. 13; Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (S.C.C.) Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (S.C.C.), at para 47). In other words, section 25 of the IRPA “was not intended to be an alternative immigration scheme” (Kanthasamy, at paras. 23 and 85). 39 Parliament’s intent, as reflected by the wording of section 108 of the IRPA — which was not modified by the 2012 amendments — is clear Canada (MCI) v. Bermudez Richard Boivin J.A. 27

and unambiguous: a claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, if one or more of the enumerated circumstances listed in subsection 108(1) occur. The scope of section 108 is clearly defined and leaves very little room for discretion in terms of the circumstances that trigger its application. As described under subsection 108(2) of the IRPA, such circumstances trigger a process as part of which the RPD is tasked “[o]n application by the Minister” to determine whether the refugee protection “has ceased for any of the reasons described in subsection [108](1)”. It follows that the role of the Hearings Officer, as a delegate of the Minister, is to determine whether a prima facie case for a cessation application exists under the grounds listed at subsection 108(1) of the IRPA. If it does, the Hearings Officer accordingly proceeds with the application. The Hear- ings Officer’s role ends there and the process is taken over by the RPD to determine if cessation of refugee protection is warranted. 40 It is also clear from a reading of sections 40.1, 46 and 108 of the IRPA that Parliament specifically intended that the right to remain in Canada not be available to refugees who are no longer in need of state protection, including refugees who have acquired permanent residence in Canada. In other words, when circumstances as described in subsection 108(1) of the IRPA arise, and a positive determination to that effect is made by the RPD, inadmissibility under the IRPA ensues. H&C factors have simply not been deemed by Parliament to be of relevance within that context. Had Parliament intended that H&C considerations be taken into account in the cessation process, it would have used language to that effect. It has not done so. 41 It is recalled that in this appeal, the respondent in fact contends that the Hearings Officer has discretion to consider H&C factors for the purpose of determining whether or not a cessation application should be made. Yet the respondent’s counsel recognized that the RPD itself does not have such discretion. The Judge also alluded to this in his reasons (para 34). This begs the question: on what basis can a Hearings Officer be deemed to have discretion to consider H&C factors when all agree that the RPD, a quasi-judicial body, does not? There were no persuasive answers provided to the Court in this respect. In the absence of any language in the IRPA to this effect, I cannot agree that the Hearings Officer has discretion to consider H&C factors in determining whether a cessation application should be made. 28 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

42 With the above in mind, while I accept that the consequences of cessation of refugee protection, as well as the consequences of inadmissibility under the IRPA are significant, these consequences do not, in and of themselves, allow this Court to inject into the statute something that Par- liament did not intend. It is open for Parliament to amend the IRPA such that permanent residence status not be lost in the event of a favourable cessation application, or that H&C factors be considered by Hearings Of- ficer prior to making the application under subsection 108(2) or, more generally, that the situation ante the 2012 amendments prevail. Courts, however, must respect the policy choices of Parliament and apply the law as it stands.

D. Duty of Procedural Fairness 43 The respondent claims that the Hearings Officer has an imposed duty of procedural fairness in the present case. In addressing this issue, the Judge relied on the decision in Hernandez v. Canada (Minister of Citizenship & Immigration), 2005 FC 429, [2005] F.C.J. No. 533 (F.C.) [Hernandez], a case involving a permanent resident, in which it was held that a Hearings Officer’s discretion should be more broadly interpreted in order to take into consideration H&C factors. In Hernandez, this issue was raised in connection with subsection 44(1) of the IRPA. The Federal Court found that subsection 44(1) of the IRPA conferred a degree of residual discretion by stating that the Minister’s delegate “may prepare a report”. 44 A few observations will suffice to conclude that the Hernandez decision is inapposite in the present case. First, Hernandez addressed section 44 and not section 108 of the IRPA, the wording of which differs entirely. As indicated above, section 44 uses the word “may” whereas subsection 108(1) uses the word “shall” thereby not leaving any possibility of residual discretion. Also, a number of decisions post Hernandez, including decisions involving permanent residents, have tended to significantly narrow the discretion contemplated at section 44 of the IRPA in Hernandez (Khuabi c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2012 FC 141, [2012] F.C.J. No. 1517 (F.C.); Faci v. Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 693, [2011] F.C.J. No. 893 (F.C.); Richter v. Canada (Minister of Citizenship & Immigration), 2008 FC 806, [2009] 1 F.C.R. 675 (F.C.); Spencer v. Canada (Minister of Citizenship & Immigration), 2006 FC 990, [2006] F.C.J. No. 1269 (F.C.)). Canada (MCI) v. Bermudez Richard Boivin J.A. 29

45 The Judge also referred to another Federal Court decision in Olvera Romero v. Canada (Minister of Citizenship and Immigration), 2014 FCA 671, [2014] F.C.J. No. 720 (F.C.) [Olvera] which also involved a permanent resident. The Federal Court in Olvera notably held that the Hearings Officer had no discretion to consider the factors beyond those related to paragraphs 108(1)(a) to (d) — including H&C factors — and that the duty of fairness owed by the Hearings Officer was minimal. Signifi- cantly, the Federal Court in Olvera was of the view that “little turn[ed] on the distinction between permanent residents and other categories of non-citizens in this case” (para. 98). 46 In the present case, however, the Judge emphasized that such a distinction must be drawn. Referring to the Olvera decision, the Judge noted the importance of the outcome of a cessation application for the respondent and concluded as follows at paragraph 35: I agree with Justice Strickland that the participatory rights required by the duty of fairness in this context did not call for an interview or oral hearing. In my view, however, given the importance of the decision to the applicant, the duty of fairness required that the applicant be given an opportunity to present full submissions as to why the application to the RPD should not be made. As the record shows, he attempted to do so but the Hearings Officer chose to ignore the bulk of that material on the ground that the Minister considered it irrelevant. She made her decision solely on the basis of information show- ing the applicant’s travels out of the country. In doing so, in my view, she fettered her discretion. 47 On the basis of the above, the respondent insists that he was entitled to what can only be described as a “pre-hearing hearing” before the Hearings Officer, one that would take place prior to the full hearing before the RPD. He also submits that the wording “[o]n application by the Minister” at subsection 108(2) of the IRPA entails that the said application should only be made after an H&C assessment has been conducted by the Hearings Officer. The Hearings Officer, the respondent argues, should also provide reasons which could be judicially reviewed before the Federal Court. 48 In reality, the respondent’s submission, if accepted, would be tanta- mount to creating a bifurcated process under the IRPA where cessation applications involve a permanent resident. With respect, this is something that Parliament did not intend and the terms of section 108 of the IRPA do not allow for this. 30 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

49 Indeed, it is apparent upon a plain reading of subsections 108(1) and (2) of the IRPA that Parliament intended that the RPD, a quasi-judicial body with broad procedural powers, be responsible for determining whether cessation has occurred in any particular case, not the Hearings Officer. Thus, when a cessation application is filed before the RPD, the person at issue has an opportunity to fully and fairly present their case in an open and impartial process before the RPD. Specifically, a person appearing before the RPD can file submissions, is entitled to a full quasi- judicial hearing, has a right to counsel, has a right to call witnesses and has a right to lead evidence. This process allows the RPD to perform its adjudicative functions and make a decision as to whether a cessation application pursuant to the subsection 108(2) is allowed or dismissed. The RPD assesses the full evidence and takes into account criteria such as voluntariness, intention and whether reavailment occurred. It follows that the filing of the application under subsection 108(2) can only be viewed as a preliminary determination that triggers the proceedings before a quasi-judicial body, namely the RPD. 50 This is not to say that the Hearings Officer does not have a duty of fairness under the IRPA for purposes of section 108. The scope of this duty, however, is minimal. Indeed, prior to filing a cessation application, the Hearings Officer can solicit additional information, review it and give it consideration with respect to subsection 108(1) grounds. The Crown itself confirmed that this is a practice that Hearings Officers can follow but it is not a mandatory one. In that regard, I note that this practice is reflected in the PRG-2015-07 manual, which has since replaced the ENF-24 manual. The PRG-2015-07 manual indicates that “in certain circumstances, it may be necessary for the Hearings Officer to gather additional information prior to making a decision to submit an Applica- tion to Cease Refugee Protection, including, as warranted, by interviewing the protected person concerned” (Joint Book of Authorities, Vol. III, Tab. 62, at p. 2). The information collected can assist the Hearings Of- ficers in establishing whether or not there is a prima facie case and whether it is appropriate to move forward with a cessation application. Although no rights are being determined at that stage, the Hearings Of- ficer’s assessment is subject to a minimal duty of fairness. The contex- tual inquiry will depend upon the context upon which it arises (Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), at p. 837, [1999] S.C.J. No. 39 (S.C.C.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 (S.C.C.), at p. 682, [1990] S.C.J. No. 26 (S.C.C.)). Canada (MCI) v. Bermudez D.G. Near J.A. 31

51 In the present case, the respondent was called to an interview and his counsel also provided submissions before the Hearings Officer with the knowledge that a cessation application was being considered. In such circumstances, it cannot be said that the Hearings Officer in any way breached the duty of fairness owed to the respondent. 52 The respondent also takes issue with the fact that the Certified Tribu- nal Record (CTR) provided by the Minister was expunged of approximately 200 pages of material submitted by the respondent. As such, the respondent contends that the Hearings Officer failed to consider all of the evidence prior to making the decision to file the cessation application with the RPD. 53 Yet, there is no conclusive evidence in the record that the Hearings Officer ignored the material at issue. Rather, the record shows that the Hearings Officer included two pages of the material as part of the CTR, which suggests that they were the only two pages that she considered to be relevant to the circumstances outlined in subsection 108(1). 54 Since the Hearings Officer did not have the discretion to address H&C considerations in making a cessation application and there is no evidence that she failed to consider the respondent’s material, I see no reason to interfere with the Hearings Officer’s decision.

VII. Conclusion 55 I would answer the certified question as follows: Question: Does the CBSA Hearings Officer, or the Hearings Officer as the Minister’s delegate, have the discretion to consider H&C factors and the best interests of a child, when deciding whether to make a cessation application pursuant to subsection 108(2) in respect of a permanent resident? Answer: No. 56 For these reasons, I would allow the appeal without costs.

C. Michael Ryer J.A.:

I agree

D.G. Near J.A.:

I agree Appeal allowed. 32 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship and Immigration) v. Singh] Minister of Citizenship and Immigration, Appellant and Parminder Singh, Respondent and Canadian Association of Refugee Lawyers, Intervener Federal Court of Appeal Docket: A-512-14 2016 FCA 96, 2016 CAF 96 M. Nadon, Johanne Gauthier, Yves de Montigny JJ.A. Heard: October 8, 2015 Judgment: March 29, 2016 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Standard of review –––– Appli- cant was citizen of India who had attended school with friend B until 2002 — In November 2012, after years of not having heard from him, B showed up unannounced at applicant’s house — Several days later, police arrested applicant to ask him questions about B; applicant was detained, tortured and released — Ap- plicant came to Canada in January 2013 and made refugee claim which was rejected by Refugee Protection Division (RPD) — RPD concluded that without applicant’s grade 12 diploma, which he had failed to produce, applicant had failed to satisfactorily establish both his identity, and fact that he had studied with B until 2002 — Applicant claimed that diploma had been taken by Citizen- ship and Immigration Canada (CIC) when he was detained upon arrival, and that CIC had forwarded it to his former lawyer — Applicant appealed RPD’s decision to Refugee Appeal Division (RAD), and sought to produce diploma as new evidence pursuant to s. 110(4) of Immigration and Refugee Protection Act — Applying test in Raza v. Canada, RAD held that diploma was not admissible as new evidence since applicant could have produced it at RPD hearing — Appli- cant’s application for judicial review of RAD’s decision was granted — Trial judge found it was unreasonable for RAD to strictly apply test in Raza v. Can- ada, as case considered issue of admissibility of fresh evidence before PRRA officer, whose role was neither quasi-judicial nor appellate in nature — Trial judge found it was unreasonable for RAD to conclude that applicant could have brought diploma before RPD — Minister appealed — Appeal allowed — Trial judge applied proper standard of review. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — Of general importance –––– Applicant was citizen of India Canada (MCI) v. Singh 33 who had attended school with friend B until 2002 — In November 2012, after years of not having heard from him, B showed up unannounced at applicant’s house — Several days later, police arrested applicant to ask him questions about B; applicant was detained, tortured and released — Applicant came to Canada in January 2013 and made refugee claim which was rejected by Refugee Protection Division (RPD) — RPD concluded that without applicant’s grade 12 diploma, which he had failed to produce, applicant had failed to satisfactorily establish both his identity, and fact that he had studied with B until 2002 — Applicant appealed RPD’s decision to Refugee Appeal Division (RAD), and sought to produce diploma as new evidence pursuant to s. 110(4) of Immigration and Refugee Protection Act — Applying test in caselaw, RAD held that diploma was not admissible as new evidence since applicant could have produced it at RPD hearing — Applicant’s application for judicial review of RAD’s decision was granted — Two questions were certified as being of general importance and determinative in case at bar, being what standard of review should be applied by court when reviewing RAD’s intepretation of s. 110(4) of Act and in considering role of PRRA officer and that of RAD, does test set out in caselaw for interpretation of s. 113(a) of Act apply to s. 110(4) — Minister appealed — Appeal allowed — Explicit conditions set out in s. 110(4) of Act were required to be met, and were inescapable and left no room for discretion — Implied conditions of admissibility applicable to s. 113(a) in caselaw were applicable to s. 110(4) — Implicit criteria set out in caselaw were applicable to s. 110(4), and differing roles of Refugee Appeal Division and Pre-Removal Risk Assessment were not sufficient to set aside presumption that parliament intended to defer to courts interpretation of legislative text when essential points are repeated — Re- quirements were self-evident and widely applied, and there was good reason for parliament to favour restrictive approach to admissibility of new evidence — Minister’s statement that fact based appeals would be available did not set aside requirements of s. 110(4) — Legislation intended not to admit new evidence on appeal other than in very specific and carefully delineated circumstances — RAD reasonably found that diploma did not constitute new evidence. Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — General principles –––– Applicant was citizen of India who had attended school with friend B until 2002 — In November 2012, after years of not having heard from him, B showed up unannounced at applicant’s house — Several days later, police arrested applicant to ask him questions about B; applicant was detained, tortured and released — Applicant came to Canada in January 2013 and made refugee claim which was rejected by Refugee Protection Division (RPD) — RPD concluded that without applicant’s grade 12 diploma, which he had failed to produce, applicant had failed to satisfactorily establish both his identity, and fact that he had studied with B until 2002 — Applicant appealed RPD’s decision to Refugee Appeal Division (RAD), and sought to produce diploma as new evidence pursuant to s. 110(4) of Immigration and Refugee 34 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Protection Act — Applying test in caselaw, RAD held that diploma was not admissible as new evidence since applicant could have produced it at RPD hearing — Applicant’s application for judicial review of RAD’s decision was granted — Two questions were certified as being of general importance and determinative in case at bar, being what standard of review should be applied by court when reviewing RAD’s intepretation of s. 110(4) of Act and in considering role of PRRA officer and that of RAD, does test set out in caselaw for interpretation of s. 113(a) of Act apply to s. 110(4) — Minister appealed — Appeal allowed — Explicit conditions set out in s. 110(4) of Act were required to be met, and were inescapable and left no room for discretion — Implied conditions of admissibility applicable to s. 113(a) in caselaw were applicable to s. 110(4) — Right to fundamental justice under s. 7 of Canadian Charter of Rights and Freedoms was not engaged — Legislation was clear and unambiguous and discretion was not involved. Cases considered by Yves de Montigny J.A.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 2011 SCC 61, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1 (S.C.C.) — referred to Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 SCC 36, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, [2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — referred to Alliance Pipeline Ltd. v. Smith (2011), 2011 SCC 7, 2011 CarswellNat 202, 2011 CarswellNat 203, 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7, 102 L.C.R. 1, 16 Admin. L.R. (5th) 157, 412 N.R. 66, [2011] 1 S.C.R. 160 (S.C.C.) — considered Bedoya v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 505, 2007 CarswellNat 1120, [2007] F.C.J. No. 680, 2007 CF 505, 2007 CarswellNat 5998 (F.C.) — referred to Canada (Attorney General) v. Mowat (2011), 2011 SCC 53, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 93 C.C.E.L. (3d) 1, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, D.T.E. 2011T-708, 422 N.R. 248, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53, (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, (sub nom. Canada Canada (MCI) v. Singh 35

(Human Rights Comm.) v. Canada (Attorney General)) 73 C.H.R.R. D/30 (S.C.C.) — referred to Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 Car- swellNat 18, 1992 CarswellNat 653, [1992] S.C.J. No. 27, EYB 1992-67215 (S.C.C.) — referred to Chippewas of Nawash First Nation v. Canada (Minister of Fisheries & Oceans) (2002), 2002 FCA 22, 2002 CarswellNat 291, 2002 CAF 22, 2002 Car- swellNat 1421, [2002] F.C.J. No. 146 (Fed. C.A.) — referred to Cove v. Canada (Minister of Citizenship & Immigration) (2001), 2001 FCT 266, 2001 CarswellNat 664, [2001] F.C.J. No. 482, 2001 CFPI 266, 2001 Car- swellNat 5557 (Fed. T.D.) — referred to Doré c. Québec (Tribunal des professions) (2012), 2012 SCC 12, 2012 Car- swellQue 2048, 2012 CarswellQue 2049, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, 34 Admin. L.R. (5th) 1, (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 255 C.R.R. (2d) 289 (S.C.C.) — considered Elezi v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 240, 2007 CarswellNat 577, 62 Imm. L.R. (3d) 66, 2007 CF 240, 2007 Car- swellNat 3509, [2008] 1 F.C.R. 365, [2007] F.C.J. No. 357, [2007] A.C.F. No. 357, 310 F.T.R. 59 (Eng.) (F.C.) — considered Hernandez Febles v. Canada (Minister of Citizenship and Immigration) (2014), 2014 SCC 68, 2014 CSC 68, 2014 CarswellNat 4175, 2014 CarswellNat 4176, 376 D.L.R. (4th) 387, (sub nom. Febles v. Canada (Minister of Citizenship and Immigration)) 464 N.R. 7, (sub nom. Febles v. Canada (Citizenship and Immigration)) [2014] 3 S.C.R. 431, 30 Imm. L.R. (4th) 1 (S.C.C.) — referred to Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 33 Admin. L.R. (4th) 1, 340 N.R. 102, 259 D.L.R. (4th) 244, [2005] S.C.J. No. 58, 50 Imm. L.R. (3d) 40, [2005] 2 S.C.R. 706 (S.C.C.) — referred to J.T.I. MacDonald Corp. c. Canada (Procureure générale) (2004), 2004 Car- swellQue 2216, REJB 2004-70287, [2004] J.Q. No. 9409 (C.A. Que.) — referred to Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2015), 2015 SCC 61, 2015 CSC 61, 2015 CarswellNat 6500, 2015 CarswellNat 6501, 93 Admin. L.R. (5th) 1, 36 Imm. L.R. (4th) 1, 391 D.L.R. (4th) 644, 479 N.R. 103, [2015] S.C.J. No. 61 (S.C.C.) — considered Loyola High School v. Quebec (Attorney General) (2015), 2015 SCC 12, 2015 CSC 12, 2015 CarswellQue 1533, 2015 CarswellQue 1534, 79 Admin. L.R. 36 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

(5th) 177, 382 D.L.R. (4th) 195, 468 N.R. 323, [2015] S.C.J. No. 12, [2015] 1 S.C.R. 613, 331 C.R.R. (2d) 24 (S.C.C.) — considered M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. (2011), 2011 SCC 59, 2011 CarswellMan 606, 2011 CarswellMan 607, D.T.E. 2011T-803, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 340 D.L.R. (4th) 1, 29 Admin. L.R. (5th) 1, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 423 N.R. 95, [2012] 2 W.W.R. 619, 96 C.C.E.L. (3d) 1, (sub nom. Nor-Man Regional Health Authority Inc. v. M.A.H.C.P.) 2012 C.L.L.C. 220-004, (sub nom. Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 212 L.A.C. (4th) 93, [2011] S.C.J. No. 59, [2011] A.C.S. No. 59, (sub nom. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals) [2011] 3 S.C.R. 616, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 275 Man. R. (2d) 16, (sub nom. Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc.) 538 W.A.C. 16 (S.C.C.) — considered Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, EYB 2005- 95306, [2005] S.C.J. No. 31, 258 D.L.R. (4th) 193, 339 N.R. 1, [2005] 2 S.C.R. 539, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1 (S.C.C.) — referred to Merck Frosst Canada Lt´ee c. Canada (Ministre de la Sant´e) (2012), 2012 SCC 3, 2012 CarswellNat 148, 2012 CarswellNat 149, (sub nom. Merck Frosst Canada Ltd. v. Canada (Minister of Health)) 99 C.P.R. (4th) 65, (sub nom. Merck Frosst Canada Ltd. v. Canada (Minister of Health)) 342 D.L.R. (4th) 257, (sub nom. Merck Frosst Canada Ltd. v. Canada (Minister of Health)) 426 N.R. 200, [2012] S.C.J. No. 3, [2012] 1 S.C.R. 23, [2012] A.C.S. No. 3 (S.C.C.) — referred to Morin v. Prince Edward Island School Board, Regional Administrative Unit No. 3 (2002), 2002 PESCAD 9, 2002 CarswellPEI 36, 212 Nfld. & P.E.I.R. 69, 637 A.P.R. 69, 213 D.L.R. (4th) 17, (sub nom. Morin v. Regional Administration Unit # 3 (P.E.I.)) 94 C.R.R. (2d) 75, 101 C.R.R. (2d) 188 (note), [2002] P.E.I.J. No. 36 (P.E.I. C.A.) — referred to Najafi v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 2014 FCA 262, 2014 CarswellNat 5396, 379 D.L.R. (4th) 542, 466 N.R. 82, 31 Imm. L.R. (4th) 1, 86 Admin. L.R. (5th) 235, 2014 CAF 262, 2014 CarswellNat 8521, [2015] 4 F.C.R. 162 (F.C.A.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, Canada (MCI) v. Singh 37

329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Odafe v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1429, 2011 CarswellNat 5864, 2011 CF 1429, 2011 CarswellNat 5294, [2011] F.C.J. No. 1762 (F.C.) — referred to Parast c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CF 660, 2006 CarswellNat 1499, 2006 FC 660, [2006] F.C.J. No. 844, [2006] A.C.F. No. 844, 2006 CarswellNat 6842 (F.C.) — referred to Public School Boards’ Assn. (Alberta) v. Alberta (Attorney General) (2000), 2000 SCC 2, [2000] 1 S.C.R. 44, 182 D.L.R. (4th) 561, 251 N.R. 1, 250 A.R. 314, 213 W.A.C. 314, 2000 CarswellAlta 678, 2000 CarswellAlta 679, [2000] S.C.J. No. 2, [2000] 10 W.W.R. 187, 82 Alta. L.R. (3d) 211, 9 C.P.C. (5th) 36 (S.C.C.) — referred to Pushpanathan v. Canada (Minister of Employment & Immigration) (1998), 226 N.R. 201, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) 160 D.L.R. (4th) 193, [1998] S.C.J. No. 46, (sub nom. Pushpanathan v. Canada (Minister of Citizenship & Immigration)) [1998] 1 S.C.R. 982, 1998 CarswellNat 830, 1998 CarswellNat 831, 43 Imm. L.R. (2d) 117, 11 Admin. L.R. (3d) 1, 6 B.H.R.C. 387, [1999] I.N.L.R. 36 (S.C.C.) — considered R. v. Clarke (2014), 2014 SCC 28, 2014 CSC 28, 2014 CarswellOnt 4477, 2014 CarswellOnt 4478, [2014] S.C.J. No. 28, 9 C.R. (7th) 251, 456 N.R. 43, 308 C.C.C. (3d) 299, 316 O.A.C. 384, 371 D.L.R. (4th) 610, [2014] 1 S.C.R. 612 (S.C.C.) — referred to R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 1986 Cars- wellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556, 53 O.R. (2d) 719 (note) (S.C.C.) — followed R. v. Palmer (1979), [1980] 1 S.C.R. 759, 30 N.R. 181, 14 C.R. (3d) 22, 17 C.R. (3d) 34 (Fr.), 50 C.C.C. (2d) 193, 106 D.L.R. (3d) 212, 1979 CarswellBC 533, 1979 CarswellBC 541, [1979] S.C.J. No. 126 (S.C.C.) — considered Ramos Sanchez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 101, 2009 CarswellNat 217, 2009 CF 101, 2009 CarswellNat 860, 79 Imm. L.R. (3d) 12, [2009] F.C.J. No. 101 (F.C.) — referred to Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FCA 385, 2007 CarswellNat 4905, [2007] F.C.J. No. 1632, 370 N.R. 344, 289 D.L.R. (4th) 675, 68 Admin. L.R. (4th) 225, 2007 CAF 385, 2007 CarswellNat 6368, [2008] 1 F.C.R. D-7 (F.C.A.) — considered Singh v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 1022, 2014 CarswellNat 4194, 2014 CF 1022, 2014 CarswellNat 5175, 31 Imm. L.R. (4th) 127, [2015] 3 F.C.R. 587, 466 F.T.R. 187 (F.C.) — referred to 38 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Teganya v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 336, 2011 CarswellNat 784, 2011 CF 336, 2011 CarswellNat 1725, 386 F.T.R. 160 (Eng.), [2011] F.C.J. No. 430 (F.C.) — referred to Telfer v. Canada Revenue Agency (2009), 2009 FCA 23, (sub nom. CRA v. Tel- fer) 2009 D.T.C. 5046 (Eng.), 2009 CarswellNat 655, [2009] 4 C.T.C. 123, 386 N.R. 212, [2009] F.C.J. No. 71, 2009 CAF 23, 2009 CarswellNat 5698, 2009 D.T.C. 5046 (F.C.A.) — referred to Whatcott v. Saskatchewan Human Rights Tribunal (2013), 2013 SCC 11, 2013 CarswellSask 73, 2013 CarswellSask 74, 355 D.L.R. (4th) 383, [2013] 4 W.W.R. 429, 441 N.R. 1, [2013] S.C.J. No. 11, 409 Sask. R. 75, 568 W.A.C. 75, (sub nom. Saskatchewan (Human Rights Commission) v. Whatcott) 276 C.R.R. (2d) 270, (sub nom. Saskatchewan (Human Rights Tribunal) v. Whatcott) [2013] 1 S.C.R. 467, (sub nom. Saskatchewan (Human Rights Commission) v. Whatcott) 76 C.H.R.R. D/1 (S.C.C.) — referred to Wilson and Atomic Energy of Canada Ltd., Re (2015), 2015 FCA 17, 2015 Car- swellNat 64, [2015] F.C.J. No. 44, (sub nom. Atomic Energy of Canada Ltd. v. Wilson) 467 N.R. 201, 22 C.C.E.L. (4th) 234, (sub nom. Wilson v. Atomic Energy of Canada Ltd.) 2015 C.L.L.C. 210-023, D.T.E. 2015T-442, 2015 CAF 17, 2015 CarswellNat 4803, (sub nom. Wilson v. Atomic Energy of Canada Ltd.) [2015] 4 F.C.R. 467 (F.C.A.) — considered Yang v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 269, 2008 CarswellNat 546, [2008] F.C.J. No. 344, 2008 CF 269, 2008 Car- swellNat 6518 (F.C.) — referred to Zdraviak v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 640, 2013 CarswellNat 1758, 2013 CF 640, 2013 CarswellNat 3300, [2013] F.C.J. No. 664 (F.C.) — considered Statutes considered: Balanced Refugee Reform Act, S.C. 2010, c. 8 Generally — referred to Canada Labour Code, R.S.C. 1985, c. L-2 Generally — referred to 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. 7 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(3)(d) — considered s. 49(2)(c) — referred to s. 79 — referred to s. 96 — referred to s. 97 — referred to s. 100(1) — referred to Canada (MCI) v. Singh Yves de Montigny J.A. 39

s. 110(3) — considered s. 110(4) — considered s. 110(6) — considered s. 110(6)(a) — considered s. 111(1) — referred to s. 111(2) — referred to s. 113(a) — considered s. 171(a.3) [en. 2010, c. 8, s. 28(1)] — considered Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 Generally — referred to Rules considered: Refugee Appeal Division Rules, SOR/2012-257 R. 3(3)(g)(iii) — considered R. 5(2)(d)(ii) — considered Refugee Protection Division Rules, SOR/2012-256 R. 3(5) — referred to R. 34(3) — 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. 159.9(1)(b) [en. SOR/2012-252] — referred to

APPEAL by Minister of Immigration from judgment reported at Singh v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 1022, 2014 CarswellNat 4194, 2014 CF 1022, 2014 CarswellNat 5175, 31 Imm. L.R. (4th) 127, [2015] 3 F.C.R. 587, 466 F.T.R. 187 (F.C.), granting application regarding admission of evidence.

Mario Blanchard, Daniel Latulippe, for Appellant St´ephanie Valois, for Respondent Anthony Navaneelan, Aadil Mangalji, for Intervener

Yves de Montigny J.A.:

1 The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagn´e of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by 40 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India. 2 The appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD. 3 At the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Pro- tection Division, does the test set out in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.), for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)? 4 The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632 (F.C.A.) [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Bor- der Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.

I. Background 5 The respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonethe- less, this individual apparently showed up at the respondent’s home in Canada (MCI) v. Singh Yves de Montigny J.A. 41

November 2012 to spend the night, before leaving for an unknown destination. 6 Several days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Follow- ing this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications. 7 About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village. 8 After this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Can- ada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices. 9 The hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India. 10 As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002. 42 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

11 Lastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity. 12 Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paraly- sis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture. 13 Even if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India. 14 On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the Canada (MCI) v. Singh Yves de Montigny J.A. 43

RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized. 15 The RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing. 16 On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.

II. The Federal Court judgment 17 Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD 44 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law. 18 After comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a reassessment of the risks set out in sections 96 and 97, the RAD is a quasi- judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4). 19 Relying on a statement made in the House of Commons by the Min- ister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD. 20 Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not estab- Canada (MCI) v. Singh Yves de Montigny J.A. 45

lished that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Bar- reau du Qu´ebec.

III. Issues 21 The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Pro- tection Division, does the test set out in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.), for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?

IV. Analysis A. Standard of review 22 It is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at paras. 45-47, [2013] 2 S.C.R. 559 (S.C.C.); Wilson and Atomic Energy of Canada Ltd., Re, 2015 FCA 17 (F.C.A.) at para. 42, [2015] 4 F.C.R. 467 (F.C.A.) [Wilson]; Telfer v. Canada Revenue Agency, 2009 FCA 23 (F.C.A.) at paras. 18-19, [2009] F.C.J. No. 71 (F.C.A.). In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Lt´ee c. Canada (Ministre de la Sant´e), 2012 SCC 3 (S.C.C.) at para. 247, [2012] 1 S.C.R. 23 (S.C.C.). 46 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

23 As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para. 54, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]; Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at paras. 26 and 28, [2011] 1 S.C.R. 160 (S.C.C.) [Smith]; Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.) at paras. 16 and 18, [2011] 3 S.C.R. 471 (S.C.C.); M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59 (S.C.C.) at para. 36, [2011] 3 S.C.R. 616 (S.C.C.) [Nor-Man]; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.) at para. 30, [2011] 3 S.C.R. 654 (S.C.C.); Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11 (S.C.C.) at para. 167, [2013] 1 S.C.R. 467 (S.C.C.). Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction. 24 The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it. 25 With respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Jus- tice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, ad- judicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative Canada (MCI) v. Singh Yves de Montigny J.A. 47

tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation. 26 In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adju- dicating disputes arising from the implementation of a new scheme. 27 That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision- maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship & Immi- gration), 2005 SCC 57, [2005] 2 S.C.R. 706 (S.C.C.) and Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193 (S.C.C.). In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Ap- peal on questions of “general importance”, but then required that de- 48 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

spite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — and inferentially the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no preceden- tial value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases. 28 Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2015 SCC 61 (S.C.C.) at para. 44, [2015] S.C.J. No. 61 (S.C.C.). In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question. 29 For all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court. 30 I would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (F.C.A.). Canada (MCI) v. Singh Yves de Montigny J.A. 49

B. Applicable criteria for the purposes of subsection 110(4) of the IRPA 31 As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275). 32 The version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.” 33 The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visu- alization of this resemblance: Evidence that may be presented 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 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 the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; 50 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

El´´ ements de preuve admissibles 110. (4) Dans le cadre de l’appel, la personne en cause ne peut pré- senter que des el´´ ements de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Examen de la demande 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; 34 There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 35 These conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62). 36 The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship & Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 (F.C.) Canada (MCI) v. Singh Yves de Montigny J.A. 51

[Elezi ] and, to a lesser extent, on Ramos Sanchez v. Canada (Minister of Citizenship & Immigration), 2009 FC 101, [2009] F.C.J. No. 101 (F.C.), to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation. 37 I would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter. 38 The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or 52 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

(b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above. 39 As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of Canada (MCI) v. Singh Yves de Montigny J.A. 53

the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view. 40 It must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125. 41 It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected...to have presented” (« qu’il n’était pas raisonnable ... de s’attendre a` ce qu’il les ait présentés »), but rather “that the person could not reasonably ...have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new. 42 The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above. 43 In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. (Alberta) v. Alberta (Attorney General), 2000 SCC 2 54 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

(S.C.C.) at para 10, [2000] 1 S.C.R. 44 (S.C.C.). Although they were established by the Supreme Court in the context of a criminal proceeding (see R. v. Palmer (1979), [1980] 1 S.C.R. 759 (S.C.C.) at p. 775, (1979), 106 D.L.R. (3d) 212 (S.C.C.) [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I. MacDonald Corp. c. Canada (Procureure générale) 2004 CanLII 30110 at para. 3, [2004] J.Q. No. 9409 (C.A. Que.), in discipli- nary law (Morin v. Prince Edward Island School Board, Regional Administrative Unit No. 3, 2002 PESCAD 9 (P.E.I. C.A.) at para. 140, (2002), 213 D.L.R. (4th) 17 (P.E.I. C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries & Oceans), 2002 FCA 22 (Fed. C.A.) at para. 20, [2002] F.C.J. No. 146 (Fed. C.A.)) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18). 44 Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrin- sically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative. 45 The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imag- ine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la fa¸con dont ils sont liés a` l’appelant »). Canada (MCI) v. Singh Yves de Montigny J.A. 55

46 The newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4). 47 As for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision. 48 Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) [...] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) [...] is central to the decision with respect to the refugee protection claim; and (c) [...] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion. 49 Subject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal. 56 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

50 As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced ex- haustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted] 51 In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division [...]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence. 52 The judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citi- zenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874). 53 It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at Canada (MCI) v. Singh Yves de Montigny J.A. 57

subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement. 54 The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. 55 Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immi- gration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parlia- ment intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parlia- ment took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal. 58 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

56 Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Free- doms, Part I of the Constitution Act, 1982, being Schedule B to the Can- ada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.) [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 (S.C.C.) [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision. In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022 (F.C.) at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion Canada (MCI) v. Singh Yves de Montigny J.A. 59

would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4). 57 With respect, I cannot agree with this argument. It is true that, in Dor´e, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 (S.C.C.) when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Dor´e, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives. 58 Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties. 59 First of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to 60 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. 60 It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India. 61 Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51 (S.C.C.) at para. 47, [2005] 2 S.C.R. 539 (S.C.C.); Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 (S.C.C.) at pp. 741- 742, (1992), 90 D.L.R. (4th) 289 (S.C.C.)), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence Canada (MCI) v. Singh Yves de Montigny J.A. 61

are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The con- stitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard. That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security. 62 However, there is more. A close reading of Dor´e shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Dor´e, para. 55; Loyola, para. 35; R. v. Clarke, 2014 SCC 28 (S.C.C.) at para. 16, [2014] 1 S.C.R. 612 (S.C.C.). When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 (F.C.A.) at para. 107, (2014), [2015] 4 F.C.R. 162 (F.C.A.); Hernandez Febles v. Canada (Minister of Citizenship and Immigration), 2014 SCC 68 (S.C.C.) at para. 67, [2014] 3 S.C.R. 431 (S.C.C.)). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney Gen- eral has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land. 63 However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. 62 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements. 64 In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case. 65 Thus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Further- more, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Di- ploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD. 66 It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove v. Canada (Minister of Citizenship & Immigration), 2001 FCT 266 (Fed. T.D.) at paras. 6-11, [2001] F.C.J. No. 482 (Fed. T.D.). As the Federal Court noted in Zdraviak v. Canada (Minister of Citizenship and Immi- gration), 2013 FC 640 (F.C.) at para. 60, [2013] F.C.J. No. 664 (F.C.), “[t]here is a high threshold governing the circumstances and evidentiary Canada (MCI) v. Singh Yves de Montigny J.A. 63

criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship & Immigra- tion), 2007 FC 505 (F.C.) at para. 19, [2007] F.C.J. No. 680 (F.C.). 67 In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship & Immigration), 2011 FC 1429 (F.C.) at para. 8, [2011] F.C.J. No. 1762 (F.C.); Teganya v. Canada (Minister of Citizenship & Immigration), 2011 FC 336 (F.C.) at paras. 26-37, [2011] F.C.J. No. 430 (F.C.); Parast c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 660 (F.C.) at para. 11, [2006] F.C.J. No. 844 (F.C.); Yang v. Canada (Minister of Citizenship & Immigration), 2008 FC 269 (F.C.) at paras. 17-28, [2008] F.C.J. No. 344 (F.C.) . Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allega- tions Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ). 68 In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Qu´ebec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD. 69 In short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her 64 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA. 70 Lastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53). 71 However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Di- ploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim. 72 Consequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).

V. Conclusion 73 For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is Canada (MCI) v. Singh Johanne Gauthier J.A. 65

not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA. 74 I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Ref- ugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizen- ship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing.

M. Nadon J.A.:

I agree

Johanne Gauthier J.A.:

I agree 66 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Yves de Montigny, J.A.:

1 La Cour est saisie de l’appel d’un jugement rendu par la juge Jocelyne Gagné de la Cour fédérale (la juge), accueillant la demande de contrôle judiciaire de Parminder Singh (l’intimé) a` l’encontre d’une déci- sion de la Section d’appel des réfugiés (SAR) de la Commission de l’immigration et du statut de réfugié du Canada concernant sa demande d’asile. La demande d’asile de l’intimé avait préalablement et´´ e rejetée par la Section de la protection des réfugiés (SPR), non seulement parce qu’il n’avait pas démontré son identité, mais egalement´ parce qu’il n’était pas crédible et avait une possibilité de refuge intérieur en Inde. 2 Le présent appel soulève pour la première fois la question de savoir comment doit etreˆ interprété le paragraphe 110(4) de la Loi sur l’immigration et la protection des réfugiés, L.C. 2001, c. 27 [LIPR], lequel régit les el´´ ements de preuve admissibles devant la SAR. Cette disposition a et´´ e adoptée dans le cadre de la Loi sur des mesures de réforme equitables´ concernant les réfugiés, L.C. 2010, c. 8 [LMRER], dont l’objectif etait´ notamment de modifier et de mettre en œuvre les dispositions non proclamées de la LIPR prévoyant la création de la SAR. 3 Au terme de ses motifs, la juge a certifié les deux questions suivantes: 1. Quelle norme de contrôle la Cour devrait-elle appliquer au moment d’examiner l’interprétation que fait la Section d’appel des réfugiés du paragraphe 110(4) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27? 2. Au moment d’examiner le rôle de l’agent d’examen des risques avant renvoi et celui de la Section d’appel des réfugiés de la Com- mission de l’immigration et du statut de réfugié saisie de l’appel d’une décision de la Section de la protection des réfugiés, faut-il appliquer les critères enonc´´ es dans l’arrêt Raza c Canada (Citoyenneté et Immigration), 2007 CAF 385, pour l’interprétation de l’alinéa 113a) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27, au paragraphe 110(4) de cette loi? 4 L’appelant a soutenu que la Cour fédérale avait eu tort de ne pas appliquer les critères retenus dans l’arrêt Raza c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2007 CAF 385, [2007] A.C.F. no 1632[Raza] aux fins du paragraphe 110(4), et que la SAR pouvait refuser d’admettre en preuve un diplôme de 12e année (le Diplôme) qui avait et´´ e saisi par l’Agence des services frontaliers du Canada (ASFC) et qui n’avait pas et´´ e déposé devant la SPR. Pour les motifs qui suivent, je suis Canada (MCI) v. Singh Yves de Montigny, J.A. 67

d’avis que les prétentions du Procureur général doivent etreˆ retenues et que l’appel doit par conséquent etreˆ accueilli.

I. Contexte 5 L’intimé est citoyen de l’Inde. Il allègue avoir connu un dénommé Bhupinder Singh lorsqu’il etait´ aux etudes,´ mais ne l’avoir revu que de fa¸con occasionnelle suite a` sa graduation en 2002. Ce dernier se serait néanmoins présenté chez l’intimé en novembre 2012 pour y passer la nuit, avant de quitter pour une destination inconnue. 6 Quelques jours plus tard, l’intimé allègue que des policiers l’ont ar- rêté pour l’interroger a` propos de Bhupinder Singh. Il aurait et´´ e mis en détention et torturé pendant trois jours, puis mis en liberté sans condition lorsque des représentants de son village sont intervenus en sa faveur. Suite a` cet incident, il aurait et´´ e hospitalisé pour des douleurs abdominales. Au soutien de ses prétentions, il a déposé devant la SPR un certificat médical indiquant qu’il avait et´´ e traité pour des blessures et vomissements et contenant une liste des médicaments prescrits. 7 Une quinzaine de jours après ce premier incident, l’intimé allègue que la police l’aurait de nouveau arrêté et détenu pendant 24 heures pour l’interroger a` propos de Bhupinder Singh, avant d’être relâché grâce a` une autre intervention de représentants de son village. 8 Après ce deuxième incident, l’intimé allègue que sa mère a engagé un passeur pour le faire sortir de l’Inde. L’intimé est arrivé au Canada le 29 janvier 2013 et a présenté une demande d’asile au point d’entrée. Il a présenté a` l’ASFC le permis de conduire et la carte d’électeur que lui avait obtenus le passeur, ainsi que deux certificats scolaires emis´ en 2000 et 2002. Ces documents ont et´´ e saisis, et l’ASFC a conclu après analyse que le permis de conduire et la carte d’électeur etaient´ probablement contrefaits. L’intimé a initialement et´´ e détenu etant´ donné la difficulté d’établir son identité, pour ensuite etreˆ mis en liberté sous condition de se présenter de fa¸con hebdomadaire aux bureaux de l’ASFC. 9 L’audience devant la SPR a eu lieu le 2 avril 2013, et l’avis de déci- sion a et´´ e rendu le 7 mai 2013. Dans un premier temps, la SPR a conclu que l’intimé n’avait pas etabli´ son identité. A` cet egard,´ elle a noté que l’ASFC avait déterminé que le permis de conduire et la carte d’électeur etaient´ probablement contrefaits, et s’est dite d’avis que sa crédibilité etait´ affectée du fait qu’il n’avait pas fait de démarches pour obtenir les versions authentiques de ces documents auprès de sa famille en Inde. 68 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

10 Quant aux certificats scolaires, la SPR n’avait a` son dossier que celui emis´ en 2000. Questionné a` propos du Diplôme de 2002, l’intimé a dit croire qu’il etait´ encore détenu par Citoyenneté et Immigration Canada et ne pas comprendre pourquoi une copie n’avait pas et´´ e transmise a` la SPR. Cette explication n’a pas et´´ e retenue par la SPR, si bien qu’aucune preuve ne permettait de corroborer sa prétention voulant qu’il ait etudi´´ e avec Bhupinder Singh jusqu’en 2002. 11 Enfin, l’intimé avait egalement´ déposé copie d’une carte de ravitaillement ainsi qu’un certificat de naissance. La carte de ravitaillement avait et´´ e emise´ en 2008 et corrigée en 2011 pour enlever la sœur de l’intimé et remplacer la photo familiale, suite au mariage de sa sœur en 2010. La SPR a estimé que le délai d’un an entre le mariage et la correction de la carte familiale affectait la valeur probante de la carte, d’autant plus que la photo apparaissant sur la carte de ravitaillement semblait collée de fa¸con permanente et ne semblait pas pouvoir etreˆ remplacée. Puisque les quatre documents d’identité déposés en preuve par l’intimé soulevaient des préoccupations, le certificat de naissance n’était pas suffisant en soi pour etablir´ son identité. 12 Dans un deuxième temps, la SPR a poursuivi son analyse pour conclure que le récit de l’intimé n’était pas crédible. La SPR a souligné que l’intimé avait modifié la chronologie d’événements importants lors de l’amendement apporté a` son formulaire de demande en pla¸cant les problèmes cardiaques de son père après les deux arrestations, puis entre les deux arrestations. Compte tenu de l’importance des ev´´ enements en cause, la SPR n’a pas accepté l’explication de l’intimé selon laquelle il s’était trompé quant aux dates et n’avait constaté son erreur qu’en rece- vant le rapport médical de son père. La SPR a par ailleurs noté que ce rapport médical indiquait seulement une paralysie faciale et un alitement de cinq jours, ce qui ne correspondait pas a` l’allégation voulant que son père soit a` demi paralysé et alité en permanence. La SPR a egalement´ conclu que le rapport médical quant aux troubles d’estomac de l’intimé ne corroborait pas ses allégations de torture. 13 Même si l’intimé avait pu etablir´ son identité et la crédibilité de son récit, la SPR a finalement conclu qu’il avait une possibilité de refuge intérieur. Tout en reconnaissant que la police indienne a la capacité de traquer des individus a` travers le pays, la SPR a toutefois indiqué que seul un groupe limité de militants sikhs sont ainsi ciblés, et que l’intimé n’avait pas le profil d’une personne qui serait ciblée s’il déménageait ailleurs en Inde. Canada (MCI) v. Singh Yves de Montigny, J.A. 69

14 En appel devant la SAR, l’intimé a présenté une demande pour dé- poser de la preuve additionnelle, a` savoir une copie du Diplôme. Au soutien de sa demande, il a déposé un affidavit attestant qu’il avait re¸cu de son ancienne avocate, vers le 11 juin 2013, copie de son dossier dans lequel se trouvait notamment la copie du Diplôme, qui aurait et´´ e envoyée par télécopieur a` son ancienne avocate par l’ASFC le 25 février 2013. Il précise qu’il ignorait ce fait jusqu’au 11 juin 2013, qu’il lui etait´ par con- séquent impossible de produire ce document devant la SPR, et qu’il etait´ de ce fait justifié d’affirmer lors de son audition devant la SPR que le Diplôme avait et´´ e saisi. 15 La SAR a refusé d’admettre le Diplôme en preuve. Elle a d’abord considéré que le paragraphe 110(4) de la LIPR devait s’interpréter a` la lumière de la jurisprudence qui s’est développée autour de l’alinéa 113a) de la même loi, et notamment de l’arrêt Raza, compte tenu de la similitude dans le libellé des deux dispositions. La SAR a egalement´ souligné que l’on n’est pas en présence d’une preuve nouvelle du seul fait qu’un el´´ ement de preuve corrobore des allégations ou contredit des conclusions de la SPR. En fin de compte, la SAR a conclu que le Diplôme etait´ accessible a` l’intimé au moment de l’audience du 2 avril 2013, dans la mesure où une copie de celui-ci avait et´´ e envoyée a` son ancienne avocate le 25 février 2013. Puisque l’intimé n’invoquait aucune incompétence de son avocate et n’avait pas déposé de plainte contre elle, l’intimé et son avocate avaient donc accès au Diplôme et il etait´ raisonnable de s’attendre a` ce que ce document soit présenté lors de l’audition devant la SPR. Par conséquent, la SAR a estimé que le Diplôme etait´ inadmissible, et par conséquent qu’il n’y avait pas lieu de tenir une audience. 16 Sur le fond, la SAR s’est dite d’avis que les trois questions en litige devaient etreˆ analysées en appliquant la norme de la décision raisonnable. En ce qui concerne l’identité de l’intimé, la SAR a conclu que la SPR avait erré en omettant de se prononcer sur la valeur probante des certificats scolaires pour etablir´ l’identité de l’intimé, les analysant uniquement sous l’angle de sa crédibilité quant au fait qu’il ait pu côtoyer M. Bhupinder Singh. De ce fait, la SPR ne pouvait ecarter´ le certificat de naissance au motif que ce document ne suffisait pas a` lui seul pour etab-´ lir l’identité de l’intimé. La SAR a donc conclu que l’identité de l’intimé avait et´´ e dument etablie´ a` l’aide des certificats scolaires et du certificat de naissance. Dans un deuxième temps, la SAR a estimé que la SPR n’avait pas commis d’erreur de fait ou de droit dans son appréciation globale de la crédibilité de l’intimé, et qu’elle pouvait raisonnablement douter de sa crédibilité compte tenu des informations qui avaient varié 70 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

dans le temps eu egard´ a` la chronologie des ev´´ enements qu’il alléguait avoir vécus, des documents frauduleux ou altérés qu’il avait présentés en preuve, et des documents médicaux qui ne corroboraient pas ses alléga- tions. Compte tenu de ces conclusions, la SAR n’a pas jugé nécessaire de se prononcer sur la possibilité d’un refuge intérieur.

II. Le jugement de la Cour fédérale 17 Deux questions ont et´´ e soulevées dans le cadre de la demande de con- trôle judiciaire en Cour fédérale. Il fallait d’abord déterminer si la SAR avait erré en appliquant les critères de l’arrêt Raza pour evaluer´ l’admissibilité d’une nouvelle preuve, et ensuite se pencher sur l’application de ces critères aux faits de l’espèce. Dans les deux cas, la juge a appliqué la norme de la décision raisonnable. La première question soulevait l’interprétation de la loi habilitante de la SAR et n’était assimilable a` aucune des exceptions a` la présomption voulant que ce type de question soit révisable selon la norme de la décision raisonnable, tandis que la seconde s’apparentait clairement a` une question mixte de droit et de fait. 18 Après avoir mis en parallèle le texte du paragraphe 110(4) et de l’alinéa 113a) de la LIPR et reconnu que leur libellé est similaire, la juge a tout d’abord noté que le rôle d’un agent d’examen des risques avant renvoi (ERAR) diffère de celui de la SAR. Tandis que l’agent d’ERAR est un employé du ministre et doit faire preuve de déférence a` l’égard de la décision prise par la SPR a` moins qu’une nouvelle preuve nécessite de réévaluer les risques enum´´ erés aux articles 96 et 97, la SAR est un tribunal administratif quasi judiciaire qui s’est vu confier le mandat d’entendre les appels des décisions rendues par la SPR et peut casser une décision pour y substituer la décision qui aurait dû etreˆ rendue (LIPR, para. 111(1)). Compte tenu de ces rôles distincts, la juge a estimé qu’il ne convenait pas d’appliquer mutatis mutandis les critères développés dans le contexte de l’alinéa 113a) pour interpréter le paragraphe 110(4). 19 S’appuyant sur une déclaration faite a` la Chambre des communes par le ministre de la Citoyenneté et de l’Immigration a` l’occasion des débats entourant la mise sur pied de la SAR, a` l’effet que les revendicateurs d’asile doivent pouvoir bénéficier d’un « véritable appel fondé sur les faits », la juge a poursuivi son raisonnement en ajoutant qu’une approche restrictive a` l’admissibilité de la nouvelle preuve ne permettrait pas a` la SAR de remplir sa mission. Enfin, elle a souligné que les facteurs implicites dégagés par la Cour d’appel fédérale dans l’arrêt Raza « résultent Canada (MCI) v. Singh Yves de Montigny, J.A. 71

implicitement de l’objet de l’alinéa 113a) », au dire même de la juge Sharlow. Ceci etant,´ d’ajouter la juge, ces facteurs ne sauraient etreˆ trans- posés dans le contexte d’un appel devant la SAR. 20 Ayant conclu qu’il n’était pas raisonnable de la part de la SAR d’appliquer de fa¸con stricte les critères etablis´ dans l’arrêt Raza lorsque vient le moment d’interpréter le paragraphe 110(4) de la LIPR, la juge s’est ensuite demandé s’il etait´ raisonnable pour le tribunal de ne pas admettre en preuve le Diplôme. Elle a déterminé que cet el´´ ement de preuve pouvait etreˆ important pour etablir´ que la SPR avait commis une erreur en tirant deux conclusions préjudiciables quant a` la crédibilité de l’intimé, a` savoir que l’ASFC n’avait pas confisqué ce Diplôme et que l’intimé n’avait pas etabli´ avoir fréquenté l’école avec Bhupinder Singh jusqu’en 2002. La juge a egalement´ considéré qu’il n’était pas raisonnable de la part de la SAR de conclure que l’intimé aurait dû présenter cet el´´ ement de preuve devant la SPR, puisqu’il ne l’avait pas entre les mains et croyait a` tort que l’ASFC l’avait toujours en sa possession. Quant au fait que l’intimé n’avait pas porté plainte contre son ancienne avocate, la juge s’est dite d’avis qu’il n’était pas raisonnable d’en faire un préalable au dépôt de la nouvelle preuve ni de s’attendre a` ce que l’intimé soit au courant de la procédure a` suivre pour déposer une plainte au Barreau du Québec.

III. Questions en litige 21 La juge de la Cour fédérale a certifié les deux questions suivantes: 1. Quelle norme de contrôle la Cour devrait-elle appliquer au moment d’examiner l’interprétation que fait la Section d’appel des réfugiés du paragraphe 110(4) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27? 2. Au moment d’examiner le rôle de l’agent d’examen des risques avant renvoi et celui de la Section d’appel des réfugiés de la Com- mission de l’immigration et du statut de réfugié saisie de l’appel d’une décision de la Section de la protection des réfugiés, faut-il appliquer les critères enonc´´ es dans l’arrêt Raza c Canada (Citoyenneté et Immigration), 2007 CAF 385, pour l’interprétation de l’alinéa 113a) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27, au paragraphe 110(4) de cette loi? 72 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

IV. Analyse A. La norme de contrôle 22 Il est bien etabli´ que le rôle de cette Cour lorsqu’elle est saisie en appel d’un jugement portant sur une demande de contrôle judiciaire consiste dans un premier temps a` déterminer si la Cour fédérale a correctement identifié la norme de contrôle, et dans un deuxième temps a` s’assurer qu’elle l’a bien appliquée: Agraira c. Canada (Sécurité publique et Protection civile), 2013 CSC 36 aux para. 45-47, [2013] 2 R.C.S. 559; Wilson c. Energie´ atomique du Canada limitée, 2015 CAF 17 au para. 42, [2015] 4 R.C.F. 467 [Wilson]; Telfer c. Canada (Agence du Revenu), 2009 CAF 23 aux para. 18-19, [2009] A.C.F. no 71. En d’autres termes, cette Cour doit « se mettre a` la place » de la Cour fédér- ale et se concentrer sur la décision administrative qui fait l’objet du con- trôle judiciaire: Merck Frosst Canada Ltée c. Canada (Santé), 2012 CSC 3 au para. 247, [2012] 1 R.C.S. 23. 23 Tel que mentionné plus haut, la juge a appliqué la norme de la déci- sion raisonnable eu egard´ a` l’interprétation du paragraphe 110(4) de la LIPR. Ce faisant, elle s’en est remise a` la présomption bien etablie´ selon laquelle il faut normalement faire preuve de déférence a` l’égard d’un décideur administratif lorsqu’il est appelé a` interpréter une loi etroite-´ ment reliée a` son mandat et dont il a une connaissance approfondie: Dunsmuir c. Nouveau-Brunswick, 2008 CSC 9 au para. 54, [2008] 1 R.C.S. 190 [Dunsmuir]; Smith c. Alliance Pipeline Ltd., 2011 CSC 7 aux para. 26 et 28, [2011] 1 R.C.S. 160 [Smith]; Canada (Commission canadienne des droits de la personne) c. Canada (Procureur général), 2011 CSC 53 aux para. 16 et 18, [2011] 3 R.C.S. 471; Nor-Man Regional Health Authority Inc. c. Manitoba Association of Health Care Profes- sionals, 2011 CSC 59 au para. 36, [2011] 3 R.C.S. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) c. Alberta Teachers’ Association, 2011 CSC 61 au para. 30, [2011] 3 R.C.S. 654; Saskatchewan (Human Rights Commission) c. Whatcott, 2013 CSC 11 au para. 167, [2013] 1 R.C.S. 467. Bien que cette présomption soit réfraga- ble, la juge a conclu a` juste titre que l’interprétation du paragraphe 110(4) de la LIPR n’entrait pas dans les catégories d’exception recon- nues par la jurisprudence: voir notamment Dunsmuir aux para. 55 a` 61; Nor-Man au para. 35; Smith au para. 26. En effet, il ne s’agit pas d’une question de droit générale d’une importance capitale pour le système juridique dans son ensemble et etrang`´ ere au domaine d’expertise du décideur, ni d’une question constitutionnelle, ni d’une question de délim- Canada (MCI) v. Singh Yves de Montigny, J.A. 73

itation de compétence entre tribunaux concurrents, ni d’une véritable question de compétence. 24 L’intervenante a néanmoins fait valoir que la juge avait erré en sélec- tionnant la norme de la raisonnabilité, au motif qu’il lui incombait de mettre un terme aux divergences d’interprétation qu’a suscitées le libellé du paragraphe 110(4) au sein de la SAR. S’appuyant sur l’arrêt Wilson récemment rendu par cette Cour, l’intervenante a relevé les différentes approches que les membres de la SAR ont adoptées en appliquant le paragraphe 110(4) et a plaidé pour que l’on mette un terme a` cette incer- titude et aux résultats discordants qu’elle est susceptible d’engendrer. 25 Avec egards,´ cet argument ne me convainc pas. Il convient tout d’abord de noter que l’affaire Wilson est une affaire « inusitée », pour reprendre l’expression utilisée par le juge Stratas, dans la mesure où la question de savoir si le Code canadien du travail, L.R.C. 1985, c. L-2 permet les congédiements sans motif faisait l’objet d’un désaccord « per- sistant », a` un tel point que la réponse a` cette question dépendait en quelque sorte de l’identité de l’arbitre saisi de la plainte. Qui plus est, les arbitres ne sont pas liés par les décisions de leurs collègues et exercent leurs fonctions de fa¸con indépendante plutôt que dans le cadre d’une institution comme un tribunal administratif, ce qui ne favorisait pas l’émergence d’un consensus ou d’une interprétation uniforme. 26 Dans la présente instance, nous ne sommes pas en présence d’un désaccord exceptionnel qui subsiste depuis de longues années. La SAR n’a et´´ e etablie´ qu’en décembre 2012, et elle n’a rendu ses premières déci- sions qu’en 2013. Il n’y a donc aucune urgence d’intervenir, d’autant plus que les principes qui se dégageront de la jurisprudence de cette Cour et de la Cour fédérale viendront nécessairement baliser l’interprétation que pourra faire la SAR du paragraphe 110(4) de la LIPR. Il n’y a donc pas lieu de déroger au principe général voulant qu’un tribunal administratif fasse l’objet de déférence lorsqu’il interprète sa loi constitutive; les balbutiements de la SAR et ses divergences d’opinions quant a` l’interprétation de certaines dispositions législatives ne remettent pas en cause la primauté du droit et ne sont que la conséquence inévitable du choix de confier a` un tribunal spécialisé le soin de trancher les litiges découlant de la mise en œuvre d’un nouveau régime. 27 Ceci dit, il etait´ permis de croire que cette Cour ne devait faire preuve d’aucune déférence a` l’égard de la décision prise par un décideur administratif dans le contexte de la LIPR, lorsque la question certifiée sur la base de laquelle la décision de la Cour fédérale avait et´´ e portée en 74 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th) appel soulevait une question d’interprétation des lois. Après tout, la Cour fédérale ne peut certifier qu’une question grave de portée générale qui transcende l’intérêt des parties: LIPR, art. 79. Ne s’agit-il pas là précisé- ment du type de questions qui nécessitent une interprétation définitive et a` propos desquelles la Cour d’appel doit justement intervenir pour mettre un terme aux divergences qui peuvent se développer au sein d’une instance administrative? C’est du moins ce que suggéraient des décisions comme Hilewitz c. Canada (Ministre de la Citoyenneté et de l’Immigration); De Jong c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2005 CSC 57, [2005] 2 R.C.S. 706 et Pushpanathan c. Canada (Ministre de la Citoyenneté et de l’Immigration), [1998] 1 R.C.S. 982, 160 D.L.R. (4th) 193. Dans cette dernière affaire, le juge Bastarache ecrivait´ (pour la majorité) au paragraphe 43: Premièrement, le par. 83(1) serait incohérent si la norme de contrôle etait´ autre chose que celle de la décision correcte. L’élément clef de l’intention du législateur quant a` la norme de contrôle est l’utilisation des mots « une question grave de portée générale » (je souligne). La portée générale de la question, c’est-à-dire son applicabilité a` un grand nombre de cas dans le futur, justifie son examen par une cour de justice. Cet examen aurait-il une utilité quelconque si la Cour d’appel etait´ tenue de déférer aux décisions incorrectes de la Com- mission? Se peut-il que le législateur ait prévu un appel exceptionnel devant la Cour d’appel sur des questions de « portée générale », mais ait exigé qu’en dépit de la « portée générale » de la question, la cour accepte les décisions de la Commission qui sont erronées en droit, voire clairement erronées en droit, mais non manifestement déraison- nables? Il n’est possible de respecter la portée du par. 83(1), telle qu’explicitement formulée, qu’en autorisant la Cour d’appel — et, par déduction, la Section de première instance de la Cour fédérale — a` substituer sa propre opinion a` celle de la Commission sur les questions d’importance générale. Cette assertion s’accorde avec les observations du juge Iacobucci dans Southam, précité, au par. 36, selon lesquelles le fait qu’une décision est « susceptible de s’appliquer a` un grand nombre de cas » doit jouer au moment de décider s’il y a lieu de faire montre de retenue. Bien que certaines décisions antérieures de la Cour fédérale, dont, on pourrait le soutenir, Sivasamboo, aient tranché d’importantes questions de fait, ou a` la limite des questions de fait et de droit ayant peu ou pas de valeur comme précédent, le cas qui nous occupe a pour sujet principal un motif d’exclusion qui, en tant que question de droit, risque d’affecter un grand nombre de futurs demandeurs de statut. En réalité, la décision de la Commission Canada (MCI) v. Singh Yves de Montigny, J.A. 75

en l’espèce restreindrait de fa¸con importante son propre rôle comme juge des faits dans de nombreuses affaires. 28 La Cour suprême en a cependant décidé autrement. Dans une décision récente, le plus haut tribunal a conclu que la présence d’une question certifiée n’était pas déterminante et que la norme de contrôle applicable a` une telle question est celle de la décision raisonnable: Kanthasamy c. Canada (Citoyenneté et Immigration), 2015 CSC 61 au para. 44, [2015] A.C.S. no 61. Pour en arriver a` une telle conclusion, la Cour s’est essentiellement appuyée sur le fait que c’est le jugement lui-même qui fait ultimement l’objet d’un appel, et non seulement la question certifiée. 29 Pour tous ces motifs, j’en arrive donc a` la conclusion que la juge a correctement identifié la norme de contrôle applicable dans le cadre de la demande de contrôle judiciaire dont elle etait´ saisie. En d’autres termes, l’interprétation qu’a faite la SAR du paragraphe 110(4) de la LIPR etait´ soumise a` la norme de la raisonnabilité, conformément a` la présomption voulant que l’interprétation par un organisme administratif de sa loi constitutive fasse l’objet de déférence par la cour de révision. 30 Je m’empresse de préciser, comme l’a fait la juge, que le présent appel ne porte pas sur le rôle de la SAR et sur la norme de contrôle qu’elle doit appliquer lorsqu’elle se prononce sur les décisions rendues par la SPR, mais uniquement sur les facteurs que la SAR doit considérer lorsqu’elle se penche sur la question de l’admissibilité d’un el´´ ement de preuve qui n’a pas et´´ e présenté a` la SPR. La norme applicable lorsque la SAR se prononce sur le fond de la décision prise par la SPR fait l’objet d’une autre décision de cette Cour dans l’affaire Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.

B. Les critères applicables aux fins du paragraphe 110(4) de la LIPR 31 Tel que mentionné précédemment, la LIPR prévoyait dans sa version originale la mise sur pied de la SAR, chargée d’instruire l’appel de certaines décisions rendues par la SPR. Les dispositions pertinentes ne furent cependant jamais mises en vigueur, et il faudra ultimement attendre l’adoption de la LMRER, le 29 juin 2010, pour que soient mises en œuvre (après avoir et´´ e légèrement modifiées) les dispositions non proclamées créant la SAR. Ces dispositions sont entrées en vigueur le 15 décembre 2012 (Décret fixant au 15 décembre 2012 la date d’entrée en vigueur de certains articles de la loi, T.R./2012-94, (2012) Gaz. C. II, 2980-2981; LIPR, art. 275). 76 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

32 La version finalement adoptée par le Parlement se distingue a` certains egards´ du texte original de 2001. De fa¸con plus particulière, le paragraphe 110(3) permet au ministre et a` la personne en cause de pré- senter non seulement des observations ecrites,´ comme c’était le cas dans la version originale, mais egalement´ des el´´ ements de preuve documentaire. C’est précisément dans la foulée de cette modification qu’a et´´ e introduit le paragraphe 110(4), qui restreint les el´´ ements de preuve qui peuvent etreˆ présentés par la personne en cause a` ceux qui sont « survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet ». 33 Le texte de cette disposition ressemble a` s’y méprendre a` celui de l’alinéa 113a), qui régit l’admissibilité des nouvelles preuves dans le cadre d’une demande d’ERAR. La mise en parallèle de ces deux textes permet de visualiser cette similitude: Evidence that may be presented 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 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 the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; El´´ ements de preuve admissibles 110. (4) Dans le cadre de l’appel, la personne en cause ne peut pré- senter que des el´´ ements de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Examen de la demande 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient Canada (MCI) v. Singh Yves de Montigny, J.A. 77

alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; 34 Il ne fait aucun doute que les conditions explicites mentionnées au paragraphe 110(4) doivent etreˆ respectées. Par conséquent, seuls les el´´ e- ments de preuve suivants seront admissibles: • Les el´´ ements de preuve survenus depuis le rejet de la demande d’asile; • Les el´´ ements de preuve qui n’étaient pas normalement accessibles; ou • Les el´´ ements de preuve qui etaient´ normalement accessibles, mais que la personne en cause n’aurait pas normalement présentés dans les circonstances au moment du rejet. 35 Ces conditions m’apparaissent incontournables et ne laissent place a` aucune discrétion de la part de la SAR. D’une part, le texte même du paragraphe 110(4) précise que la personne en cause « ne peut présenter » (« may present only ») que des el´´ ements de preuve qui entrent dans l’une ou l’autre de ces trois catégories, excluant du même coup tout autre el´´ e- ment de preuve. D’autre part, il ne faut pas perdre de vue que cette disposition déroge au principe général suivant lequel la SAR procède sans tenir d’audience en se fondant sur le dossier de la SPR (para. 110(3)) et doit pour ce motif etreˆ interprétée restrictivement. La juge semble d’ailleurs se rallier a` cette approche, dans la mesure où elle précise que l’intimé « devait etablir´ qu’on ne pouvait pas raisonnablement s’attendre a` ce qu’il produise les nouveaux documents a` l’audience devant la SPR » (para. 47). Si elle lui donne raison, en fin de compte, c’est parce que sa demande de déposer un nouvel el´´ ement de preuve relève clairement, selon elle, du champ d’application du paragraphe 110(4), « car elle satisfait a` ses critères explicites » (para. 62). 36 L’intimé et l’intervenante se sont appuyés sur l’arrêt Elezi c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2007 CF 240, [2008] 1 F.C.R. 365 [Elezi] ainsi que, dans une moindre mesure, sur l’arrêt Sanchez c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2009 FC 101, [2009] A.C.F. no 101, pour soutenir que la SAR peut tenir compte du caractère probant et crédible d’une preuve pour con- trebalancer les exigences du paragraphe 110(4). Avec egards,´ je ne puis me ranger a` cette interprétation. 37 Il convient tout d’abord de noter que l’arrêt Elezi a et´´ e rendu neuf mois avant la décision de la Cour d’appel dans l’affaire Raza, et qu’il ne 78 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

fait donc plus autorité dans la mesure où il s’écarte de cette dernière dé- cision. D’autre part, dans Elezi, la décision de l’agent d’ERAR de ne pas admettre certains el´´ ements de preuve a et´´ e jugée déraisonnable soit parce que ces preuves avaient et´´ e créées après la décision rendue par la SPR, ou parce que l’on ne pouvait raisonnablement s’attendre a` ce que le demandeur présente ces preuves a` la SPR dans les circonstances. Par consé- quent, l’affirmation selon laquelle on ne saurait rejeter un el´´ ement de preuve crédible au seul motif qu’elle est « techniquement inadmissible » doit etreˆ considérée comme un simple obiter. 38 Le véritable nœud du problème, dans le cadre de la présente affaire, consiste a` déterminer si les conditions implicites d’admissibilité qu’a déduites la juge Sharlow de l’alinéa 113a) dans l’arrêt Raza sont egale-´ ment applicables dans le cadre du paragraphe 110(4). Parce qu’il est au cœur des représentations qui nous ont et´´ e soumises par les avocats des deux parties et de l’intervenante, il importe de reproduire ici l’extrait pertinent de cet arrêt: 13 Selon son interprétation de l’alinéa 113a), cet alinéa repose sur l’idée que l’agent d’ERAR doit prendre acte de la décision de la SPR de rejeter la demande d’asile, a` moins que des preuves nouvelles soient survenues depuis le rejet, qui auraient pu conduire la SPR a` statuer autrement si elle en avait eu connaissance. L’alinéa 113a) pose plusieurs questions, certaines explicitement et d’autres implicitement, concernant les preuves nouvelles en question. Je les résume ainsi: 1. Crédibilité: Les preuves nouvelles sont-elles crédibles, compte tenu de leur source et des circonstances dans lesquelles elles sont apparues? Dans la négative, il n’est pas néces- saire de les considérer. 2. Pertinence: Les preuves nouvelles intéressent-elles la demande d’ERAR, c’est-à-dire sont-elles aptes a` prouver ou a` réfuter un fait qui intéresse la demande d’asile? Dans la néga- tive, il n’est pas nécessaire de les considérer. 3. Nouveauté: Les preuves sont-elles nouvelles, c’est-à-dire sont-elles aptes: a)a ` prouver la situation ayant cours dans le pays de renvoi, ou un ev´´ enement ou fait postérieur a` l’audition de la demande d’asile? b)a ` etablir´ un fait qui n’était pas connu du demandeur d’asile au moment de l’audition de sa demande d’asile? Canada (MCI) v. Singh Yves de Montigny, J.A. 79

c)a ` réfuter une conclusion de fait tirée par la SPR (y compris une conclusion touchant la crédibilité)? Dans la négative, il n’est pas nécessaire de les con[s]idérer. 4. Caractère substantiel: Les preuves nouvelles sont-elles substantielles, c’est-à-dire la demande d’asile aurait-elle probablement et´´ e accordée si elles avaient et´´ e portées a` la connaissance de la SPR? Dans la négative, il n’est pas nécessaire de les con[s]idérer. 5. Conditions légales explicites: a) Si les preuves nouvelles sont aptes a` etablir´ uniquement un fait qui s’est produit ou des circonstances qui ont existé avant l’audition de la demande d’asile, alors le demandeur a-t-il etabli´ que les preuves nouvelles ne lui etaient´ pas normalement accessibles lors de l’audition de la demande d’asile, ou qu’il ne serait pas raisonnable de s’attendre a` ce qu’il les ait présentées lors de l’audition de la demande d’asile? Dans la nég- ative, il n’est pas nécessaire de les con[s]idérer. b) Si les preuves nouvelles sont aptes a` etablir´ un fait qui s’est produit ou les circonstances qui ont existé après l’audition de la demande d’asile, alors elles doivent etreˆ considérées (sauf si elles sont rejetées parce qu’elles ne sont pas crédibles, pas pertinentes, pas nouvelles ou pas substantielles). 14 Les quatre premières questions, qui concernent la crédibilité, la pertinence, la nouveauté et le caractère substantiel, résultent implicitement de l’objet de l’alinéa 113a), dans le régime de la LIPR se rapportant aux demandes d’asile et aux examens des risques avant renvoi. Les questions restantes sont posées explicitement par l’alinéa 113a). 15 Je ne dis pas que les questions enum´´ erées ci-dessus doivent etreˆ posées dans un ordre particulier, ou que l’agent d’ERAR doit dans tous les cas se poser chacune d’elles. L’important, c’est que l’agent d’ERAR considère toutes les preuves qui lui sont présentées, a` moins qu’elles ne soient exclues pour l’un des motifs enonc´´ es au paragraphe [13] ci-dessus. 39 Tel que mentionné précédemment, la juge a refusé de transposer au contexte du paragraphe 110(4) les critères implicites d’admissibilité dégagés par la Cour d’appel au regard de l’alinéa 113a). S’appuyant sur le fait que les questions relatives a` la crédibilité, la pertinence, la nou- veauté et le caractère substantiel découlent implicitement de l’objet de 80 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

l’alinéa 113a), au dire même de la juge Sharlow, la juge s’est dite d’avis que le rôle et le statut différents de la SAR par rapport a` l’agent d’ERAR commandaient une analyse distincte. Pour les motifs qui suivent, je ne peux souscrire a` cette analyse. 40 Il faut tenir pour acquis que le choix d’une formulation quasi identique par le législateur ne découle pas du simple hasard. En vertu d’une règle d’interprétation bien connue, il faut présumer que le législateur, lorsqu’il reprend sans les modifier les termes d’une disposition qui a déjà et´´ e interprétée par les tribunaux, entend s’en remettre a` cette interpréta- tion: voir Elmer A. Driedger, Construction of Statutes, 2e ed.,´ Toronto, Butterworths, 1983 a` la p. 125. 41 Il est vrai que la version fran¸caise du paragraphe 110(4) diffère légèr- ement de l’alinéa 113a), dans la mesure où il ne dit pas « qu’il n’était pas raisonnable [...] de s’attendre a` ce qu’il les ait présentés », mais plutôt « qu’elle n’aurait pas normalement présentés ». Comme la juge, je suis d’avis que cette distinction n’est pas révélatrice, et ne suffit pas a` elle seule pour ecarter´ la jurisprudence antérieure qui s’est développée au regard de l’alinéa 113a). L’on ne saurait davantage tirer d’inférence de l’absence du mot « new » dans la version anglaise du paragraphe 110(4). Non seulement ne trouve-t-on pas le mot « nouveau » dans la version fran¸caise de l’alinéa 113a), mais au surplus il va de soi qu’un el´´ ement de preuve survenu depuis le rejet de la demande d’asile sera nécessairement nouveau. 42 Le fait que la SAR soit un tribunal administratif quasi judiciaire, par opposition a` l’agent d’ERAR qui est un employé du ministre dont les actions relèvent du pouvoir discrétionnaire de son employeur, doit evidemment´ etreˆ pris en considération. De même en va-t-il du fait que la SAR exerce une juridiction d’appel et est habilitée a` casser la décision de la SPR et a` y substituer celle qui aurait dû etreˆ rendue, alors que l’agent d’ERAR doit faire preuve de retenue et ne siège pas en appel de la SPR mais n’a pour mission que d’évaluer tout nouveau risque avant un renvoi. Ces distinctions ne sont pas déterminantes quant a` l’admissibilité de nouvelles preuves, cependant, et je note que la juge n’a pas précisé en quoi le rôle et le statut distincts de la SAR et de l’agent d’ERAR devaient influer sur les critères d’admissibilité de la preuve et permettaient d’écarter la présomption a` laquelle je réfère ci-dessus. 43 En fait, les critères retenus dans l’arrêt Raza sont conformes aux tests généralement retenus par les tribunaux judiciaires et les instances ad- ministratives, et ont essentiellement pour objet de préserver l’intégrité du Canada (MCI) v. Singh Yves de Montigny, J.A. 81

processus judiciaire: voir Public School Boards’ Assn. of Alberta c. Alberta (Procureur général), 2000 CSC 2 au para 10, [2000] 1 R.C.S. 44. Bien qu’ils aient et´´ e dégagés par la Cour suprême dans le contexte d’un procès criminel (voir Palmer c. La Reine, [1980] 1 R.C.S. 759 a` la p. 775, 106 D.L.R. (3d) 212 [Palmer]), les critères de nouveauté, de pertinence, de crédibilité et de caractère déterminant ont subséquemment et´´ e appliqués en matière civile (J.T.I MacDonald Corp. c. Canada (Procureur général), 2004 CanLII 30110 au para. 3, [2004] J.Q. no 9409 (C.A.Q.), en droit disciplinaire (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 au para. 140, 213 D.L.R. (4th) 17 (C.A. I.- P.-E.), en droit autochtone (Première Nation des Chippewas de Nawash c. Canada (Ministre des Pêches et des Océans), 2002 CAF 22 au para. 20, [2002] A.C.F. no 146) et dans plusieurs autres domaines (voir Don- ald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015 aux pp. 10-16 a` 10-18). 44 En fait, il m’apparaˆıt difficile de soutenir que les critères enonc´´ es par la juge Sharlow dans l’arrêt Raza ne découlent pas tout aussi implicitement du paragraphe 110(4) que de l’alinéa 113a). On voit mal, notamment, comment la SAR pourrait admettre une preuve documentaire qui ne serait pas crédible. De fait, l’alinéa 171a.3) prévoit expressément que la SAR « peut recevoir les el´´ ements de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision ». Il est vrai que l’alinéa 110(6)a) introduit egalement´ la notion de crédibilité aux fins de déterminer si une audience peut etreˆ tenue. A` ce chapitre, cependant, ce n’est pas la crédibilité de la preuve elle-même qui doit etreˆ soupesée, mais bien la question de savoir si un el´´ ement de preuve par ailleurs crédi- ble « soulève une question importante » relativement a` la crédibilité générale de la personne en cause. En d’autres termes, le fait qu’un nouvel el´´ ement de preuve soit intrinsèquement crédible ne suffira pas pour justifier la tenue d’une audience devant la SAR: il faudra encore que cet el´´ e- ment de preuve puisse justifier une réévaluation de la crédibilité globale d’un demandeur et de son récit. 45 Il en va de même de la pertinence. Il s’agit là d’une condition el´´ e- mentaire pour l’admissibilité de tout el´´ ement de preuve, et l’on voit mal pourquoi l’introduction d’une preuve nouvelle echapperait´ a` ce critère. Les règles 3(3)(g)(iii) et 5(2)(d)(ii) des Règles de la Section d’appel des réfugiés, D.O.R.S./2012-257 y font d’ailleurs implicitement allusion en prévoyant que le mémoire et le mémoire en réplique de l’appelant doivent inclure des observations concernant la fa¸con dont les el´´ ements de preuve que l’appelant veut invoquer sont non seulement conformes aux 82 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

exigences du paragraphe 110(4), mais egalement´ « la fa¸con dont ils sont liés a` l’appelant (« how that evidence relates to the appellant »). 46 Le critère de nouveauté peut paraˆıtre quelque peu redondant et n’ajoute pas vraiment aux exigences explicites du paragraphe 110(4). 47 Pour ce qui est du quatrième critère implicite identifié par cette Cour dans l’affaire Raza, soit le caractère substantiel de la preuve, il y a peut- etreˆ lieu de procéder a` certaines adaptations. Dans le contexte d’un ERAR, l’exigence que la nouvelle preuve soit d’une telle importance qu’elle aurait permis de conclure différemment de la SPR peut s’expliquer dans la mesure où l’agent d’ERAR doit faire preuve de défér- ence eu egard´ a` la décision négative rendue par la SPR et ne peut y dér- oger que sur la base d’une situation différente ou d’un risque nouveau. La SAR, en revanche, a un mandat beaucoup plus etendu´ et peut intervenir pour corriger toute erreur de fait, de droit ou mixte. Par consé- quent, il se peut que la preuve nouvelle ne soit pas déterminante en soi, mais puisse influer sur l’appréciation globale que fera la SAR de la déci- sion rendue par la SPR. 48 D’autre part, le paragraphe 110(6) de la LIPR assujettit la tenue d’une audience devant la SAR a` trois conditions reliées a` l’existence de nouveaux el´´ ements de preuve documentaire. Le principe suivant lequel la SAR procède sans tenir d’audience, enonc´´ e au paragraphe 110(3), ne peut en effet souffrir d’exception que si des el´´ ements de preuve documentaire « a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de décision relative a` la demande d’asile; et c) a` supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas ». Or, ces trois conditions se rapportent indéniablement au caractère substantiel que revêtent les el´´ ements de preuve nouveaux que la SAR pourrait etreˆ appelée a` considérer. Si tel est bien le cas, comme il est permis de le croire, il serait redondant d’exiger que des el´´ ements de preuve aient un caractère substantiel afin de pouvoir etreˆ admis comme nouvelle preuve, pour ensuite assujettir la tenue d’une audience au même critère. 49 Sous réserve de cette adaptation nécessaire, je suis donc d’avis que les critères implicites dégagés dans l’arrêt Raza trouvent egalement´ application dans le cadre du paragraphe 110(4). Pour les raisons explicitées plus haut, on ne m’a pas convaincu que le rôle différent de l’ERAR et de la SAR ainsi que le statut distinct des personnes appelées a` exercer ces fonctions suffisent pour ecarter´ la présomption voulant que le législateur Canada (MCI) v. Singh Yves de Montigny, J.A. 83

entendait s’en remettre a` l’interprétation qu’ont faite les tribunaux d’un texte législatif lorsqu’il choisit d’en reprendre les el´´ ements essentiels dans une autre disposition. Non seulement les exigences mentionnées dans l’arrêt Raza vont-elles de soi et ont-elles largement et´´ e appliquées par les tribunaux dans une foule de contextes juridiques, mais il y a au surplus de très bonnes raisons qui expliquent pourquoi le législateur préconiserait une approche restrictive quant a` l’admissibilité de nouvelles preuves en appel. 50 Tel que l’a noté la Cour suprême dans l’arrêt Palmer, il existe un principe judiciaire bien etabli´ suivant lequel la preuve et les questions en litige doivent etreˆ exhaustivement introduites et traitées a` l’étape du procès en matière criminelle ou de la première instance en matière civile. Au fur et a` mesure qu’une affaire progresse, les questions en litige doivent normalement etreˆ davantage circonscrites; or, l’introduction d’une preuve nouvelle aura plutôt pour effet d’élargir l’étendue du débat. C’est ce que soulignait avec beaucoup d’à-propos la SAR, au paragraphe 20 de ses motifs: Le fait que des el´´ ements de preuve corroborent des faits, contredisent des conclusions de la SPR ou qu’ils précisent la preuve dont celle-ci etait´ saisie ne fait pas d’eux une « preuve nouvelle » au sens du paragraphe 110(4) de la Loi. Si tel etait´ le cas, les demandeurs d’asile pourraient diviser leur preuve et présenter devant la SAR a` l’étape de l’appel des el´´ ements qui auraient pu l’être dès le départ devant la SPR. Or, a` mon avis, c’est précisément ce que le paragraphe 110(4) de la Loi vise a` empêcher. [notes de bas de page omises] 51 A` ce chapitre, il est d’ailleurs significatif de constater que le légis- lateur n’a dérogé que de fa¸con limitée au principe de l’appel sur dossier retenu dans la version originale de la LIPR adoptée en 2002. Au risque de me répéter, la règle de base est a` l’effet que la SAR « procède sans tenir d’audience en se fondant sur le dossier de la [SPR] [...] » (para. 110(3)). La nouvelle preuve devra satisfaire aux critères d’admissibilité enonc´´ es au paragraphe 110(4), et une nouvelle audience ne pourra etreˆ tenue que si les nouveaux el´´ ements de preuve satisfont aux conditions prévues au paragraphe 110(6). Dans l’hypothèse où la SAR estime que toute la preuve devrait etreˆ réentendue pour prendre une décision eclair´´ ee, elle devra renvoyer l’affaire a` la SPR (para. 111(2)). Ce cadre législatif témoigne de la volonté claire du législateur de baliser etroite-´ ment l’introduction de toute nouvelle preuve. 84 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

52 La juge a reconnu qu’un appel interjeté auprès de la SAR « est essentiellement un appel ‘sur dossier’ » (para. 52). Elle s’est cependant dite d’avis qu’une interprétation stricte du paragraphe 110(4) limiterait la capacité d’un demandeur d’avoir accès a` « un véritable appel fondé sur les faits », ce qui irait a` l’encontre du souhait qu’avait formulé l’ancien ministre de la Citoyenneté et de l’Immigration, Jason Kenney, dans une déclaration faite en Chambre le 6 mars 2012 (Débats de la Chambre des communes, 41e parl., 1e` sess., nº 90 (6 mars 2012) a` la p. 5874). 53 Il est vrai qu’en présentant le projet de loi, le ministre avait affirmé que la grande majorité des demandeurs provenant de pays non désignés auraient pour la première fois accès a` un « appel fondé sur les faits » devant la SAR. Cette déclaration ne suffit cependant pas, a` elle seule, pour etayer´ la thèse voulant que l’on puisse faire abstraction des critères explicitement retenus au paragraphe 110(4). Elle est, au mieux, ambiguë, et pourrait simplement etreˆ interprétée de manière a` souligner la distinction entre un appel et l’examen beaucoup plus restreint effectué dans le cadre d’un contrôle judiciaire. Je souscris a` cet egard´ a` l’argument de l’appelant et a` son analyse des circonstances dans lesquelles le ministre a fait sa déclaration. 54 La juge s’est egalement´ appuyée sur les délais réduits a` l’intérieur desquels un demandeur doit présenter ses documents pour appuyer l’interprétation souple des critères d’admissibilité qu’elle préconise dans sa décision. Il est vrai que les modifications apportées a` la LIPR et au Règlement sur l’immigration et la protection des réfugiés, D.O.R.S./2002-227 [RIPR] mettent beaucoup de pression sur les demandeurs d’asile. Le déféré d’une demande a` la SPR se fait dans les trois jours du dépôt de la demande (LIPR, para. 100(1)), et l’audition doit avoir lieu dans les soixante jours du déféré (LIPR, al. 159.9(1)(b)), et même dans les 30 ou 45 jours pour les ressortissants d’un pays désigné. En outre, selon le paragraphe 34(3) des Règles de la Section de la protection des réfugiés, D.O.R.S./2012-256 [Règles de la SPR], les demandeurs d’asile doivent déposer leur preuve documentaire devant la SPR dix jours avant l’audience. Ces considérations ne sauraient cependant suffire pour ecarter´ la volonté claire du législateur de n’autoriser l’introduction de nouvelles preuves en appel que dans des circonstances bien précises et soigneusement délimitées. Le rôle de la SAR ne consiste pas a` fournir la possibilité de compléter une preuve déficiente devant la SPR, mais plutôt a` permettre que soient corrigées des erreurs de fait, de droit ou mixtes de fait et de droit. Canada (MCI) v. Singh Yves de Montigny, J.A. 85

55 A` l’inverse, la volonté de contrer les abus auxquels a pu donner lieu le régime applicable avant l’entrée en vigueur de la LMRER et la Loi visant a` protéger le système d’immigration du Canada, L.C. 2012, c. 17 ne saurait etreˆ invoqué pour restreindre les preuves nouvelles que cherchent a` déposer ceux et celles qui se trouvent validement devant la SAR. Dans son mémoire, le ministre a fait valoir que la LMRER témoignait dans une certaine mesure d’une volonté de rehausser les critères d’admissibilité de la nouvelle preuve a` la SAR. Sans doute le législateur entendait-il assurer l’intégrité du système d’immigration en contrant plus efficacement les individus qui tentent d’en abuser. Pour ce faire, le Parlement a pris un certain nombre de mesures, comme la créa- tion de la SAR, et a prévu des règles claires de preuve et de procédure pour en assurer la bonne marche. Ces règles doivent etreˆ respectées, et il faut présumer que les choix explicites qui ont et´´ e faits s’accordent avec l’objectif poursuivi. Il ne revient pas aux tribunaux de réécrire de telles dispositions lorsqu’elles sont intelligibles et sans equivoque.´ 56 Enfin, l’intervenante a fait valoir que la SAR devait s’inspirer des valeurs enchâssées dans la Charte canadienne des droits et libertés, partie I de la Loi constitutionnelle de 1982, constituant l’annexe B de la Loi de 1982 sur le Canada (R.-U.), 1982, c. 11 [Charte] lorsqu’elle se prononce sur l’admissibilité d’une nouvelle preuve. S’appuyant sur l’alinéa 3(3)(d) de la LIPR, suivant lequel l’interprétation et la mise en œuvre de cette loi doivent avoir pour effet d’assurer que les décisions prises sous son autorité sont conformes a` la Charte, ainsi que sur les décisions rendues par la Cour suprême dans les arrêts Doré c. Barreau du Québec, 2012 CSC 12, [2012] 1 R.C.S. 395 [Doré] et Ecole´ secondaire Loyola c. Québec (Procureur général), 2015 CSC 12, [2015] 1 R.C.S. 613 [Loyola], les procureurs de l’intervenante ont prétendu que la SAR devait aller au-delà des exigences prévues au paragraphe 110(4) et avait l’obligation de procéder a` une analyse de proportionnalité entre la gravité de l’atteinte a` un droit protégé par la Charte et les objectifs visés par le législateur. Voici comment ils enoncent´ le test qu’ils proposent (au para. 34 de leur mémoire): [TRADUCTION] a) Si l’élément de preuve permet de démontrer de fa¸con crédible des circonstances pertinentes qui ont existé après la décision de la SPR, cet el´´ ement de preuve doit etreˆ pris en compte. b) Si l’élément de preuve permet seulement de démontrer de fa¸con crédible des circonstances pertinentes qui ont existé avant la décision de la SPR, la SAR doit se demander si 86 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

l’appelant a etabli´ (i) que l’élément de preuve n’était pas normalement accessible ou (ii) qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce que l’appelant l’ait présenté au moment de la décision de la SPR. Dans son examen, la SAR doit garder a` l’esprit que « pour qu’il y ait un “véritable appel fondé sur les faits” devant la SAR, les critères d’admissibilité des el´´ ements de preuve doivent etreˆ assez souples pour que cet appel puisse avoir lieu » [Singh c. Canada (Citoyenneté et Immigration), 2014 CF 1022, au para. 55, la juge Gagné]. Si l’appelant est en mesure d’établir qu’il remplit l’une ou l’autre des conditions, l’élément de preuve doit etreˆ admis. c) Si l’appelant ne remplit ni l’une ni l’autre des conditions, la SAR doit alors se demander si l’élément de preuve etablit´ une preuve prima facie de risque, et dans l’affirmative, si cela pourrait amener la SAR a` tirer une conclusion différente de celle de la SPR concernant un aspect clé de la demande. Si tel est le cas, la SAR doit procéder a` une analyse de proportion- nalité dans le cadre de laquelle elle met en balance la gravité de l’atteinte aux droits de l’appelant protégés par la Charte que causerait l’exclusion de la preuve et les objectifs visés par le paragraphe 110(4). 57 Avec egards,´ je ne peux me ranger a` cet argument. Il est vrai que dans l’arrêt Doré, la Cour suprême s’est dite d’avis qu’un décideur administratif doit mettre en balance les valeurs consacrées par la Charte et les objectifs visés par la loi dans l’exercice de son pouvoir discrétionnaire. Dans le contexte d’une révision judiciaire, la cour devra déterminer si la décision attaquée est le fruit d’une mise en balance proportionnée des droits et des valeurs protégés par la Charte, une démarche qui n’est pas sans rappeler le cadre d’analyse etabli´ dans l’arrêt R. c. Oakes, [1986] 1 R.C.S. 103, 26 D.L.R. (4th) 200 lorsque la validité même d’un texte législatif est remise en question. Cette approche est bien résumée dans l’extrait suivant de l’arrêt Doré, au paragraphe 57: Dans le contexte d’une révision judiciaire, il s’agit donc de déter- miner si — en evaluant´ l’incidence de la protection pertinente offerte par la Charte et compte tenu de la nature de la décision et des contextes légal et factuel — la décision est le fruit d’une mise en balance proportionnée des droits en cause protégés par la Charte. Comme le juge LeBel l’a souligné dans Multani, lorsqu’une cour est appelée a` réviser une décision administrative qui met en jeu les droits protégés par la Charte, « [l]a question se réduit a` un problème de proportion- nalité » (par. 155) et requiert d’intégrer l’« esprit » de l’article pre- Canada (MCI) v. Singh Yves de Montigny, J.A. 87

mier dans la révision judiciaire. Même si cette révision judiciaire est menée selon le cadre d’analyse du droit administratif, il existe né- anmoins une harmonie conceptuelle entre l’examen du caractère raisonnable et le cadre d’analyse préconisé dans Oakes puisque les deux démarches supposent de donner une marge d’appréciation aux organes administratifs ou législatifs ou de faire preuve de déférence a` leur egard´ lors de la mise en balance des valeurs consacrées par la Charte, d’une part, et les objectifs plus larges, d’autre part. 58 S’appuyant sur cette approche, les procureurs de l’intervenante sou- tiennent que les valeurs protégées par l’article 7 de la Charte doivent im- prégner l’interprétation et l’application du paragraphe 110(4) de la LIPR et même entraˆıner l’admissibilité d’une preuve nouvelle qui ne répond pas aux exigences explicites de cette disposition. Cette thèse se heurte cependant au moins a` deux difficultés. 59 Tout d’abord, il n’a pas et´´ e etabli´ dans le présent dossier que les valeurs protégées par l’article 7 de la Charte sont affectées par la déci- sion de la SAR de ne pas accepter a` titre de nouvelle preuve le Diplôme que voulait introduire l’intimé. L’intervenante a plaidé que l’exclusion d’une preuve crédible pouvait entrainer le rejet d’un appel et par voie de conséquence le renvoi de l’étranger visé « dès que possible », puisque la mesure de renvoi conditionnelle devient exécutoire quinze jours après la notification du rejet de l’appel (LIPR, al.49(2)c)). Cela ne me paraˆıt cependant pas suffisant pour conclure que la décision de ne pas accepter une nouvelle preuve dans le cadre d’un appel fait nécessairement intervenir le droit de ne pas se voir privé de sa vie, de sa sécurité ou de sa liberté autrement qu’en conformité avec les principes de justice fondamentale. 60 Il convient tout d’abord de rappeler que la décision prise par la SPR et, en appel, par la SAR, ne porte pas sur le renvoi de l’intimé, mais uniquement sur la question de savoir s’il a véritablement qualité de réfugié au sens de la Convention relative au statut des réfugiés ou de personne a` protéger, conformément aux articles 96 et 97 de la LIPR. Je suis prêt a` reconnaˆıtre que la décision de la SAR d’exclure une preuve au motif qu’elle ne remplit pas les critères du paragraphe 110(4) pèsera lourd lorsqu’un etranger´ tentera d’introduire cette même preuve devant un agent d’ERAR ou devant un agent de renvoi. Il n’en demeure pas moins que l’intimé, dans le cas présent, n’a pas réussi a` etablir´ sa crédibilité; la SAR a estimé que la SPR pouvait raisonnablement conclure que la crédibilité de l’intimé etait´ sérieusement entachée, et que cette conclusion tiendrait même si l’on devait admettre en preuve le 88 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Diplôme. Pour les motifs exposés plus loin, je suis d’avis que cette conclusion appartient aux issues possibles acceptables pouvant se justifier au regard des faits et du droit, et par conséquent l’intimé n’a pas etabli´ que sa vie, sa liberté ou sa sécurité seraient menacées dans l’hypothèse où il serait renvoyé en Inde. 61 D’autre part, l’intervenante ne m’a pas convaincu que la décision de la SAR de ne pas accepter un nouvel el´´ ement de preuve mettrait en jeu les principes de justice fondamentale. Il ne faut pas perdre de vue que l’étranger qui revendique le statut de réfugié ou de personne a` protéger bénéficie d’une procédure etoff´´ ee a` plusieurs volets qui lui permet de faire valoir ses prétentions devant différents paliers de décideurs administratifs et de tribunaux quasi judiciaires indépendants et impartiaux, et qu’il peut demander le contrôle judiciaire de ces décisions devant la Cour fédérale. Bien que le droit d’appel n’ait pas et´´ e reconnu comme un principe de justice fondamentale (voir Medovarski c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2005 CSC 51 au para. 47, [2005] 2 R.C.S. 539; Chiarelli c. Canada (Ministre de l’Emploi et de l’Immigration), [1992] 1 R.C.S. 711 aux pp. 741-742, 90 D.L.R. (4th) 289), le Parlement a décidé de parfaire le régime antérieur et de mettre en œuvre les dispositions de la LIPR prévoyant l’existence de la SAR. Le législateur aurait pu se contenter de prévoir un appel sur dossier et sans audition, mais a choisi d’ouvrir la porte a` l’introduction de nouvelles preuves et a` la tenue d’audiences dans des circonstances qu’il a soigneusement balisées. Je vois mal comment la bonification d’un sys- tème déjà respectueux dans ses grandes lignes des obligations interna- tionales et constitutionnelles auxquelles le Parlement et le gouvernement sont assujettis pourrait mettre en péril ce même système, d’autant plus que les critères retenus quant a` l’admissibilité de nouvelles preuves sont essentiellement similaires a` ceux qui sont normalement utilisés devant les instances judiciaires et quasi judiciaires d’appel, tant en matière civile que criminelle. La constitutionnalité du paragraphe 110(4) de la LIPR n’a pas et´´ e plaidée dans le présent dossier, et je m’abstiendrai donc de formuler toute conclusion définitive a` ce sujet. Ceci etant,´ on ne m’a pas convaincu que le rejet du Diplôme par la SAR porte atteinte aux principes de justice fondamentale, a` supposer même que l’exclusion de cette preuve fasse intervenir le droit a` la vie, la liberté ou la sécurité de l’intimé. 62 Mais il y a plus. Une lecture attentive de l’arrêt Doré révèle que l’obligation pour un décideur administratif d’appliquer les valeurs con- sacrées par la Charte ne prend naissance que dans l’hypothèse où il ex- Canada (MCI) v. Singh Yves de Montigny, J.A. 89

erce un pouvoir discrétionnaire conféré par la loi: Doré au para. 55; Loyola au para. 35; R c. Clarke, 2014 CSC 28 au para. 16, [2014] 1 R.C.S. 612. Lorsqu’un texte législatif ou règlementaire est clair et sans ambigüité, il n’appartient pas aux tribunaux de le réécrire sous prétexte d’en assurer la conformité avec les valeurs découlant de la Charte (Najafi c. Canada (Ministre de la Sécurité publique et de la Protection civile), 2014 CAF 262 au para. 107, [2015] 4 R.C.F. 162; Febles c. Canada (Citoyenneté et Immigration), 2014 CSC 68 au para. 67, [2014] 3 R.C.S. 431). Sauf circonstances exceptionnelles, les tribunaux ne sont habilités qu’à déclarer l’invalidité d’une loi qui contrevient aux textes constitu- tionnels, et seulement lorsque la question est explicitement soulevée et que le ministre en a et´´ e avisé. C’est au Parlement qu’il revient de modifier une loi déclarée inconstitutionnelle pour en assurer la conformité avec la loi fondamentale du pays. 63 Or, le paragraphe 110(4) n’est pas rédigé de fa¸con ambigüe et ne con- fère aucune discrétion a` la SAR. Tel que mentionné précédemment (voir les para. 34, 35 et 38 ci-haut), l’admissibilité d’une preuve nouvelle devant la SAR est assujettie a` des critères bien définis, et ni le libellé de ce paragraphe ni le cadre plus large de l’article dans lequel il se trouve ne permettent de croire que le législateur entendait conférer a` la SAR la dis- crétion de passer outre aux exigences qu’il a soigneusement prévues. Cette approche est d’ailleurs parfaitement conforme a` la décision rendue par cette Cour dans l’arrêt Raza. Les critères dégagés dans cette affaire eu egard´ a` l’alinéa 113a), qui ne sont d’ailleurs pas nécessairement cumulatifs, ne supplantent pas les conditions légales explicites; ils s’ajoutent au contraire a` ces conditions dans la mesure où ils « résultent implicitement » de l’objet de cette disposition, pour reprendre les termes de cette Cour au paragraphe 14 de l’arrêt Raza. A` l’inverse, il ne saurait etreˆ question de faire fi des exigences enonc´´ ees au paragraphe 110(4) pour s’en remettre plutôt a` un exercice de pondération entre les valeurs de la Charte et les objectifs poursuivis par le législateur. En l’absence d’une contestation directe de ce texte législatif, il convient de lui donner effet et la SAR n’a d’autre choix que d’en respecter les exigences. 64 En conclusion, je suis d’avis qu’il n’y a aucune raison valable de ne pas appliquer pour l’essentiel les critères implicites dégagés par cette Cour dans l’arrêt Raza dans le cadre du paragraphe 110(4) de la LIPR. Le texte de cette disposition est quasi identique a` celui de l’alinéa 113a), et le contexte dans lequel il a et´´ e adopté de même que les considérations de politique judiciaire qui le sous-tendent militent en faveur d’une approche identique malgré le fait qu’ils se rapportent a` des procédures dis- 90 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

tinctes et a` des décideurs différents. La question me paraˆıt de toute fa¸con largement académique, dans la mesure où les critères implicites de l’arrêt Raza n’ajoutent pas vraiment au texte du paragraphe 110(4) mais s’en infèrent nécessairement. Sauf pour le critère du caractère substantiel d’une preuve, qui ne se prête pas a` la même analyse dans le cadre d’un appel et dont le paragraphe 110(6) tient déjà compte pour déterminer si une nouvelle audience doit etreˆ tenue, il n’y a donc pas lieu d’interpréter différemment le paragraphe 110(4) et l’alinéa 113a). Il va sans dire que la SAR aura toujours le loisir d’appliquer les exigences du paragraphe 110(4) avec plus ou moins de souplesse selon les circonstances propres a` chaque affaire. 65 Je suis donc d’avis que la SAR n’a pas erré en utilisant « mutatis mutandis » les critères implicites dégagés dans l’arrêt Raza pour inter- préter le paragraphe 110(4); cette interprétation me paraˆıt non seulement raisonnable mais egalement´ correcte. De même, la SAR pouvait raisonnablement conclure que le Diplôme etait´ inadmissible parce qu’il ne pouvait etreˆ considéré comme de la preuve nouvelle. Pour en arriver a` cette conclusion, la SAR s’est essentiellement basée sur le fait que l’intimé avait accès au Diplôme au moment de son audition devant la SPR le 2 avril 2013, puisqu’une copie en avait et´´ e transmise a` son avocate par l’ASFC et qu’il lui etait´ loisible d’en obtenir une copie de l’ASFC pour la déposer lui-même en preuve a` la SPR. 66 Il est vrai que l’agent d’immigration n’a apparemment pas remis a` la SPR le Diplôme, comme il se devait de le faire en vertu du paragraphe 3(5) des Règles de la SPR. L’intimé prétend par ailleurs n’avoir appris qu’en juin 2013 que son avocate devant la SPR avait re¸cu copie de ce document en février 2013. Cette allégation n’est cependant pas suf- fisante, en soi, pour décharger l’intimé de toute responsabilité. Il est bien etabli´ qu’un demandeur doit vivre avec les conséquences des gestes posés par son avocat: Cove c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2001 CFPI 266 aux para. 6-11, [2001] A.C.F. no 482. Comme la Cour fédérale le soulignait dans l’arrêt Nagy c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2013 CF 640 au para. 60, [2013] A.C.F. no 664, « [l]a barre est très haute en ce qui a trait aux circonstances et a` la preuve requise pour que la Cour puisse accorder une réparation en vertu de l’article 18.1 de la Loi sur les Cours fédérales pour cause de la négligence de l’avocat ». Voir aussi: Bedoya c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2007 CF 505 au para. 19, [2007] A.C.F. no 680. Canada (MCI) v. Singh Yves de Montigny, J.A. 91

67 A` cet egard,´ je note que la jurisprudence de la Cour fédérale en ma- tière d’immigration est constante a` l’effet que l’on ne peut faire droit a` une allégation de manquement professionnel a` l’égard d’un avocat en l’absence de toute preuve démontrant qu’une plainte a et´´ e soumise aux autorités compétentes du barreau dont l’avocat relève ou d’une explication emanant´ personnellement du professionnel visé: voir, a` titre d’illustrations, Odafe c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2011 CF 1429 au para. 8, [2011] A.C.F. no 1762; Teganya c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2011 CF 336 aux para. 26-37, [2011] A.C.F. no 430; Parast c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2006 CF 660 au para. 11, [2006] A.C.F. no 844; Yang c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2008 CF 269 aux para. 17-28, [2008] A.C.F. no 344. De fait, la Cour fédérale a adopté un protocole en mars 2014 prescrivant la démarche a` suivre lorsqu’une partie désire evoquer´ devant elle ce type d’allégation, et prévoit notamment l’obligation d’envoyer un avis ecrit´ a` l’avocat faisant etat´ des reproches que l’on entend soulever a` son endroit et l’invitant a` fournir une réponse dont la Cour pourra eventuellement´ prendre connaissance (Protocole procédural concernant les allégations formulées contre les avocats ou contre d’autres représentants autorisés au cours des instances de la Cour fédérale en matière de citoyenneté, d’immigration et de personnes a` protéger (7 mars 2014), en ligne: Cour fédérale du Canada ). 68 En l’occurrence, la juge a estimé qu’il n’était pas raisonnable de la part de la SAR de s’attendre a` ce que le demandeur connaisse la procé- dure a` suivre pour déposer une plainte au Barreau du Québec, et encore moins qu’il veuille mettre en doute la compétence et l’éthique profes- sionnelle de cette avocate. Je ne peux me ranger a` cet avis. Non seulement la juge ne cite-t-elle aucun précédent a` l’appui de sa conclusion, mais au surplus elle ne tient pas compte du fait que le demandeur etait´ représenté devant la SAR par un avocat expérimenté. 69 Bref, la SAR pouvait raisonnablement conclure dans les circonstances que le Diplôme ne constituait pas une preuve nouvelle. Cet el´´ ement de preuve n’est pas nouveau, il etait´ accessible a` l’intimé et son avocate en avait re¸cu copie de l’ASFC. L’intimé n’ayant pas soulevé l’incompétence de son avocate et n’ayant formulé aucune plainte contre elle auprès des autorités compétentes, la SAR n’avait d’autre option que de rejeter cette preuve conformément au paragraphe 110(4) de la LIPR. 92 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

70 Enfin, la juge a invoqué la possibilité que l’inadmissibilité d’une preuve puisse impliquer de « graves questions d’équité procédurale » du fait qu’un demandeur pourrait etreˆ privé d’une audience alors qu’il y a droit. A` son avis, tel etait´ le cas ici: « En l’espèce, le demandeur s’est bel et bien fait refuser la tenue d’une audience parce que son diplôme d’études de 2002 a et´´ e jugé inadmissible » (para. 53). 71 Or, tel que mentionné plus haut, la tenue d’une audience n’est pas automatique dès lors qu’une nouvelle preuve est admise devant la SAR. Encore faut-il que cette nouvelle preuve satisfasse aux trois critères enonc´´ es au paragraphe 110(6) de la LIPR. En l’occurrence, on n’a même pas tenté de démontrer en quoi le Diplôme etait´ déterminant pour etablir´ la crédibilité de l’intimé et de quelle fa¸con il viendrait pallier les diverses lacunes de son témoignage identifiées par la SPR et confirmées par la SAR. Faut-il le rappeler, la SPR a conclu que le récit de l’intimé etait´ défaillant a` plusieurs egards:´ il s’est contredit quant au moment précis où son père a et´´ e victime d’une attaque cardiaque, ni ses allégations de torture ni la condition médicale dans laquelle se trouverait son père ne sont corroborées par la preuve médicale, et il a présenté en preuve des documents frauduleux et altérés, en plus de ne faire aucune démarche pour obtenir des documents probants et acceptables permettant d’établir son identité. Compte tenu de tous ces facteurs, il est loin d’être acquis que le Diplôme serait essentiel pour trancher la demande d’asile de l’intimé et justifierait que cette demande soit accordée. 72 Par conséquent, on ne peut présumer que l’admission en preuve de ce document aurait entraˆıné une audience et que son rejet s’est traduit par un bris d’équité procédurale. L’on ne peut davantage arguer de la pos- sibilité qu’une audience aurait pu découler de l’admission en preuve du Diplôme pour plaider en faveur d’une interprétation souple du paragraphe 110(4): non seulement la tenue d’une audience dans le cas présent apparaˆıt-elle très théorique, mais au demeurant l’admissibilité d’une preuve ne saurait s’apprécier en tenant compte des conséquences qui pourraient en découler aux fins de l’application du paragraphe 110(6).

V. Conclusion 73 Pour tous les motifs qui précèdent, je suis donc d’avis que l’appel devrait etreˆ accueilli, que le jugement de la Cour fédérale devrait etreˆ annulé, et que la décision de la SAR devrait etreˆ maintenue. Il en résulte Canada (MCI) v. Singh Johanne Gauthier, J.A. 93

que l’intimé n’a pas la qualité de réfugié au sens de la Convention ni de personne a` protéger au sens des articles 96 et 97 de la LIPR. 74 Je répondrais par ailleurs comme suit aux deux questions certifiées qui ont et´´ e soumises a` cette Cour: 1. Quelle norme de contrôle la Cour devrait-elle appliquer au moment d’examiner l’interprétation que fait la Section d’appel des réfugiés du paragraphe 110(4) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27? Réponse: L’interprétation que fait la SAR du paragraphe 110(4) de la LIPR doit etreˆ révisée en appliquant la norme de la déci- sion raisonnable, conformément a` la présomption voulant que l’interprétation par un organisme administratif de sa loi constitutive fasse l’objet de déférence par la cour de révision. 2. Au moment d’examiner le rôle de l’agent d’examen des risques avant renvoi et celui de la Section d’appel des réfugiés de la Com- mission de l’immigration et du statut de réfugié saisie de l’appel d’une décision de la Section de la protection des réfugiés, faut-il appliquer les critères enonc´´ es dans l’arrêt Raza c. Canada (Citoyenneté et Immigration), 2007 CAF 385, pour l’interprétation de l’alinéa 113a) de la Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27, au paragraphe 110(4) de cette loi? Réponse: Pour déterminer l’admissibilité d’une preuve au regard du paragraphe 110(4) de la LIPR, la SAR doit toujours s’assurer que les exigences explicites prévues par cette disposition sont respectées. Il etait´ egalement´ raisonnable pour la SAR de s’inspirer, en y apportant les adaptations nécessaires, des con- sidérations dégagées par cette Cour dans l’arrêt Raza. L’exigence du caractère substantiel de la nouvelle preuve doit cependant s’apprécier dans le contexte du paragraphe 110(6), a` la seule fin de déterminer si la SAR peut tenir une audience.

M. Nadon, J.A.:

Je suis d’accord

Johanne Gauthier, J.A.:

Je suis d’accord Appeal allowed. 94 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

[Indexed as: Oberlander v. Canada (Attorney General)] Helmut Oberlander, Appellant and The Attorney General of Canada, Respondent Federal Court of Appeal Docket: A-51-15 2016 FCA 52 Eleanor R. Dawson, D.G. Near, Richard Boivin JJ.A. Heard: February 1, 2016 Judgment: February 15, 2016 Immigration and citizenship –––– Citizenship — Loss of citizenship — False representation, fraud, or concealing material circumstances –––– Appellant was former citizen of Canada — In 1995, investigation found that former citizen was involved in war crimes during World War II, having worked in Nazi unit — Former citizen had originally resided in Ukraine, and was conscripted into unit for which he worked — Former citizen had not disclosed these activities when he applied for Canadian citizenship, in 1960 — In 2000, judgment in Federal Court found that former citizen obtained citizenship on basis of false representation — Governor in Council subsequently revoked citizenship of former citizen — Decision was set aside, reconsidered and former citizen once again had citizenship revoked in 2007 — On appeal, majority of court found that issue of duress had not been properly considered — Matter was remitted back to Gover- nor in Council, who decided that duress defence was not established — Former citizen applied for judicial review of this decision, but was unsuccessful — For- mer citizen appealed from dismissal of judicial review — Appeal allowed — Determinative issue was whether Federal Court erred in principle by concluding that former citizen had not established sufficient grounds to remit issue of complicity — Link between duress and complicity was not properly addressed by Federal Court — Proper test was to determine activities of individuals such as former citizen, not those of group — To do otherwise was to risk finding of guilt by association — Former citizen was entitled to determination of extent of his contribution to activities of unit — This determination would show whether harm faced by former citizen was equal to that of victims — Matter was again remitted to Governor in Council. Cases considered by Eleanor R. Dawson J.A.: Canada (Minister of Citizenship & Immigration) v. Oberlander (2000), 2000 CarswellNat 304, [2000] F.C.J. No. 229, 185 F.T.R. 41, 2000 CarswellNat 5194 (Fed. T.D.) — referred to Oberlander v. Canada (Attorney General) 95

Canadian Imperial Bank of Commerce v. Green (2015), 2015 SCC 60, 2015 CSC 60, 2015 CarswellOnt 18335, 2015 CarswellOnt 18336, 77 C.P.C. (7th) 1, 391 D.L.R. (4th) 567 (S.C.C.) — referred to Danyluk v. Ainsworth Technologies Inc. (2001), 2001 SCC 44, 2001 Carswell- Ont 2434, 2001 CarswellOnt 2435, 54 O.R. (3d) 214 (headnote only), 201 D.L.R. (4th) 193, 10 C.C.E.L. (3d) 1, 7 C.P.C. (5th) 199, 272 N.R. 1, 149 O.A.C. 1, 2001 C.L.L.C. 210-033, [2001] S.C.J. No. 46, 34 Admin. L.R. (3d) 163, [2001] 2 S.C.R. 460, REJB 2001-25003, 2001 CSC 44 (S.C.C.) — considered Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2013), 2013 SCC 40, 2013 CarswellNat 2463, 2013 CarswellNat 2464, 361 D.L.R. (4th) 1, (sub nom. Ezokola v. Canada (Minister of Citizenship and Immigra- tion)) 447 N.R. 254, [2013] S.C.J. No. 40, [2013] A.C.S. No. 40, 18 Imm. L.R. (4th) 175, [2013] 2 S.C.R. 678 (S.C.C.) — considered Oberlander v. Canada (Attorney General) (2004), 2004 FCA 213, 2004 Car- swellNat 1598, 2004 CAF 213, 37 Imm. L.R. (3d) 75, 2004 CarswellNat 3084, 241 D.L.R. (4th) 146, 320 N.R. 366, [2005] 1 F.C.R. 3, [2004] F.C.J. No. 920 (F.C.A.) — referred to Oberlander v. Canada (Attorney General) (2009), 2009 FCA 330, 2009 Car- swellNat 3733, 83 Imm. L.R. (3d) 1, 2009 CAF 330, 2009 CarswellNat 4892, 396 N.R. 146, 313 D.L.R. (4th) 378, (sub nom. Oberlander v. Can- ada) [2010] 4 F.C.R. 395, [2009] F.C.J. No. 1451 (F.C.A.) — referred to R. v. Ryan (2013), 2013 SCC 3, 2013 CarswellNS 7, 2013 CarswellNS 31, [2013] S.C.J. No. 3, 290 C.C.C. (3d) 477, 353 D.L.R. (4th) 387, 98 C.R. (6th) 223, 438 N.R. 80, 1029 A.P.R. 205, 324 N.S.R. (2d) 205, 275 C.R.R. (2d) 241, [2013] 1 S.C.R. 14 (S.C.C.) — referred to Ramirez v. Canada (Minister of Employment & Immigration) (1992), 89 D.L.R. (4th) 173, [1992] 2 F.C. 306, 135 N.R. 390, 1992 CarswellNat 94, 1992 Car- swellNat 94F, [1992] F.C.J. No. 109 (Fed. C.A.) — followed Soulos v. Korkontzilas (1997), 1997 CarswellOnt 1489, 212 N.R. 1, 9 R.P.R. (3d) 1, 46 C.B.R. (3d) 1, 32 O.R. (3d) 716 (headnote only), 146 D.L.R. (4th) 214, 100 O.A.C. 241, 17 E.T.R. (2d) 89, [1997] 2 S.C.R. 217, [1997] S.C.J. No. 52, 1997 CarswellOnt 1490, 32 O.R. (3d) 716, 32 O.R. (3d) 716 (note) (S.C.C.) — referred to

APPEAL by former citizen of Canada from judgment reported at Oberlander v. Canada (Attorney General) (2015), 2015 FC 46, 2015 CarswellNat 45, 29 Imm. L.R. (4th) 261, 381 D.L.R. (4th) 120, 2015 CF 46, 2015 CarswellNat 3725, 327 C.R.R. (2d) 132, 90 Admin. L.R. (5th) 1, [2016] 1 F.C.R. 56, 473 F.T.R. 169 (F.C.), dismissing application for judicial review from decision of Governor in Council revoking former citizen’s citizenship.

Ronald Poulton, Barbara Jackman, for Appellant 96 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Catherine Vasilaros, Angela Marines, for Respondent

Eleanor R. Dawson J.A.: I. Introduction 1 In 1995, proceedings were commenced to revoke the appellant’s Ca- nadian citizenship on the ground that he obtained such citizenship on the basis of making a false representation, acting in a fraudulent manner or by knowingly concealing material circumstances. Since then, the revoca- tion proceeding has been both contested and protracted, as illustrated by the following brief history of the proceeding: i) In 2000, Justice MacKay of the Federal Court issued thoughtful and comprehensive reasons in which he concluded that the appellant obtained his Canadian citizenship by making a false representation or by knowingly concealing material circumstances ([Canada (Minister of Citizenship & Immigration) v. Ober- lander] [2000] F.C.J. No. 229, 185 F.T.R. 41 (Fed. T.D.)). In the course of his reasons, Justice MacKay made findings of fact as to the nature of the appellant’s wartime service during World War II. ii) Following this decision, in 2001, the Governor in Council revoked the appellant’s citizenship. Subsequently, this Court set aside the decision of the Governor in Council and remitted the matter back to the Governor in Council for a new determination (2004 FCA 213, [2005] 1 F.C.R. 3 (F.C.A.)). iii) In 2007, after reconsidering the matter, the Governor in Council again revoked the appellant’s citizenship. Thereafter, this Court upheld the finding of the Federal Court that the decision of the Governor in Council that the appellant had been complicit in war crimes perpetrated by the Einsatzkommando 10a (Ek 10a) during World War II was reasonable. However, a majority of this Court found that the Governor in Council was obliged to consider the issue of duress. Thus, the Court allowed the appellant’s appeal from the decision of the Federal Court in part and remitted the matter to the Governor in Council for consideration of the issue of duress (2009 FCA 330, [2010] 4 F.C.R. 395 (F.C.A.), at paragraphs 2 and 41). iv) Following the decision of the majority of this Court, in 2012 the Governor in Council considered whether the appellant’s assertion of duress was sufficient to excuse his complicity in the activities of Ek 10a. The Governor in Council decided the defence of duress Oberlander v. Canada (Attorney General) Eleanor R. Dawson J.A. 97

had not been established and therefore it once again revoked the appellant’s citizenship. 2 The appellant brought an application in the Federal Court for judicial review of this third decision revoking his citizenship. For reasons cited as 2015 FC 46 (F.C.), a judge of the Federal Court dismissed the application for judicial review. This is an appeal from that decision.

II. The Context in which this Appeal Arises 3 At this point it is helpful to explain the very unique circumstances before the Court on this appeal. 4 As explained above, in its second decision revoking the appellant’s citizenship in 2007, the Governor in Council found that the appellant was complicit in war crimes committed by the Ek 10a. In rendering this decision, the Governor in Council relied upon the legal test for complicity articulated by this Court in Ramirez v. Canada (Minister of Employment & Immigration), [1992] 2 F.C. 306, 135 N.R. 390 (Fed. C.A.). There, this Court held that “no one can ‘commit’ international crimes without personal and knowing participation” (Ramirez, page 317). When considering what degree of complicity is required in order to be an accomplice or abettor, this Court concluded that “mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status” (Ramirez, page 317). This said, the Court added the following caveat: “[i]t seems apparent, however, that where an organization is principally directed to a limited, brutal purpose [...] mere membership may by necessity involve personal and knowing participation in persecutorial acts” (Ramirez, page 317). Thus, complicity through association rested “on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it” (Ramirez, page 318). 5 Applying this jurisprudence in its second decision, the Governor in Council asked whether “there was evidence permitting a finding that Mr. Oberlander could be suspected of being complicit in the activities of a brutal purpose organization”. The Governor in Council went on to find that the appellant was a member of Ek 10a and that through such membership he “could be suspected of being complicit in the activities of a limited brutal purpose organization”. 6 In upholding the Governor in Council’s finding of complicity, this Court also applied Ramirez, stating the law to be that membership in a limited brutal purpose organization creates a presumption of complicity 98 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

which can be rebutted by evidence that there was no knowledge of the organization’s purpose or no direct or indirect involvement in its acts (2009 FCA 330 (F.C.A.), at paragraph 18). Based on findings of fact made by Justice MacKay, the Court found the appellant had not rebutted the presumption of complicity: the appellant had knowledge of the functions of Ek 10a and had indirectly served its purpose (2009 FCA 330 (F.C.A.), at paragraphs 21 and 22). 7 Subsequent to the decision of the Governor in Council finding the appellant to have been complicit in the activities of Ek 10a, and the decision of this Court upholding the reasonableness of the Governor in Coun- cil’s decision on complicity, the Supreme Court of Canada found it necessary to re-articulate the test relevant to determinations of complicity: Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 (S.C.C.). In the view of the Supreme Court, while international law recognizes a broad concept of complicity, “individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they pas- sively acquiesced to the group’s criminal purpose” (Ezokola, at paragraph 68). Thus, to be complicit, “there must be serious reasons for considering” that the person concerned “voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose” (Ezokola, at paragraph 84).

III. The Decision of the Federal Court 8 In dismissing the appellant’s application for judicial review, the Fed- eral Court made four key findings. 9 First, the Federal Court found that with respect to the issue of complicity, all of the pre-conditions for issue estoppel were met: the complicity issue was previously decided by this Court; the decision of this Court was final; and, the parties to the proceedings were the same (reasons, paragraph 96). 10 Second, the Federal Court found the appellant did not establish grounds that would allow it to exercise its discretion to return the issue of complicity for reconsideration (reasons, paragraph 113). 11 Next, the Federal Court found the process was procedurally fair to the appellant (reasons, paragraph 204). 12 Finally, the Federal Court found the decision of the Governor in Council in respect of duress was reasonable (reasons, paragraph 231). Oberlander v. Canada (Attorney General) Eleanor R. Dawson J.A. 99

IV. The Issue on Appeal 13 While the appellant challenges each of the above findings of the Fed- eral Court, in my view, one issue is determinative: did the Federal Court err in principle by concluding that the appellant had not established grounds sufficient to allow it to exercise its discretion to remit the issue of complicity for redetermination?

V. Standard of Review 14 The decision of the Federal Court as to the exercise of its discretion is one that should be afforded deference. However, this Court may intervene if the discretion is exercised on the basis of an erroneous principle (Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (S.C.C.), at paragraph 95; citing Soulos v. Korkontzilas, [1997] 2 S.C.R. 217 (S.C.C.), at paragraph 54).

VI. Application of the Standard of Review 15 The Federal Court’s analysis of the issue of the exercise of discretion is found in paragraphs 104 to 113 of its reasons. The Court began by acknowledging that even where the criteria for issue estoppel are met, “the Court retains a residual discretion to determine that the doctrine should not be applied where, taking into account the entirety of the circumstances, this could lead to an injustice” (reasons, paragraph 104). 16 After discussing the principles said to apply to the exercise of discretion, the Court correctly noted that the overarching consideration is whether the interests of justice require the exercise of discretion. Citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (S.C.C.), at paragraph 80, the Court noted that it was required to “stand back and, taking into account the entirety of the circumstances, consider whether the application of issue estoppel in the particular case would work an injustice” (reasons, paragraph 109). 17 The Court then gave two reasons why the interests of justice did not require relitigation of the complicity issue. First, the appellant failed to challenge this Court’s application of Ramirez when it upheld the decision that found him to have been complicit in war crimes. The Federal Court found no injustice arose when the appellant chose not to avail himself of that opportunity (reasons, paragraph 111). Second, the appellant failed to establish that the decision finding him complicit was “clearly wrong” (reasons, paragraph 112). 100 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

18 In my respectful view, missing from the Federal Court’s analysis was consideration of the impact of maintaining the previous finding of complicity in circumstances where that finding was directly related to the current determination of duress. 19 The link between duress and complicity is well-settled at law. This is so because the defence of duress requires proportionality between the harm threatened against the person concerned and the harm inflicted by that person - whether directly or through complicity (see, for example, Ramirez at pages 327 and 328; R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14 (S.C.C.), at paragraphs 53 to 55, 70 to 74). 20 In the decision under review, the Governor in Council considered the requirement of proportionality, noting that: i) The potential harm the appellant would have faced by attempting to protest or disobey an order must be more serious than the harm to the victims brought about by the appellant’s actions (reasons, paragraph 47). ii) Justice MacKay found that the Ek 10a was a killing squad. Thus, the appellant was required to show that he feared death in order to justify his complicity in the actions of the killing squad (reasons, paragraph 48). iii) The record did not support a conclusion that the appellant faced a risk of execution. “To suggest that an unsubstantiated risk of harm is no less than the atrocities of the Nazi regime is abhorrent” (reasons, paragraph 56). 21 As explained above, in Ezokola the Supreme Court renounced a test for complicity that had “inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity” (Ezokola, paragraph 79). As the Court noted, “a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles” (Ezokola, paragraph 81). 22 In this circumstance, I am satisfied that the application of issue estoppel worked an injustice to the appellant such that the Federal Court erred in principle in applying the doctrine. The appellant was entitled to a determination of the extent to which he made a significant and knowing contribution to the crime or criminal purpose of the Ek 10a. Only then could a reasonable determination be made as to whether whatever harm Oberlander v. Canada (Attorney General) Richard Boivin J.A. 101

he faced was more serious than the harm inflicted on others through his complicity.

VII. Conclusion 23 For these reasons, I would allow the appeal and set aside the judgment of the Federal Court, with costs both in this Court and the Federal Court. Pronouncing the judgment that should have been made, I would remit the issues of complicity and duress to the Governor in Council for redetermination in accordance with the law.

D.G. Near J.A.:

I agree.

Richard Boivin J.A.:

I agree. Appeal allowed; matter remitted to Governor in Council. 102 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

[Indexed as: Chhetry v. Canada (Minister of Citizenship and Immigration)] Binay Chhetry, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4835-15 2016 FC 513 Cecily Y. Strickland J. Heard: April 25, 2016 Judgment: May 6, 2016 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Misrepresentation — General principles –––– Nepalese foreign national applied for permanent residence under university professors and lecturer classification of skilled worker category, submitting documents claiming he worked as college lecturer, secondary school tutor, public relations officer and writer from 2007 to 2014 — When foreign national was notified that open source information suggested he had been employed by airline until 2012, immigration consultant blamed errors in originally submitted material on administrative errors of office employees — Foreign national then claimed he was customer service representative for airline while working as public relations officer and writer, and later worked as server on cruise ship and then as tutor — As result of ongoing discrepancies in materials, visa officer found foreign national inadmissible under as result of misrepresentation and refused application — For- eign national brought application for judicial review — Application granted — Although foreign national’s failure to include employment with airline and cruise ship constituted misrepresentation, visa officer had not reasonably assessed foreign national’s response and supplementary documentation, and may have misapprehended that evidence — Visa officer’s failure to reasonably assess foreign national’s response and supplementary documentation brought materiality of any misrepresentation into question in that it was unclear how misrepresentation could have affected process — Decision was not reasonable in that it was not justified, transparent or intelligible. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Duty of fairness –––– Nepalese foreign national applied for permanent residence under university professors and lecturer classification of skilled worker category, submitting documents claiming he worked as college lecturer, secondary school tutor, public relations officer and writer from 2007 to 2014 — When foreign national was notified that open source informa- Chhetry v. Canada (MCI) 103

tion suggested he had been employed by airline until 2012, immigration consultant blamed errors in originally submitted material on administrative errors of office employees — Foreign national then claimed he was customer service representative for airline while working as public relations officer and writer, and later worked as server on cruise ship and then as tutor — As result of ongoing discrepancies in materials, visa officer found foreign national inadmissible under as result of misrepresentation and refused application — Foreign national brought application for judicial review — Application granted — Although foreign national’s failure to include employment with airline and cruise ship constituted misrepresentation, visa officer had not reasonably assessed foreign national’s response and supplementary documentation, and may have misapprehended that evidence — Visa officer’s failure to reasonably assess foreign national’s response and supplementary documentation brought materiality of any misrepresentation into question in that it was unclear how misrepresentation could have affected process — Decision was not reasonable in that it was not justified, transparent or intelligible. Cases considered by Cecily Y. Strickland J.: Assn. of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency (2012), 2012 FCA 22, 2012 CarswellNat 126, 2012 CAF 22, 2012 CarswellNat 487, 428 N.R. 297, [2012] F.C.J. No. 93, [2012] A.C.F. No. 93 (F.C.A.) — referred to Baro v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1299, 2007 CarswellNat 4369, 2007 CF 1299, 2007 CarswellNat 5117, [2007] F.C.J. No. 1667, [2007] A.C.F. No. 1667 (F.C.) — referred to Canada (Minister of Citizenship and Immigration) v. Khosa (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — referred to Canada (Minister of Citizenship and Immigration) v. Singh (2016), 2016 FCA 96, 2016 CAF 96, 2016 CarswellNat 867, 2016 CarswellNat 868 (F.C.A.) — referred to Goburdhun v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 971, 2013 CarswellNat 4163, 2013 CF 971, 2013 CarswellNat 4387, 21 Imm. L.R. (4th) 23, 439 F.T.R. 210 (Eng.) (F.C.) — considered Haque v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 315, 2011 CarswellNat 626, 2011 CF 315, 2011 CarswellNat 1638, [2011] F.C.J. No. 394 (F.C.) — referred to Mai v. Canada (Minister of Public Safety & Emergency Preparedness) (2011), 2011 CF 101, 2011 FC 101, 2011 CarswellNat 211, 383 F.T.R. 139 (Eng.), [2011] A.C.F. No. 127, [2011] F.C.J. No. 127, 2011 CarswellNat 6428 (F.C.) — referred to 104 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Medel v. Canada (Minister of Employment & Immigration) (1990), 10 Imm. L.R. (2d) 274, 113 N.R. 1, [1990] 2 F.C. 345, 1990 CarswellNat 30, 1990 CarswellNat 680, [1990] F.C.J. No. 318, [1990] A.C.F. No. 318 (Fed. C.A.) — considered Mohammed v. Canada (Minister of Citizenship & Immigration) (1997), 1997 CarswellNat 800, [1997] 3 F.C. 299, 130 F.T.R. 294, [1997] F.C.J. No. 605, 1997 CarswellNat 2717 (Fed. T.D.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — referred to Nazim v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 471, 2009 CarswellNat 1216, 344 F.T.R. 272 (Eng.), [2009] F.C.J. No. 564, 2009 CF 471, 2009 CarswellNat 6697 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — referred to Oloumi v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 428, 2012 CarswellNat 1107, 2012 CF 428, 2012 CarswellNat 2450, [2012] F.C.J. No. 477 (F.C.) — referred to Rezko c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2015), 2015 CF 6, 2015 CarswellNat 140, 2015 FC 6, 2015 CarswellNat 2045, (sub nom. Rezko v. Canada (Minister of Citizenship and Immigration)) 471 F.T.R. 263 (F.C.) — referred to Singh v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 377, 2015 CarswellNat 652, 2015 CF 377, 2015 CarswellNat 3777 (F.C.) — considered Chhetry v. Canada (MCI) Cecily Y. Strickland J. 105

Tofangchi v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 427, 2012 CarswellNat 1138, 2012 CF 427, 2012 CarswellNat 2009, [2012] F.C.J. No. 476 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 16(1) — considered s. 40(1)(a) — considered

APPLICATION by foreign national for judicial review of visa officer’s determination that foreign national was inadmissible due to misrepresentation.

H.S. (Harry) Mann, for Applicant Mahan Keramati, for Respondent

Cecily Y. Strickland J.:

1 This is an application for judicial review of a decision of a visa officer (“Visa Officer”) dated August 24, 2015, finding the Applicant to be inadmissible, pursuant to s 40(1)(a) of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 (“IRPA”), for misrepresentation and refusing his application for permanent residence in Canada.

Background 2 The Applicant is a citizen of Nepal. In October 2014, he applied for permanent residence in Canada in the Economic Class, under the skilled worker category, university professors and lecturers classification. When making his application, he was represented by Everest Immigration & Legal Services Inc, a registered immigration consultant (“Immigration Consultant”). 3 On April 10, 2015, the Applicant was notified in an email from the Canadian Embassy in Poland (“fairness letter”) that open source information suggested that he had been employed at Jet Airways until 2012. If true, this information would conflict with the employment information he had provided in his application form which stated that: from September 2012 to the date of his application he was a lecturer at Nona Koirala Media College; from April 2011 to August 2012 he was a tutor at Birat Victoria Memorial Higher Secondary School; and, from January 2007 to August 2010 he was a public relations officer and writer with Zen Nepal 106 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Tours. On that basis, the author of the email stated that he or she believed that the Applicant had deliberately mispresented information and advised the Applicant that he or she was therefore considering a recommendation that the Applicant be found to be inadmissible. The Applicant was provided 30 days to respond to these concerns. 4 On April 20, 2015, the Immigration Consultant responded with a letter explaining the missing employment information and attaching updated immigration forms. The Immigration Consultant stated that the significant errors in the originally submitted forms were the result of administrative errors by his office employees which were unintentional and accidental. Further, that the Applicant had worked at Jet Airways as a Customer Service Assistant and at Zen Nepal Tours simultaneously. In August 2010, he left both positions to work on a cruise ship in Italy, returning in April 2011 when he began work as a tutor. The Immigration Consultant explained that the reference to Jet Airways on the Applicant’s Facebook page, which the Immigration Consultant believed was the open source information referenced in the fairness letter, was not accurate. Further, that the Applicant had no role in making the errors and there was no attempt to misrepresent. Documentary evidence to substantiate the explanations was provided. 5 In a May 19, 2015 entry in the Global Case Management System (“GCMS”), a processing officer noted that the new personal history provided in the Immigration Consultant’s April 20, 2015 submissions stated that the Applicant worked with Jet Airways from March 2008 to August 2010 and on a cruise ship from August 2010 to March 20l1. However, the processing officer noted that the Applicant’s Jet Airways employment contract contained a start date of September 23, 2008, that it was valid for five years and that the Applicant had provided no evidence regarding the length of his employment. Further, that the information provided conflicted with the updated Schedule A Background/Declaration. Based on this discrepancy, the processing officer was of the opinion that the Applicant had misrepresented material facts and recommended that he be found to be inadmissible. 6 In a GCMS entry dated August 21, 2015, the Visa Officer noted that, upon review of the application, the verification of employment, the notes of the processing officer and the response to the fairness letter, it was reasonable to conclude that the Applicant did not have the employment experience claimed and that this could have led to an error in the number of points awarded in assessing his application. A refusal letter was sent Chhetry v. Canada (MCI) Cecily Y. Strickland J. 107 to the Applicant on August 24, 2105 stating that he had provided an inac- curate account of his employment experience history, which conclusion was reached based on open source information and the response to the fairness letter. The application was refused and the Applicant was found to be inadmissible.

Relevant Legislation 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. Obligation — answer truthfully 16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. Misrepresentation 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; ... 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. Obligation du demandeur 16 (1) L’auteur d’une demande au titre de la présente loi doit répon- dre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous el´´ ements de preuve pertinents et présenter les visa et documents requis. 108 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Fausses déclarations 40 (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants: a) directement ou indirectement, faire une présentation erronée sur un fait important quant a` un objet pertinent, ou une réti- cence sur ce fait, ce qui entraˆıne ou risque d’entraˆıner une erreur dans l’application de la présente loi; ...

Issue and Standard of Review 7 The only issue arising in this matter is whether the Visa Officer’s decision was reasonable. 8 This Court has previously held that the reasonableness standard applies to a visa officer’s assessment of whether an applicant made a material misrepresentation as described in s 40(1)(a) of the IRPA (Oloumi v. Canada (Minister of Citizenship & Immigration), 2012 FC 428 (F.C.) at para 12 [Oloumi]; Goburdhun v. Canada (Minister of Citizenship and Immigration), 2013 FC 971 (F.C.) at para 19 [Goburdhun]; Singh v. Canada (Minister of Citizenship and Immigration), 2015 FC 377 (F.C.) at para 12 [Singh]). Reasonableness is concerned with the existence of justification, transparency and intelligibility, and whether the decision falls within a range of possible, acceptable outcomes (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47).

Analysis Applicant’s Position 9 The Applicant submits that while s 40(1)(a) of the IRPA imposes a duty of candour which requires disclosure of material facts, an exception arises when the applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information (Medel v. Canada (Minister of Employment & Immigration), [1990] 2 F.C. 345 (Fed. C.A.) [Medel]; Tofangchi v. Canada (Minister of Citizenship & Immigration), 2012 FC 427 (F.C.) [Tofangchi]). In this case, the Applicant did not knowingly misrepresent his employment history. He provided the details of his employment history that were relevant to the category in which he was applying, being teacher/lecturer. In this regard, he relied on the Immigration Consultant, who advised him to omit other irrelevant employment information. And, although the Appli- cant reviewed and signed the application, he honestly and reasonably be- Chhetry v. Canada (MCI) Cecily Y. Strickland J. 109

lieved the omission was not a misrepresentation because the information was not relevant to the class in which he was applying. Further, he had no onus to disclose all possibly relevant information (Baro v. Canada (Minister of Citizenship & Immigration), 2007 FC 1299 (F.C.)). And, although he did not believe that he had made an error, he had clarified the discrepancy when the concern was raised by the processing officer. 10 The Applicant also submits that he should not be penalized for his Immigration Consultant’s incompetence. Further, since he did not refer to his Facebook page in his application, it was unreasonable to expect him to ensure its accuracy and for the Visa Officer to use it to discredit the employment history established by his employment records. 11 Further, the omitted information was not material as it did not affect the process (Goburdhun at para 37). It could not have induced errors in the administration of the IRPA because the application was complete and could have been processed without the additional employment experience which was irrelevant and extraneous. 12 Finally, the Applicant points out, amongst other things, that the April 20, 2015 letter attesting to the term of his employment at Jet Airways, provided in response to the fairness letter, is signed by the same person who signed his employment contract and confirms that he worked with Jet Airways from March 23, 2008 to August 15, 2010. Further, although the contract stated that it was valid for a five year term, the Applicant resigned in 2010, as permitted under the contract. And, in August 2010 he started working with MSC International as a server on a cruise ship. The Applicant submits that this evidence explains the discrepancy in his employment history but was not addressed by the Visa Officer.

Respondent’s Position 13 The Respondent submits that much of the Applicant’s Reply, made in response to the Respondent’s written submissions, was improper and that a letter dated January 20, 2016 from an assistant manager at Jet Airways, attached to the Reply, was not properly submitted as an exhibit nor was it before the Visa Officer. Further, the Applicant’s claims based on his Im- migration Consultant’s incompetence do not comply with the Federal Court’s procedural protocol, dated March 7, 2014, on pleading allegations of misconduct against former counsel, which includes immigration consultants. 14 The Respondent submits that the Applicant’s misrepresentation was not honest and reasonable because his explanation — that he omitted in- 110 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

formation he thought was irrelevant — was not before the Visa Officer. Rather, the explanation given was that there had been administrative errors by the Immigration Consultant’s employees. The Visa Officer could not evaluate an explanation that was never given. Further, the misrepresentation was not merely an omission. The Visa Officer found that even the updated information was unreliable because it was internally contradictory. Additionally, the application form instructs applicants to account for their activities over the last ten years and requires letters of reference from all employers during that period. Accordingly, the Applicant could not have interpreted this as permitting him to omit recent employment experience that he deemed irrelevant and, had this been the case, he would also have omitted his position at Zen Nepal Tours which was equally irrelevant to his application. Finally, even if the Applicant’s explanation were accepted, he is still inadmissible as s 40(1)(a) of the IRPA does not require an applicant to have subjective knowledge of the misrepresentation (Tofangchi). Nor does the narrow exception to Tofangchi apply in this case. 15 On the materiality of the misrepresentation, the Respondent submits that the Applicant misunderstands the Visa Officer’s reasons. The Visa Officer found that he had misrepresented all of his employment, not just his employment with Jet Airways. The Visa Officer’s initial concern arose from the fact that his only employment listed on his Facebook page was with Jet Airways. When confronted with this, the Applicant provided conflicting information about when he worked for Jet Airways. Further, the employment contract with Jet Airways ended in 2013, when he was supposedly working as a college lecturer. On this basis, and since the Applicant failed to offer a reasonable explanation for the initial omission, the Visa Officer concluded that the Applicant misrepresented his employment history and does not have the employment experience he claims. The Respondent submits that this could have led the Visa Officer to award points where none were merited, leading to an error in the administration of the IRPA.

Analysis 16 It is first necessary to address the Respondent’s preliminary point, being that there are a number of improprieties contained in the Applicant’s Reply. I agree with the Respondent that the alleged facts it has identified in the Applicant’s Reply are not supported by any affidavit or other evidence. I therefore give them no weight. I also agree that the January 20, 2016 letter from Jet Airways, attached to the Reply, was not before the Chhetry v. Canada (MCI) Cecily Y. Strickland J. 111

Visa Officer nor was it submitted to this Court by way of an affidavit. Therefore, I also afford it no weight. It is trite law that the record before this Court on judicial review is generally restricted to that which was before the decision-maker (Assn. of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22 (F.C.A.) at para 19). 17 On the second preliminary matter, the Respondent submits that the Court should not entertain the Applicant’s allegations of misconduct and incompetence against his Immigration Consultant. I again agree with the Respondent. Because the Applicant did not provide any evidence that he followed the procedural protocol, the Court has insufficient information regarding the alleged incompetence, and, the Immigration Consultant has not been afforded the required opportunity to respond (Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96 (F.C.A.) at para 67; Rezko c. Canada (Ministre de la Citoyennet´e et de l’Immigration), 2015 FC 6 (F.C.) at paras 6-9). In any event, as discussed below, the onus is on the applicant to ensure the completeness and accuracy of his or her application. 18 As to the merits of the matter, in the application form, Schedule A Background/Declaration, applicants are instructed to provide the details of their personal history for the past ten years including work, study, employment and to ensure that there are no unaccounted for gaps in time. In Schedule 3, Economic Classes — Federal Skilled Workers, of the application, under work experience, applicants are instructed to list their occupations for the ten years preceding the date of their application identify- ing the dates of employment, occupation, and other information. In my view, by failing to list his employment with Jet Airways and with MSC International, the Applicant misrepresented his employment history. 19 The Applicant submits, in essence, that there was no misrepresentation because this employment was not relevant and, even if there was, it falls within the exception to the requirement to disclose material facts established by Medel, as he honestly and reasonably believed that he was not withholding material information. 20 However, as I have previously found in Goburdhun, the Medel exception is narrow and has been held to require “subjective unawareness” of the material information (Mohammed v. Canada (Minister of Citizenship & Immigration), [1997] 3 F.C. 299 (Fed. T.D.); Singh at paras 39-40). 21 This is not a circumstance where the Applicant was not aware of the information that was not disclosed, the Applicant clearly knew all of the 112 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

details of his own employment history. Rather, the Applicant claims that he did not think the omitted information, being his employment with Jet Airways and MSC International, was material to his application. On this point I would first note that when responding to the fairness letter, the Immigration Consultant ascribed the omissions as administrative errors of its employees. It did not state the nature of these errors or that the reason the information was omitted was because the employees deemed it not to be relevant. Therefore, I agree with the Respondent that the Visa Officer cannot be faulted for not considering an explanation that was not provided to him or her. 22 Further, the Applicant’s claim that he relied on his Immigration Con- sultant does not assist him. As I noted in Goburdhun: [32] In Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following: [15] [...] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, supra: The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that. 23 Here the Applicant chose to rely on a consultant and does not dispute that he signed the application himself and knew of its contents. There- fore, he was required to ensure its accuracy and completeness (Haque v. Canada (Minister of Citizenship & Immigration), 2011 FC 315 (F.C.) at paras 15-16 [Haque]; Tofangchi at paras 41-42). 24 In any event, it is not the role of the Applicant to determine what is or is not relevant to his application. As stated by Justice Russell in Singh: [32] But the Decision is not really about culpability. It is about the integrity of the visa process and what is required to maintain that integrity. To put it bluntly, it is not for the Applicant, or any other visa applicant, to decide what is relevant. Applicants are required to make full disclosure and it is the role of the officer who examines the application to decide what is relevant and what weight to give to any particular fact that is disclosed. The system simply could not work if applicants, no matter how honest, were allowed to decide what is rel- Chhetry v. Canada (MCI) Cecily Y. Strickland J. 113

evant for their application. If full disclosure is made, and an applicant believes that a visa has been unreasonably denied, then there is re- course before this Court. But the problem with misrepresentations is that they do not allow decisions to be made on the full facts by officers who have been fixed by Parliament with the power to make those decisions. That is precisely the problem in this application. 25 Applicants are required to provide all of the information requested of them. If they choose not to do so, they assume the risk that their application will be denied. Based on the forgoing, I conclude that there was a misrepresentation and that the circumstances do not fall within the Medel exception. 26 However, for the following reasons, I find that the Visa Officer’s treatment of the evidence submitted by the Applicant in response to the fairness letter was unreasonable. 27 It is well-established that GCMS notes form part of the reasons for the decisions of visa officers (Singh at para 52). In the GCMS notes in this matter the Visa Officer states that upon review of the documentation, information and the employment documents submitted with the application, together with the notes of the processing officer and the response to the fairness letter, “The response from the client has not disabused me of the concerns raised”. This led the Visa Officer to conclude that the Ap- plicant did not have the employment experience that he claimed. Al- though the GCMS notes are brief, it appears that this is based, at least in part, on the processing officer’s finding that the Jet Airways contract was valid for five years and that no evidence had been provided as to the length of the Applicant’s employment. Thus, there was a perceived conflict between the dates in the Jet Airways contract and the dates provided by the Applicant for his other employment periods. 28 In this regard the Respondent submits that the contract states that it expires in 2013, when the Applicant claims he was a lecturer, and that this contradiction calls into question the Applicant’s entire reported employment history. However, I note that the contract provides for resigna- tion or termination on one month’s notice. Further, in response to the fairness letter, the Applicant provided a letter dated April 20, 2015, signed by the managing director of Jet Airways, stating that he worked as a Customer Service Assistant from March 23, 2008 to August 15, 2010. As the Applicant points out, the same managing director signed his original employment contract in 2008. Despite this, the processing officer found that there was “no evidence provided as to length of employment” and that the evidence submitted in response to the fairness letter con- 114 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

flicted with the information provided in Schedule A. This finding suggests either that the processing officer did not see the managing director’s letter, which clearly stated the Applicant’s period of employment, or failed to consider it. 29 Further, the new personal history stated that the Applicant was employed by Jet Airways from March 2008 to August 2010 and worked on a cruise ship from August 2010 to March 2011. The period of work specified with Jet Airways is consistent with the period of employment set out in the Jet Airways managing director’s letter and a June 22, 2010 letter from the cruise line which stated that he started work there on Au- gust 22, 2010. The Applicant also provided letters and documents from each of his other employers corroborating the periods he claims to have worked with them. The Visa Officer, who reviewed the processing officer’s notes as well as the other information noted, does not address this evidence or state why the response to the fairness letter did not disabuse him or her of the concerns raised. 30 Further, a misrepresentation must also be material. To be material it need not be decisive or determinative, it is sufficient if it is important enough to affect the process. The wording of s 40 also confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (Tofangchi at para 26; Goburdhun at para 37; Oloumi at paras 22 and 25; Haque at para 11; Mai v. Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 101 (F.C.) at para 18; Nazim v. Canada (Minister of Citizenship & Immigration), 2009 FC 471 (F.C.)). 31 In this case, the GCMS entry by the Visa Officer states that the information provided by the Applicant could have led to an error in the administration of the IRPA. The Visa Officer stated that the Applicant’s misrepresentation could have led an officer to believe that the Applicant met the requirements of the IRPA with respect to employment and earned him unmerited points. However, contrary to the Visa Officer’s conclusion, the additional evidence submitted by the Applicant and discussed above demonstrates that the previously omitted work with Jet Air- ways and the cruise line did not impact the employment included in the original application. The Immigration Consultant’s letter also explains that the Applicant had worked with Zen Nepal Tours and with Jet Air- ways simultaneously. Thus it is unclear how that employment conflicts with any of the Applicant’s other claimed periods of employment or how it would impact his claimed employment as a tutor or lecturer which Chhetry v. Canada (MCI) Cecily Y. Strickland J. 115

commenced after those employment periods. When appearing before me the Respondent submitted that the Applicant had failed to explain why the contract start date was not consistent with the employment contract start date. While this may be so, I do not accept that this alone would be sufficient to bring into question all of the Applicant’s work experiences, particularly as the Visa Officer did not refer to the Jet Airways managing director’s letter. 32 The Visa Officer also did not question the credibility of the Appli- cant’s documentary evidence. The fairness letter made reference to an unspecified open information source which indicated that he was employed at Jet Airways. While the processing officer did not identify that source, the Applicant surmised that it referred to his Facebook page. The GCMS notes of April 10, 2015 state that the only employment listed on his Facebook page is at Jet Airways which he left in 2012. A copy of a Facebook page, dated April 10, 2015, is contained in the Certified Tribu- nal Record but does not refer to any dates of employment at Jet Airways. The Applicant’s response to the fairness letter addressed the concern, confirming that he had worked at Jet Airways but that the period of his employment there as indicated on the Facebook page was not accurate. As noted above, he also provided documentary evidence to support his corrected employment history. In my view, an applicant’s Facebook page may give rise to a legitimate concern as to the accuracy of the information provided in an application. However, when this concern has been put to the applicant and the applicant provides an explanation supported by documentary evidence from his employers corroborating his employment for the periods he claims, the explanation and evidence must be considered. 33 As the Applicant notes, the preliminary assessment of his application set out in the GCMS notes appears to find the employment reported in his original application sufficient to meet the required minimum to ensure he had a sufficient number of points. The evidence provided in response to the fairness letter suggests that the employment periods reported in the original application pertaining to the Applicant’s work as a teacher/lecturer were not altered by his employment at Jet Airways and MSC International. It is, therefore, not apparent how the misrepresentation was material in these circumstances. 34 The difficulty in this case is that neither the decision nor the record demonstrate that the Applicant’s response to the fairness letter, including the assessment of the supplementary evidence, was reasonably assessed. 116 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

The Visa Officer’s apparent misapprehension or ignorance of some of the evidence seems to have led to a view that there was a conflict in the employment documentation. This, together with the lack of reasons for why the Visa Officer was not disabused of his or her concerns in the face of the explanation and evidence provided by the Applicant, brings the materiality of the omission into question as it is unclear how the misrepresentation could affect the process (Goburdhun at para 37). 35 For these reasons, the decision is not reasonable as the process and the outcome do not fit comfortably within the principles of justification, transparency and intelligibility (Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 (S.C.C.) at para 59; N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para 16).

Judgment THIS COURT’S JUDGMENT is that 1. The application for judicial review is granted; 2. No question of general importance is proposed by the parties and none arises; and 3. There will be no order as to costs. Application granted. Ramasamy v. Canada (MCI) 117

[Indexed as: Ramasamy v. Canada (Minister of Citizenship and Immigration)] Selvaratnam Ramasamy, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4854-15 2016 FC 473 Dani`ele Tremblay-Lamer J. Heard: April 21, 2016 Judgment: April 27, 2016 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Well-founded fear — Mis- cellaneous –––– Refugee claimant was citizen of Sri Lanka of Tamil ethnicity and Hindu faith who alleged fear of militants who had detained and beaten him on suspicion that he had been injured in battle fighting for Liberation Tigers of Tamil Eelam (LTTE) — Refugee Protection Division (RPD) found claimant lacked credibility and denied refugee claim — Claimant’s application for leave and judicial review of that decision was also denied — Applications for pre-removal risk assessment (PRRA) and permanent residence on humanitarian and compassionate grounds were denied and claimant filed application for leave and judicial review — PRRA application was refused after redetermination — Of- ficer concluded that claimant had provided insufficient objective evidence that would be indicative of new risk developments in either country conditions or personal circumstances which had arisen since date of RPD decision — Claim- ant applied for judicial review — Application granted and matter referred back for redetermination by differently constituted panel — Officer did not err in deciding not to hold oral hearing — To establish risk of persecution, claimant does not have to demonstrate personalized risk, but can simply establish that he or she belonged to group that is persecuted, or that was likely to be persecuted — Of- ficer’s reasons were too succinct to determine whether he applied wrong test or whether he meant that claimant did not fit profile of person who would be persecuted in Sri Lanka — It was found that officer applied wrong test — Officer erred in not addressing change in country conditions since RPD decision — Re- liance by officer on RPD’s conclusions based on outdated country conditions without any assessment of more recent documentation constituted reviewable error. 118 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Cases considered by Dani`ele Tremblay-Lamer J.: Navaratnam v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 244, 2015 CarswellNat 511, 2015 CF 244, 2015 CarswellNat 2121 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — referred to Salibian v. Canada (Minister of Employment & Immigration) (1990), 11 Imm. L.R. (2d) 165, [1990] 3 F.C. 250, (sub nom. Salibian v. Canada (Ministre de l’Emploi & de l’Immigration)) 113 N.R. 123, 73 D.L.R. (4th) 551, 1990 Car- swellNat 50, 1990 CarswellNat 650F, [1990] F.C.J. No. 454, 11 Imm. L.R. 165 (Fed. C.A.) — referred to Srignanavel v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 584, 2015 CarswellNat 1406, 2015 CF 584, 2015 CarswellNat 3782 (F.C.) — referred to Thiruchelvam v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 913, 2015 CarswellNat 3250, 2015 CF 913, 2015 CarswellNat 4986 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 97 — considered s. 113(a) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 167 — considered

APPLICATION by refugee claimant for judicial review of dismissal of application for pre-removal risk assessment.

Me Guillaume Bigaouette, for Respondent Me Arash Banakar, for Applicant Ramasamy v. Canada (MCI) Dani`ele Tremblay-Lamer J. 119

Dani`ele Tremblay-Lamer J.:

1 This an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a pre-removal risk assessment [PRRA] decision dated September 15, 2015 by a Senior Immigration Officer [the Officer] where he determined that the Applicant would not be subject to risk of persecution, danger of torture, risk to life or risk to cruel and unusual treatment or punishment if removed to Sri Lanka.

I. Facts 2 The Applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu faith. 3 He alleged the following facts in support of his claim: In November 2010, the Applicant was abducted by militants who suspected him of having been injured in battle fighting for the LTTE because he was walking with a cane. The militants detained him for ten days and released him after his in-laws paid a ransom. In Decem- ber 2010, the Applicant was stopped by soldiers in uniform who questioned him about his injury and beat him. In May 2011, he was again kidnapped by militants and released after six days and a ransom of 50 000 rupees. The Applicant then decided to leave Sri Lanka as to not further endanger his wife and three young children. 4 On August 14, 2011, the Applicant arrived in Canada where he applied for refugee status. His claim was denied on October 5, 2012. His application for leave and judicial review of that decision in 2013 was also denied. 5 The Applicant applied for a PRRA in October 2013 and filed an application for permanent residence on humanitarian and compassionate grounds [H&C] in April 2014. Both applications were denied on Novem- ber 6, 2014. 6 The Applicant filed an application for leave and judicial review of the PRRA decision and filed a motion to stay his removal pending the outcome of the application. The motion was discontinued after his removal was cancelled following a request from the United Nations Human Rights Committee. Leave was granted in March 2015. 7 In April 2015, the Applicant’s wife was visited by Intelligence Army officers who demanded to know when the Applicant would be returning to Sri Lanka and extorted 25 000 rupees from her. 120 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

8 In May 2015, the Respondent consented to the redetermination of the PRRA application. The PRRA application was again refused in Septem- ber 2015.

II. Decision 9 The Officer first noted that credibility had been the determinative issue before the RPD and that the panel had not found the Applicant’s allegations to be true due to numerous plausibility problems and the fact that he had managed to leave Sri Lanka on his own passport. 10 The Officer reviewed the new evidence adduced by the Applicant. He first considered two complaints made to the Human Rights Commission of Sri Lanka and Red Cross Sri Lanka, dated from 2011 and found that these complaints did not meet the criteria for new evidence because they were reasonably available at the time of the RPD hearing and that, in fact, counsel for the Applicant had been aware of these documents at the time and had deliberately chosen not to include them in their submissions before the RPD. The Officer also considered that the Applicant’s affidavit recounting the April 2015 events and a letter from his wife confirming the same did not qualify as new evidence because they essentially recounted the same facts that had been presented to the RPD. 11 The Officer then assessed the evidence on country conditions, but found that it was of a general nature and could not be linked to the Appli- cant’s personal circumstances. The Officer also assigned low weight to two letters from Sri Lankan officials, finding that although they attested to the events described by the Applicant and his wife, the events had been recounted to the authors by a third party and had not been independently verified. 12 The Officer therefore concluded that there was overall insufficient objective evidence that would be indicative of new risk developments in either country conditions or the Applicant’s personal circumstances since the RPD decision.

III. Issues 13 This matter raises the following issues: 1. What is the applicable standard of review? 2. Did the Officer err in not holding an oral hearing? 3. Did the Officer err in assessing risk under s 97? Ramasamy v. Canada (MCI) Dani`ele Tremblay-Lamer J. 121

IV. Submissions of the Parties A. Applicant’s Submissions 14 The Applicant submits that the Officer erred in not considering how his profile put him at risk when the PRRA submissions specifically addressed this issue. The Officer used the wrong test while assessing risk under s 97 of the Act by finding that the evidence on country conditions did not address the Applicant’s “personalized risk” and failed to acknowledge that the objective documentation provided portrayed a higher level of risk to the Applicant than what was described in the RPD decision. 15 Finally, the Applicant submits that the Officer should have held an oral hearing to address the documents adduced to address the RPD’s im- plausibility findings.

B. Respondent’s Submissions 16 The Respondent notes that the RPD found the Applicant’s allegations not to be credible and it is not the role of the Officer to sit on appeal of the RPD decision. 17 While it is true that Tamil asylum seekers with links or perceived links to the LTTE are at risk in Sri Lanka, the Respondent submits that the Applicant does not fit this profile because he has not established links or perceived links to the LTTE. The Officer’s decision was therefore reasonable.

V. Analysis A. Standard of Review 18 There is some dispute within the Court as to whether the decision to hold an oral hearing in the context of a PRRA application is a question of procedural fairness, or a question of mixed facts and law. In Thiruchelvam v. Canada (Minister of Citizenship and Immigration), 2015 FC 913 (F.C.) [Thirutchelvan] at para 3, Justice Annis noted that it appeared to be the dominant trend at the Court in recent years to consider the issue as a question of mixed facts and law reviewable under the standard of reasonableness. I agree that the right to an oral hearing set out in s 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] requires a careful analysis of the facts at hand and is, as such, better characterized as a mixed question of facts and law. 122 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

19 The question of whether a PRRA officer applied the appropriate legal test is a question of law, and reviewable under the standard of correctness (Navaratnam v. Canada (Minister of Citizenship and Immigration), 2015 FC 244 (F.C.), para 5 [Navaratnam]). It is however well-established that an officer’s assessment of the evidence in the context of a PRRA application is also reviewable under the standard of reasonableness. The decision should only be interfered with if the decision is not justified, intelligible, or transparent and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), para 47[Dunsmuir]).

B. Did the Officer err in not holding an oral hearing? 20 I am of the opinion that the Officer did not err in deciding not to hold an oral hearing. It is understood that oral hearings in the context of a PRRA are exceptional and may be held only when the conditions set out in s 167 of the Regulations are met. The conditions are as follows: (a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act; (b) whether the evidence is central to the decision with respect to the application for protection; and (c) whether the evidence, if accepted, would justify allowing the application for protection. a) l’existence d’éléments de preuve relatifs aux el´´ ements men- tionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur; b) l’importance de ces el´´ ements de preuve pour la prise de la décision relative a` la demande de protection; c) la question de savoir si ces el´´ ements de preuve, a` supposer qu’ils soient admis, justifieraient que soit accordée la protection. 21 The Applicant lists documentary evidence that, he argues, should have triggered the right to an oral hearing. However, he fails to address the fact that most of the cited evidence was properly dismissed by the Officer as inadmissible, because it did not meet the ‘newness’ requirement of s 113(a) of the Act. For example, the letters from the Applicant’s Ramasamy v. Canada (MCI) Danièle Tremblay-Lamer J. 123

wife and from the Members of Parliament only recounted the same facts that had been presented before the RPD. 22 It is true that the Officer does not mention the confirmation of residence. However, while it is central to the question of the Applicant’s credibility, it also fails at the ‘newness’ stage. The confirmation of residence appears to have been obtained by the Applicant’s step-brother, who declared that the Applicant resided at a particular address between 2007 and 2009 and asked the Divisional Secretary to certify that information. In his PRRA submissions, the Applicant explains that the confirmation could not be obtained in time for the RPD hearing because his representative had not made him aware of the need to obtain such documentation. Section 113(a) of the Act states that: 113 Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; 113 Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; 23 Like the human rights complaints, the confirmation of residence could have been reasonably available at the time of the RPD hearing, but was not presented because of a deliberate choice on the part of the Appli- cant’s representative. It is not a situation intended to be covered by s 113(a) of the Act. The Officer was therefore entitled not to consider the evidence in his decision. 24 As to the remaining evidence, namely the letters from the Sri Lankan MPs, they do not raise a serious issue of the applicant’s credibility. 25 The Officer did not err by not holding an oral hearing in this case.

C. Did the Officer err in assessing risk under s 97? 26 To establish risk of persecution, an applicant does not have to demonstrate a ‘personalized risk’, but can simply establish that he or she belongs to a group that is persecuted, or that is likely to be (Salibian v. 124 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Canada (Minister of Employment & Immigration), [1990] F.C.J. No. 454 (Fed. C.A.); Navaratnam, para 12). 27 In his decision, the Officer noted: While I have considered all of these documents in the context of assessing country conditions, they are generalized in nature and do not establish a linkage directly to the applicant’s personal circumstances. Evidence of general conditions within a country is not in itself sufficient to show that the applicant is personally at a risk of harm. 28 I find that the Officer’s reasons are too succinct to determine whether he applied the wrong test, or whether he meant that the Applicant did not fit the profile of a person who would be persecuted in Sri Lanka, namely a male Tamil from the North with links or perceived links to the LTTE. Given the excerpt from the decision cited above and the wealth of evidence documenting the deterioration of country conditions in Sri Lanka, however, I find that the Officer applied the wrong test. 29 Furthermore, I agree with the Applicant that the Officer err in not addressing the change in country conditions since the RPD decision. The Officer concluded that: “[...] the applicant has provided insufficient objective evidence that would be indicative of new risk developments in either country conditions or personal circumstances which have arisen since the date of the RPD decision”, which is not true. While the risks alleged in the PRRA are the same as those argued before the RPD, recent objective documentary evidence details how Tamils who have no confirmed LTTE affiliation are subjected to detention and ill treatment after having been returned to Sri Lanka following an unsuccessful refugee claim abroad. In fact, this Court has taken judicial notice of the deterioration in country conditions in Sri Lanka since 2012 (Srignanavel v. Canada (Minister of Citizenship and Immigration), 2015 FC 584 (F.C.), para 24 (Brown J.)). The reliance by the Officer on the RPD’s conclusions based on outdated country conditions without any assessment of the more recent documentation constitutes a reviewable error. 30 For these reasons, the application for judicial review is allowed. The matter is referred back for redetermination before a differently constituted panel. Ramasamy v. Canada (MCI) Dani`ele Tremblay-Lamer J. 125

Judgment THIS COURT’S JUDGMENT is that: The application for judicial review is allowed and the matter is referred back for redetermination by a differently constituted panel. No question is certified. Application granted. 126 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

[Indexed as: Liu v. Canada (Minister of Citizenship and Immigration)] Can Hui Liu, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2367-15 2016 FC 440 Russel W. Zinn J. Heard: April 6, 2016 Judgment: April 20, 2016 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Duty of fairness –––– Foreign national was citizen of China who arrived in Canada and earned diploma in accounting — Foreign national applied for permanent residence as welder in Canadian Experience Class program alleging that he had worked as apprentice welder in Toronto company — Application included letter from supervisor stating that foreign national currently worked as welder apprentice and was employed full-time as fixed-term employee — Officer subsequently contacted supervisor who indicated verbally that foreign national had been hired as bookkeeper but had requested training as welder — After working as welder apprentice for two-three months, foreign national lacked necessary skills to be welder and was returned to office work — Officer sent foreign national procedural fairness letter, indicating he was not satisfied that foreign national had experience as welder — In response foreign national filed letter from supervisor indicating that as officer had called while he was driving supervisor had confused foreign national with another employee and provided incorrect response with respect to foreign national’s work experience — Officer found it inconceivable that supervisor provided incorrect details pertaining to foreign national’s employment — Officer was not satisfied that foreign national had necessary experience as welder to meet requirement for Canadian Experience Class program and refused his application — Foreign national applied for judicial review — Application dismissed — Officer did not breach procedural fairness by not disclosing details of his conversation with supervisor to foreign national — Foreign national did not establish what additional submissions he would have made had he been told about details in notes that were not mentioned in letter — Foreign national was not left in dark but rather was given reasonable opportunity to respond to case against him and there had been no denial of procedural fairness. Liu v. Canada (MCI) Russel W. Zinn J. 127

Cases considered by Russel W. Zinn J.: Bhamra v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 239, 2014 CarswellNat 532, 2014 CF 239, 2014 CarswellNat 1146 (F.C.) — considered Canada (Minister of Citizenship and Immigration) v. Khosa (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — referred to Mehfooz v. Canada (Minister of Citizenship and Immigration) (2016), 2016 FC 165, 2016 CarswellNat 274 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — referred to Sidhu v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 419, 2014 CarswellNat 1385, 2014 CF 419, 2014 CarswellNat 2016, 453 F.T.R. 297 (F.C.) — followed Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 87.1(2)(b) [en. SOR/2008-254] — considered

APPLICATION by foreign national for judicial review of decision refusing foreign national’s application for Canadian Experience Program.

Robert I. Blanshay, for Applicant Stephen Jarvis, for Respondent

Russel W. Zinn J.:

1 The applicant is a 30 year-old citizen of China. He arrived in Vancou- ver, Canada, in September 2009. In 2010, he moved to Toronto and be- 128 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

gan to study accounting at Seneca College, earning a diploma in 2011. In February 2014, he made an application for permanent residence. In it, he lists his current and intended occupation as “welder.” In particular, he states that he worked as an apprentice welder at Bethel Welding Ltd. in Toronto from October 2012 to December 2013. His application includes a letter, dated December 23, 2013, from his supervisor at Bethel Welding Ltd., Aaron Gao. In the letter, Mr. Gao states, among other things, that the applicant (referred to as “Canhui (Derek) Liu”) currently works as a welder apprentice and is employed full-time (44 hours per week) as a fixed-term employee. 2 On November 5, 2014, an officer sent the applicant a procedural fairness letter by email expressing “serious concern(s)” about his application, particularly his claim to have worked as a Welder: On November 5, 2014 we contacted Mr. Aaron Gao at Bethel Weld- ing Ltd. Mr. Gao confirmed that you were originally employed as a bookkeeper but requested training as a welder. After 2-3 months as a Welder Apprentice, Mr. Gao was informed by the company foreman that you lacked the necessary skills to continue as a welder. Mr. Gao further stated that you then returned to the company office and continued employment as a bookkeeper. Based on this information, I am not satisfied that you have the experience as a Welder, NOC 7237. 3 On the same day that the letter was sent, the following note was made in the respondent’s Global Case Management System [GCMS]: ***FILE SENT FOR INVESTIGATION. DO NOT REVEAL THIS INFORMATION TO CLIENT AT THIS TIME*** Spoke to Aaron Gao, Operations Manager, signatory on LOE. Mr. Gao could not re- member the exact dates the PA was hired but said it was in 2012 and that he worked for around 1 year. I asked him about the company. He said that right now he has 2-4 employees because it is slow but last year he had 5-10 and then 2-4. I asked him how many apprentices he has. Mr. Goa seemed to struggle with the concept of apprentice. Mr. Gao then stated that he Derek had been hired as a bookkeeper but asked to be trained as a welder. After 2-3 months the foreman told Mr. Gao that the PAs welding skills were not good enough. PA was then returned to the office as a bookkeeper. I asked again how long PA worked as a welder. Mr. Gao said 2-3 months. PA has since left the company. 4 The applicant responded to the officer’s email of November 5, 2015, including a second letter from Mr. Gao, as well as paycheques and several photos. In the letter, Mr. Gao states that he received a call from an immigration officer while he was driving and said that it would be better Liu v. Canada (MCI) Russel W. Zinn J. 129

if the officer called back at another time. However, the officer continued the conversation and asked about the applicant’s work history. Mr. Gao states that he was driving and responded to the officer’s questions quickly and inaccurately. Mr. Gao further states that, after the telephone call, and after being told by the applicant that he had provided incorrect information, he checked his records and “realized that I had mistakenly mixed the Derek Liu’s job history with another employee whose name is Derek due to the distracted driving as well as the company’s high employment turnover; furthermore our company had several employees named Derek, so under the driving condition, I could barely distinguish them.” 5 Mr. Gao concludes that “I would like to correct my previous mistakes and certify that Canhui (Derek) Liu was a full time Welder Apprentice at Bethel Welding Ltd from October 2012 to December 2013. During his working period, he worked for 44 hours per week, and his wage was $15 per hour.” 6 On May 1, 2015, the applicant was sent a letter rejecting his application for permanent residence. In the letter the officer stated that he or she was “not satisfied that you meet the skilled work experience requirements” for the Canadian Experience Class. The officer explains that: I note that a phone call was placed to your employer on 05NOV2014 to confirm details of your employment. Mr. Aaron Gao the signatory of your employment reference letter and Operations Manager of Bethel Welding responded to questions regarding your employment. He stated that you were hired as a Bookkeeper and only work 2-3 months in the position as a Welder. I do note that in response to these concerns, you provided an additional employment reference letter from Mr. Gao which states that he had confused you with another employee also named Derek and that he was also distracted because he was driving. Although I acknowledge that your employer may have been contacted at an inconvenient time, I find it inconceivable that he provided me with incorrect details pertaining to your employment. [emphasis added] The officer concluded that he was not satisfied that the applicant had the necessary experience as a welder to meet the requirement for the Cana- dian Experience Class program and refused his application. 130 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Issues 7 The applicant raises two issues. Firstly, he claims that the officer breached procedural fairness by failing to provide him with details of his or her conversation with Mr. Gao, and by failing to interview him about the inconsistencies between his own account of his employment and that provided by Mr. Gao to the officer during their conversation. Secondly, he claims that the officer erred in concluding that he did not have one year of skilled work experience based on the telephone call with Mr. Gao. 8 The first issue is to be reviewed on a standard of correctness, while the second issue is to be reviewed on a standard of reasonableness: Mehfooz v. Canada (Minister of Citizenship and Immigration), 2016 FC 165, 263 A.C.W.S. (3d) 458 (F.C.) at paras 9-11.

Analysis A. Procedural Fairness 9 The procedural fairness letter did not disclose all of the details of the officer’s conversation with Mr. Gao. Details of this conversation that are in the GCMS notes but not the letter include the number of employees that Mr. Gao said he had at various times, and that Mr. Gao seemed to struggle with the concept of an “apprentice.” The GCMS notes make no mention of some of the details attested to by Mr. Gao in his second letter, including that he was driving during the conversation and asked the officer to call back at another time. 10 The applicant claims that it was unfair for the officer to ask the applicant to respond to information gleaned from his or her conversation with Mr. Gao, without providing more details of that conversation. Specifi- cally, the applicant writes that: CIC has not provided anything in writing with regard to the actual conversation held with the applicant’s Canadian employer. The applicant is “left in the dark” with regard to this critical conversation, questions posed, full answers provided, his employer’s proficiency in English, etc. [emphasis in original] 11 The officer was obliged to keep a complete record of the “questions posed” and “full answers provided.” Although the officer did not disclose all of the details contained within the GCMS notes, the officer did disclose the only important and relevant detail: namely, that Mr. Gao Liu v. Canada (MCI) Russel W. Zinn J. 131

said that the applicant had only worked 2-3 months as a welder, and was then transferred back to his bookkeeping job. A position, the respondent notes, that is more in keeping with the applicant’s training. 12 Similar to the situation of the applicant in Sidhu v. Canada (Minister of Citizenship and Immigration), 2014 FC 419, 453 F.T.R. 297 (F.C.) [Sidhu] at para 15, the applicant here does not establish what additional submissions he would have made had he been told about the details in the GCMS notes that were not mentioned in the letter. The applicant was not “left in the dark,” but rather was given a reasonable opportunity to respond to the case against him, one that he took full advantage of. As found in Sidhu, there was no breach of procedural fairness on this basis. 13 The applicant also claims that the officer acted unfairly by failing to interview him about the inconsistency between his own account of his employment and that provided during the officer’s conversation with Mr. Gao. The applicant submits that an interview was required because an issue of credibility had been raised regarding the applicant’s claim that he had worked as a welder for a year. In oral submissions, counsel force- fully argued that the officer owed him a duty to “grill” him about the differences in accounts. 14 Again, I disagree. It is true that, in a broad sense, the officer’s conversation with Mr. Gao raised issues about the applicant’s credibility. It did so in the same way that any evidence that contradicted the applicant’s account would have put his credibility into play. However, if, as the applicant submits, the applicant’s account is right and Mr. Gao’s account is wrong, then it is difficult to see what the applicant could have said, in an interview, that would have shed light on why Mr. Gao made the mistake that he did. The best evidence that the applicant could have provided was the evidence which he did provide; namely, a statement from Mr. Gao explaining the inconsistency between his letter and what he said over the phone. 15 The facts in this case are similar to those in Bhamra v. Canada (Minister of Citizenship and Immigration), 2014 FC 239, 239 A.C.W.S. (3d) 169 (F.C.) [Bhamra], cited by the respondent. In that case, a visa applicant provided a supporting statement that purported to be from an employer. An officer called a telephone number listed on the statement, and spoke to a person claiming to be the employer. The employer denied that the applicant had ever worked for him. The officer sent a procedural fairness letter detailing the concerns arising from the telephone call. In response, the applicant provided a further supporting statement from the 132 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

employer, attempting to explain the inconsistency. This explanation was rejected and the visa was denied. On judicial review, the applicant claimed that that his credibility had been put in issue. 16 This submission was rejected by the Court, which found at paragraph 42 that: The Applicant was provided with a fairness letter and given every opportunity to resolve the misrepresentation issue in his own favour. What he offered was contradictory letters and an unbelievable and entirely unsubstantiated reason for the contradiction. As Justice Mandamin pointed out in [Chen Guo Hui v Canada (Minister of Citi- zenship and Immigration), 10 December 2010, IMM-2357-10 (FC)], quoting Justice Zinn in [Ni v Canada (Minister of Citizenship and Immigration), 2010 FC 162] [Ni], at para 18: I agree with the applicant that a high degree of fairness is required in misrepresentation determinations. This is why the officer sent the applicant a procedural fairness letter expressly raising his concerns and permitting the applicant to file a response. This is what fairness required in the circumstances and the officer met that burden. It does not require that the officer blindly accept the response to the fairness letter without question. The officer is required to assess whether the response satisfies and alleviates his concerns. That decision is reviewed, as stated, on the reasonableness standard. It is the fairness letter that, in this context, provides the Applicant with a meaningful opportunity to respond and present his case fully in accordance with Baker principles. The Applicant has not shown me that he could not have presented any response he wished to the fairness letter. 17 The reasoning in Bhamra applies to the present case.

B. Reasonableness of Decision 18 The applicant claims that the officer’s decision was unreasonable because he or she failed to provide any reason for preferring the evidence from the telephone conversation with Mr. Gao to Mr. Gao’s subsequent letter, in which he explained that he had made a mistake. 19 The issue before the officer was whether the applicant had acquired “at least one year of full-time work experience” pursuant to section 87.1(2)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227. The officer was faced with evidence from a telephone Liu v. Canada (MCI) Russel W. Zinn J. 133

conversation with Mr. Gao, in which he clearly stated that the applicant only had 2-3 months of relevant experience. The officer was also faced with a subsequent letter from Mr. Gao, in which he explained that his earlier statement was in error. In deciding to prefer the evidence from the telephone conversation, the officer stated that “[a]lthough [Mr. Gao] may have been contacted at an inconvenient time, I find it inconceivable that he provided me with incorrect details pertaining to your employment.” In other words, the officer acknowledged Mr. Gao’s subsequent explanation but did not accept it as a sufficient explanation. 20 It is the officer’s job to weigh the evidence and it was open to the officer to prefer the evidence from the telephone conversation to the subsequent explanatio n. It may have been preferable for the officer to have explained this preference in more detail. However, the officer’s failure to do so is not a free-standing basis for judicial review: N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) at para 14. Nor does it undermine the justification, transparency, and intelligibility of the officer’s decision so as to render it unreasonable. 21 It is not the function of this reviewing court to reweigh the evidence: Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 61, and that, effectively, is what the applicant asks me to do. 22 No question for certification was proposed.

Judgment THIS COURT’S JUDGMENT is that the application is dismissed and no question is certified. Application dismissed. 134 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

[Indexed as: Saroya v. Canada (Minister of Citizenship and Immigration)] Pritpal Singh Saroya, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3078-15 2016 FC 414 James Russell J. Heard: March 16, 2016 Judgment: April 14, 2016 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Powers and duties of court –––– Sponsor was 43- year-old Canadian citizen who had been born in Punjab India and was of Sikh faith — Sponsor had been married and divorced twice when he travelled to India in September 2011 to look for another wife — Sponsor was introduced to current wife by family friend and married her in October 2011 — Sponsor and wife subsequently filed spousal sponsorship application — Visa officer refused wife’s application for permanent residence as member of family class on grounds that marriage had been entered into by her primarily for purpose of acquiring status or privilege under Immigration and Refugee Protection Act (“Act”) or was not genuine — Reasons for refusal were apparent haste of wedding, lack of compatibility between sponsor and wife in areas such as age, education and marital history, wife’s apparent lack of knowledge of sponsor, wife’s family’s apparent lack of investigation into sponsor’s background, including his previous marriages, and fact that sponsor had not visited wife since wedding — Sponsor appealed refusal to Immigration Appeal Division (“IAD”) and was not successful — Sponsor and wife applied for judicial review — Application allowed; decision quashed and matter referred back for reconsideration by differently constituted IAD — IAD made it clear that negative decision was based upon cumulative deficiencies, however, some of those deficiencies were not supported by evidence — Accordingly court could not say whether IAD decision would have been negative if unreasonable findings had not been made — Therefore matter must go back for reconsideration. Cases considered by James Russell J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 SCC 36, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, Saroya v. Canada (MCI) 135

[2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — referred to Boulis v. Canada (Minister of Manpower & Immigration) (1972), [1974] S.C.R. 875, 26 D.L.R. (3d) 216, 1972 CarswellNat 431, 1972 CarswellNat 431F (S.C.C.) — referred to Canada (Minister of Citizenship and Immigration) v. Khosa (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — referred to Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35, 120 N.R. 193, 41 O.W.N. 103, 1990 CarswellNat 91, [1990] F.C.J. No. 1096 (Fed. C.A.) — referred to Huerta v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 586, 2008 CarswellNat 1376, 2008 CF 586, 2008 CarswellNat 2524, [2008] F.C.J. No. 737 (F.C.) — referred to Igbo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 305, 2009 CarswellNat 685, 2009 CF 305, 2009 CarswellNat 6746 (F.C.) — referred to Jung v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 275, 2014 CarswellNat 699, 2014 CF 275, 2014 CarswellNat 2107, 24 Imm. L.R. (4th) 146, 451 F.T.R. 25 (F.C.) — referred to Kitomi v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1293, 2012 CarswellNat 4287, 2012 CF 1293, 2012 CarswellNat 4969, 14 Imm. L.R. (4th) 44 (F.C.) — referred to Lai v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FCA 125, 2005 CarswellNat 886, 332 N.R. 344, 253 D.L.R. (4th) 606, [2005] F.C.J. No. 584, 2005 CAF 125, 2005 CarswellNat 7390, [2005] A.C.F. No. 584 (F.C.A.) — referred to Nadasapillai v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 72, 2015 CarswellNat 192, 2015 CF 72, 2015 CarswellNat 2626 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed 136 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Singh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 347, 2002 CarswellNat 659, 2002 CFPI 347, 2002 CarswellNat 4138, [2002] F.C.J. No. 461 (Fed. T.D.) — referred to Tamber v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 951, 2008 CarswellNat 2867, 2008 CF 951, 2008 CarswellNat 3913, [2008] F.C.J. No. 1183 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 67(1) — considered s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 4 — considered s. 4(1) — considered s. 116 — considered s. 117(1)(a) — considered

APPLICATION by sponsor and wife for judicial review of decision of Immigra- tion Appeal Division which dismissed appeal of decision of visa officer to refuse wife’s application for permanent residence.

Michael Sherritt, for Applicant Norain Mohamed, for Respondent

James Russell J.: I. 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 a decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada [IAD] dated June 9, 2015 [Decision], which determined that the Applicant had not discharged the onus upon him to demonstrate that his marriage did not violate s 4 of the Immigration and Refugee Protec- tion Regulations, SOR/2002-227 [Regulations].

II. Background 2 The Applicant is a 43-year-old Canadian citizen who was born in Ja- landhar, Punjab, India. He is a member of the Sikh faith. The Applicant Saroya v. Canada (MCI) James Russell J. 137

lived in the United States from 1993 to 2003. There, he married his first wife in 1996. In 2002 they were divorced and the Applicant returned to India. In 2003 the Applicant married his second wife, a permanent residence of Canada, with whom he had a son in September 2004. The Ap- plicant claims that the marriage ended under acrimonious circumstances in which his then wife made false allegations of abuse against him and his family. The Applicant and his second wife divorced in 2008. 3 The Applicant traveled to India with his mother to look for a bride in September 2011. There, he met Ramandeep Kaur Saroya [Ramandeep] through an introduction by a family friend. Ramandeep and her family learned of the Applicant’s two prior relationships. After making inquiries in their community, they became satisfied that despite the accusations made against him, the Applicant was not at fault for the breakdown of his second marriage. On October 30, 2011, the two married. 4 The Applicant and Ramandeep filed a spousal sponsorship application. On September 10, 2013, Ramandeep was interviewed by a visa officer who, by way of a letter dated September 30, 2013, refused her application for permanent residence as a member of the family class on the grounds that the marriage had been entered into by her primarily for the purpose of acquiring status or privilege under the Act or was not genuine. The reasons for the refusal included: the apparent haste of the wedding; a lack of compatibility between the Applicant and Ramandeep in areas such as age, education and marital history; Ramandeep’s apparent lack of knowledge of the Applicant; Ramandeep’s family’s apparent lack of investigation into the Applicant’s background, including his previous marriages; and the fact that the Applicant had not visited Ramandeep since their wedding. 5 Following the refusal, the Applicant claims to have visited Ra- mandeep in India from December 2013 to January 2014, and again from February to March 2015. 6 On June 9, 2015, the IAD denied the Applicant’s appeal of the visa officer’s decision on grounds that the Applicant had failed to demonstrate that his marriage did not violate the exclusionary provisions of s 4 of the Regulations.

III. Decision Under Review 7 The IAD engaged in an assessment of the available evidence in order to determine whether the primary purpose of the marriage between the Applicant and Ramandeep was Ramandeep’s immigration. The Decision 138 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

acknowledged the need to consider the customs surrounding the practice of arranged marriages when engaging in such an analysis, making note of the evidence that confirmed the typical events that occur in arranged marriages in the Sikh culture. 8 The Decision noted the evidence of ongoing communication between the couple (including each party’s ability to recite the other’s employment activities and education pursuits) and of the financial support provided by the Applicant to Ramandeep, concluding that it was consistent with a genuine marriage. 9 Nevertheless, the IAD determined that there were material concerns regarding the parties’ intentions, including the appearance of haste in the arrangement of the marriage and the lack of compatibility in areas such as age, education and marital history. At their hearing, Ramandeep clarified the details she was aware of regarding the Applicant’s divorce arrangements with his second wife including the amount of support payment he was responsible for towards his son. 10 However, the IAD held that it was unlikely that Ramandeep’s family made reasonable efforts to obtain independent assurance of the Appli- cant’s compatibility and suitability for their daughter. The only source of information to support the conclusion that the Applicant was honest and not at fault in his second marriage was the Applicant himself. The willingness to take the Applicant’s word and illogical explanations regarding his previous relationships raised significant doubts about the parties’ intentions in their marriage. 11 Furthermore, the testimony and content of the hearing raised material concerns about the credibility of the Applicant and Ramandeep and the reliability of their evidence. For instance: while the Applicant testified that he is willing to accept his son if the son wants to see him in the future, Ramandeep testified that they have plans to pursue custody of the son once she arrives in Canada; the parties gave only generic and unbelievable suggestions that their daily phone conversations (which they al- lege tend to last up to 1.5 or 2 hours) were romantic in nature; the couple’s knowledge and description of the qualities they appreciate in each other was vague and generic; and there was inconsistent evidence regarding Ramandeep’s illness which arose following the marriage. 12 The IAD determined that even where generous allowances were made for the passage of time and faded memory, the evidence of the Applicant and Ramandeep failed to establish that their relationship was genuine. When combined, deficiencies in the evidence and lack of reasonable ex- Saroya v. Canada (MCI) James Russell J. 139

planation for the match leave more than mere speculation that the primary purpose of the arrangement was immigration.

IV. Issue 13 The Applicant submits that the following is at issue in this matter: • Did the IAD base its decision on erroneous findings of fact made in a perverse or capricious manner and without regard to the material before it?

V. Standard of Review 14 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. 15 The parties agree and I concur that the standard of review applicable to the judicial review of an IAD decision and assessment of whether it made any erroneous findings in a perverse or capricious manner is reasonableness: Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 (S.C.C.) at para 58 [Khosa]; Kitomi v. Canada (Minister of Citizenship and Immigration), 2012 FC 1293 (F.C.) at para 37; Singh v. Canada (Minister of Citizenship & Immigration), 2002 FCT 347 (Fed. T.D.). 16 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.” 140 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

VI. Statutory Provisions 17 The following provisions from the Act are relevant in this matter: Application before entering Canada Visa et documents 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. Appeal allowed 67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; Or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. 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. Fondement de l’appel 67 (1) Il est fait droit a` l’appel sur preuve qu’au moment où il en est disposé: a) la décision attaquée est erronée en droit, en fait ou en droit et en fait; b) il y a eu manquement a` un principe de justice naturelle; c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales. Saroya v. Canada (MCI) James Russell J. 141

18 The following provisions from the Regulations are relevant in this matter: Bad faith 4 (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) is not genuine. Family class 116 For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division. Member 117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is (a) the sponsor’s spouse, common-law partner or conjugal partner; ... Mauvaise foi 4 (1) Pour l’application du présent règlement, l’étranger n’est pas considéré comme etant´ l’époux, le conjoint de fait ou le partenaire conjugal d’une personne si le mariage ou la relation des conjoints de fait ou des partenaires conjugaux, selon le cas: a) visait principalement l’acquisition d’un statut ou d’un privi- lège sous le régime de la Loi; b) n’est pas authentique. Catégorie 116 Pour l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement familial est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues a` la présente section. Regroupement familial 117 (1) Appartiennent a` la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les etrangers´ suivants: a) son epoux,´ conjoint de fait ou partenaire conjugal; 142 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

...

VII. Arguments A. Applicant 19 The Applicant submits that the IAD has a duty to consider all of the evidence and to take into account the parties’ particular cultural and socio-political context, including the circumstances of an arranged marriage: Nadasapillai v. Canada (Minister of Citizenship and Immigration), 2015 FC 72 (F.C.). There was ample evidence of a genuine and committed marital relationship between the Applicant and Ramandeep and the Decision was grounded in unreasonable findings that were made without regard to the parties’ particular cultural context. 20 The IAD was not satisfied that Ramandeep’s family had made a reasonable effort to assess the circumstances of the Applicant’s prior marriages and divorces. The Applicant submits that this conclusion was unreasonable. The evidence indicates that Ramandeep’s family was only concerned about the Applicant’s second marriage because it had ended amidst allegations of abuse. Contrary to the IAD’s account, the family did not simply accept the Applicant’s explanations at face value; they consulted with third parties regarding his character and the propensity of his second ex-wife to lie prior to concluding that he was not at fault in the second marriage. The IAD’s failure to consider this evidence warrants overturning the Decision, as it directly contradicts its findings on an issue of central importance. 21 The Applicant clearly testified that, while he wanted a relationship with his son, he decided not to pursue custody out of concern for his son’s wellbeing and not wanting to subject him to a legal battle. The IAD’s finding that it was illogical for the Applicant not to fight for custody if he was not at fault in his second marriage is unreasonable. 22 As regards the compatibility between Ramandeep and the Applicant, the Applicant submits that the IAD had no reasonable basis for concluding that the parties failed to resolve compatibility concerns. The IAD provided no indication as to why it was not persuaded by the compelling evidence that the Applicant and Ramandeep were from the same religion and caste, spoke the same language, were of the same social status and had family origins in the same village. 23 The Applicant further argues that concerns regarding the haste of the marriage are clearly unreasonably as the evidence establishes that discus- sions between the families regarding the possibility of marriage spanned Saroya v. Canada (MCI) James Russell J. 143

approximately 7 or 8 months, which, within the context of the parties’ culture, is not a fast timeline for an arranged marriage. 24 The Applicant says that residents of his home village were indeed a reliable source of information. Even though he had left India in 1993, he left at the age of 21 and his community would have known him well enough to comment on his character. It was unreasonab le for the IAD to conclude otherwise. 25 It is reasonable to assume that the Applicant and Ramandeep would have developed a level of intimacy and romantic feelings for each other quickly. It was unreasonable for the IAD to conclude that the couple could not have had romantic telephone conversations. Similarly, given that the question of whether someone dresses simply is highly subjective. The IAD had no basis for drawing a negative inference from its compari- sons of his description of Ramandeep with photographs of her and her testimony that the couple enjoyed shopping together. 26 The Applicant submits that the alleged credibility concerns relate to minor issues with very little relevance to the genuineness of the parties’ relationship. The IAD placed too much emphasis on minutiae and marginalities without looking to the evidence that bore directly on the bona fides of the marital relationship: Tamber v. Canada (Minister of Citizenship & Immigration), 2008 FC 951 (F.C.).

B. Respondent 27 The Respondent submits that the IAD was not required to mention every piece of evidence in its reasons as there is a presumption that a tribunal has considered all of the submissions that are put forward: Lai v. Canada (Minister of Citizenship & Immigration), 2005 FCA 125 (F.C.A.) at para 90. 28 As regards the IAD’s adverse findings of credibility, the Respondent submits that the IAD properly exercised its jurisdiction by providing examples of material inconsistencies in the evidence that supported its conclusions. The IAD noted the following: the contradictory and manufactured testimony about the circumstances of the breakdown of the Applicant’s previous marriage; inconsistencies in the Applicant’s plans for custody of his son from his previous marriage; and inconsistencies regarding the Applicant’s knowledge of the dressing habits of Ra- mandeep. The IAD reasonably concluded that the cumulative effect of the evidentiary inconsistencies raised doubts regarding the credibility of 144 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

the Applicant and Ramandeep, leading to the conclusion that the marriage was for immigration purposes. 29 The Respondent says that the Applicant has failed to demonstrate that the IAD did not exercise its discretion in good faith or that it relied on irrelevant or extraneous considerations. The Applicant has only raised questions of the weight of the evidence and it is well established that such matters are for the tribunal to decide: Boulis v. Canada (Minister of Manpower & Immigration) (1972), 26 D.L.R. (3d) 216 (S.C.C.) at 21; Hoang v. Canada (Minister of Employment & Immigration) (1990), 120 N.R. 193 (Fed. C.A.). 30 The Respondent notes that the test at s 4 of the Regulations is disjunc- tive and does not require a bad faith marriage be both primarily for immigration purposes and non-genuine. It is sufficient for the IAD to find that only one of these qualities is present. 31 The IAD properly reviewed the testimony of the Applicant and Ra- mandeep and did not err in the questioning of the manner of Ra- mandeep’s assessment of the Applicant’s character and its conclusion that by not investigating and questioning his previous wives, she and her family failed to conduct a genuine, deep and independent investigation of the Applicant’s marital history. 32 The Respondent says that the IAD properly reviewed the submitted evidence and did not base its decision on any erroneous findings of fact. It then properly exercised its discretion and the Court should not interfere with its decision.

VIII. Analysis 33 The Applicant has raised a number of issues for review and I will deal with them in sequence. In general, the Applicant says that the Decision is based upon unreasonable findings that were made without regard to the evidence and without proper consideration of the particular cultural context in which this marriage took place.

A. Inquiries 34 The Applicant says that the IAD’s primary reason for refusing the appeal was that the IAD was not satisfied that Ramandeep’s family had made adequate inquiries regarding the Applicant’s background and previous relationships before agreeing to the marriage. 35 A reading of the Decision reveals that this was a major concern but it is a little more nuanced than the Applicant asserts, and it was the cumula- Saroya v. Canada (MCI) James Russell J. 145

tive effect of the deficiencies that eventually tipped the scales towards a negative conclusion: [17] Although some of the evidentiary deficiencies in this case may not independently show that the marriage is not genuine, the deficiencies accumulate to a degree that leaves material doubt about its purpose. As an additional comment, it was notable that the evidence of the appellant and applicant was notably absent words or phrases of an emotional and invested nature. They offered almost identical information about some things but without spontaneous additional personalized evidence to supplement their recollections. By itself that observation would not be sufficient to find that the marriage is not genuine: however, when considered in the context of all of the evidence, it is another cumulative consideration that weighs negatively in the overall assessment. 36 As regards inquiries, the Applicant says that 23. ...Contrary to the Panel’s suggestion, they did not simply accept the Applicant’s account of events at face value. Rather, they consulted various third parties before concluding that he had a good character and that he was not at fault in the breakdown of his second marriage. 37 The Applicant points to the following: 24. At 02:33 of the hearing recording, counsel for the Applicant asked Ramandeep whether she and her family were concerned about the fact that the Applicant had been married twice before. Ra- mandeep replied: We had known the family for a long time but we did do some investigating inquiry done about my husband and found out that he was innocent in both cases. He didn’t have any bad habits and my family looked at his family and his qualities and based on these qualities they agreed to the marriage. 25. At 02:40, counsel for the Applicant asked Ramandeep why she and her family believed that the Applicant’s second wife’s allegations of abuse were false. Ramandeep replied: Because we had done some inquiry about his ex-wife before the marriage and the information that we got, because she also belonged to the same place in the Punjab, when they first made inquiries about her, they found that she had made the same complaint about her first husband, that they were beating her. 146 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

26. At 03:01, counsel for the Minister asked Ramandeep how she and her family found out that the Applicant was not at fault in his previous two marriages. Ramandeep replied: Some of it was mentioned through Charanjeet auntie. And somebody had it done through our relatives. And because my parents knew my in-laws from before my birth, they had known them from before my birth, and also about people from his village, Dehana (phonetic), they inquired from there. Because Pritpal’s birthplace was Jalandhar but then he got educated in Delhi, so we had a few people who came from Delhi and we inquired from them as well. Minister’s counsel then asked who in Delhi had been contacted, and Ramandeep replied: “In Delhi, my maternal uncle came from there and he has friends over there. I don’t know the name of that friend, but through them they made an inquiry. And in Jalandhar, there was an uncle, the name was Dilpak (phonetic) the uncle through him he inquired too” (...). 27. This evidence establishes that, contrary to the Panel’s finding, Ramandeep’s family consulted various independent sources before concluding that the Applicant was not at fault in his second marriage. In particular, Ramandeep testified that her family made inquiries among individuals who were from the same area as the Applicant’s second wife and learned that she had made false allegations of abuse against her first husband as well. We submit that this information would reasonably lead Ramandeep’s family to conclude that the Ap- plicant’s second wife was a liar and that her allegations against the Applicant were similarly false. 28. Ramandeep also testified that her family gathered information about the Applicant from his home village as well as Delhi, where he had lived while he pursued his studies. Given this evidence, we submit that it was not open to the Panel to find that the Applicant was “the only real source of information about the prior marriages”. We further submit that the Panel’s failure to consider this evidence — which directly contradicted its findings on an issue of central importance — constitutes a reviewable error which, in and of itself, warrants overturning the decision. 38 The Applicant’s list of sources who were consulted misses the point. Neither the Applicant nor Ramandeep make it clear how any of the people consulted could have known anything about the Applicant’s second marriage. He left India in 1993 and lived in the United States from 1993 Saroya v. Canada (MCI) James Russell J. 147 until November 2003, was married there from 1996 to 2000, and was divorced in 2002. The Applicant landed in Canada in 2004, but went through a second marriage in December 2003 in India and then moved to Canada with his second wife. That marriage resulted in a son who was born in September 2004 before it ended acrimoniously and the divorce was completed in 2008. The IAD concluded, with good reason, that although the Applicant and Ramandeep refer to checks and inquiries by independent parties, this did not really occur and, in the end, the Appli- cant’s account of his past was simply accepted at face value: [15] What remains lacking on a balance of probabilities is that the applicant’s family made reasonable efforts to obtain independent assurance of the appellant’s compatibility and suitability. Examples include the following: a. The appellant and applicant both testified that enquiries were made by the applicant’s family to find out what had happened in his prior marriages but when the evidence is examined closely the only real source of information about the prior marriages is the appellant. It was not demonstrated on a balance of probabilities that independent sources of information were used to arrive at the conclusion that the appellant was honest and not at fault. b. The applicant testified at some length about the enquiries that her family made in order to be satisfied that the appellant was not at fault and that it was not the appellant but his spouses who caused the divorces. She had told the visa officer that a reason for the first marriage breakdown was because the appellant’s first wife smoked. At the IAD hearing she added that this first spouse used heavy illegal drugs and did not want children and appellant gave the same testimony at the IAD hearing. That evidence was, on a balance of probabilities, manufactured for the benefit of this appeal because both of them gave the same evidence but no such information was offered by the applicant during her interview when it would have been reasonable to do so. Even allowing for nervous- ness, heavy drug use and disagreement about children are more striking characteristics than simply smoking and the failure to mention those as material reasons for divorce is notable. Furthermore, the appellant did not know why the applicant had married this woman who was not of similar cultural background. This evidence left doubts about the credibility of the couple and about the applicant’s actual knowledge of the 148 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

appellant at the interview and, arguably, before agreeing to the match. c. The circumstances of the second marriage and divorce are also important in terms of compatibility and suitability because, according to the appellant, his second wife left his family home in circumstances that involved the police and allegations of abuse against her by the appellant and his family. It is reasonable that the applicant and her family would seek assurances that the allegations of abuse by his second wife were not well-founded. The appellant testified that in April 2005 his wife called the police and alleged that she was being abused by himself and his family but that after investigation the police found no basis to lay any charges against him or his family. However, he testified that he has not had any contact with his child since then because his wife would only permit him to visit with their son if he was supervised by either his wife or his wife’s sister, arrangements that he was not willing to accept. He testified that he did not fight for custody because by the time the divorce agreement was being finalized his son was 2.5 years old and a stranger given they had not seen each other since April 2005 when the child was six months old. He suggested, somewhat unclearly, about being concerned of frightening his son. The applicant confirmed that she and her family were given this information before agreeing to the match, that they appreciated the appellant’s honesty and were satisfied about his suitability because they knew he was not at fault in his previous marriage breakdown. d. It is not reasonable that the applicant and her family would simply accept the appellant’s account of events and his rela- tively illogical explanations about such serious matters. His ex-wife has sole custody of their child, he has not seen his son since the event involving the police, and he neither sought custody nor pursued any access. Those are illogical outcomes if the appellant is to be believed that he was not at fault, wants to have children, and that he wants to see and have relationship with his son. It is reasonable to expect that the applicant and her family, when presented with that information, would do some additional and independent investigation before agreeing to a marriage. Their willingness to take the appellant’s word for it that he was not at fault and to accept his illogical explanation for why he did not have custody of or access to his own son raises substantial doubts about their intentions in the marriage. Saroya v. Canada (MCI) James Russell J. 149

e. Reasonable explanation was not provided for the relative haste between meeting and marriage or how that time afforded opportunity to acquire sufficient background information. The couple met and agreed to the proposal all on the same day and were married within the same month. Both of them testified that they relied substantially on the information given to them by the mutual family friend but the source of her information about the appellant is mainly the appellant himself. They referred to historic connection through their grandmothers but the appellant left India in 1993 so villagers and the family acquaintance would have little knowledge of positive characteristics and life events since leaving except what he disclosed himself. Furthermore, the applicant had less information that [sic] what might reasonably be expected if independent background checks were conducted, as previously noted. 39 The Applicant says that Ramandeep did give evidence of independent consultation. However, she only testified as follows about the Appli- cant’s second wife: PRESIDING MEMBER: How do you know she was lying? ... A Because we have done some inquiry about his ex-wife too before the marriage and information we gathered was that because she also belonged to the same place in Punjab and when they inquired information about her was that she has made the same complaint about her first husband, that they were beating her. 40 In my view, this evidence is not clear enough as to who was consulted and why they were in a position to provide reliable information about the Applicant’s own behaviour in his second marriage. The fact that the Applicant’s second wife may have made the same complaint about her first husband is not evidence about the Applicant’s conduct or behaviour towards his second wife. This evidence suggests that Ra- mandeep and her family were not prepared to go far beyond the Appli- cant’s own account, and it does not displace the IAD’s general finding that he was the real source of the information. 41 Before the Court in this application, the Applicant has not shown that the IAD was unreasonable in these conclusions. He has not shown how the alleged independent sources who are cited were able to corroborate his own version of his second marriage. How could villagers and family acquaintances have any real knowledge of what happened in the Appli- 150 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

cant’s prior marriages? And in a context where compatibility, suitability and propriety are so important it has to raise doubts about whether the marriage to Ramandeep did not require the usual checks because it was entered into for immigration purposes. The concerns of the IAD regarding these matters were not unreasonable.

B. The Applicant’s Son 42 The Applicant complains as follows: 29. Another reason why the Panel did not believe that Ramandeep’s family had made adequate inquiries into the Applicant’s background was that the Applicant’s explanations regarding his son were “illogical” (Reasons at para 15(d)). According to the evidence, although the Applicant wanted a relationship with his son, he did not fight for custody or access because the breakdown in his relationship with the child’s mother, the Applicant’s second wife, had been highly acrimonious. In addition to making false allegations of abuse against the Applicant and his family, his second wife made it clear that she would do whatever was necessary to prevent him from having a relationship with their son. The Applicant testified that he did not fight the matter in court because he did not want to negatively affect his son, and instead decided to wait until the child was older before seeking a relationship with him. 30. The Panel stated that the Applicant’s decision not to fight for custody was “illogical” given his testimony that he was not at fault in his second marriage, that he wanted to have children and that he wanted to have a relationship with his son. The Applicant submits that this determination is unreasonable as he clearly testified that although he wanted a relationship with his son, he decided not to pursue custody out of concern for his son’s wellbeing. It is completely understandable that he did not want to harm his son by subjecting him to what would certainly have been a hostile and potentially drawn-out legal battle. 31. Moreover, the Panel’s comment that the Applicant’s decision to fight for custody was inconsistent with his testimony that he was not at fault in the marriage is entirely unfounded. This comment implies that a parent would only lose contact with his/her child if s/he was at fault, which is clearly untrue. 43 These arguments somewhat misread the Decision. The IAD’s point is that the Applicant’s explanation about not wishing to frighten his son is not a clear explanation for his not pursuing custody (para 15(c)), so that it was not reasonable for the family to simply accept the Applicant’s ac- Saroya v. Canada (MCI) James Russell J. 151

count of events. The Applicant said he wants to have children and that he wants to see and have a relationship with his son. And yet he says he has not sought a relationship because he does not wish to frighten his son. All the IAD is saying is that this doesn’t make clear what went on in his second marriage, and it was unreasonable for the family to just accept the Applicant’s account on this basis if they were truly concerned about suitability, compatibility and propriety. I see nothing unreasonable in this finding.

C. Compatibility 44 The Applicant argues as follows on this issue: 32. The Panel also stated in the Reasons that the visa officer’s concerns regarding the “lack of compatibility” between Ramandeep and the Applicant had “not been adequately resolved” (Reasons at para 13). However, the Panel failed to make any negative findings with respect to the parties’ compatibility. In fact, the Panel explicitly acknowledged the evidence that the spouses were from the same religion and caste, spoke the same language, were of the same social status considering that their fathers had held similar government positions, and had family origins in the same village through their grandmothers (Reasons at para 13). The Panel provided no indication why it was not persuaded by this compelling evidence of compatibility. The Applicant therefore submits that the Panel had no reasonable basis for concluding that the parties had failed to resolve the officer’s compatibility concerns. 45 The IAD refers to compatibility concerns in paras 13 and 14 of the Decision: [13] The evidence as described and summarized above is consistent with a marriage that is genuine and that was not primarily for the purpose of immigration. However, there is material evidence in this case that raises concerns about the underlying intentions of the parties. The visa officer was concerned about an appearance of haste in this arrangement and lack of compatibility in significant areas such as age, education and marital history and those concerns have not been adequately resolved. The appellant and applicant both referred to the importance of compatibilities such as culture, language and social status, pointing out that they were from the same religion and caste. They testified that both of their fathers had held similar government positions as draftsman and identified the significance of having family origins in the same village through their grandmothers. Their testimony was that the appellant’s marital history was consid- 152 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

ered but satisfactorily addressed because the appellant was not at fault in the marriage breakdowns. I acknowledge the appellant’s argument that the visa officer relied on an assessment of compatibilities that was not grounded in objective evidence but disagree because, from their own testimony, compatibility and suitability were important features that were allegedly assessed by the families before agreeing to the match. [14] At the IAD hearing, the applicant clarified what she knew about the divorce agreement regarding the appellant’s second spouse including the amount of support payment for the appellant’s son. I find that any difference between her information to the visa officer and the divorce agreement is not material. It was also reasonably confirmed that the simple fact of prior marriages is not culturally barred. Both the appellant and the applicant testified that divorce is not as frowned upon as it once was in their culture. However, both asserted that the appellant being previously married was not a problem because the applicant and her family knew that he was not at fault in his prior marriage breakdowns. From the testimony provided, it is evident that the applicant’s family wanted to assess the circumstances of the prior marriages and divorces before agreeing to the match. Di- vorce may not be a barrier to genuine marriage but the circumstances of a prior marriage and divorce were a relevant consideration when the applicant’s family was assessing compatibility and suitability. 46 Once again, however, this brings the IAD back to the failure of the family to conduct fully independent inquiries so that compatibility could be truly assessed. The negative finding is that such inquiries were not made so that compatibility — which the Applicant and Ramandeep both said was very important — was never really assessed. There is nothing unreasonable about the IAD’s conclusions on this point.

D. Haste 47 The Applicant puts forward the following argument: 33. Another reason why the Panel refused the appeal was that a “reasonable explanation was not provided for the relative haste between meeting and marriage or how that time afforded opportunity to acquire sufficient background information”. The Panel determined that the marriage was conducted in haste because “the couple met and agreed to the proposal all on the same day and were married within the same month” (para 15(e)). The Applicant submits that this finding is clearly unreasonable because the evidence established that dis- cussions between the families regarding the possibility of marriage spanned from March or April 2011 until October 2011, which is ap- Saroya v. Canada (MCI) James Russell J. 153

proximately 7 or 8 months. In concluding that this timeframe was hasty, the Panel failed to consider that within the context of the parties’ culture, this would not be considered a fast timeline for arrang- ing a marriage. For comparison, in Nadasapillai, the spouses’ wedding took place 40 days after their first introduction and 10 days after their first in-person meeting. Justice Diner held that this timeline, which is considerably shorter than the timeline in the present case, did not reasonably support a conclusion that the marriage was conducted in haste. The Applicant thus submits that the Panel’s determination regarding the alleged “haste” of this marriage was unreasonable and cannot stand. 48 The Applicant is quoting the words from para 15(e) of the Decision out of context. The IAD’s point is that, in terms of their personal time together, there was insufficient time to establish credibility and acquire sufficient background information to ensure that the Applicant was a compatible match for Ramandeep. The reasons they said they did not require more time was because they were able to rely on other sources. But the Applicant could not show how these other sources would have been able to provide the compatibility assurances they both say were important. It is again the lack of independent checks that renders their personal time together insufficient to ascertain if there was real compatibility. There is nothing unreasonable in the IAD’s reasoning and findings on this point.

E. Other Issues 49 The Applicant raises other instances where he feels the IAD was deal- ing with “Minutiae and Marginalities.” I agree with the Applicant that these findings are not sustainable or reasonable: a) There is no incompatibility between the Applicant saying he is willing to accept his son if the son wants to see him in the future and Ramandeep saying that they want to obtain custody when she arrives in Canada. Seeing the son and seeking custody are different things and/or the son’s wishes may well be part of how, why and when the couple will seek custody; b) The IAD’s finding that “romantic talk” is unusual in a marriage that is arranged has no evidence to support it and this couple speak 154 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

to each other every day. The IAD is playing the expert on ro- mance when it says: While romantic interest may develop over time, the earlier conversations between them would not reasonably be such as described. c) There is no inconsistency between the Applicant’s appreciating that Ramandeep was dressed simply and without adornment when he first met her and later photographs and descriptions about going shopping and buying clothes. It is telling to look at the passages in the transcript where this alleged inconsistency is sup- posed to have occurred: A I — when I — when I was — started looking or tell, maybe 20 — 2009, December 2009 I think was the last time I contacted my ex-wife asking her about — to let me see my child, which she won’t budge. And then I stated the criterias [sic] I was looking for, that she should be kind-hearted, my future wife should be kind-hearted. She should be in a noble profession and money shouldn’t be her — shouldn’t be her first prior- ity. And I would say you can find those in a simple person only. This person living a simple lifestyle would — would be — would match all these criterias [sic] or the kind of person I was looking for. And I found that in my current wife. Q And when you’re saying that she’s a simple person, can you define that more? A The dress she was wearing, there was no makeup, she was not wearing any jewellery, no flashy shoes or no — no flashy car they travelled in. That — and (indiscernible) it’s some kind of hair or the dress that — that you guys are wearing, or that the girls are wearing. Or, I mean, the way she talked. It was — it all (indiscernible) to (indiscernible). Q So she never wears jewellery and she never has makeup, doesn’t wear shiny shoes. A No, I didn’t say that. I said she was not wearing jewellery or shoes when she came to see me first day. She doesn’t wear... I — when we were staying in Delhi we were going... I would ask her to wear something and she would say no, she doesn’t want to. She — she would only do that after — if and after I request her. Saroya v. Canada (MCI) James Russell J. 155

It’s not safe to wear jewellery in Delhi as well. But even she has — she has three or four set. She would never wear unless I ask her to. I mean don’t get me wrong. She does like to dress up but only on special occasions. PRESIDING MEMBER: I can’t help but ask or let you know it seems a little incongruous to talk about “she’s simple, she doesn’t like makeup” and all of that and yet she’s taking a beautician course. A That’s not for jewellery but — PRESIDING MEMBER: I know; that’s for makeup. A She has to do her — she has to dye hair because her hair are going dark and she feels embarrassed. PRESIDING MEMBER: Some of us understand that. There is nothing vague or generic or inconsistent about this testimony. d) Any inconsistencies in the details about Ramandeep’s illness following the marriage are reasonably explainable by their having to live apart. Once again, the IAD relies upon generalities of its own making without assessing the conditions under which this couple presently lead their lives: It is reasonable to expect that ongoing medical issues for one of the partners in a marriage would be a topic discussed and of concern to both. It is reasonable to expect that they would have greater and more similar knowledge about her condition. Both explained the honeymoon situation consistently and the difficulties associated with the diagnosis. They also both said that Ra- mandeep has recurring problems with skin eruptions. The Appli- cant said that they occur on her head as well as her arms, but Ramandeep said she gets a rash on her arms. This discrepancy is far too microscopic to support an inconsistency in testimony. 50 The IAD made it clear that its negative decision was based upon cumulative deficiencies. My finding that some of those deficiencies are not supported by the evidence means that the Court cannot say whether the Decision would have been negative if these unreasonable findings had not been made. This means that this matter must go back for reconsideration. See Jung v. Canada (Minister of Citizenship and Immigration), 2014 FC 275 (F.C.); Huerta v. Canada (Minister of Citizenship & Immi- 156 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

gration), 2008 FC 586 (F.C.) at para 21; Igbo v. Canada (Minister of Citizenship & Immigration), 2009 FC 305 (F.C.) at para 23. 51 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is referred back for reconsideration by a differently constituted IAD; 2. There is no question for certification. Application allowed; decision quashed and matter referred back for reconsideration by differently constituted Immigration Appeal Division. Chughtai v. Canada (MCI) 157

[Indexed as: Chughtai v. Canada (Minister of Citizenship and Immigration)] Umair Ali Chughtai, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-175-15 2016 FC 416 Luc Martineau J. Heard: April 4, 2016 Judgment: April 14, 2016 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Persons not believed to be genuine immigrants or visitors –––– Foreign national was citizen of Pakistan who was hired as office manager by dentist — Application for Arranged Employment Opinion (AEO) was submitted to Department of Human Resources and Skills Development Canada and positive AEO was issued — Foreign national subsequently applied for permanent residence, including in application positive AEO — Officer noted that AEO stipulated requirement of college level degree or diploma, and that foreign national’s educational credentials were not issued by accredited institutions and therefore did not meet this requirement — Officer found that foreign national had submitted AEO for position that was not genuine and had therefore misrepresented facts material to assessment of his application for permanent residence — Foreign national was deemed to be inadmissible pursuant to s. 40(1)(a) of Immigration and Refugee Protection Act and his application for permanent residence was refused — Foreign national brought application for judicial review — Application granted; decision set aside and matter remitted back to different visa officer for redetermination — Officer’s primary reason for rejecting application was finding that foreign national was inadmissible for misrepresentation under s. 40(1) of Act — Only evidence to support misrepresentation finding was determination that employer may not have had actual business need for position of office manager — Reasons did not support finding of misrepresentation on basis of clear and convincing evidence — Determination of inadmissibility did not fall within range of possible, acceptable outcomes which were defensible in respect of facts and law. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Evidence –––– Foreign national was citizen of Paki- stan who was hired as office manager by dentist — Application for Arranged Employment Opinion (AEO) was submitted to Department of Human Resources 158 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

and Skills Development Canada and positive AEO was issued — Foreign national subsequently applied for permanent residence, including in application positive AEO — Officer noted that AEO stipulated requirement of college level degree or diploma, and that foreign national’s educational credentials were not issued by accredited institutions and therefore did not meet this requirement — Officer found that foreign national had submitted AEO for position that was not genuine and had therefore misrepresented facts material to assessment of his application for permanent residence — Foreign national was deemed to be inadmissible pursuant to s. 40(1)(a) of Immigration and Refugee Protection Act and his application for permanent residence was refused — Foreign national brought application for judicial review — Application granted; decision set aside and matter remitted back to different visa officer for redetermination — Officer’s primary reason for rejecting application was finding that foreign national was inadmissible for misrepresentation under s. 40(1) of Act — Only evidence to support misrepresentation finding was determination that employer may not have had actual business need for position of office manager — Reasons did not support finding of misrepresentation on basis of clear and convincing evidence — Determination of inadmissibility did not fall within range of possible, acceptable outcomes which were defensible in respect of facts and law. Cases considered by Luc Martineau J.: Angel de Azeem v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 1043, 2015 CarswellNat 4110, 2015 CF 1043, 2015 CarswellNat 7704 (F.C.) — distinguished Baro v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1299, 2007 CarswellNat 4369, 2007 CF 1299, 2007 CarswellNat 5117, [2007] F.C.J. No. 1667, [2007] A.C.F. No. 1667 (F.C.) — referred to Bellido v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 452, 2005 CarswellNat 889, [2005] F.C.J. No. 572, 2005 CF 452, 2005 Car- swellNat 7517 (F.C.) — referred to Berlin v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1117, 2011 CarswellNat 4672, 2011 CF 1117, 2011 CarswellNat 3949, 2 Imm. L.R. (4th) 336, [2011] A.C.F. No. 1372, [2011] F.C.J. No. 1372, 397 F.T.R. 205 (Eng.) (F.C.) — considered Bondoc v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 842, 2008 CarswellNat 2327, 2008 CF 842, 2008 CarswellNat 4247, [2008] F.C.J. No. 1063 (F.C.) — referred to Garcia Porfirio v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 794, 2011 CarswellNat 2704, 2011 CF 794, 2011 CarswellNat 3647, 99 Imm. L.R. (3d) 320, [2011] F.C.J. No. 997 (F.C.) — considered Ghazeleh v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1521, 2012 CarswellNat 5016, 2012 CF 1521, 2012 CarswellNat 5429 (F.C.) — distinguished Chughtai v. Canada (MCI) 159

Khorasgani v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1177, 2012 CarswellNat 3780, 2012 CF 1177, 2012 CarswellNat 4276, 419 F.T.R. 319 (Eng.) (F.C.) — referred to Kobrosli c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2012), 2012 CF 757, 2012 CarswellNat 1976, 2012 FC 757, 2012 CarswellNat 2839, (sub nom. Kobrosli v. Canada (Minister of Citizenship and Immigra- tion)) 413 F.T.R. 200 (Eng.), [2012] F.C.J. No. 737 (F.C.) — referred to Nazir v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 553, 2010 CarswellNat 1421, 2010 CF 553, 2010 CarswellNat 2246, 89 Imm. L.R. (3d) 131, [2010] F.C.J. No. 655, 369 F.T.R. 77 (Eng.) (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — referred to Ouafae c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), 2005 CF 459, 2005 CarswellNat 899, 2005 FC 459, 2005 CarswellNat 5098, [2005] F.C.J. No. 592, (sub nom. Ouafae v. Canada (Minister of Citizenship & Immigration)) 277 F.T.R. 30 (Eng.) (F.C.) — considered Palogan v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 889, 2013 CarswellNat 3367, 2013 CF 889, 2013 CarswellNat 3812 (F.C.) — considered Singh v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 377, 2015 CarswellNat 652, 2015 CF 377, 2015 CarswellNat 3777 (F.C.) — referred to Xu v. Canada (Minister of Citizenship and Immigration) (2011), 2011 FC 784, 392 F.T.R. 339 (Eng.), 2011 CF 784, 2011 CarswellNat 7220, 2011 Car- swellNat 7221 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 40 — considered s. 40(1) — considered s. 40(1)(a) — considered 160 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 76(1)(a) — considered s. 82 — considered s. 82(2)(c) — considered s. 200(5) — considered s. 203(1) — considered s. 203(1)(a) — considered

APPLICATION by foreign national for judicial review of visa officer’s inadmissibility finding.

Max Chaudhary, for Applicant Aleksandra Lipska, for Respondent

Luc Martineau J.:

1 The applicant seeks judicial review of a decision, dated August 24, 2015, by an Immigration Officer [officer] of Citizenship and Immigra- tion Canada [CIC] refusing his application for permanent residence as a skilled worker due to a finding that the applicant was inadmissible to Canada on the basis of misrepresentation, pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

Background 2 The applicant is a citizen of Pakistan. He states that he was hired as an office manager by Dr. Khurrum Ashraf Dentistry [the employer] on August 18, 2007. An application for an Arranged Employment Opinion [AEO] was submitted to the Department of Human Resources and Skills Development Canada [HRSDC], and a positive AEO was issued on Oc- tober 10, 2007. 3 On or about July 29, 2008, the applicant submitted an application for permanent residence in Canada as a skilled worker. The application was subsequently processed under Ministerial Instructions issued on Novem- ber 28, 2008, which were retroactively applied. The applicant included in his application for permanent residence the positive AEO, his Master’s Degree from Premier College, and his Bachelor degree from the National College of Business Administration and Economics. The applicant has acknowledged that these institutions were not accredited at the time the Chughtai v. Canada (MCI) Luc Martineau J. 161

credentials were issued; however, the National College of Business Ad- ministration and Economics has since been accredited. 4 On April 1, 2010, the CIC visa office in Islamabad ceased processing economic permanent resident applications. The applicant’s file was transferred to the Canadian High Commission in London, UK on June 9, 2010. On or about June 14, 2011, the applicant’s former counsel received a procedural fairness letter [PFL1] from a Designated Immigration Of- ficer, which stated that the officer was not satisfied that the applicant met the requirements of the AEO, nor that the AEO was genuine. The officer noted that the AEO stipulated the requirement of a college level degree or diploma, and that the applicant’s educational credentials were not issued by accredited institutions and therefore did not meet this requirement. 5 On or about July 12, 2011, the applicant submitted a response to PFL1, and in the course of this response, the employer also submitted a new letter indicating he was aware of the problems with the credentials but had determined that the applicant met the educational requirement as stipulated. The applicant also submitted his Bachelor of Business Admin- istration degree from the National College of Business Administration and Economics issued on May 7, 2011, which he had obtained after further study in order to hold a degree from an accredited institution. On or about December 27, 2012, the applicant was informed that he was required to attend an interview at the Abu Dhabi visa office. The interview was held on February 18, 2013. 6 On May 1, 2013, the applicant’s former counsel received a second procedural fairness letter [PFL2], advising that the applicant could be inadmissible to Canada for misrepresentation. The officer stated that the AEO was not genuine, and that without the AEO the application was not eligible to be processed. On or about July 2, 2013, the applicant replied to PFL2. He submitted a new letter from the employer, indicating that the job offer was in fact genuine and that demonstrable need for the position existed. 7 In an entry dated October 8, 2013, the Global Case Management Sys- tem [GCMS] notes in the applicant’s file indicate: In response to the procedural fairness letter, the applicant has forwarded on a response from the employer listed in the AEO. The employer states that he does charitable work and that he has a specialized practice that has three hygienists, two assistants, two front administration staff and three part time staff, and over 3500 patients. 162 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

The employer states he is looking to expand the office space and to bring on another dentist, and potentially an anaesthesiologist, and a lab technician. Specific supporting evidence related to these stated plans, to the current size of the practice, or to show the staff currently employed, has not been provided. The employer states he would only trust family to take on the responsibility of this position. Beyond the letter, the applicant has not provided any supporting evidence to substantiate their potential employer’s statement. The concerns as indicated to the applicant at interview and in the procedural fairness letter have not been adequately addressed. The employer states that he feels he has the right to bring a family member into his practice. The response provided appears to confirm that the job offer was provided in order to facilitate the applicant’s immigration. Based on the re- sponses at interview and evidence on file, I am not satisfied that if an unrelated individual had been located with similar work experience, skills, abilities, and the capacity to perform the duties of an office manager, that they would have been offered the position due to a genuine need to hire an office manager. A copy of the employer’s previous correspondence regarding the applicant’s degree and qualifications has again been provided. It appears the job offer was written so that the applicant would specifically qualify instead of based on need or hiring criteria, and when it appeared that the applicant did not meet the qualifications, it was stated that they were not essential, even without any apparent change in the job requirements or the duties the applicant would perform. 8 In an entry dated December 13, 2013, the notes state: The interviewing officer had concerns that the job offer was not genuine. [...] Given that the level of education requirements for the job offer were changed to match our assessment of the applicant’s education credentials and the employer (PA’s brother-in-law) has not provided sufficient reasons to explain why the job offer was made for an Officer Manager or why the offer was made to the applicant, other than a desire to employ a family member, I am not satisfied that this is a genuine job offer which has been made in order to assist the applicant’s permanent residence application. The provision of a non- genuine job offer is direct misrepresentation that if accepted would lead to an error in the administration of IRPA. I am an officer designated under the Act to make a determination under A40. I am therefore satisfied that the applicant has misrepresented a material fact that if accepted would have led to an error in the administration of IRPA. Therefore the applicant is found inadmissible under A40 for misrepresentation. Chughtai v. Canada (MCI) Luc Martineau J. 163

9 In an entry dated August 17, 2015, it is noted that the file was referred for review, and that in December 2013 there was an “incorrect determination of misrepresentation”. Reviewing the recommendation made by the interviewing officer, the officer who made the August 17, 2015 entry therefore concluded that the applicant’s job offer constituted a misrepresentation as defined in section 40 of IRPA. The entry goes on to state that the job offer was made to the applicant in order to facilitate his application, and notes: The job offer /Arranged Employment offer was then amended to fit the applicant’s educational backgrounds further to our concerns. The misrepresentation was certainly material because, applicant would not have been eligible to apply as a Skilled Workers [sic] under the Ministerial Instructions 1 (MI1) at that time without a job offer. The officer has determined that none of subject’s work experience is one of those in the listed occupations. As such, applicant needed a job offer to be eligible to submit an application under MI1. 10 In a letter dated August 24, 2015, the applicant was informed that he had not met the requirements of IRPA, as he had misrepresented facts material to the assessment of his application for permanent residence. In particular, the officer reviewing the applicant’s file found that the applicant had submitted an AEO for a position that was not genuine, and that this submission was relevant to whether or not he met the selection criteria as a skilled worker under the Ministerial Instructions. This misrepresentation was material to the disposition of the application, and could have led to an error in the administration of IRPA. The applicant was therefore deemed to be an inadmissible foreign national pursuant to paragraph 40(1)(a) of IRPA, and his application for permanent residence was refused.

Standard of Review 11 The applicant and the respondent agree that the determination of misrepresentation under paragraph 40(1)(a) of IRPA is factual in nature and calls for a deferential standard of review (Kobrosli c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2012 FC 757 (F.C.) at para 24). The decision should therefore be reviewed on a standard of reasonableness (Khorasgani v. Canada (Minister of Citizenship and Immigration), 2012 FC 1177 (F.C.) at para 8; Singh v. Canada (Minister of Citizenship and Immigration), 2015 FC 377 (F.C.) at para 12). This Court should not intervene if the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (New 164 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47 [Dunsmuir]). In addition, the GCMS notes may form the basis for, or supplement reasons provided by, a visa officer in his or her decision (Angel de Azeem v. Canada (Minister of Citizenship and Immigra- tion), 2015 FC 1043 (F.C.) at para 27 [De Azeem]).

Analysis 12 I have considered the parties’ submissions in their respective memo- randa of fact and law, as well as the applicant’s written reply, and the oral submissions made at the hearing by the parties’ counsel. Their general positions and arguments are summarized below. 13 Firstly, the applicant submits that contrary to the assertions of the officer, the employer did not alter the requirements of the AEO in response to PFL1. Rather, the employer simply disagreed with the assessment made by the officer — a fact that the applicant states is clear from the text of the letter. The applicant states further that the officer did not find at the time of PFL1 that the applicant had not met the requirements of the AEO, noting that at the subsequent interview, the officer confirmed that the applicant had genuine work experience in a position that would qualify him for the programme, and also confirmed that his degree was genuine. 14 With respect to PFL2, the applicant submits that the officer confused the applicant’s apparent failure to satisfy the officer’s concerns about the bona fides of the offer with a material misrepresentation. The applicant states that this “leap from insufficiency to misrepresentation” is unsupported by the evidence, and that a finding of misrepresentation must be established by objective facts rather than apparent belief (Xu v. Canada (Minister of Citizenship and Immigration), 2011 FC 784 (F.C.) at para 16 [Xu]). 15 The applicant notes that the legislative intent of the AEO is to facilitate an applicant’s entry into Canada, as an applicant is much more likely to become economically established if he or she has a job waiting. As a result, the applicant submits that it would make little sense to bar an applicant from Canada for using the programme as it was intended. Fur- thermore, the applicant asserts that neither he nor the employer concealed that they were related by marriage, and notes that employers are permitted to hire relatives after they receive authorization from HRSDC. The applicant states that the Court has previously considered this issue as it pertains to live-in caregivers and has always found that the officer ac- Chughtai v. Canada (MCI) Luc Martineau J. 165

ted without reference to an objective concern (Ouafae c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 459 (F.C.) at para 32 [Ouafae]; Nazir v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 553 (F.C.) at para 23; Palogan v. Canada (Minister of Citizenship and Immigration), 2013 FC 889 (F.C.) at para 15 [Palogan]). 16 Citing Garcia Porfirio v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 794 (F.C.) at paras 33-37, the applicant also asserts that while assessment by HRSDC when issuing the AEO does not obvi- ate the duties of the visa officer in making the assessment of whether an offer is genuine or not, it is inappropriate for a foreign visa officer to suddenly second guess the findings of HRSDC with respect to Canada’s labour market and the question of whether a position is actually required. As the officer was not in a position to properly assess the employer’s need for the position, nothing remained that would lead the officer to believe that the job offer was not genuine, therefore falling below the threshold needed to establish misrepresentation (Berlin v. Canada (Minister of Citizenship & Immigration), 2011 FC 1117 (F.C.) at para 21 [Berlin]). 17 Finally, while the applicant concedes that a third party, such as the individual making the AEO, may be the party putting forward a misrepresentation, in the present case it is evident that both the applicant and the employer believed that the job offer was genuine, and provided all the information they believed was necessary to establish its bona fides. In refusing the application, the officer cited no objective evidence that the applicant or the employer concealed material facts. Yet, a misrepresentation finding cannot stand where the parties involved have been forthright (Baro v. Canada (Minister of Citizenship & Immigration), 2007 FC 1299 (F.C.) at para 15 [Baro]). 18 On the other hand, the respondent maintains that the officer’s decision is reasonable, and does not warrant the intervention of this Court. The respondent notes that as per the legislative scheme pertaining to federal skilled workers, immigration officers award applicants points on the basis of factors listed in paragraph 76(1)(a) of the Immigration and Refu- gee Protection Regulations, SOR/2002-227 [Regulations] — namely, education, proficiency in English and French, experience, age, arranged employment and adaptability. Applicants must be awarded at least 67 points to be eligible for a federal skilled worker visa. 19 Pursuant to paragraph 82(2)(c) of the Regulations, applicants from outside Canada are entitled to 10 points for arranged employment pro- 166 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

vided that the visa officer approves the job offer based on the opinion by the HRSDC. While the visa officer may take into account the opinion of HRSDC, the officer must ultimately be satisfied that the employment offer meets the requirements of subsection 203(1) of the Regulations, which explicitly includes a determination by the visa officer as to whether the employment offer is genuine. Subsection 200(5) of the Reg- ulations sets out the factors that a visa officer must consider in making this determination. The respondent notes that the officer awarded the applicant zero points for arranged employment, as the officer was not satisfied that the job offer was genuine. The applicant had the opportunity to address the officer’s concerns in an interview. Nevertheless, the officer remained unconvinced as to the genuineness of the offer. A subsequent fairness letter was sent, in order to allow the applicant an opportunity to provide further information supporting the genuineness of his job offer. The applicant submitted an updated letter from his employer, which the officer also considered. 20 The respondent notes further that the officer found the AEO not to be genuine because: • In 2007, at the time the offer was made, the applicant did not have the required educational credentials to qualify, as his degrees were from unaccredited institutions; • In February 2013, at the time of his immigration interview, the applicant indicated that the employer’s office was a small business, consisting of only two other employees — a dental assistant and the applicant’s sister; and • At the time of his immigration interview, the applicant indicated that his employer had future expansion plans in mind, but nothing concrete. The Officer concluded that there was no pressing need to hire an Office Manager — particularly one whose experience was as an Area Credit Coordinator for a bank — given the current size of the business. 21 In light of this information, the respondent submits that it was open to the officer to find that the AEO was not genuine, because the additional assistance of a full time office manager was not really required. The respondent recalls that visa officers are required to determine whether a job offer is genuine “on the basis of an opinion provided by the Department of Human Resources and Skills Development”, the current version refers to the Department of Employment and Social Development pursuant to subsection 203(1) of the Regulations. While an officer is to consider Chughtai v. Canada (MCI) Luc Martineau J. 167

HRSDC’s opinion, that officer must make his or her own determination on the matter and must be satisfied that the job offer is genuine (Ghazeleh v. Canada (Minister of Citizenship and Immigration), 2012 FC 1521 (F.C.) at para 20 [Ghazeleh]; Bellido v. Canada (Minister of Citizenship & Immigration), 2005 FC 452 (F.C.) at para 21). 22 The respondent notes that the information provided by the applicant as to the size of his employer’s practice contradicted the information contained in the employer’s letters. Furthermore, the respondent submits that the officer was justified in assessing the genuineness of the future employment position and the relationship between the applicant and the employer. The respondent points out that it was only in 2013 that the applicant indicated that the employer was his brother-in-law — a fact that was not mentioned in the employer’s previous letters from 2007 and 2011. It was open for the officer to consider that the job offer had been made to facilitate the applicant’s immigration to Canada, as the position would likely not have been given to an unrelated candidate with similar skills and experience due to a genuine need to hire an office manager. In finding that the offer was not genuine, the officer reviewed the “overall picture” (Bondoc v. Canada (Minister of Citizenship & Immigration), 2008 FC 842 (F.C.) at para 15 [Bondoc]). 23 The respondent concludes that the determination by the officer that the AEO was not genuine falls within the range of possible outcomes within the context of the facts and the law, as the applicant failed to demonstrate that the findings made by the officer were not supportable by the evidence and that they were made in an unreasonable manner. 24 In response to the respondent’s submissions, the applicant submits that the respondent erred in stating that the officer refused to award the applicant points for his AEO, and that this caused the applicant to be refused for failing to meet the 67-point threshold under the eligibility requirements. In fact, the applicant asserts that he was refused because the officer found him inadmissible for misrepresentation pursuant to subsection 40(1) of IRPA. The respondent therefore misconstrued the refusal and ignored the substantive issues presented by the applicant. Indeed, the applicant was refused because the officer found that, on the balance of probabilities, the employment offer was fraudulent. The only evidence or omission of evidence that the officer used to support this misrepresentation finding was the prior finding that the employer may not have an actual business need for the position. The officer thus committed a re- 168 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

viewable error by failing to point to any objective evidence to support the misrepresentation finding (Xu at para 16). 25 The applicant further submits that the respondent’s arguments regarding the officer’s legal entitlement to perform the final assessment of whether the offer was genuine are largely irrelevant, as this point is not in dispute. The cases cited by respondent’s counsel, in particular Bondoc, De Azeem and Ghazeleh, are clearly distinguishable from the facts of this case. Rather, the applicant argues that there was no objective evidence or omission that could be construed as supporting the finding that the applicant had submitted a fraudulent offer of employment. All the concerns with respect to the number of employees and the size of the business were alleviated, as there was further recruitment and the business grew from two to seven employees. The issue concerning the applicant’s level of education was also moot and had been resolved. With respect to the respondent’s suggestion that the applicant had concealed his familial relationship with the employer, the applicant notes that this point was never queried prior to the interview, and that the information was indeed volunteered by the applicant during the interview. 26 Based on the foregoing, the applicant seeks relief as indicated in the application for leave — to wit, an order quashing the decision of the officer, dated August 24, 2015, as well as an order for a writ of mandamus directing that the respondent consider and process the applicant’s application for permanent residence in accordance with the law. 27 I have decided to allow the present judicial review application. 28 Firstly, I wish to emphasize that I agree with the respondent that a visa officer has the discretion to refuse an application for permanent residence as a skilled worker, even in cases where HRSDC has issued an AEO. Pursuant to paragraph 203(1)(a) of the Regulations, an officer must determine, on the basis of an assessment provided by the Depart- ment of Employment and Social Development, if a job offer is genuine. A visa officer must be satisfied that the criteria specified in section 82 of the Regulations are met. Furthermore, HRSDC’s opinion is not determinative of whether a visa should be issued. The immigration officer is the ultimate decision maker (Ghazeleh at paras 20-21). Yet while the officer was permitted to determine the genuineness of the job offer, taking into account the assessment provided by HRSDC, the respondent misses the crux of the issue by his mischaracterization of the impugned decision. It is true that in this case, the officer’s finding that the AEO was not genuine led the officer to award the applicant zero points for that category, Chughtai v. Canada (MCI) Luc Martineau J. 169

presumably resulting in the applicant’s failure to reach the necessary 67- point threshold. Nevertheless, it is clear from the impugned decision — both from the letter dated August 24, 2015 and from the GCMS notes — that the officer’s primary reason for rejecting the application was the finding that the applicant was inadmissible for misrepresentation under subsection 40(1) of IRPA. 29 An applicant for a permanent residence visa may be refused if he or she fails to meet the evidentiary burden necessary to satisfy the officer as to his or her eligibility. On the other hand, a finding of inadmissibility is more serious in nature. Under paragraph 40(1)(a) of IRPA, a person is inadmissible to Canada if that person “withhold[s] material facts relating to a relevant matter that induces or could induce an error in the administration of th[e] Act”. As my colleague Justice Barnes states in Xu at para 16, “[a] finding of misrepresentation under section 40 of the IRPA is a serious matter which should not be made in the absence of clear and convincing evidence [...]” [emphasis added]. Similarly, in Berlin at para 21, Justice Barnes states, “[a] misrepresentation is not established by mere appearances. As the Respondent’s Operational Manual on Enforcement acknowledges, a misrepresentation must be established on a balance of probabilities.” While an applicant for permanent residence has a duty of candour requiring the disclosure of material facts, and while even an innocent failure to provide material information can result in a finding of inadmissibility (Baro at para 15), there must still be clear and convincing evidence that an applicant, on the balance of probabilities, has withheld material facts for a finding of misrepresentation to be made. 30 In the present case, while the GCMS notes indicate that the officer was “satisfied” that the applicant had misrepresented a material fact, I am not convinced that this decision was in fact based on the kind of “clear and convincing” evidence necessary to make a finding of inadmissibility. Indeed, while the reasoning presented in the GCMS notes may be appropriate for a finding that the applicant did not meet his evidentiary burden of convincing the officer that the AEO was genuine, it appears that the officer may have made an “unsupported leap from the reasonable finding of insufficiency of evidence to one of misrepresentation” (Xu at para 16). Moreover, the consequences of a finding of inadmissibility on the basis of misrepresentation pursuant to subsection 40(1) of IRPA are more serious than those of a mere refusal. As the applicant points out, in the latter case, an applicant is more or less in the same position he was in before applying, whereas in the former case, an applicant continues to be inadmissible to Canada for a period of five years. 170 IMMIGRATION LAW REPORTER 40 Imm. L.R. (4th)

31 With respect to the allegations in the GCMS notes that the employer changed the educational requirements of the AEO following PFL2, a review of the record does not support such a claim. Rather than altering any of the employment requirements, the employer simply stated in his first letter (in response to PFL1) that he was aware of the applicant’s educational credentials at the time the AEO was made, that he was famil- iar with the educational institution from which the applicant received his degree, and that he was satisfied that these credentials were sufficient, particularly in conjunction with the applicant’s overall training, background and work experience. In his second letter (in response to PFL2), the employer reiterated that the job offer and the need to hire the applicant were genuine, and that the applicant met the requirements for the job. In my view, this does not rise to the level of clear and convincing evidence of a misrepresentation. 32 Nor do I find anything in the record to suggest that the applicant or the employer misrepresented their familial relationship. While misrepresentation can occur by omission, there does not appear to be any indication that the applicant or the employer believed they were withholding material information with respect to their relationship. Indeed, this information was volunteered by the applicant during his interview, and was not solicited prior to that time. Moreover, an exception to the rule that even an innocent failure to provide material information can result in a finding of inadmissibility arises where applicants can show that they honestly and reasonably believed that they were not withholding material information (Baro at para 15). Furthermore, although “[t]he relationship between the applicant and the employer may be a factor that the officer takes into account in assessing the bona fide character of the contract” (Palogan at para 15), as the applicant points out in the context of live-in caregivers, “there is nothing in the Act or Regulations to prevent family ties between future employer and employee” (Ouafae at para 32). Fi- nally, with respect to the respondent’s contention that the “information provided by the Applicant as to the size of his employer’s practice contradicted the information contained in the employer’s letters”, this conclusion is not stated in the decision letter or in the GMCS notes. 33 Overall, it appears from the decision that the only evidence the officer used to support the misrepresentation finding was the determination that the employer may not have had an actual business need for the position of office manager. As a result, the reasons do not support the officer’s finding of misrepresentation on a basis of clear and convincing evidence. I am therefore not satisfied that the determination of inadmissibility by Chughtai v. Canada (MCI) Luc Martineau J. 171

the visa officer falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47).

Conclusions 34 For these reasons, the application for judicial review is allowed. The decision made on August 24, 2015 is set aside and the matter is remitted back to a different visa officer for redetermination, in accordance with the law and the present reasons. Counsel agree that there is no question of general importance raised in this case.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed. The decision made on August 24, 2015 is set aside and the matter is remitted back to a different visa officer for redetermination, in accordance with the law and the present reasons. Counsel agree that there is no question of general importance raised in this case. Application granted.