IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 38 (Cited 38 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 38 (Cited 38 Imm. L.R. (4th))

EDITORS-IN-CHIEF/REDACTEURS´ EN CHEF Cecil L. Rotenberg, Q.C. Mario D. Bellissimo, LL.B. Barrister & Solicitor Bellissimo Law Group Don Mills, Ontario Toronto, Ontario Certified Specialist Certified Specialist

ASSOCIATE EDITOR/REDACTEUR´ ADJOINT Randolph Hahn, D.PHIL.(OXON), LL.B. Guberman Garson Segal LLP Toronto, Ontario Certified Specialist

CARSWELL EDITORIAL STAFF/REDACTION´ DE CARSWELL Cheryl L. McPherson, B.A.(HONS.) Director, Primary Content Operations Directrice des activités liées au contenu principal Helen Voudouris, B.B.A., LL.B. Acting Product Development Manager Nicole Ross, B.A., LL.B. Julia Fischer, B.A., LL.B. Supervisor, Legal Writing Supervisor, Legal Writing Michael Johnson, B.A.(HONS.), LL.B. Susan Koster, B.A.(HONS.), LL.B. Lead Legal Writer Lead Legal Writer Martin-Fran¸cois Parent, LL.B., LL.M., Heather Niziol, B.A. DEA (PARIS II) Content Editor Bilingual Legal Writer IMMIGRATION LAW REPORTER, a national series of topical law reports, Recueil de jurisprudence en droit de l’immigration, une série nationale de is published twelve times per year. Subscription rate $479 per bound volume recueils de jurisprudence spécialisée, est publié 12 fois par anneé. including parts. L’abonnement est de 479 $ par volume relié incluant les fascicules.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la rédaction est situé a` Montréal — 430, rue St. Pierre, Mon- Montréal, Québec, H2Y 2M5. tréal, Québec, H2Y 2M5.

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits réservés. Il est interdit de reproduire, mémoriser sur form or by any means, electronic, mechanical, photocopying, recording or un système d’extraction de données ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Thomson par quelque moyen que ce soit, electronique´ ou mécanique, photocopie, enre- Reuters). gistrement ou autre, tout ou partie de la présente publication, à moins d’en avoir préalablement obtenu l’autorisation ecrite´ de l’éditeur, Thomson Reuters. A licence, however, is hereby given by the publisher: Cependant, l’éditeur concède, par le présent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a ` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire;

b) a` un juge ou un autre officier-président, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de délibérations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of « Instance judiciaire » comprend une instance devant une cour, un tribunal ou parliamentary proceedings. une personne ayant l’autorité de décider sur toute chose affectant les droits ou les responsabilitiés d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or per- Ni Thomson Reuters ni aucune des autres personnes ayant participé a` la réal- son having authority to decide any matter affecting a person’s legal rights or isation et à la distribution de la présente publication ne fournissent quelque liabilities. garantie que ce soit relativement à l’exactitude ou au caractère actuel de celle-ci. Il est entendu que la présente publication est offerte sous la réserve Thomson Reuters and all persons involved in the preparation and sale of this expresse que ni Thomson Reuters, ni le ou les auteurs de cette publication, ni publication disclaim any warranty as to accuracy or currency of the publica- aucune des autres personnes ayant participé a` son elaboration´ n’assument tion. This publication is provided on the understanding and basis that none of quelque responsabilite´ que ce soit relativement a` l’exactitude ou au caractère Thomson Reuters, the author/s or other persons involved in the creation of actuel de son contenu ou au résultat de toute action prise sur la foi de this publication shall be responsible for the accuracy or currency of the con- l’information qu’elle renferme, ou ne peuvent etre ˆ tenus responsables de tents, or for the results of any action taken on the basis of the information toute erreur qui pourrait s’y etreˆ glissée ou de toute omission. contained in this publication, or for any errors or omissions contained herein. La participation d’une personne a` la présente publication ne peut en aucun cas etreˆ considérée comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les présentes ne doivent etreˆ interprétées d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0835-3808 ISBN 978-0-7798-5965-8 Printed in Canada by Thomson Reuters

THOMSON REUTERS One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/email Canada (Minister of Public Safety) v. Tran 175

[Indexed as: Canada (Minister of Public Safety and Emergency Preparedness) v. Tran] The Minister of Public Safety and Emergency Preparedness, Appellant and Thanh Tam Tran, Respondent Federal Court of Appeal Docket: A-531-14 2015 FCA 237, 2015 CAF 237 Johanne Gauthier, C. Michael Ryer, D.G. Near JJ.A. Heard: May 12, 2015 Judgment: October 30, 2015 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was citizen of Vietnam who had been permanent resident in Canada, since 1989 — Applicant was convicted in 2012 on charge of producing marijuana in “grow-op” — Accused was sentenced to 12 month conditional sentence — Maximum sentence for this offence was 7 years imprisonment at time of charge — Prior to applicant’s conviction and sentencing, maximum sentence was increased to 14 years imprisonment and minimum sentence was introduced at 2 years — However, this punishment could not be imposed on applicant — Canada Border Service Agency (CBSA) made report claiming applicant was inadmissible to Canada, due to serious criminality — Applicant relied on his lengthy residence in Canada that was otherwise without incident — Applicant claimed that his presence in Canada was necessary to support his children, who lived with different mothers — Applicant also put forth that his current common-law spouse was Canadian, and that he had no family or social support in Vietnam — Tribunal rejected these arguments, pointing to other criminal charges against applicant in Canada — Tribunal stated that applicant had not taken responsibility for actions — Applicant applied for judicial review — Federal Court found that conditional sentence imposed on applicant was not “term of imprisonment” — Federal Court also found that maximum sentence had to be applied at time of charge, not at time of sentencing — Judge finally found that overall decision was unreasonable, as tribunal relied upon arrests and unproven charges to find that applicant was likely to reoffend — Ap- plicant’s application for judicial review was successful — Crown appealed from judicial review — Appeal allowed — Overall purpose of applicable law was to prioritize security, and keep those with criminal records out of country — “Pun- ishable” referred to offence itself and not particular sentence to be imposed on offender — Applicant, as non-citizen, did not have fundamental right to remain in Canada — Interpretation of tribunal was reasonable, and was entitled to deference — Amendments to sentencing on subject offences meant that conditional term of imprisonment could not be seen as proper outcome for these offences — 176 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Fact that conditional term of imprisonment had been imposed did not prevent offence from being seen as serious — Parliament viewed six-month or longer conditional sentences as enough for applicants to lose right of appeal — This justified tribunal’s decision as defensible and reasonable, which was proper standard. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Powers of court –––– Applicant was citizen of Vietnam who had been permanent resident in Canada, since 1989 — Applicant was convicted in 2012 on charge of producing marijuana in “grow-op” — Ac- cused was sentenced to 12 month conditional sentence — Maximum sentence for this offence was 7 years imprisonment at time of charge — Prior to applicant’s conviction and sentencing, maximum sentence was increased to 14 years imprisonment and minimum sentence was introduced at 2 years — However, this punishment could not be imposed on applicant — Canada Border Service Agency (CBSA) made report claiming applicant was inadmissible to Canada, due to serious criminality — Applicant relied on his lengthy residence in Canada that was otherwise without incident — Applicant claimed that his presence in Canada was necessary to support his children, who lived with different mothers — Applicant also put forth that his current common-law spouse was Canadian, and that he had no family or social support in Vietnam — Tribunal rejected these arguments, pointing to other criminal charges against applicant in Canada — Tribunal stated that applicant had not taken responsibility for actions — Applicant applied for judicial review — Federal Court found that conditional sentence imposed on applicant was not “term of imprisonment” — Fed- eral Court also found that maximum sentence had to be applied at time of charge, not at time of sentencing — Judge finally found that overall decision was unreasonable, as tribunal relied upon arrests and unproven charges to find that applicant was likely to reoffend — Applicant’s application for judicial review was successful — Crown appealed from judicial review — Appeal allowed — Overall purpose of applicable law was to prioritize security, and keep those with criminal records out of country — “Punishable” referred to offence itself and not particular sentence to be imposed on offender — Applicant, as non-citizen, did not have fundamental right to remain in Canada — Interpreta- tion of tribunal was reasonable, and was entitled to deference — Amendments to sentencing on subject offences meant that conditional term of imprisonment could not be seen as proper outcome for these offences — Fact that conditional term of imprisonment had been imposed did not prevent offence from being seen as serious — Parliament viewed six-month or longer conditional sentences as enough for applicants to lose right of appeal — This justified tribunal’s decision as defensible and reasonable, which was proper standard. Canada (Minister of Public Safety) v. Tran 177

Cases considered by Johanne Gauthier 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.) — referred to Cha v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 126, 2006 CarswellNat 751, [2006] F.C.J. No. 491, 53 Imm. L.R. (3d) 1, 267 D.L.R. (4th) 324, 349 N.R. 233, 42 Admin. L.R. (4th) 204, 2006 CAF 126, 2006 CarswellNat 3036, [2007] 1 F.C.R. 409 (F.C.A.) — 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 Edmond c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2012), 2012 CF 674, 2012 CarswellNat 1887, 2012 FC 674, 2012 CarswellNat 2658, [2012] F.C.J. No. 688 (F.C.) — considered Gama Sanchez v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 913, 2013 CarswellNat 3102, 2013 CF 913, 2013 CarswellNat 4746, 19 Imm. L.R. (4th) 275, (sub nom. Sanchez v. Canada (Minister of Citizenship and Immigration)) 438 F.T.R. 279 (Eng.) (F.C.) — followed Gama Sanchez v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 157, 2014 CarswellNat 2177, 28 Imm. L.R. (4th) 228, (sub nom. Sanchez v. Canada (Minister of Citizenship and Immigration)) 464 N.R. 333, 2014 CAF 157, 2014 CarswellNat 8489 (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.) — referred to 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 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 178 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(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.) — considered NAV Canada c. Wilmington Trust Co. (2006), 2006 SCC 24, 2006 CarswellQue 4890, 2006 CarswellQue 4891, 20 C.B.R. (5th) 1, (sub nom. Canada 3000 Inc., (Bankrupt), Re) 349 N.R. 1, (sub nom. Canada 3000 Inc., Re) [2006] S.C.J. No. 24, (sub nom. Greater Toronto Airports Authority v. International Lease Finance Corp.) 80 O.R. (3d) 558 (note), (sub nom. Canada 3000 Inc. (Bankrupt), Re) 212 O.A.C. 338, (sub nom. Canada 3000 Inc., Re) 269 D.L.R. (4th) 79, (sub nom. Canada 3000 Inc., Re) [2006] 1 S.C.R. 865, 10 P.P.S.A.C. (3d) 66 (S.C.C.) — followed 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, 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.) — considered R. v. Fice (2005), 2005 SCC 32, 2005 CarswellOnt 1983, 2005 CarswellOnt 1984, 28 C.R. (6th) 201, 196 C.C.C. (3d) 97, 252 D.L.R. (4th) 575, [2005] S.C.J. No. 30, 333 N.R. 243, EYB 2005-90620, [2005] 1 S.C.R. 742 (S.C.C.) — considered R. v. Middleton (2009), 2009 SCC 21, 2009 CarswellOnt 2718, 2009 Carswell- Ont 2719, 244 C.C.C. (3d) 52, 66 C.R. (6th) 157, 306 D.L.R. (4th) 628, [2009] S.C.J. No. 21, 388 N.R. 89, 251 O.A.C. 349, [2009] 1 S.C.R. 674 (S.C.C.) — considered R. v. Proulx (2000), 2000 SCC 5, 2000 CarswellMan 32, 2000 CarswellMan 33, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, 49 M.V.R. (3d) 163, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 212 W.A.C. 161, [2000] A.C.S. No. 6 (S.C.C.) — considered R. v. Wu (2003), 2003 SCC 73, 2003 CarswellOnt 5099, 2003 CarswellOnt 5100, 180 C.C.C. (3d) 97, 16 C.R. (6th) 289, 234 D.L.R. (4th) 87, 313 N.R. 201, 182 O.A.C. 6, [2003] S.C.J. No. 78, [2003] 3 S.C.R. 530, 113 C.R.R. (2d) 297, REJB 2003-51514 (S.C.C.) — considered Canada (Minister of Public Safety) v. Tran 179

Robertson v. Canada (Minister of Employment & Immigration) (1978), 1978 CarswellNat 69F, 43 C.C.C. (2d) 354, 91 D.L.R. (3d) 93, [1979] 1 F.C. 197, 1978 CarswellNat 69, [1978] F.C.J. No. 94 (Fed. C.A.) — considered Ward v. Canada (Minister of Citizenship & Immigration) (1996), 37 Imm. L.R. (2d) 102, 125 F.T.R. 1, 1996 CarswellNat 2286, 1996 CarswellNat 3783, [1996] F.C.J. No. 1687 (Fed. T.D.) — referred to Weso v. Canada (Minister of Citizenship and Immigration) (April 21, 1998), Doc. IMM-516-IMM-516-97IMM-516-97, [1998] F.C.J. No. 1945 (F.C.) — referred to Wilson v. British Columbia (Superintendent of Motor Vehicles) (2015), 2015 SCC 47, 2015 CSC 47, 2015 CarswellBC 2940, 2015 CarswellBC 2941, [2015] S.C.J. No. 47, [2015] A.C.S. No. 47, [2015] 11 W.W.R. 429, 11 W.W.R. 429 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 11(g) — referred to s. 11(i) — referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19 Generally — referred to s. 7(1) — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 732(1) — considered ss. 742-742.7 — referred to s. 742.1 [en. 1992, c. 11, s. 16] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25(1) — referred to s. 33 — referred to s. 36 — referred to s. 36(1) — considered s. 36(1)(a) — considered s. 36(1)(b) — considered s. 36(1)(c) — considered s. 36(2) — considered s. 36(2)(a) — considered s. 36(2)(b) — considered s. 36(2)(c) — considered s. 36(2)(d) — considered s. 36(3)(a) — considered s. 44 — referred to 180 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

s. 44(1) — referred to s. 44(2) — referred to s. 50 — considered s. 50(b) — considered s. 63 — referred to s. 64 [am. 2013, c. 16, s. 24] — referred to s. 64(2) — considered Interpretation Act, R.S.C. 1985, c. I-21 s. 10 — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(b) — referred to Words and phrases considered: term of imprisonment Thus, even if it may have been plausible (albeit not the correct interpretation in his view) to include a conditional term of imprisonment within the meaning of paragraph 36(1)(a) in 2002 when the IRPA was adopted, this can no longer be so today. Indeed, in his view, when one considers the amendments to sections 742.1 to 742.7 of the Criminal Code made in 2007 and 2012 which now clearly limit the ability of judges to use conditional terms of imprisonment for less serious crimes than when Proulx and Middleton were decided and the IRPA was adopted and only where the sentencing judge is satisfied that the offender is not danger to the community, it would be contrary to the legislative purpose of the provision and of subsection 64(2) to apply them to conditional terms of imprisonment.

APPEAL by Crown from judgment reported at Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 2014 FC 1040, 2014 Car- swellNat 4405, 2014 CF 1040, 2014 CarswellNat 4866, 31 Imm. L.R. (4th) 160 (F.C.), allowing applicant’s application for judicial review of immigration tribunal decision declaring applicant inadmissible.

Banafsheh Sokhansanj, Alison Brown, for Appellant Peter Edelmann, Aris Daghighian, for Respondent

Johanne Gauthier J.A.:

1 This is an appeal by the Minister of Public Safety and Emergency Preparedness (the Minister) from a decision of Justice James O’Reilly of the Federal Court (the judge) allowing an application for judicial review Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 181

brought by Thanh Tam Tran. This decision is reported under the neutral citation 2014 FC 1040 (F.C.). 2 Mr. Tran is a citizen of Vietnam who has been a permanent resident in Canada since 1989. In 2012, he was convicted on a charge of producing marijuana and later received a 12-month conditional sentence of imprisonment. 3 The decision under review before the judge was a decision of a delegate of the Minister, under subsection 44(2) of the Immigration and Ref- ugee Protection Act, S.C. 2001 c. 27 (IRPA), referring Mr. Tran to a hearing before the Immigration Division of the Immigration and Refugee Protection Board (ID) to determine whether he should be found inadmissible to Canada on account of serious criminality as defined in paragraph 36(1)(a) of the IRPA. 4 The judge certified the following two questions: 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code [R.S.C. 1985, c. C-46] “a term of imprisonment” under s. 36 (1)(a) of the IRPA? 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1)(a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? 5 Before this Court, the Minister also challenges the finding of the judge that the decision was unreasonable because the decision maker relied, in part, on unproven allegations - arrests, charges and police reports. 6 For the reasons that follow, I would allow the appeal.

I. Background 7 In March 2011, Mr. Tran was involved with others in operating a marijuana grow operation (grow op), which involved about 915 marijuana plants and the theft of electricity worth almost $100,000. On November 29, 2012, Mr. Tran was convicted of production of a controlled substance, contrary to subsection 7(1) of the Controlled Drugs and Sub- stances Act, S.C. 1996, c. 19 (CDSA). 8 On January 18, 2013, Mr. Tran was sentenced. At the time Mr. Tran committed the offence, it was punishable by a maximum term of imprisonment of 7 years. On November 6, 2012, that is prior to his conviction 182 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

and his sentencing, legislation came into effect which increased the maximum punishment for the offence to 14 years of imprisonment and provided for a new minimum sentence of 2 years of imprisonment. How- ever, the sentencing judge could only impose the lesser penalty applicable to the offence pursuant to subsections 11(g) and (i) of the Ca- nadian 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 (Charter) (see Appendix A). In this case, this meant that the maximum penalty that could have been imposed on Mr. Tran was 7 years of imprisonment. 9 On July 26, 2013, an officer of the Canada Border Services Agency (CBSA) made a report under subsection 44(1) of the IRPA (see Appen- dix A) stating that Mr. Tran was inadmissible for serious criminality under paragraph 36(1)(a). It appears that Mr. Tran’s file was referred to an admissibility hearing. 10 However, as section 64 of the IRPA (see Appendix A) had just been amended (Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16), CBSA withdrew the referral because it was of the opinion that Mr. Tran would no longer have a right to appeal a removal order (Appeal Book, Vol. 1, Tab 37, pp. 271-272 and Tab 38, p. 273). Mr. Tran was permitted to file additional submissions. In the said submissions, Mr. Tran’s legal counsel fully canvassed the following two arguments that Mr. Tran raised before the judge and before this Court (Appeal Book, Vol. 1, Tab 14, pp. 144-157). 11 First, that Mr. Tran did not fall within the ambit of paragraph 36(1)(a) of the IRPA because, at the time of his sentencing, the maximum punishment that could be applied to him was 7 years, pursuant to sections 11(g) and (i) of the Charter. Second, that his 12-month conditional sentence of imprisonment did not fall within the ambit of paragraph 36(1)(a), and thus subsection 64(2) of the IRPA, because the words “term of imprisonment” therein should be read as referring only to a “carceral term of imprisonment” so as to exclude a “conditional term of imprisonment.” 12 Both parties agree that the Minister’s delegate had some discretion, albeit a limited one, not to refer a permanent resident such as Mr. Tran to an admissibility hearing even if he was found to meet the criteria set out in paragraph 36(1)(a) (Hernandez v. Canada (Minister of Citizenship & Immigration), 2005 FC 429, [2006] 1 F.C.R. 3 (F.C.), and chapter ENF 6 - Review of reports under A44(1) of the Citizenship and Immigration Canada (CIC), Enforcement Manual (Enforcement Manual) (Joint Book Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 183

of Authorities, Vol. 4, Tab 113)). As this was not an issue before the judge or this Court, I will assume for the purposes of this appeal only that this is so. I note however that this is an issue that will need to be resolved at some point in the future given our Court’s decision in Cha v. Canada (Minister of Citizenship & Immigration), 2006 FCA 126 (F.C.A.) at para. 41, (2006), [2007] 1 F.C.R. 409 (F.C.A.). 13 Thus, in accordance with directions provided to him from CBSA, Mr. Tran raised various facts which, in his opinion, would justify the exercise of this discretion in his favour. In particular, Mr. Tran relied on the length of his residency in Canada and the fact that he had been in Canada for more than 22 years “without incident” (24 years when one considers the period after his conviction) (Appeal Book, Vol. 1, Tab 14, p. 163). He also submitted that removing him would be against the best interests of his five children who were all born in Canada from separate relationships. The mothers and the children all live in British Columbia. Mr. Tran added that his current common law spouse was a Canadian citizen and that he had other family members also residing in Canada. In contrast, he had absolutely no family or network of support in Vietnam where the living conditions are poor. 14 Mr. Tran relied on the fact that he works extremely hard as a roofer to support his extended family, which is often difficult due to the seasonal nature of the roofing industry. However, the only evidence on file is that he pays $560 per month for 2 of his children. As noted by the sentencing judge in his reasons, according to Mr. Tran, it was his financial needs that prompted his implication in the grow op which resulted in his conviction. He also raised the fact that the offence for which he was convicted was a non-violent one.

II. The decision of the Minister’s delegate 15 On October 10, 2013, the Minister’s delegate endorsed the opinion of the CBSA officer, summarized in the “Subsection 44(1) and 56 High- lights - Inland cases (Short)” dated October 7, 2013 (the Report), that the matter should be referred to the ID (see Appeal Book, Vol. 1, Tab 5, pp. 25-27). 16 In the Report, the CBSA officer, in accordance with the Enforcement Manual, considered all of the factors raised by Mr. Tran, his criminal history, past compliance, current attitude, his potential for rehabilitation, the circumstances surrounding the offence for which he was convicted and the sentence imposed. 184 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

17 The CBSA officer noted in particular that contrary to what was represented to the sentencing judge, the CDSA conviction was not Mr. Tran’s first and only criminal conviction as he had been convicted a few days before the sentencing hearing of impaired driving (Appeal Book, Vol II, Tab 61). The officer indicated that it is not the nature of the other conviction that is relevant but rather the fact that Mr. Tran had knowingly re- frained from telling the whole truth to the court who relied on this very fact to give him a conditional sentence of imprisonment as opposed to the term of incarceration requested by the Crown prosecutor. 18 In addition, after noting that none of Mr. Tran’s other arrests and stayed charges listed in the Report since 1998 had resulted in a conviction, the officer wrote that he considered the evidence relating to these events (such as police reports) to assess Mr. Tran’s prospect of rehabilitation and his overall credibility. This was, in his view, relevant as Mr. Tran presented himself as a highly moral character who had lived in Can- ada for 24 years “without incident”. He concluded that Mr. Tran’s behaviour could not be described “as pristine or upstanding in the context of these arrests, some for serious offences.” 19 Although the officer acknowledged that the CDSA offence for which Mr. Tran was convicted and sentenced did not involve any violence, he noted that the level of production of marijuana involved contributes to a larger and very violent problem involving the production of controlled substances in British Columbia. In his view, the size of the grow op suggested an element of organization as the quantity would have been difficult to produce and manage on one’s own. He wrote that, in Lower Mainland British Columbia, such a grow op does not happen in a vac- uum and is often linked to more serious crimes including gang violence. 20 The officer noted that the recent changes in the CDSA regarding the sentence for this type of offence also indicate how seriously Parliament views them. While the increased sentence could not be imposed upon Mr. Tran, it certainly did not mean that Parliament did not view this offence as serious in 2011; it simply had yet to enact the legislative amendments. After again acknowledging that in the absence of a conviction, prior arrests and stayed charges would have been given little weight by the sentencing judge, the officer stated that his own assessment was based on more informal factors than criminal justice including the letters from friends and family. Therefore, he believed that it was appropriate for him to consider the reliable evidence provided by the police. Having Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 185

noted that the period to be considered for rehabilitation was rather short, the officer added: TRAN has now been crime-free for a year and a half, his history shows that he tends to get arrested every couple of years. By failing to acknowledge any of his past problems, particularly his very recent conviction, it is my opinion that TRAN is not accepting responsibility for his actions. Based on the little information before me, I can only assume he will reoffend because he has done so in the past and because he has not demonstrated any inclination to take responsibility for anything beyond what he thinks immigration officials are aware of. Counsel states that “[he] was never an addict and therefore does not undergo AA or other similar programs”. The existence of 3 arrests and 1 conviction for operation while impaired suggests this may not be the case. (Emphasis added) 21 There is no need here to refer to the officer’s comments with respect to the mitigating factors put forth by Mr. Tran, such as the best interests of the children, as these are not directly relevant to the issues before us in this appeal. Before us, Mr. Tran did not argue that there was a reviewable error in this respect. Thus, it is sufficient to say that the report concludes as follows: Based on all of the above information, and in consideration of the submissions made by counsel, it is my opinion that this report should be referred to a hearing. TRAN has been involved in a serious criminal offence. The evidence provided is that he has been involved in criminal activity in the past and that he is not taking full responsibility for his actions. The mitigating factors (establishment, family, hardship in Vietnam, etc) are overshadowed by the seriousness of the offence, TRAN’s conduct in society, and the lack of any indication his behavior will improve.

III. The Federal Court’s decision 22 The judge chose reasonableness as the standard of review applicable to all of the questions before him - the interpretation of paragraph 36(1)(a) of the IRPA and the overall merits of the decision. 23 With respect to the interpretation of paragraph 36(1)(a), the judge found that it was unreasonable to construe the words “term of imprisonment” as including a conditional sentence of imprisonment because: i. In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) [Proulx] and R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674 (S.C.C.) 186 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Middleton], the Supreme Court of Canada confirmed that the meaning of these words depended on the context and did not always include conditional sentences across the whole federal statutes book; ii. Relying on Proulx, at paragraph 21, where the Court stated that a conditional sentence “is a meaningful alternative to incarceration for less serious and non-dangerous offenders”, the judge found that to include them would be at odds with the purpose of paragraph 36(1)(a) which deals with serious criminality; iii. In Medovarski v. Canada (Minister of Citizenship & Immigra- tion), 2005 SCC 51, [2005] 2 S.C.R. 539 (S.C.C.) [Medovarski], the Supreme Court of Canada, referring to paragraph 36(1)(a), said at paragraph 11: In keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA, s. 36(1)(a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA, s. 64. (Emphasis added) 24 On the second issue - meaning of “offence punishable by a maximum term of at least 10 years”, the judge distinguished this Court’s decision in Gama Sanchez v. Canada (Minister of Citizenship and Immigration), 2014 FCA 157, 464 N.R. 333 (F.C.A.) [Sanchez], noting that, contrary to Article 1F(b) of the Convention Relating to the Status of Refugees, 1951, 28 July 1951, 189 U.N.T.S. 137, at issue in that case, paragraph 36(1)(a) refers to the maximum punishment available at the time of conviction (judge’s reasons at para. 19, emphasis added). 25 Then, the judge mistakenly stated that Mr. Tran was not convicted of a crime punishable by at least 10 years as “[t]he maximum sentence at the time of his conviction was 7 years” (judge’s reasons at para. 20, emphasis added). Furthermore, the judge noted that while the maximum sentence was subsequently raised to 14 years, Mr. Tran was not punishable by a sentence of that duration. It is unclear if the judge mistakenly believed that the maximum sentence was raised after Mr. Tran was convicted (his use of the words “subsequently raised”), or if he meant to say that, because of subsections 11(g) and (i) of the Charter, the amendment which was made before his conviction but after he committed the offence would not apply to him (his use of the words “Mr. Tran was not punisha- Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 187

ble”). However, the judge did not refer to these sections of the Charter in his reasons. 26 Finally, the judge found that the overall decision was unreasonable because the Minister’s delegate had relied on arrests and unproven charges to find that Mr. Tran would likely “reoffend because he had done so in the past” (judge’s reasons at para. 23). 27 I note that the judge never expressly dealt with the interpretation of paragraph 36(1)(a) that he used in his certified question (see paragraph 4 above), that is, whether this provision refers to a maximum term of imprisonment available at the time the person was sentenced (see paragraphs 24 and 25 above).

IV. Legislation 28 Paragraph 36(1) of the IRPA reads as follows: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Serious criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Can- ada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. Loi sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27 Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants: a)etre ˆ déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au 188 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

moins dix ans ou d’une infraction à une loi fédérale pour la- quelle un emprisonnement de plus de six mois est infligé; b)etre ˆ déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction a` une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, a` l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. 29 Additional relevant legislative provisions are reproduced in Appendix A.

V. Issues 30 The role of this Court on appeal from a decision of the Federal Court dealing with an application for judicial review is to determine whether the judge chose the appropriate standard of review and applied it properly to the issues before him (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.)). 31 Thus, in the present appeal, where there is no dispute that the judge chose the appropriate standard (see also Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 (F.C.A.) at para. 56, (2014), 379 D.L.R. (4th) 542 (F.C.A.)), the issues are: i. Was the Minister’s interpretation of paragraph 36(1)(a) of the IRPA reasonable (see particularly the certified question at paragraph 4 above)? ii. Was the decision on the merits reasonable? 32 In his memorandum, the Minister briefly raised a new argument that was not presented to the judge. He said that this Court should not decide the appeal given that the issues raised before the Minister’s delegate could be re-argued before the ID at the admissibility hearing. It is thus premature to deal with them now. Mr. Tran submits that this argument is surprising given that the Minister sought an expedited hearing of the appeal on the basis that the judge’s decision was creating chaos and confu- sion. Mr. Tran also objects to this Court dealing with this new argument because he has already incurred legal costs to deal with the Minister’s appeal and because CBSA’s determination that he does not have a right to appeal (pursuant to subsection 64(2) of the IRPA) will not be reviewed Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 189

before the ID if it considers that he was convicted of an offence punishable by a maximum term of imprisonment of 10 years or more. 33 The Minister did not insist on this new argument at the hearing before us. He acknowledged that there are several cases currently pending involving the same issues and that it would be important to deal with these issues as soon as possible. I am aware of at least one application for judicial review that was scheduled for hearing before the Federal Court that has been adjourned pending a decision from this Court on the certified questions. This Court has the discretion to deal with a new issue on appeal but, after careful consideration, I have concluded that it would be inappropriate to do so in this somewhat exceptional case.

VI. Analysis A. The interpretation of subsection 36(1) of the IRPA 34 The Minister’s delegate did not deal expressly with the legal arguments raised by Mr. Tran in the decision. According to the Minister, it is implicit that the Minister’s delegate considered that Mr. Tran’s case fell within the ambit of subsection 36(1) of the IRPA either because: i. The offence for which he was convicted was punishable at the time his admissibility was assessed by a term of imprisonment of more than ten years; and/or ii. He was sentenced to a term of imprisonment of more than six months. 35 In fact, the CBSA’s decision to seek additional submissions because of the absence of an appeal could only be based on the fact that Mr. Tran had been punished by a term of imprisonment of at least 6 months (section 64 of the IRPA).

B. Offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years 36 I will start my analysis with the first criteria set out in paragraph 36(1)(a) of the IRPA. The first issue to consider is whether this criteria is an objective one, that is: Whether the maximum punishment is to be assessed simply by reference to the terms of the Act of Parliament setting out the offence, or whether it refers only to the maximum punishment that could actually be imposed on the person (subjective criteria). In other words - is it the offence described in the Act of Parliament or Mr. 190 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Tran himself that must be punishable by the maximum term set out in paragraph 36(1)(a). 37 The parties agree that if the judge’s interpretation, at paragraph 19 of his reasons - that the offence must be punishable by a maximum term of more than ten years at the time Mr. Tran was convicted, refers to the maximum punishment provided for in the CDSA (objective criteria), then Mr. Tran’s case is captured by subsection 36(1) because, contrary to the judge’s statement in his reasons, the offence was indeed punishable by more than ten years on November 29, 2012. 38 The Minister submits that not only is this criteria objective, but also that it is the maximum punishment provided for in the legislation in force when the admissibility is assessed that is relevant. In this respect, the Minister relies on, among other things, the fact that this is how this section has been applied in its various iterations since at least 1979 (see Robertson referred to in paragraph 54). 39 Mr. Tran argues that whatever the correct time is to determine whether or not paragraph 36(1)(a) applies to him - the date of his conviction or the date his admissibility is assessed, paragraph 36(1)(a) never in fact applied to him because it was never open to the court to punish him by imposing a maximum term of imprisonment of ten years or more. In his view, this criteria must be applied taking into account his personal situation - whether the punishment provided for in the CDSA, either at the time he was convicted or his admissibility was assessed, was “available” to use the word of the judge. Here, because of the application of subsections 11(g) and (i) of the Charter, Mr. Tran was never punishable by a term of imprisonment of 10 years or more for this offence. 40 As to the version of the Act of Parliament that is generally relevant if any, Mr. Tran says that the interpretation adopted by the Minister’s delegate and proposed by the Minister would result in an absurdity. It would mean that any permanent resident ever convicted of an offence, be it twenty-five years ago or more, would be exposed to deportation for a crime which was not considered serious when it was committed or when the person was convicted of it. In addition, he submits that this interpretation effectively gives a retrospective and retroactive effect to the CDSA by employing a retrospective application of immigration law. This is contrary to a fundamental principle of criminal law and violates the presumption against the retrospective and retroactive operation of statutes. In Mr. Tran’s view, paragraph 36(1)(a) increases his liability or punishment for his past criminal conduct. Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 191

41 Although the Minister’s delegate clearly disagreed with the arguments put forth by Mr. Tran in his submissions, he appears to have at least taken into consideration the seriousness of the crime at the time it was committed as part of the factors or relevant surrounding circumstances to be considered before deciding whether the matter should be referred to the ID. 42 We do not have the benefit of a purposive and contextual analysis of paragraph 36(1)(a) from the Minister’s delegate. Mr. Tran did not argue that this constituted a breach of procedural fairness; rather, he argued that the decision is unreasonable because the Minister’s delegate miscon- strued and misapplied this provision. 43 The absence of reasons in respect of the interpretation of subsection 36(1) may explain why the judge simply gave his own view of the proper interpretation of the relevant provision before concluding that the decision was unreasonable. But, even if the judge’s interpretation was correct, this is not what he was mandated to do. Indeed, he had to assess whether the interpretation adopted by the decision maker fell within the range of interpretations defensible on the law and the facts. 44 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at paragraph 48, the Supreme Court of Canada stated that the court must look at “the reasons offered or which could be offered in support of a decision” (citation removed, emphasis added). In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), at paragraph 12, where no reasons had been given by the original decision maker, Justice Abella, writing for the Court, held that a court reviewing an administrative decision must seek to supplement the reasons before it seeks to subvert them. Thus, I understand the Supreme Court of Canada to be saying that deference due to a tribunal does not disappear because its decision on a certain issue is implicit. 45 In cases, like this, where it is not evident that only one interpretation is defensible, it is quite difficult to do what the Supreme Court of Canada mandates us to do given the number of interpretative presumptions and principles that can be considered and applied. Some further guidance would certainly be welcomed in that respect, especially when the relative weight to be given to competing presumptions and interpretative tools has never been clearly dealt with by the Supreme Court of Canada. 192 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

46 The Supreme Court of Canada very recently reminded us that: When assessing the reasonableness of an administrative decision maker’s interpretation, Driedger’s modern rule of statutory interpretation provides helpful guidance: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.(E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87) Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 at para. 18, [2015] S.C.J. No. 47 (QL). 47 I will thus first consider the purpose of the IRPA and of section 36. The Supreme Court of Canada in Medovarski, at paragraph 10, described them as follows: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. [...] Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act. 48 Turning now to the wording of paragraph 36(1)(a), one notes that it contains two distinct criteria. It is indeed the only paragraph that does so in subsection 36(1) of the IRPA. On my reading of the said paragraph, the word “punishable”, both in French and in English, refers to the offence under the Act of Parliament and not to the punishment that could in fact be imposed on the offender. The language does not suggest that it is the particular offender that must be punishable by the maximum term set out therein. Thus, the literal meaning of the words read in the context of the paragraph appears to support the interpretation adopted by the Min- ister’s delegate. 49 I now turn to the immediate context and note that the same expression, “an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”, is also used in the paragraphs dealing with serious criminality committed outside of Canada that if committed in Canada would constitute an offence under an Act of Parlia- ment punishable by a maximum term of imprisonment of at least 10 years (paragraphs 36(1)(b) and (c)). In respect of offences committed Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 193

abroad, it is clear that the criteria is an objective one. It is even clearer when one considers that a foreign national would not even have to be convicted at all, either in Canada or abroad, to be considered inadmissible under paragraph 36(1)(c). 50 Subsection 36(2) (see Appendix A) deals with other criminality as a ground for inadmissibility. It is relevant to this analysis in that it uses phraseology similar to that of paragraph 36(1)(a). Indeed, criminality in paragraph 36(2)(a) is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment or of two offences under any Act of Parliament not arising out of a single occurrence” (emphasis added). Again, this criminality can involve offences committed in Canada as well as outside of Canada (paragraphs 36(2)(b)(c) and (d)). The fact that the criteria set out in this subsection (36(2)) is an objective one is made absolutely clear when one considers paragraph 36(3)(a) of the IRPA (see Appendix A) that provides that an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence within the meaning of subsection 36(2) even if it was in fact prosecuted summarily. 51 At this stage of my analysis, I find that the interpretation adopted by the Minister’s delegate (objective criteria) appears to be reasonable. I now turn to the issue of whether the interpretation of the Minister’s delegate that Mr. Tran’s admissibility should be assessed on the basis of the legislation in force at the time of his assessment is reasonable. 52 I agree with the judge that the wording of paragraph 36(1)(a) itself could support an interpretation that the time at which one must assess whether an offence was punishable under the Act of Parliament by the maximum term set out in paragraph 36(1)(a) is the time at which the person was convicted. But the wording in that respect is not as clear as the judge appears to have considered it. 53 The Minister submits that when one considers the wording of paragraph 36(1)(a) in its context, particularly its legislative objective and the wording of section 33 of the IRPA (see Appendix A), the interpretation adopted by the decision maker is reasonable. He notes that in Edmond c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2012 FC 674, [2012] F.C.J. No. 688 (F.C.), Justice Tremblay-Lamer of the Federal Court came to that conclusion after applying the Driedger modern rule of interpretation to construe paragraph 36(1)(c) of the IRPA. The Minister adds that, even before the adoption of the IRPA, previous iterations of the provisions dealing with inadmissibility based on an office committed 194 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

outside of Canada were consistently construed as requiring one to consider the legislative punishment for the offence as of the date admissibility was assessed or the deportation order was issued (see Ward v. Canada (Minister of Citizenship & Immigration) (1996), 125 F.T.R. 1, [1996] F.C.J. No. 1687 (Fed. T.D.) at paras. 16-18; Weso v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1945 (F.C.) at paras. 7-8). 54 I agree that it makes sense to construe paragraph 36(1)(a) in that respect in the same manner as paragraphs 36(1)(b) or (c). In fact, in Robertson v. Canada (Minister of Employment & Immigration) (1978), [1979] 1 F.C. 197, 91 D.L.R. (3d) 93 (Fed. C.A.) [Robertson], the theft of goods valued at $50.00 was punishable by a maximum sentence of 10 years of imprisonment when Mr. Robertson was convicted but was not viewed as deserving such a punishment when his admissibility was assessed. This is clearly the other side of the coin of the argument and example put forth by Mr. Tran and is certainly as potent an argument as the one he raises now - that a person could have been convicted 25 years ago for a crime that was not viewed as serious but which is now assessed as being serious. 55 But to give effect to both sides of this coin, one would have to adopt an interpretation that for all material purposes gives effect to subsection 11(i) of the Charter. That section does not apply in the present context because the proceedings before the Minister’s delegate are neither criminal nor penal. 56 It is also important to consider that, as reaffirmed in Medovarski at paragraph 46, the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Can- ada (Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 (S.C.C.) at p. 733, (1992), 90 D.L.R. (4th) 289 (S.C.C.)). 57 The legislative objective here is not to punish or be unfair to an offender but rather to determine whether a person should be granted the privilege of remaining in Canada. The interpretation adopted by the Min- ister’s delegate is, thus, consistent with the legislative purpose of the provision under review. 58 I agree with the comments of Justice Russell in Gama Sanchez v. Canada (Minister of Citizenship and Immigration), 2013 FC 913 (F.C.) at para. 60, (2013), 438 F.T.R. 279 (Eng.) (F.C.), aff’d in Sanchez, above, that “[i]t is for Canada to decide who it regards as undeserving, Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 195

and Canada’s views on that may well change from time to time as Parlia- ment alters its views on particular crimes. A crime previously regarded with more leniency may well be seen as much more threatening and re- pugnant as times and governments change.” These comments, albeit made in a different context, are apposite here. Unless the legislator clearly provides otherwise, admissibility under subsection 36(1) should logically be tested against Canada’s prevailing views of the seriousness of the offence in question. 59 As noted by the Minister at the hearing, there is little doubt that if an offence was benign at the time the person committed it in Canada, say 25 years ago as proposed by Mr. Tran, and the person had not committed any crime since that time, then there would likely be compelling reasons to not refer the person to the ID. 60 In view of the foregoing, and although there may well be other defensible interpretations, I cannot conclude that the interpretation adopted by the Minister’s delegate is unreasonable. Therefore, the answer to the second certified question is as follows: The phrase “punishable by a maximum term of imprisonment of at least 10 years” in paragraph 36(1)(a) of the IRPA can reasonably be interpreted as the maximum term of imprisonment under the law in force at the time admissibility is determined.

C. The meaning of a “term of imprisonment” in paragraph 36(1)(a) of the IRPA 61 I will now address the second criteria set out in paragraph 36(1)(a) dealing with the actual sentence imposed by a judge on an offender who is a permanent resident or a foreign national. It is what Mr. Tran considers the most important question in this appeal because it can also determine whether he will have the right to appeal to the Immigration Appeal Division (IAD) under section 63 of the IRPA (see Appendix A). In the context of such an appeal, Mr. Tran would have the benefit of an assessment of his case on humanitarian and compassionate grounds by the IAD before any removal order could be executed. 62 I need not repeat here what I have already said about the legislative objectives of IRPA in paragraph 36(1)(a) (see paragraph 47 above). I will note however that in Medovarski the Supreme Court of Canada also dealt with the purpose of enacting section 64. It found that the legislative purpose was the efficient removal from the country of persons who engaged in serious criminality (Medovarski, paras. 12-13). 196 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

63 When the IRPA was adopted in 2002, the expression term of “imprisonment” (emprisonnement) was used in three specific provisions - sections 36, 50 and subsection 64(2). 64 Although for a lay person a term of imprisonment is generally understood as time spent in prison or in incarceration, it has a wider meaning when used in the context of determining what sentence may be imposed for a criminal offence under an Act of Parliament. 65 It is clear that pursuant to section 742.1 of the Criminal Code (see Appendix A), and subject to various exceptions added in 2007 and 2012, a term of imprisonment of less than two years can be served in the community rather than in jail. It is understood that should the conditions imposed by the sentencing judge be breached, the offender may end up serving the rest of his term in jail. 66 In a series of decisions (Proulx , above; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530 (S.C.C.); R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742 (S.C.C.); Middleton, above) the Supreme Court of Canada also made it clear that although generally a sentence of “imprisonment” will be understood to include conditional terms of imprisonment when referring to a sentence under the Criminal Code, there may be cases where the Driedger modern rule of interpretation will require that the expression be limited to a carceral term of imprisonment. 67 However, as noted by the Minister, in Middleton, both Justice Fish, writing for the majority (paragraphs 10-11), and Justice Binnie, in his concurring reasons (paragraph 57), acknowledged that the general rule applies unless Parliament clearly indicates to the contrary. In that case, Justice Fish in fact stated that the textual consideration of the provision itself, which expressly referred to “confinement” and “prison”, was sufficient and made it plain that conditional sentences of imprisonment could not come within the meaning of “sentence of imprisonment” in section 732(1) of the Criminal Code. 68 Mr. Tran says, and the judge accepted, that here, considering the particular purpose of paragraph 36(1)(a) - inadmissibility based on serious criminality as opposed to other criminality (subsection 36(2)), the expression should be construed as referring only to sentences imposing time in jail. 69 At the hearing, and in the brief written submissions filed thereafter, it became clear that for Mr. Tran the law must always speak (Article 10 of the Interpretation Act (R.S.C. 1985, c. I-21)) (see Appendix A). Thus, even if it may have been plausible (albeit not the correct interpretation in Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 197

his view) to include a conditional term of imprisonment within the meaning of paragraph 36(1)(a) in 2002 when the IRPA was adopted, this can no longer be so today. Indeed, in his view, when one considers the amendments to sections 742.1 to 742.7 of the Criminal Code made in 2007 and 2012 which now clearly limit the ability of judges to use conditional terms of imprisonment for less serious crimes than when Proulx and Middleton were decided and the IRPA was adopted and only where the sentencing judge is satisfied that the offender is not danger to the community, it would be contrary to the legislative purpose of the provision and of subsection 64(2) to apply them to conditional terms of imprisonment. 70 However, as will be discussed, the seriousness of a crime or an offence is a matter of opinion. 71 In fact, the sentencing judge in this case referred to jurisprudence dealing with similar offences and said, at paragraph 31 of his reasons (Appeal Book, Vol. 2, Tab 61, p. 365): Intelligent people and informed people disagree about the seriousness of these offences, and they are entitled to. Obviously, it makes it more difficult when judicial officers that are placed, as far as superi- ority level, above this court, disagree, and they have over the years. 72 Moreover, to say that a conditional term of imprisonment is more le- nient and applies only to less serious crimes than a similar term of incarceration does not necessarily mean that such crimes are not viewed by the legislator as serious enough to warrant being inadmissible pursuant to paragraph 36(1)(a). There is still a wide margin between the offences described in subsection 36(2), which even includes offences under the IRPA, and those for which a conditional term of imprisonment can now be imposed. 73 The parties were agreed that the legislative evolution of paragraph 36(1)(a) is not particularly helpful to determining the issue before us. However, the legislative evolution of section 50 of the IRPA does shed some light, and generally one is presumed to intend to use the same words with the same meaning in the sections in which it appears. Prior to the adoption of IRPA, section 50 read as follows: 50 [...] (2) A removal order that has been made against a person who was, at the time it was made, an inmate of a penitentiary, jail, reformatory or prison or becomes an inmate of such an institution before the order is executed shall not be executed until the person has completed the 198 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

sentence or term of imprisonment imposed, in whole or as reduced by a statute or other law or by an act of clemency. 50 [...] L’incarcération de l’intéressé dans un pénitencier, une prison ou une maison de correction, antérieurement a` la prise de la mesure de renvoi ou à son exécution, suspend l’exécution de celle-ci jusqu’à l’expiration de la peine, compte tenu des réductions légales de peine et des mesures de clémence. 74 It now reads as follows: Stay 50. A removal order is stayed [...] (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed; Sursis 50. Il y a sursis de la mesure de renvoi dans les cas suivants: [...] b) tant que n’est pas purgée la peine d’emprisonnement infligée au Canada à l’étranger 75 It is generally presumed that when the legislator amends a provision to such an extent, it intends to change its ambit. Section 50 of the IRPA is applied to conditional terms of imprisonment by the CBSA who will not enforce a removal order until an offender has served his or her conditional term of imprisonment in the community. This is set out in chapter ENF 10 of the Enforcement Manual dealing with removals (Joint Book of Authorities, Vol. 4, Tab 114). A note at page 31 of the Enforcement Manual ENF 10 indicates that this interpretation was adopted after extensive research and detailed consultation with both the CBSA and CIC Le- gal Services. 76 Although neither the CIC Enforcement Manual nor the views expressed by the Immigration Section of the Canadian Bar Association, which I will discuss later on, have much weight, they still suggest that the interpretation of the Minister’s delegate is at least plausible after careful consideration by specialists in the field. 77 Much has been made of the fact that in Medovarski, the Court used the words “prison term” when discussing both subsections 64(2) and 36(1). Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 199

78 I note that what was at issue in that case was never the meaning of the words “term of imprisonment” but rather the transitionary provision applicable to subsection 64(2) of the IRPA. At that time subsection 64(2) only applied when a term of imprisonment of two years or more was imposed. Thus, in reality it could only apply to jail time because a term of imprisonment of two years or more could not then be served, and still cannot be served, in the community. 79 It is worth mentioning that in Medovarski, the Court discussed a prac- tical argument presented by Ms. Medovarski as it may be pertinent to assess whether the provision as construed by the Minister’s delegate will have the disastrous “result” argued by Mr. Tran. At paragraphs 40 and 41 in Medovarski, the Court dealt with the argument that in practice applicants and permanent residents wishing to avoid losing their right of appeal due to a finding of inadmissibility for serious criminality have asked the sentencing judge to consider the impact of section 64 before giving judgement. This means that permanent residents and foreign nationals who wish to avoid the impact of section 64 may convince a court to give them a shorter term of jail time instead of conditional terms of imprisonment of 6 months or longer so as to avoid the impact of such a sentence on their admissibility and their right of appeal. The Court acknowledged that permanent residents and foreign nationals sentenced before the provision came into force would have been denied the opportunity to make such submissions. However, the Court described this situation as “obvious” and said that Parliament had chosen not to account for it. 80 That said, and coming back to the interpretation of the section in context, as mentioned earlier, section 64 was amended to reduce the term of imprisonment provided for therein to six months or more in 2013. The fact that it would apply to offenders sentenced to serve their term of imprisonment in the community was expressly raised by the National Immi- gration Law Section of the Canadian Bar Association who recommended that any amendment to subsection 64(2) should include some language to clarify that a term of imprisonment did not include conditional terms of imprisonment of the duration set out in this provision. 81 The legislative history is particularly relevant in this case to assessing what I consider the most serious argument militating against the interpretation adopted by the Minister’s delegate: the inconsistent consequences and even absurdity when one considers that the IRPA treats a conditional sentence of imprisonment of seven months more severely than a five months jail term. 200 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

82 The Minister has compiled several extracts of the legislative history stating that it is quite instructive in this case. I first recall that Justice Binnie, writing for the Supreme Court of Canada in NAV Canada c. Wilmington Trust Co., 2006 SCC 24 (S.C.C.) at para. 57, [2006] 1 S.C.R. 865 (S.C.C.), noted: Though of limited weight, Hansard evidence can assist in determining the background and purpose of legislation; [...]. In this case, it confirms Parliament’s apparent intent to exclude legal titleholders from personal liability for air navigation charges. The legislative history and the statute itself make it clear that Parliament did not intend CANSCA to replace or override the existing regulatory framework [...]. 83 In that case, the material relied upon by Justice Binnie appeared to be quite persuasive as to the meaning of particular words in the provision under review. In my view, this is equally so here. 84 According to the Honourable Jason Kenney, then Minister of Citizen- ship, Immigration and Multiculturalism, the purpose of lowering the threshold for precluding an appeal to the IAD was to prevent those convicted of serious crimes from abusing the system by delaying their deportation for years (House of Commons. Standing Committee on Citizen- ship and Immigration, Evidence, 1st Sess., 41st Parl., Meeting No. 54, 24 October 2012 at 2, 4 (Joint Book of Authorities, Vol. 4, Tab 118)). Throughout the debates of the House of Commons and Senate and the proceedings before the House of Commons Standing Committee on Citi- zenship and Immigration and the Standing Senate Committee on Social Affairs, Science and Technology, there was debate as to how to define “serious criminality” and whether equating it with crimes resulting in a sentence of more than six months struck the proper balance: see, for example, House of Commons Debates, 41st. Parl., 1st Sess., No. 199 (29 January 2013) at 13369 (Myl`ene Freeman (Argenteuil-Papineau-Mirabel, NDP)), 13359-70 (Ted Opitz (Etobicoke Centre, CPC)), 13375 (John Weston (West Vancouver-Sunshine Coast-Sea to Sky Country, CPC)) (Joint Book of Authorities, Vol. 4, Tab 123); Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, No. 38 (1- 2 May 2013) at 38:13, 38:14, 38:52 (Senator Art Eggleton), 38:46 (Julie Taub, Immigration and Refugee Lawyer) (Joint Book of Authorities, Vol. 4, Tab 126). 85 Various participants noted that conditional terms of imprisonment fell within the provision as drafted, as well as the potential unfairness of precluding appeals for those on whom a conditional sentence of imprison- Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 201

ment of more than six months had been imposed, whereas those on whom jail terms of lesser lengths were imposed were not so precluded, even though these punitive measures are considered equivalent or har- sher: see, for example, House of Commons. Standing Committee on Citi- zenship and Immigration, Evidence, 1st Sess., 41st Parl., Meeting No. 62, 21 November 2012 at p. 2 (Ahmed Hussen (National President, Ca- nadian Somali Congress)) (Joint Book of Authorities, Vol. 4, Tab 121); Proceedings of the Standing Senate Committee on Social Affairs, Sci- ence and Technology, Meeting No. 38 (1-2 May 2013) 38:44 (Gordon Maynard (Past Chair, National Immigration Law Section, Canadian Bar Association)) (Joint Book of Authorities, Vol. 4, Tab 126); Meeting No. 39 (8-9 May 2013) at 39:20 (Senator Art Eggleton) (Joint Book of Au- thorities, Vol. 4, Tab 127). Several discussions prompted the proposal of three distinct motions to expressly exclude conditional sentences from the provision, each of which was defeated: House of Commons. Standing Committee on Citizenship and Immigration, Evidence, 1st Sess., 41st Parl., Meeting No. 64, 28 November 2012 at 2, 4 (Jinny Jogindera Sims (Newton-North Delta, NDP)), 4, 7 (Kevin Lamoureux (Winnipeg North, Lib.)) (Joint Book of Authorities, Vol. 4, Tab 122); Debates of the Sen- ate, 41st Parl., 1st Sess., No.168 (30 May 2013) at 4081-4082 (Senator Art Eggleton) (Joint Book of Authorities, Vol. 4, Tab 128). 86 The opinion that Parliament still views terms of imprisonment of more than six months served in the community as serious enough to warrant losing one’s right of appeal of a finding of inadmissibility is certainly supported by the legislative history when subsection 64(2) was amended in 2013 allegedly to put it in line with paragraph 36(1)(a). Al- though such interpretative tools are typically given less weight than others, I simply cannot conclude that the interpretation of the Minister’s delegate, which the legislative history appears to support, should be found unreasonable on the basis that it produces inconsistent consequences which might be regarded as absurd. These inconsistencies were clearly spelled out and considered before the adoption of subsection 64(2) and no change was made to exclude those inconsistent consequences. 87 In the circumstances, considering the current teachings of the Su- preme Court of Canada and although there may clearly be other defensible interpretations, I cannot conclude that the interpretation adopted by the Minister’s delegate in this case is unreasonable. Obviously the deference granted to administrative decision makers is in part meant to give them flexibility to adjust to new arguments and circumstances. It is thus 202 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

obviously open to the ID and the IAD to adopt another interpretation should they believe that it is warranted by the inconsistent consequences described above. But this would likely have to be applied to the three provisions in the IRPA where the expression “term of imprisonment” is used. 88 Thus, I propose to answer the first certified question as follows: A conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code may reasonably be construed as a term of imprisonment under paragraph 36(1)(a) of the IRPA.

D. Is the decision to refer reasonable? 89 The judge appears to have found that the officer treated arrests, charges and police reports as evidence of criminal behaviour because he found that Mr. Tran would likely reoffend because he has done so in the past. The judge noted that those charges and arrests are not evidence or proof of criminal conduct. 90 In my view, it is evident that the officer was well aware of the distinction between arrests, stayed charges and criminal convictions. He says so in his report. He simply felt that he could consider this information, as well as the information contained in the police reports, for his broader assessment of Mr. Tran’s behaviour and rehabilitation prospects. 91 I agree with the officer that he was entitled to consider this information to assess whether certain statements made by Mr. Tran, such as that his behaviour was pristine (without incident) for a long period before his two convictions and whether he was taking full responsibility for his past behaviour. It also put in perspective the relative short period of time since his last conviction. 92 As to the use of the words “reoffend as he has done so in the past” this must be read in context. Mr. Tran had effectively already two convictions and as mentioned earlier, the officer acknowledged the difference between arrest and conviction. 93 Although there is no doubt that not all information contained in police reports is to be considered credible evidence simply because it is reported by the police, I have reviewed the actual reports before the officer and they do contain some credible information as to the behaviour of Mr. Tran, particularly his consumption of alcohol and its impact on his behaviour. It would have clearly been preferable if the officer had been more specific in the Report as to which information in the police report he Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 203

actually considered to be reliable and of value to his assessment. How- ever, I am not satisfied that his failure to do so in this case justifies quashing the decision. 94 In view of the foregoing, I conclude that the judge did not properly apply the standard of review to the overall conclusion of the Minister’s delegate. The decision to refer Mr. Tran to the ID was within the range of outcomes defensible on the law and the facts. 95 In light of the foregoing, I propose to allow this appeal.

C. Michael Ryer J.A.:

I agree

D.G. Near J.A.:

I agree Appeal allowed.

Appendix A

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Proceedings in criminal and penal matters 11. Any person charged with an offence has the right [...] (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; [...] (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. 204 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Convention Relating to the Status of Refugees, 1951, 28 July 1951, 189 U.N.T.S. 137 Article 1 definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: [...] (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [...] Criminal Code (R.S.C. 1985, c. C-46) CONDITIONAL SENTENCE OF IMPRISONMENT Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if (a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (b) the offence is not an offence punishable by a minimum term of imprisonment; (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 205

(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (i) section 144 (prison breach), (ii) section 264 (criminal harassment), (iii) section 271 (sexual assault), (iv) section 279 (kidnapping), (v) section 279.02 (trafficking in persons — material benefit), (vi) section 281 (abduction of person under fourteen), (vii) section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (x) section 349 (being unlawfully in a dwelling-house), and (xi) section 435 (arson for fraudulent purpose). 1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34. Immigration and Refugee Protection Act, S.C. 2001, c. 27 Humanitarian and compassionate considerations — request of foreign national 25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — 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. Rules of interpretation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 206 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Serious criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Can- ada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. Criminality (2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Can- ada, would constitute an indictable offence under an Act of Parliament; or (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations. Application (3) The following provisions govern subsections (1) and (2): (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily; Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 207

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and (e) inadmissibility under subsections (1) and (2) may not be based on an offence (i) designated as a contravention under the Contraven- tions Act, (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act. Preparation of report 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. Referral or removal order (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. Stay 50. A removal order is stayed 208 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order; (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed; (c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction; (d) for the duration of a stay under paragraph 114(1)(b); and (e) for the duration of a stay imposed by the Minister. Right to appeal — visa refusal of family class 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. Right to appeal — visa and removal order (2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing. Right to appeal removal order (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing. Right of appeal — residency obligation (4) A permanent resident may appeal to the Immigration Appeal Di- vision against a decision made outside of Canada on the residency obligation under section 28. Right of appeal — Minister (5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing. No appeal for inadmissibility 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inad- Canada (Minister of Public Safety) v. Tran Johanne Gauthier J.A. 209

missible on grounds of security, violating human or international rights, serious criminality or organized criminality. Serious criminality (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c). Misrepresentation (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child. Interpretation Act (R.S.C., 1985, c. I-21) Law always speaking 10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning. 210 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness)] Amina Chaudhary, Michael Mvogo, Carmelo Bruzzese and Glory Anawa, Appellants and Minister of Public Safety & Emergency Preparedness, Minister of Citizenship & Immigration, Attorney General of Canada, Attorney General of Ontario, and Superintendent of the Central East Correctional Centre, Respondents Ontario Court of Appeal Docket: CA C60222, C60223, C60224, C60225 2015 ONCA 700 Paul S. Rouleau, R.G. Juriansz, C.W. Hourigan JJ.A. Heard: May 6, 2015 Judgment: October 20, 2015 Administrative law –––– Prerogative remedies — Habeas corpus in civil proceedings — When remedy available — Effect of availability of other remedy –––– Applicants had been in detention awaiting deportation for periods ranging between over two to over eight years — Applications for habeas corpus with certiorari in aid were dismissed — Applications judge concluded that court should decline to exercise its habeas corpus jurisdiction, as Immigration and Refugee Protection Act (IRPA) put into place comprehensive statutory review mechanism as broad and advantageous as habeas corpus — Applicants appealed — Appeals allowed; applications of two applicants who were still detained remitted to superior court for consideration on merits — “Peiroo exception” was not blanket exclusion of habeas corpus in immigration-related matters — Where issue was legality of continuing lengthy detention of uncertain duration, review process created by IRPA was not as broad and was less advantageous than habeas corpus — Applicants’ cases warranted “careful evaluation” as prescribed in case law — There were three critical differences between IRPA process and habeas corpus that, taken together, made habeas corpus broader and more advantageous to applicants, with regard to: question court was to answer; onus; and, review process — Additional factors in favour of allowing exercise of right under Canadian Charter of Rights and Freedoms to access habeas corpus were: choice of remedies and forum; expertise of provincial superior courts; timeliness of remedy; and, nature of remedy and burden of proof. Chaudary v. Canada (MPS&EP) 211

Cases considered by Paul S. Rouleau J.A.: Bains v. Canada (Minister of Employment & Immigration) (1990), 109 N.R. 239, 47 Admin. L.R. 317, 1990 CarswellNat 615, [1990] F.C.J. No. 457 (Fed. C.A.) — referred to Borowski v. Canada (Attorney General) (1989), [1989] 3 W.W.R. 97, [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, 92 N.R. 110, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 1989 CarswellSask 241, 1989 CarswellSask 465, [1989] S.C.J. No. 14 (S.C.C.) — followed Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 2014 FC 230, 2014 CarswellNat 624, 2014 CF 230, 2014 Car- swellNat 2105, 24 Imm. L.R. (4th) 97, [2014] F.C.J. No. 261, 449 F.T.R. 231 (Eng.), [2015] 2 F.C.R. 693 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. B046 (2011), 2011 FC 877, 2011 CarswellNat 2839, 2011 CF 877, 2011 CarswellNat 3928, 100 Imm. L.R. (3d) 139, 34 Admin. L.R. (5th) 206, 394 F.T.R. 217 (Eng.), [2013] 2 F.C.R. 3 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Romans (2005), 2005 FC 435, 2005 CarswellNat 812, 44 Imm. L.R. (3d) 165, 2005 CF 435, 2005 CarswellNat 2300, 272 F.T.R. 48 (Eng.), [2005] F.C.J. No. 539 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Thanabalasingham (2004), 2004 FCA 4, 2004 CarswellNat 22, 2004 CAF 4, 2004 CarswellNat 782, 315 N.R. 91, 236 D.L.R. (4th) 329, 10 Admin. L.R. (4th) 285, 247 F.T.R. 159 (note), [2004] F.C.J. No. 15, 38 Imm. L.R. (3d) 1, [2004] 3 F.C.R. 572 (F.C.A.) — considered Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 2015 ONCA 678, 2015 CarswellOnt 14980 (Ont. C.A.) — referred to Francis (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigra- tion) (1999), 1999 CarswellOnt 3229, [1999] O.J. No. 3853, (sub nom. Francis v. Canada (Minister of Citizenship & Immigration)) 125 O.A.C. 248, 179 D.L.R. (4th) 421, 49 O.R. (3d) 136, 82 O.T.C. 315 (Ont. C.A.) — considered Francis (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigra- tion) (2000), 2000 CarswellOnt 1961, 2000 CarswellOnt 1962, 257 N.R. 200 (note), (sub nom. Francis v. Canada (Minister of Citizenship & Immigra- tion)) 138 O.A.C. 199 (note), [1999] S.C.C.A. No. 558 (S.C.C.) — referred to Idziak v. Canada (Minister of Justice) (1992), 17 C.R. (4th) 161, 9 Admin. L.R. (2d) 1, 12 C.R.R. (2d) 77, [1992] 3 S.C.R. 631, 59 O.A.C. 241, 77 C.C.C. (3d) 65, 97 D.L.R. (4th) 577, 144 N.R. 327, 1992 CarswellOnt 113, 1992 CarswellOnt 1000, [1992] S.C.J. No. 97, EYB 1992-67555 (S.C.C.) — considered 212 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Khela v. Mission Institution (2014), 2014 SCC 24, 2014 CarswellBC 778, 2014 CarswellBC 779, [2014] S.C.J. No. 24, 368 D.L.R. (4th) 630, 64 Admin. L.R. (5th) 171, 9 C.R. (7th) 1, 455 N.R. 279, 307 C.C.C. (3d) 427, 2014 CSC 24, (sub nom. Khela v. Mission Institution (Warden)) 599 W.A.C. 91, (sub nom. Mission Institution v. Khela) [2014] 1 S.C.R. 502, (sub nom. Mission Institution v. Khela) 306 C.R.R. (2d) 66, (sub nom. Khela v. Mission Institution (Warden)) 351 B.C.A.C. 91 (S.C.C.) — considered May v. Ferndale Institution (2005), 2005 SCC 82, 2005 CarswellBC 3037, 2005 CarswellBC 3038, 343 N.R. 69, [2005] S.C.J. No. 84, 34 C.R. (6th) 228, 261 D.L.R. (4th) 541, 204 C.C.C. (3d) 1, 49 B.C.L.R. (4th) 199, 136 C.R.R. (2d) 146, [2006] 5 W.W.R. 65, 38 Admin. L.R. (4th) 1, [2005] 3 S.C.R. 809, 220 B.C.A.C. 1, 362 W.A.C. 1 (S.C.C.) — followed Peiroo v. Canada (Minister of Employment & Immigration) (1989), 69 O.R. (2d) 253, 8 Imm. L.R. (2d) 89, 38 Admin. L.R. 247, 60 D.L.R. (4th) 574, 34 O.A.C. 43, 1989 CarswellOnt 548, [1989] O.J. No. 805 (Ont. C.A.) — considered Peiroo v. Canada (Minister of Employment & Immigration) (1989), 104 N.R. 319 (note), 37 O.A.C. 160 (note), 62 D.L.R. (4th) viii (note), [1989] 2 S.C.R. x (note), [1989] S.C.C.A. No. 322 (S.C.C.) — referred to Pringle v. Fraser (1972), [1972] S.C.R. 821, 26 D.L.R. (3d) 28, 1972 Carswell- Ont 210, 1972 CarswellOnt 210F, [1972] S.C.J. No. 62, [1972] A.C.S. No. 62 (S.C.C.) — considered R. v. Conway (2010), 2010 SCC 22, 2010 CarswellOnt 3847, 2010 CarswellOnt 3848, 1 Admin. L.R. (5th) 163, 255 C.C.C. (3d) 506, 320 D.L.R. (4th) 25, 75 C.R. (6th) 201, 402 N.R. 255, 263 O.A.C. 61, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 211 C.R.R. (2d) 326, 103 O.R. (3d) 320 (note) (S.C.C.) — referred to R. v. Gamble (1988), 66 C.R. (3d) 193, (sub nom. Gamble v. R.) 37 C.R.R. 1, [1988] 2 S.C.R. 595, (sub nom. Gamble v. R.) 89 N.R. 161, (sub nom. Gamble v. R.) 31 O.A.C. 81, 45 C.C.C. (3d) 204, 1988 CarswellOnt 90, 1988 CarswellOnt 969, EYB 1988-67478, [1988] S.C.J. No. 87 (S.C.C.) — considered R. v. Miller (1985), [1985] 2 S.C.R. 613, 24 D.L.R. (4th) 9, 14 O.A.C. 33, 16 Admin. L.R. 184, 63 N.R. 321, 23 C.C.C. (3d) 97, 49 C.R. (3d) 1, 1985 CarswellOnt 124, 52 O.R. (2d) 585 (headnote only), 1985 CarswellOnt 947, [1985] S.C.J. No. 79 (S.C.C.) — referred to Reza v. Canada (1994), 24 Imm. L.R. (2d) 117, 21 C.R.R. (2d) 236, 116 D.L.R. (4th) 61, (sub nom. Reza v. Canada (Minister of Employment & Immigra- tion)) 72 O.A.C. 348, 22 Admin. L.R. (2d) 79, (sub nom. Reza v. Canada (Minister of Employment & Immigration)) 167 N.R. 282, [1994] 2 S.C.R. 394, 18 O.R. (3d) 640 (note), 1994 CarswellOnt 675, 1994 CarswellOnt 1158, [1994] S.C.J. No. 49, EYB 1994-67658, 18 O.R. (3d) 640 (S.C.C.) — distinguished Chaudary v. Canada (MPS&EP) 213

Statutes considered: Access to Information Act, R.S.C. 1985, c. A-1 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 — referred to s. 9 — referred to s. 10(c) — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.) s. 2 “federal board, commission or other tribunal” — considered s. 17(5) — referred to Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 6 — referred to s. 37(1)(a) — referred to s. 55 — considered s. 57(1) — referred to s. 57(2) — referred to s. 58 — referred to s. 58(1) — considered s. 58(1)(a) — referred to s. 58(1)(b) — referred to s. 58(2) — referred to s. 58(3) — referred to s. 58(4) — referred to s. 72(1) — considered s. 72(2)(d) — referred to s. 74(b) — referred to s. 162(1) — referred to s. 162(2) — referred to s. 165 — referred to s. 167(1) — referred to s. 173(a) — referred to Inquiries Act, R.S.C. 1985, c. I-11 Pt. I — referred to Mental Health Act, R.S.O. 1990, c. M.7 Generally — referred to 214 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 Generally — referred to Treaties considered: International Covenant on Civil and Political Rights, 1966, C.T.S. 1976/47; 999 U.N.T.S. 171; 6 I.L.M. 368 Generally — referred to Article 9 — referred to Article 12 — referred to Universal Declaration of Human Rights, 1948, G.A. Res. 217(III)A Article 9 — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 248 — considered s. 248(a) — considered s. 248(b) — considered Words and phrases considered: Peiroo exception Habeas corpus is an essential remedy in Canadian law and access to it is enshrined in s. 10(c) of the Canadian Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11]. However, it is well established that in immigration matters, where a complete, comprehensive and expert statutory scheme provides for a review that is at least as broad as and no less advantageous than habeas corpus, habeas corpus is precluded. This is commonly known as the “Peiroo exception”, so named for this court’s decision in Peiroo v. Minister of Employment and Immi- gration (1989), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] S.C.C.A. No. 322.

APPEALS by applicants from judgment reported at Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness) (2015), 2015 ONSC 1503, 2015 CarswellOnt 3035 (Ont. S.C.J.), dismissing applications for habeas corpus with certiorari in aid.

Jean Marie Vecina, for Appellants, Michael Mvogo and Amina Chaudhary Barbara Jackman, for Appellant, Carmelo Bruzzese Swathi Sekhar, for Appellant, Glory Anawa Martin Anderson, Jocelyn Espejo-Clarke, Nicholas Dodokin, Sophia Karantonis, for Respondents Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 215

Paul S. Rouleau J.A.: Overview 1 The appellants have been in detention awaiting deportation for periods ranging from just over two years to in excess of eight years. Their continued detentions have been confirmed at each 30-day review conducted by the Immigration Division (“ID”) of the Immigration and Refu- gee Board (“IRB”). The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) provides that a detainee can seek judicial review of ID decisions in the Federal Court, with leave. On a very few occasions, some of the appellants did seek such review. None but one of the reviews were successful. All remained detained when this appeal was heard. 2 The issue raised in this appeal is whether the appellants can, instead of seeking judicial review in the Federal Court, apply to the Superior Court of Justice for habeas corpus to challenge their continued detentions. 3 Habeas corpus is an essential remedy in Canadian law and access to it is enshrined in s. 10(c) of the Canadian Charter of Rights and Free- doms. However, it is well established that in immigration matters, where a complete, comprehensive and expert statutory scheme provides for a review that is at least as broad as and no less advantageous than habeas corpus, habeas corpus is precluded. This is commonly known as the “Peiroo exception”, so named for this court’s decision in Peiroo v. Canada (Minister of Employment & Immigration) (1989), 69 O.R. (2d) 253 (Ont. C.A.), leave to appeal refused, [1989] S.C.C.A. No. 322 (S.C.C.). 4 On the agreement of the parties, the sole issue addressed by the applications judge was the court’s jurisdiction to consider the habeas corpus applications. The applications judge concluded that the court should decline to exercise its habeas corpus jurisdiction. In his view, the IRPA put into place a comprehensive statutory review mechanism as broad and advantageous as habeas corpus. 5 The appellants maintain that where, as here, a detainee argues that the detention has become illegal because of its length and the uncertainty of its continued duration, the Peiroo exception does not apply. This is because the challenge is not to the immigration matters themselves, but rather to the continued detention beyond what can be justified for immigration-related purposes under the IRPA. In such circumstances, the appellants argue that continued detention contravenes the detainee’s ss. 7 216 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

and 9 Charter rights and habeas corpus should be available as its ambit of review is broader and more advantageous to the detainee than the scheme established by the IRPA. 6 The respondents submit that the Peiroo exception applies and that it removes all immigration matters from the ambit of the courts’ habeas corpus jurisdiction. They argue that the applications judge’s decision should stand. 7 Upon a careful review of Peiroo and the cases that followed, I reject the respondents’ submission that the Peiroo exception is as broad as they submit. I conclude that Peiroo does not create a blanket exclusion for all immigration matters, and further, that the exception does not apply in the circumstances of the cases under appeal. For the reasons that follow, I have concluded that the appeals should be allowed.

Background A. The appellants (1) Carmelo Bruzzese 8 Carmelo Bruzzese is a citizen of Italy and has been a permanent resident of Canada since 1974. He was 65 years-old at the time of the appeal hearing in this court. He had been in immigration detention since his arrest by the Canada Border Services Agency (“CBSA”) on August 23, 2013. At the time of the hearing of this appeal, Bruzzese had been detained for one year, eight months. He was reported under s. 37(1)(a) of the IRPA for inadmissibility on grounds of his membership in a criminal organization. There is no evidence he has been convicted of any crime in Canada or abroad. Bruzzese has strong ties to Canada: his wife and his five adult children are Canadian citizens. He also owns property in Canada. 9 It is alleged that Bruzzese is a high-ranking member of the ‘Ndrangheta, a powerful Mafia-type organization based in Italy’s Cala- bria region.’ Ndrangheta operates across the globe and is involved in drug trafficking, money laundering, economic and financial crimes, ex- tortion, corrupt tendering, weapons trafficking and prostitution. Bruzzese is the subject of an Interpol warrant for Mafia association. There was also an Italian warrant issued for his arrest for Mafia-type unlawful association pursuant to the Italian Criminal Code; however, as there is no equivalent offence in Canada’s Criminal Code, he could not be extradited to Italy to face those charges. Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 217

10 There are 15 ID detention review decisions included in the record. Each of the decisions concluded that Bruzzese’s detention should continue, based on two grounds: that he was unlikely to appear for removal from Canada if he was found inadmissible after his admissibility hearing (IRPA, s. 58(1)(b)); and that he was a danger to the public (IRPA, s. 58(1)(a)) due to his association with a criminal organization (Immigra- tion and Refugee Protection Regulations, SOR/2002-227, s. 246(b) (“IRP Regulations”)). 11 Bruzzese obtained leave to seek judicial review in the Federal Court of two ID’s decisions. Justice de Montigny heard and dismissed Bruz- zese’s judicial review application: Bruzzese v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FC 230, 24 Imm. L.R. (4th) 97 (F.C.). The judicial review was of the two above-mentioned decisions, but the application judge considered three later decisions that also continued Bruzzese’s detention. 12 The application judge concluded that considering the high degree of deference that the Federal Court must accord to the ID’s determinations, he was unable to find that the decisions fell “outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (para. 84).

(2) Glory Anawa 13 Glory Anawa is believed to be a citizen of Cameroon, but Cameroon will not recognize her documents or identity. She was 29 years old at the time of this appeal hearing. She has been detained since the beginning of February 2013, about two years, three months by the time of the appeal hearing. She is being detained pending the issuance of a travel document by Cameroon. The basis for her detention is that she is unlikely to appear for removal. 14 Anawa says she was born in Cameroon, but she never had a birth certificate or national identity document from Cameroon. In 2006, she fled from Cameroon to Finland and claimed asylum. She then went to Nigeria. On February 6, 2013, Anawa entered Canada from Nigeria alone on a false British passport and claimed asylum. She was detained and taken to an immigration holding centre in Toronto. She was two months pregnant at the time. She soon withdrew her asylum claim, and the Minister commenced removal proceedings against her. She was flown to the High Commission of Cameroon in Ottawa to obtain a travel document, but Cameroonian authorities refused to recognize her identifi- 218 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

cation documents. In August 2013, Anawa gave birth to her son, while in detention. Her son remains in detention with her. 15 In March 2014, Anawa filed a pre-removal risk application. Upon filing this application, she provided a different story about her travel history, stating that her documents from Finland were forged and that she had never been to Finland. Her application was refused. Anawa then re- verted to her original story. In June 2014, Anawa filed a permanent residence application on humanitarian and compassionate grounds. This application was refused, and judicial review is in process. 16 At the last review contained in the record, Anawa’s counsel submitted that Anawa’s detention had effectively become indefinite because the prospects of obtaining a travel document from Finland were essentially non-existent. Minister’s counsel responded that Finnish authorities were still in the process of getting a travel document for Anawa, and that her detention was not indefinite as Finnish officials had not provided a defin- itive response on the matter. 17 The ID member ordered her continued detention, saying: “I have no new evidence or arguments today that would leave me to make a different finding in respect to you being a flight concern.” The member also addressed the length of detention, and stated that it did not weigh in favour of release here because Anawa had been the cause of much of its lengthiness. Although the member agreed that some timelines should be in place with respect to a response from Finnish officials, the Minister had been diligent. Anawa’s detention was not indefinite because the process was moving forward and Finland had not stated that it would not issue a travel document.

(3) Amina Chaudhary 18 Amina Chaudhary is either a citizen of India or the United Kingdom. At the time of the appeal hearing, she was 53 years old. She immigrated to Canada in 1977. In 1984, Chaudhary was convicted of first-degree murder for strangling a nine-year old boy and sentenced to life in prison, with no parole eligibility for 25 years. She lost her permanent resident status as a result, and was ordered deported in January 1987. In early 2006, when Chaudhary became eligible for day parole, the ID detained her on the basis that she was unlikely to appear for removal. She was released by the ID in February 2006, on a bond. However, in May 2010, Chaudhary’s day parole was revoked for suspicious behaviour, of which Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 219

she was later cleared. She became eligible for day parole again in August 2012. 19 Chaudhary has been detained pending removal under the IRPA since September 2012, two years, eight months at the time of the appeal hearing. However, she is only detained for immigration purposes for a maximum of 82 hours every time she is scheduled for an unescorted temporary absence from prison, which can occur once per month, by order of the parole board. The impediment to her removal is her lack of a travel document. She applied for travel documents from both the United King- dom and India, but both countries have refused to issue these documents. Chaudhary states that officials from the consulates of these two countries told her that neither a passport nor a travel document would issue in the future. 20 On a review in October 2014, the ID member stated that there was “no indication before [him] that [Chaudhary had] been obstructing the process to obtain a travel document and so because of this [he was] a little concerned about length of future detention.” Despite the prospect of a lengthy detention, there was no alternative to consider, let alone one that would offset the concerns in her case. The ID member ordered Chaudhary’s continued detention. 21 On her subsequent detention review, the ID member concluded that Chaudhary’s detention should continue on the basis that she is unlikely to appear for removal, “essentially for the same reasons that [she had] been given ... at previous detention reviews.” The member noted that Chaudhary had attempted to frustrate the travel document process by ly- ing to both Indian and British authorities about her citizenship, and rejected the argument that she was stateless. With respect to the length of detention, the member noted that the majority of time Chaudhary was detained was not technically immigration detention. Ultimately, the length of her detention was due to delays Chaudhary herself caused by not being forthright with immigration officials. With respect to future length of detention, the member noted again that it did not outweigh all the other factors.

(4) Michael Mvogo 22 Michael Mvogo is originally from Cameroon. He came to Canada from the United States as a visitor under the false identity of a US citizen. He was arrested by the CBSA in September 2006, after a criminal conviction brought him to the attention of immigration authorities. He 220 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

had thus been in immigration detention for about eight years, eight months at the time of the appeal hearing. 23 After confirmation that he was not a US citizen, Mvogo said he was from Haiti. In January 2011, Mvogo gave his true identity. At the time of the appeal hearing, Cameroon officials had not issued a travel document. 24 On April 20, 2014, the Working Group on Arbitrary Detention of the UN Human Rights Council opined that Mvogo’s detention violated article 9 of the Universal Declaration of Human Rights and articles 9 and 12 of the International Covenant on Civil and Political Rights, and that his continued detention was unjustified. It made this determination without the benefit of information from Canadian authorities, who had not responded to the Working Group’s request for details. 25 Mvogo underwent many detention reviews. On a detention review in July 2013, the ID member accepted that Mvogo was being more coopera- tive than he had been in the past, which lent some weight in his favour. However, the member still deemed him a flight risk. The member ordered Mvogo’s continued detention. Although the member was very concerned about the number of years that Mvogo had spent in detention already, he noted that the situation was created largely by things outside of the CBSA’s control. Up until 2011, it was created by Mvogo. The CBSA was investigating and trying to obtain a travel document for Mvogo, and there was no lack of diligence on its part in that respect. 26 Mvogo challenged three detention review decisions in Federal Court. However, his applications for leave and judicial review were dismissed for two of them. He was successful in quashing one of his earlier reviews, while he was still claiming to be an American citizen, for reviewable error.

B. The statutory framework under the IRPA 27 Before discussing the applications judge’s decision and the issues in this appeal, it is important to outline the statutory scheme for detention review under IRPA, as it is deeply connected to what the parties argue. I will also briefly review, in the subsequent section, the importance and broad application of the writ of habeas corpus. 28 The scheme of immigration detention and its reviews is set out in Division 6 of the IRPA. Detentions are initially ordered by immigration officers or the ID, a division of the IRB. Detentions are then automatically reviewed by the ID based on timelines and criteria set out in the Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 221

legislation and regulations. The detainee or government can seek judicial review of the ID’s review decision in the Federal Court.

(1) Initial detention (s. 55 of the IRPA) 29 An immigration detention must be for an immigration-related purpose: to detain someone under the IRPA, an immigration officer must have reasonable grounds to believe the individual is inadmissible to Can- ada and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal or a proceeding that could lead to the making of a removal order. Also, a foreign national can be detained if an immigration officer is not satisfied of his or her identity in the course of any procedure under the IRPA. Additionally, a permanent resident or foreign national can be detained on entry into Canada if an immigration officer considers it necessary for an examination to be completed, or has reasonable grounds to suspect the individual is inadmissible on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. 30 Designated foreign nationals, being those who come to Canada as part of a group and whose arrival the Minister has designated as irregular (often in the case of human smuggling), must be detained. 31 Finally, the ID itself may, pursuant to s. 58(2), order the detention of a permanent resident or foreign national if it is satisfied that the person is the subject of an examination, an admissibility hearing, or a removal order, and that he or she is a danger to the public or is unlikely to appear for the examination, admissibility hearing or removal from Canada.

(2) Review of continued detention (a) Timelines for review 32 When a permanent resident or foreign national is detained under the IRPA, the ID must be notified. The ID must then conduct reviews of the detention at periodic intervals. It must hold the first review within 48 hours after the individual is detained, or without delay afterward (s. 57(1)). It must conduct the second review of the reasons for the continued detention within seven days of the first review. From that point forward, it must review the reasons for continued detention at least once during each 30-day period following each previous review (s. 57(2)). 222 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(b) The review — the hearing and review criteria 33 In a review, the ID must, where practicable, hold a hearing, and hear the matter without delay (s. 173(a)). The detainee has the right to be represented by legal or other counsel, at his or her own expense (s. 167(1)). The ID must release the detainee unless it is satisfied, taking into account prescribed factors, that he or she meets one of the criteria in s. 58(1). The statutory criteria that would justify continued detention generally touch on the necessity of detention: 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. 34 The prescribed factors, referred to in s. 58(1), that the ID must take into account are outlined in detail in the IRP Regulations. The most relevant factors for the instant appeals appear in s. 248 of the IRP Regula- tions: 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 223

(b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. [Emphasis added.] 35 If the ID orders the detainee’s release, it may impose any conditions it considers necessary or that are prescribed (ss. 58(3) and (4)).

(c) The review panel — composition and powers of the ID 36 Each review is conducted by a single member of the ID. Members of the ID are not Governor in Council appointees and they need not be law- yers. They are public servants appointed in accordance with the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13. The ID has, in respect of proceedings brought before it under the IRPA, sole and exclu- sive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction (s. 162(1)). It has the powers and authority of a commissioner appointed under Part I of the Inquiries Act, R.S.C. 1985, c. I-11, and may do any other thing it considers necessary to provide a full and proper hearing (s. 165 of the IRPA). It must deal with proceedings as informally and as quickly as the circumstances and considerations of fairness and natural justice permit (s. 162(2)).

(3) Judicial review of ID’s decisions 37 Pursuant to s. 72(1) of the IRPA, a detainee can apply for leave to the Federal Court for judicial review of the ID’s decisions on continued detention. The detainee must file the application within 15 days after he or she is notified or becomes aware of the decision. The leave application must be disposed of without delay and in a summary way. If leave is granted, the judicial review hearing takes place no sooner than 30 days and no later than 90 days after leave is granted, unless the parties agree to an earlier day. The judicial review application must also be disposed of without delay and in a summary way. A detainee can appeal the decision of the Federal Court on judicial review to the Federal Court of Ap- peal only if the Federal Court judge certifies that a serious question of general importance is involved, and states the question. 224 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

C. The writ of habeas corpus 38 The prerogative writ of habeas corpus is “a cornerstone of liberty” and “a means of judicial control over the arbitrary behaviour of the exec- utive government”. It is “one of the most important safeguards of the liberty of the subject”: M. Groves, “Habeas corpus, Justiciability and Foreign Affairs” (2013) 11:3 N.Z. J. Pub. & Int’l L. 587, at p. 588. It is also “the most significant means of protecting individual liberty”: R.J. Sharpe, J. Farbey & S. Atrill, The Law of Habeas Corpus, 3rd ed. (New York: Oxford University Press, 2011), at p. 1. The writ is thus often referred to as the “Great Writ of Liberty”: see May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 (S.C.C.), at para. 19; R. v. Gamble, [1988] 2 S.C.R. 595 (S.C.C.), at p. 645. It has also been described as “the great and efficacious writ, in all manner of illegal confinement”: D. Parkes, “The ‘Great Writ’ Reinvigorated? Habeas corpus in Contempo- rary Canada” (2012) 36 Man. L.J. 351, at p. 352. 39 Most significantly in Canada, it is guaranteed by s. 10(c) of the Char- ter, which reads as follows: “Everyone has the right on arrest or detention ... to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” As explained by the Supreme Court of Canada in May, at para. 22: Habeas corpus is a crucial remedy in the pursuit of two fundamental rights protected by the Canadian Charter of Rights and Freedoms: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter). 40 Sharpe at p. 21 described the traditional form of review available on habeas corpus as follows: The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return dis- closes a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant. 41 It is well established that habeas corpus jurisdiction lies almost ex- clusively in the superior courts of the provinces. Included in this broad jurisdiction is the authority to hear habeas corpus applications with certiorari in aid “to review the validity of a detention authorized or imposed Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 225

by a federal board, commission or other tribunal” as defined by s. 2 of the Federal Court Act, R.S.C. 1985, c. F-7: R. v. Miller, [1985] 2 S.C.R. 613 (S.C.C.), at p. 626. 42 Habeas corpus is issued as of right and as a matter of principle should “not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant” (May, at para. 44). The Supreme Court has outlined two areas where a superior court should exercise its discretion to decline habeas corpus jurisdiction. The first exception is in the criminal context. Habeas corpus cannot be used to challenge the legality of a conviction. The appeal processes must be followed. 43 The second exception is pertinent to these appeals. The Court, citing Peiroo, explained that a second limitation “gradually developed in the field of immigration law” and is a “limited discretion to refuse to entertain applications for prerogative relief in immigration matters” (May, at para. 39). In those matters, where there is a “complete, comprehensive and expert statutory scheme [in place] which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded” (May, at para. 40). 44 With this legal context in mind, I will now discuss the applications judge’s decision.

D. The decision of the applications judge 45 The four appellants brought applications for habeas corpus with certiorari in aid to the Ontario Superior Court of Justice, claiming their continued detentions were unlawful and seeking immediate release. 46 The applications judge determined that the court should decline to exercise its habeas corpus jurisdiction to determine the applications. He found, relying on Peiroo, that the comprehensive statutory mechanism in place for the review of detentions in connection with pending immigration matters was the appropriate vehicle for prompt review of the lawfulness of detentions in immigration matters. He concluded that the legislative scheme permitted an ambit of review at least as broad and advantageous as the traditional scope of review by means of habeas corpus. 47 The applications judge noted the legislative scheme’s automatic and regular reviews, as well as the fact that the onus rests on the Minister to demonstrate that continued detention is justified. The applications judge also noted that the ID must consider various factors on review, including 226 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

the reason for detention, the length of detention and alternatives to detention. He referenced the speedy and informal nature of immigration detention hearings, the availability of expeditious and summary judicial review by the Federal Court, as well as the possibility of appeal to the Federal Court of Appeal. 48 The applications judge noted that leave applications for judicial review could be expedited, and that Catzman J.A. in Peiroo had expressly considered and rejected the argument that the leave requirement rendered judicial review less advantageous as compared to habeas corpus. Fur- thermore, he found that the ID and the Federal Court have expertise in dealing with the lawfulness of continued detention in the context of ongoing immigration matters. The fact that the appellants might not be successful there did not render the Federal Court either inappropriate or ineffective. 49 The applications judge agreed with the Crown’s submission that a line of cases following Peiroo held that a decision to detain is an immigration-related matter and the scheme put in place by Parliament for review of these decisions is “complete, comprehensive and expert” (see also May, at para. 50). As a result, the applications judge agreed that there were “obvious policy reasons” (May, at para. 35) supporting the exercise of discretion to decline habeas corpus jurisdiction: habeas corpus would simply amount to a collateral attack on decisions made where the “legislation has created a complete, comprehensive and expert procedure for the judicial review of administrative decisions impacting upon individual liberty”.

Issues 50 The issue raised by these cases is whether habeas corpus with certiorari in aid is available to persons claiming that, because of the length and the uncertainty of continued duration, their continued detentions pursuant to decisions of the ID have become illegal. 51 The appellants maintain that the applications judge erred in two ways. First, the applications judge gave an overly broad interpretation to the line of cases interpreting and applying Peiroo. Second, the applications judge erred in focusing on the process created by the legislation, which provides for periodic reviews by the ID of the reasons for detention, rather than on the appellants’ claim that their continued detentions were illegal and in breach of their Charter rights. In the appellants’ submission, had the court’s analysis focused on determining the legality of the Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 227

detentions, the court would have concluded that judicial review of the decisions of the ID by the Federal Court, with leave, was not as broad as that available by way of habeas corpus with certiorari in aid, and was less advantageous. 52 The appellant Carmelo Bruzzese also argues that his removal for immigration purposes is a disguised extradition, and that it is an improper use of the IRPA scheme and an abuse of process. 53 The respondents argue that the applications judge correctly found that the Peiroo exception properly applied to these cases, because Parliament has put in place a complete, comprehensive, and expert scheme for the review of immigration detention. As a result, they submit that the appeals should be dismissed. 54 For the reasons that follow, I have concluded that the Peiroo exception is not a blanket exclusion of habeas corpus in immigration-related matters. Further, after reviewing the legislative scheme for review of immigration detention, I consider that where, as in the current appeals, the issue is the legality of a continuing lengthy detention of uncertain duration, the review process created by the IRPA is not as broad and is less advantageous than habeas corpus.

Analysis A. Does Peiroo exclude the writ of habeas corpus in all matters related to immigration law? 55 The appellants argue that Peiroo and the Supreme Court of Canada cases that have confirmed the Peiroo exception do not go as far as the respondents suggest. The cases do not stand for the proposition that anyone involved with the immigration system is deprived of habeas corpus. I agree.

(1) Peiroo 56 Peiroo involved an Iranian citizen who, upon arrival in Canada, made a refugee claim. Following an inquiry, the Convention Refugee Determi- nation Division of the Immigration and Refugee Board determined that Peiroo did not have a credible basis for her claim. A removal order issued pursuant to the provisions of then-relevant legislation, the Immigra- tion Act, R.S.C. 1985, c. I-2. 57 The claimant contested this finding and the removal order’s issuance. She applied to the Supreme Court of Ontario for the issuance of a writ of 228 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

habeas corpus with certiorari in aid. Her application was dismissed, and she appealed to this court. Pending the hearing of the appeal, the execu- tion of her removal order was stayed and she was released from detention on strict terms. 58 Catzman J.A., writing for the court, framed the sole issue on appeal as whether the court should exercise its discretion to decline to grant relief upon the habeas corpus application, because alternative remedies were available to impugn the proceedings taken against the claimant. 59 Catzman J.A. determined that the court should exercise its discretion and declined to grant habeas corpus relief. He came to this conclusion based on his finding that the available remedies under the Immigration Act were not less expeditious or advantageous than habeas corpus because: • the grounds and scope for review were as broad or broader than those available on habeas corpus; • the requirement for leave to appeal or to seek judicial review did not make the alternative remedy less advantageous; and • any alleged disadvantage with respect to the availability or timeliness of a stay under the alternative remedy was not made out. 60 The ratio in Peiroo, therefore, is that a comprehensive alternative remedy to habeas corpus was in place within the administrative structure created to regulate immigration matters, and this alternative remedy was as broad and as advantageous to the detainee as would be habeas corpus. In those circumstances, a provincial superior court should exercise its discretion and decline to grant relief upon the application for habeas corpus. 61 It is important to consider the context for this holding. The habeas corpus application was brought to challenge the finding that Peiroo had no credible basis for her refugee claim, and her removal order. The habeas corpus application was clearly a collateral attack on core immigration decisions: that she did not qualify as a refugee and that she should be deported. It fell squarely within the expertise of the immigration authorities and of the Federal Court that routinely deal with such issues. There were strong policy reasons for declining jurisdiction. 62 In Peiroo, the habeas corpus application was not directed to whether detention was warranted pending disposition of the immigration issues. In fact, by the time the matter reached this court, the claimant had applied for and been released on conditions. Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 229

63 It is apparent, therefore, that the habeas corpus applications in the instant appeals are quite different. They do not seek a determination of the ongoing immigration matters. They seek a determination as to whether the continued detentions of the appellants are illegal.

(2) Other cases that followed Peiroo 64 As mentioned above, the Supreme Court of Canada confirmed the Peiroo exception to habeas corpus in other cases. The respondents argue that these authorities have broad application and constitute binding authorities that are dispositive of these appeals. I disagree. 65 The 2005 case of May dealt with an application for habeas corpus in the context of a transfer of detainees from a minimum-security institution to a medium-security institution. The Supreme Court was asked to decide whether the appellant detainees could bring an application for habeas corpus in provincial superior courts to review the prison’s decision on their detentions. The government argued that the proper proceeding was by way of judicial review to the Federal Court. The Court ruled that habeas corpus jurisdiction should not be declined merely because an alternative remedy exists. Jurisdiction should only be declined in limited circumstances, where one of the two established exceptions applies. Where neither exception applies, the existence of an alternative remedy means that the applicant may choose whether to proceed through the alternative remedy (i.e. judicial review) or by way of habeas corpus. The option belongs to the applicant (para. 44). 66 Most recently, the Supreme Court was again asked to decide on the issue of habeas corpus in the context of a prison transfer. In Khela v. Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502 (S.C.C.), the Court reiterated the concurrent jurisdiction of the superior courts and the Federal Court in considering the lawfulness of a transfer of a detainee between institutions. 67 The respondents also refer to the cases Reza v. Canada, [1994] 2 S.C.R. 394 (S.C.C.) and Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 (S.C.C.). In Reza, the Supreme Court confirmed the motions judge’s decision to decline to grant declaratory and injunctive relief to restrain a removal order. The second case, Idziak, involved an appellant who the United States wanted extradited and who had sought habeas corpus with certiorari in aid in the Supreme Court of Ontario to set aside the warrant of surrender. 230 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

68 In my view, none of those cases go as far as suggested by the respondents. Although Reza was an immigration case, it did not involve habeas corpus. It concerned declaratory and injunctive relief in the context of a constitutional challenge to immigration legislation. This distinction is noteworthy because the remedies sought were both discretionary and were available in both the provincial courts and the Federal Court. This is in contrast to habeas corpus, which is a non-discretionary remedy and is available only in the provincial superior courts. The Federal Court has no jurisdiction to grant it. Reza, therefore, is of no assistance in resolving the issue herein. 69 The three other cases were not immigration cases. Idziak was an extradition case, and the May and Mission decisions involved a challenge of the legality of the transfer of prisoners to higher security facilities. The relevance of these cases is that all refer to and confirm the Peiroo exception. They confirm that Peiroo is good law and, together with Reza and Pringle v. Fraser, [1972] S.C.R. 821 (S.C.C.), stand for the proposition that “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded” (May, at para. 40). 70 The court was careful, however, to explain that: Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited (May, at para. 50). 71 I do not interpret these decisions as having created, as the respondents suggest, a wholesale exclusion of habeas corpus in any case where an applicant is subject to immigration procedures. The Supreme Court, us- ing Peiroo as an example, held that habeas corpus cannot be used to mount a collateral attack of immigration decisions, where a complete, comprehensive and expert procedure for review of these decisions exists. In Peiroo, the challenge was to a core immigration matter, a removal order. It is therefore only in cases where the procedure set out in the statute to challenge such orders is as broad as and no less advantageous than habeas corpus that the conditions for declining jurisdiction will be met, and the court will exercise “a limited discretion to refuse to entertain Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 231

applications for prerogative relief in immigration matters” (May, at para. 39) (emphasis added). 72 The appellants’ challenge in the present case is to the legality of the continued lengthy detentions. Where, as here, the issue raised is not, strictly speaking, an immigration law matter as in Peiroo, the court needs to consider whether the issue raised falls within the category of exceptions as defined in May . The question a habeas corpus application would answer is whether the detentions, because of their length and their uncertain duration, have become illegal and in violation of the appellants’ ss. 7 and 9 Charter rights. As such, the immigration status of the appellants will not be affected. They will still be subject to removal. All that will be decided is whether there continues to be a constitutionally valid basis for their detentions pending those immigration decisions and dispositions. 73 This court has previously held that, although immigration matters will generally be best dealt with under the comprehensive scheme established under the immigration legislation, “there will be situations in which the Federal Court is not an effective and appropriate forum in which to seek the relief claimed. In those rare cases, the Superior Court can properly exercise its jurisdiction”: Francis (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration) (1999), 49 O.R. (3d) 136 (Ont. C.A.), leave to appeal granted, (2000), [1999] S.C.C.A. No. 558 (S.C.C.), at para. 12. Although the relief sought in Francis was declaratory and injunctive relief, the principle expressed therein is all the more relevant when habeas corpus is the relief sought because that remedy, unlike declaratory and injunctive relief, is non-discretionary. It also falls squarely within the superior courts’ jurisdiction. 74 I conclude that the Peiroo exception is not a blanket exclusion of habeas corpus in all matters related to immigration law. Therefore, because the issue raised by the appellants is not a core immigration issue as was Peiroo and seeks only the determination of the legality of the appellants’ continued detentions, these are cases that warrant a “careful evaluation” as prescribed in May. This careful evaluation will focus on whether the appellants’ remedies for unlawful detention under the IRPA, including judicial review, with leave, of ID detention decisions, are at least as broad as, and no less advantageous than that available by way of habeas corpus. 232 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

B. Is the statutory scheme for detention review under the IRPA as broad as and no less advantageous than habeas corpus? 75 At the outset, it is important that the issue be properly framed. The issue being raised by the appellants in their habeas corpus applications is not whether grounds for a period of detention under the IRPA exist nor the factual findings of the ID that support those grounds. Rather, it is whether they can exercise their constitutionally protected right to habeas corpus and to have a court rule on whether their detentions, when viewed through the lens of ss. 7 and 9 of the Charter and international instruments such as the International Covenant on Civil and Political Rights, to which Canada is a signatory, have become illegal because of their length and uncertain duration. In other words, in those exceptional cases where persons are detained for lengthy periods on immigration matters with no end to the detention in sight, the issue is whether detainees can be deprived of their constitutional right to challenge, through habeas corpus, the continued detentions pending resolution of the immigration matters. 76 Administrative tribunals do, of course, have the authority to resolve constitutional questions linked to matters properly before them if the legislator gave the tribunal the power to decide questions of law and has not clearly withdrawn the tribunal’s constitutional jurisdiction. Further, the tribunal must act consistently with the Charter and its values when exercising its statutory functions: see R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 (S.C.C.), at para. 78. The ID of the IRB has that authority. 77 I acknowledge, therefore, that an ID official, on a 30-day review, or a judge of the Federal court could, after taking into account the factors listed in s. 248 of the IRP Regulations, reach the conclusion that a continued detention violated a detainee’s Charter rights and could no longer be justified because of its length and the uncertainty of duration. That said, the respondents only referred us to one case where a finding of in- determinate detention was made. In that case, the ID, because of the length of the detention and the availability of an alternative to continued detention under the Ontario Mental Health Act, R.S.O. 1990, c. M.7, ordered release.1

1 The respondents cited Canada (Minister of Citizenship & Immigration) v. Ro- mans, 2005 FC 435, 44 Imm. L.R. (3d) 165 (F.C.). In that case, the Federal Court upheld the ID’s decision to release Romans, a chronic paranoid schizo- phrenic man held in immigration detention for more than five years, with no end Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 233

78 As noted earlier, however, the existence of an alternative remedy to habeas corpus does not mean that the court should automatically decline its jurisdiction. If, as alleged by the respondents, the review process put in place by the IRPA to rule on the legality of continued detentions in the appellants’ circumstances is as broad as and no less advantageous than on habeas corpus, habeas corpus should be declined. If it is not as broad and is less advantageous, habeas corpus should be available to the appellants, who will then have the choice of proceeding through the IRPA scheme or through habeas corpus (May, at para. 44). I have concluded that the process of detention review under IRPA is not as broad and is less advantageous than habeas corpus. 79 There are three critical differences between the IRPA process and habeas corpus that, taken together, make habeas corpus broader and more advantageous to the appellants when the issue is whether continued detentions have become illegal due to their length and the uncertainty of their continued duration. Those three differences are: • The question the court is to answer; • The onus; and • The review process. 80 I will deal with each of these in turn. Subsequently, I will apply the five factors used by the Supreme Court in May, as they militate, in my view, in favour of concurrent jurisdiction between the superior courts and the Federal Court in immigration detention matters of the nature of those raised by the appellants.

(a) The question the court is to answer 81 On their habeas corpus applications, the appellants would have to show that reasonable and probable grounds exist for their complaints. The grounds will be the exceptional length of their detentions and their

to his detention in sight. However, he was not released simply because of the detention’s length and uncertain duration. The ID also took into account that there was an alternative to immigration detention under the Ontario Mental Health Act, which would have ensured that Romans obtained the treatment he needed until he ceased to be a danger to himself and to the public. In fact, within 48 hours of the ID decision, all that changed was that Romans’ detention at the Penetanguishene Mental Health Centre went from being under the IRPA to being under the Ontario Mental Health Act. 234 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

uncertain continued duration. The question the court will then have to address is whether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal, in violation of the detainees’ ss. 7 and 9 Charter rights and international instruments to which Canada is a signatory. A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. In responding to the application, the Minister must satisfy a court that, despite its length and uncertain duration, the continued detention is still justified. 82 This is to be contrasted with the detention review carried out by the ID where the question posed is whether one of the five grounds for detention listed in s. 58 of the IRPA has been established. According to the IRPA, if one of those grounds is shown to exist, the current and future length of detention are but “factors” to be taken into account in making the decision to continue detention. The ID and the Federal Court on judicial review are not tasked with the question of determining whether the immigration detention no longer reasonably furthers the machinery of immigration control and is or has become illegal based on Charter or human rights principles. 83 As explained in Canada (Minister of Citizenship & Immigration) v. B046, 2011 FC 877, 100 Imm. L.R. (3d) 139 (F.C.), at paras. 54-55, the “factors” listed in s. 248 of the IRP Regulations were inserted to address Charter concerns. However, “provided that the Immigration Division addresses all of the factors and has regard to the evidence before it in assessing the factors in s. 248”, the Federal Court is reluctant to intervene. 84 The way the question is framed makes a difference. In cases such as those under appeal, the question that the court is to answer on a habeas corpus application is clearly more favourable to the appellants than the question to be answered on judicial review under IRPA.

(b) The onus 85 The IRPA appropriately provides that the onus is always on the Min- ister to demonstrate, on a balance of probabilities, that a detention or continued detention is warranted. Once the Minister makes out a prima Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 235

facie case for continued detention, the evidentiary burden then shifts to the detainee. 86 When, however, the issue is whether, because of its length and uncertain duration, the detention has become illegal, the IRPA scheme does not place the onus on the Minister. This is because the Minister needs only satisfy one of the listed criteria in s. 58 to shift the onus to the detainee. The Minister need not explain or justify the length of the detention and its uncertain duration. 87 In addition, the Minister can satisfy the onus simply by relying on the reasons given at prior detention hearings: see Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, 236 D.L.R. (4th) 329 (F.C.A.), at paras. 14-16. Although the IRPA provides that each detention review requires a fresh determination as to whether the detention should continue, and that prior decisions are not binding, it is apparent that, in practice, each hearing is not truly a de novo hearing. This is because each detention review must take into consideration all existing factors related to custody, which include the reasons for previous detention orders. 88 As explained in Thanabalasingham, even though prior detention decisions are not binding at subsequent reviews, the reviewing members must set out “clear and compelling reasons” for departing from them (at para. 10). Such reasons can include, for example, relevant new evidence or a reassessment of prior evidence based on new arguments (at paras. 6- 10). However, given the requirement for new evidence or new arguments and given that the Minister can rely on previous decisions to establish a prima facie case for detention, previous decisions become highly persuasive at the very least. 89 In theory, a detainee, who bares an evidentiary burden in the detention review after the Minister establishes a prima facie case, could poten- tially succeed in obtaining a release by showing the facts of those prior decisions are wrong or at least that they have changed since that time, warranting a different decision. However, as the length of detention increases, it becomes more and more difficult to argue that an additional 30 days spent in detention since the last review constitutes a “clear and compelling reason” to depart from the earlier disposition. 90 Further, statistics suggest that release becomes less likely as the number of detention reviews undergone increases. In response to a request under the Access to Information Act, R.S.C. 1985, c. A-1, the IRB released various statistics from 2013 indicating that out of 1848 detained 236 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

immigrants released that year, 1698 had undergone six or less detention reviews. This suggests that they were released within five months of the original decision to detain. Another 125 had undergone from seven to 18 reviews, suggesting that they had been detained from five to 17 months before release. The remaining 25 detainees who were released in 2013 had undergone as many as 53 reviews, suggesting that after 18 months of detention, release becomes less likely at each successive review. 91 In contrast, on a habeas corpus application, the matter will be heard afresh with the Minister bearing the onus. Habeas corpus allows the court to take a step back and look at the evidence without the burden of previous ID decisions. The appellants will not be required to show that there has been a change from prior dispositions. Further, the onus on the Minister will be to show that the detention, despite its length and uncertain duration, is nonetheless legal. Simply showing that one of the listed grounds in s. 58 of the IRPA is present will not satisfy the onus.

(c) The review process 92 Pursuant to the IRPA, the appellants can seek to have a court review the ID’s decisions to continue the detention. The application for judicial review is to the Federal Court with leave. 93 From the perspective of the appellants, there are at least two major differences between the judicial review process and habeas corpus that contribute to making habeas corpus more advantageous to the detainee. 94 First, habeas corpus is non-discretionary. Habeas corpus issues as of right once a detainee proves a deprivation of liberty and raises a legitimate ground upon which to question the legality of that deprivation. In contrast, under the process established by the IRPA, leave must be obtained. To succeed on a leave application to the Federal Court, the detainee must raise a fairly arguable case for the relief proposed to be sought: Bains v. Canada (Minister of Employment & Immigration) (1990), 109 N.R. 239 (Fed. C.A.). Further, judicial review is an inher- ently discretionary remedy and the court has the authority to determine at the beginning of the hearing whether the case should proceed (Mission, at para. 41). In that regard, the ID decision the detainee seeks to have judicially reviewed will invariably have been overtaken by subsequent 30-day reviews heard and decided before the judicial review application is heard, which will be taken into account by the Federal Court in exercising their discretion. Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 237

95 Second, assuming the detainee obtains leave for judicial review, he or she then bears the onus of showing that the ID’s decision was unreasonable, incorrect, or procedurally unfair, depending on the issue raised. 96 This is less favourable to the detainee than habeas corpus, where the Minister bears the onus on the application. As explained in Mission, at para. 40: on an application for judicial review, it is the applicant who must show that the federal decision maker made an error, whereas, on an application for habeas corpus, the legal burden rests with the detaining authorities once the prisoner has established a deprivation of liberty and raised a legitimate ground upon which to challenge its legality. This particular shift in onus is unique to the writ of habeas corpus. Shifting the legal burden on the detaining authorities is com- patible with the very foundation of the law of habeas corpus, namely that a deprivation of liberty is permissible only if the party effecting the deprivation can demonstrate that it is justified. [Citations omitted.]

(d) Additional factors militating in favour of allowing detainees to exercise their Charter right to access habeas corpus 97 In May, the Supreme Court, after having identified the weaknesses in the statutory process for the review of prisoner transfer decisions, went on to assess the differences between the statutory scheme and habeas corpus purposively. According to the Court, a purposive approach to the question requires that we look at the entire context. In May, this involved consideration of five factors that the Court found militated in favour of concurrent jurisdiction and provided additional support for allowing federal prisoners access to habeas corpus (para. 65). I will consider the same five factors: • The choice of remedies and forum; • The expertise of provincial superior courts; • The timeliness of the remedy; • Local access to the remedy; and • The nature of the remedy and the burden of proof. 98 As I will explain, each of these five factors further supports the conclusion that the appellants ought to be allowed to exercise their Charter right to access habeas corpus. 238 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(i) Choice of remedies and forum 99 As stated in May, at para. 44, “habeas corpus jurisdiction should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyes of the court. The option belongs to the applicant.” 100 The detainee’s right to habeas corpus is guaranteed by s. 10(c) of the Charter and, as explained earlier, limits to it should be carefully evaluated. The Federal Court does not have habeas corpus jurisdiction, except with respect to a habeas corpus application by a member of the Canadian Forces serving outside Canada (Federal Court Act, s. 17(5)). Habeas corpus is vested in provincial superior courts and, in principle, because of the importance of that remedy, the governing rule is that superior courts should exercise their jurisdiction (May, at paras. 50 and 67). 101 Significantly, allowing detainees access to habeas corpus in the limited circumstances raised by these appeals will not interfere with the central purpose of the IRPA. The court’s habeas corpus decisions will not affect the ultimate disposition of the immigration matters that underlie the detentions. The habeas corpus applications will deal only with whether detentions, when they have been very lengthy and are of uncertain duration, can be continued pending disposition of those immigration matters: see also Idziak, at pp. 652-653.

(ii) The expertise of provincial superior courts 102 I acknowledge that the Federal Court has greater expertise in immigration matters than the superior courts and that in such matters, a superior court should, as explained in Peiroo, defer to the Federal Court. The issues raised by the appellants, however, are fundamentally detention decisions. Although they arise in the immigration context, the issues raised do not require the court to have expertise in immigration law. The habeas corpus decisions will be made weighing various factors, as well as Charter rights and values. These are by and large the same factors that make up the daily fare of the superior courts. The superior courts are closely connected with the administration of criminal justice, and as noted in Mission, at para. 57, “when a loss of liberty is involved, the superior courts are well versed in the Charter rights that apply”. Their expertise in this regard is well-established. Chaudary v. Canada (MPS&EP) Paul S. Rouleau J.A. 239

(iii) The timeliness of the remedy 103 A hearing on a habeas corpus application in a superior court can be obtained more rapidly than a hearing on a judicial review application in the Federal Court. In the Federal Court, before a hearing can even be scheduled, leave must be obtained. Although leave application are to be disposed of without delay and in a summary way (IRPA, s. 72(2)(d)), the leave process, when added to the time required to hold the judicial review (somewhere between 30 and 90 days following the granting of leave unless the parties agree to an earlier date, IRPA s. 74(b)) will exceed the time required for a habeas corpus application. 104 The procedure for scheduling habeas corpus applications varies from province to province. They will, however, be heard promptly. Although this factor favours habeas corpus, I acknowledge that, given the lengthy detentions already experienced by the appellants, there is not the same urgency as in other matters where habeas corpus is sought.

(iv) Local access to the remedy 105 The Supreme Court of Canada has recognized the importance of local access to habeas corpus for inmates of both provincial and federal institutions because of the traditional role of the court as a safeguard of the liberty of the subject: R. v. Gamble, at p. 635; May, at para. 70. Detainees in immigration matters who have been detained for a long period with no end to their detention in sight are in similarly disadvantaged positions as provincial and federal inmates, and they too have greater local access to a provincial superior court (Mission, at para. 47). In fairness, therefore, they should have the same ability to access the habeas corpus remedy locally.

(v) Nature of the remedy and the burden of proof 106 As outlined earlier, in habeas corpus applications, once a legitimate ground is raised by the detainee, the onus is placed on the Minister to justify the lawfulness of the continued detention. This is the most significant advantage favouring habeas corpus. Also, as explained earlier, a writ of habeas corpus is issued as of right where the applicant shows that there is cause to doubt the legality of the detention (Sharpe, at p. 58) but a judicial review will only be heard if leave is granted by the Federal Court. The Federal Court also has the discretion not to proceed with the hearing. Finally, as noted in May at para. 71, the Federal Court can deny relief on discretionary grounds. 240 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Post-Hearing Submissions 107 On August 25, 2015, this court was advised that Mvogo was removed to Cameroon and was therefore no longer in detention. 108 On September 30, 2015, counsel for Bruzzese brought a motion in this court to stay Bruzzese’s deportation order pending the decision in this appeal. Juriansz J.A. dismissed the motion: see Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 678 (Ont. C.A.). The motion judge was not persuaded that there was a serious issue to be tried, because the decision to remove Bruzzese to Italy was independent of the issues raised on appeal. Success on appeal would confirm the jurisdiction of the Superior Court of Justice to decide on the legality of Bruzzese’s continued detention, but would not affect the validity of the deportation order. Bruzzese has since been deported. 109 The respondents took the position that Mvogo’s and Bruzzese’s appeals were moot and should therefore be dismissed. Counsel for Mvogo and Bruzzese argued that while Mvogo and Bruzzese were no longer detained, the court should use its discretion to hear the appeals. 110 Having regard to the factors identified in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.), I have concluded that it is appropriate to decide Mvogo’s and Bruzzese’s appeals. Both appeals were argued prior to the deportation orders in a full adversarial context. The interests of judicial economy would be better served by rendering a decision on their appeals. The appeals were limited to a determination of the jurisdiction of the court to hear the habeas corpus applications. This determination falls squarely within the competence of the courts to decide.

Conclusion 111 In conclusion, I do not consider Peiroo and the other cases confirming the Peiroo exception to stand for the principle that habeas corpus is always precluded in immigration-related matters. Nor do I view the IRPA as having put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May, at para. 40) where, as here, the decision sought to be reviewed is the continuation of a lengthy detention of uncertain duration. Chaudary v. Canada (MPS&EP) C.W. Hourigan J.A. 241

112 In R. v. Gamble, at p. 641, the Supreme Court emphasized that in matters of liberty: [a] purposive approach should ... be applied to the administration of Charter remedies as well as to the interpretation of Charter rights, and in particular should be adopted when habeas corpus is the requested remedy, since that remedy has traditionally been used for, and is admirably suited to, the protection of the citizens’ fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. The superior courts in Canada have, I believe, with the advent of the Charter and in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus to its new role. 113 The applicants, who have been in immigration detentions for lengthy periods and whose detentions are to continue for an uncertain duration, should not be deprived of their Charter right to habeas corpus. They have the right to choose whether to have their detention-related issues heard in the Federal Court through judicial review of the ID decisions, or in the Superior Court through habeas corpus applications. 114 With respect to the “disguised extradition” issue raised by Bruzzese, this issue was fully litigated in the Federal Court: Bruzzese v. Canada, 2015 FC 922. This question is, in my view, a core immigration matter which comes within the Peiroo exception. 115 As a result, I would allow the appeals, set aside the order and remit the applications of Anawa and Chaudhary to the Ontario Superior Court of Justice for consideration on the merits. I would not remit Bruzzese’s and Mvogo’s applications as they are no longer detained. 116 I would make no order as to costs as none were sought by the appellants.

R.G. Juriansz J.A.:

I agree

C.W. Hourigan J.A.:

I agree Appeals allowed. 242 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Seraj v. Canada (Minister of Citizenship and Immigration)] Omid Seraj, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2435-15 2016 FC 38 Michel M.J. Shore J. Heard: January 11, 2016 Judgment: January 12, 2016 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — General principles –––– Foreign national was geophysicist and citizen of Iran who applied for permanent residence status under Federal Skilled Worker class (NOC 2113) — Foreign national was employed by artistic and cultural institute which provided employment letter indicating that it required experts to assist them in making of animation and films in area of geology and geophysics and it was in that respect that foreign national was hired — Immigra- tion officer found employment letter was not credible as foreign national’s duties were worded to fit description of duties listed in NOC 2113 — Officer was not satisfied that foreign national performed duties described in letter of employment and found that there was insufficient information to that effect, and that foreign national had misrepresented his duties — Officer found foreign national inadmissible to Canada for misrepresentation under s. 40(1)(a) of Immigration and Refugee Protection Act — Foreign national brought application for judicial review — Application granted — Matter to be determined anew by different decision-maker — To reach conclusion required further examination to understand context in which foreign national fulfilled his duties — Officer appeared to have confused insufficiency of evidence with misrepresentation — Foreign national held Master degree in geophysics and geo-electricity, as well as Bachelor degree in physics — Foreign national submitted uncontradicted evidence that he was hired by employer for his expertise in geophysics as his duties included assisting employer in its undertakings of animation and movies in subjects of geophysics and geology — It was unreasonable for officer to hold that foreign national misrepresented himself or his duties on basis of evidence submitted. Cases considered by Michel M.J. Shore J.: Ansari v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 849, 2013 CarswellNat 2870, 2013 CF 849, 2013 CarswellNat 3879 (F.C.) — considered Seraj v. Canada (MCI) Michel M.J. Shore J. 243

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.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 678, 2005 CarswellNat 1296, [2005] F.C.J. No. 852, 47 Imm. L.R. (3d) 222, 2005 CF 678, 2005 CarswellNat 4899 (F.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 Paashazadeh v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 327, 2015 CarswellNat 633, 2015 CF 327, 2015 CarswellNat 3632 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 11(1) — considered s. 40(1)(a) — considered s. 40(2)(a) — considered s. 72(1) — considered

APPLICATION by foreign national for judicial review of immigration officer’s decision rejecting his application for permanent residence under Federal Skilled Worker class and finding him inadmissible to Canada for misrepresentation.

Richard Kurland, for Applicant Brett Nash, for Respondent

Michel M.J. Shore J.: I. Overview 1 Findings of misrepresentation must not be taken lightly. They must be supported by compelling evidence of misrepresentation occurred by an applicant; thereby, an applicant faces important and long lasting consequences in addition to having his/her application rejected.

II. Background 2 This is an application for judicial review by the Applicant pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by an immigration officer [Officer] dated April 10, 2015, wherein the Officer rejected the Applicant’s permanent residence application under the Federal Skilled Worker class and 244 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

held that the Applicant is inadmissible to Canada for misrepresentation under paragraph 40(1)(a) of the IRPA. 3 The Applicant, Omid Seraj (age 35), is a geophysicist and citizen of Iran. 4 The Applicant applied for permanent residence status under the Fed- eral Skilled Worker class (NOC 2113) in May 2014. In a letter dated November 6, 2014, the Officer requested more information from the Ap- plicant as the Officer had concerns about the Applicant’s work experience in geophysics [Letter of Concern]: I have concerns that you may not have valid work experience as a geophysicist. • Please provide description of activities of the Baran Artistic and Cultural Institute. • Copy of registration record of the Baran Artistic and Cultural Institute in the Official Gazette of Iran. • Explanation as to why the Baran Artistic and Cultural Insti- tute requires a geophysicist and how your duties from 2007- present correspond to the main responsibilities as described in your employment letter. (Officer’s Record at p 8) 5 The Applicant’s representative, Mr. Mir Jamil Azimzadeh responded to the Officer’s letter, on December 2, 2014, by submitting supporting documents, including: a supplementary letter from the Baran Artistic and Cultural Institute [BACI] (Applicant’s employer) dated November 15, 2014 [Supplementary Employment Letter]; and, English translation of BACI’s corporate documents. 6 On February 11, 2015, the Applicant was convoked to an interview to be conducted on March 10, 2015. On March 31, 2015, the Applicant was informed, in a letter undersigned by a Deputy Program Manager that his application did not meet the requirements of the IRPA; and, that the Ap- plicant misrepresented or withheld material facts which induced or could have induced errors in the administration of the IRPA. As a result, pursuant to paragraph 40(2)(a) of the IRPA, the Applicant is inadmissible to Canada for a period of five years from the date of the letter. 7 In a subsequent letter dated April 10, 2015, the Applicant was informed of the requirements of paragraph 11(1) of the IRPA (requirements before entering Canada); and, that he was inadmissible to Canada because of misrepresentation. Seraj v. Canada (MCI) Michel M.J. Shore J. 245

III. Issues 8 The Applicant only seeks to quash the Officer’s determination of misrepresentation pursuant to paragraph 40(1)(a) of the IRPA. Conse- quently, the only issue central to this application for judicial review is whether the Officer erred in determining the Applicant was inadmissible for misrepresentation.

IV. Position of the Parties 9 The Applicant submits that the Officer erred in his determination of misrepresentation. Firstly, the Officer ignored or omitted to consider material facts demonstrating there was no misrepresentation by the Appli- cant. The Officer did not find that any material fact was either present or omitted to warrant his finding of misrepresentation. Secondly, the Of- ficer breached procedural fairness as the process to determine whether or not the Applicant misrepresented was not fair. Thirdly, the Officer’s decision lacked adequacy of reasons as the Officer did not provide sufficient analysis to allow the Applicant to understand how and why the determination of misrepresentation was reached by the Officer. 10 Conversely, the Respondent submits that it was reasonable for the Of- ficer to find that the Applicant did misrepresent pursuant to paragraph 40(1)(a) of the IRPA as the Applicant provided vague descriptions of his main duties as a geophysicist and misrepresented his duties in the employment letter in order to be eligible. Secondly, the misrepresentation by the Applicant was material as it was important enough to affect the decision process. Thirdly, the Officer did not breach procedural fairness as the Applicant was provided, before the interview with a Letter of Con- cern outlining concerns related to apparent inconsistencies with regard to his work experience and the content of the employment letter. The Appli- cant had the opportunity during the interview to address those concerns.

V. Standard of Review 11 The assessment by an immigration officer as to whether an applicant committed misrepresentation is a determination of mixed fact and law reviewable on a standard of reasonableness (Oloumi v. Canada (Minister of Citizenship & Immigration), 2012 FC 428 (F.C.) at para 23 [Oloumi]; Paashazadeh v. Canada (Minister of Citizenship and Immigration), 2015 FC 327 (F.C.) at para 13). 246 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

VI. Analysis 12 An applicant seeking to obtain permission to enter into Canada must be careful that the information submitted, by him/her or an adviser, does not directly or indirectly misrepresent or withhold material facts that could induce an error in the administration of the IRPA. Broad interpretation must be given to paragraph 40(1)(a) of the IRPA given the objective of this paragraph, namely, deter misrepresentation and maintain the integrity of the immigration process (Oloumi, above at para 23). Misrep- resentation need not be wilful or intentional (Berlin v. Canada (Minister of Citizenship & Immigration), 2011 FC 1117 (F.C.) at para 12); and, applicants are to be held to account in regard to their choice of adviser and representations made by such adviser (Chen v. Canada (Minister of Citizenship & Immigration), 2005 FC 678 (F.C.) at para 10). 13 The Officer held in the decision dated March 31, 2015 that the Appli- cant misrepresented for the following reasons. Firstly, the Applicant’s employment letter dated May 5, 2014 [Employment Letter] misrepresented the duties performed by the Applicant during his employment with the BACI. Secondly, during the interview the Applicant’s description of his duties at the BACI was vague and did not correspond to those stated in the Employment Letter. Thirdly, the BACI website does not indicate that the entity for which the Applicant works, performs geophysical services for clients; and, the Officer was not satisfied with the Appli- cant’s explanation in that regard. Fourthly, the Employment Letter does not mention that the Applicant assists in the production of films or animation. 14 The Officer found that the Employment Letter was not credible as the Applicant’s duties were worded to fit the description of the duties listed in NOC 2113 all of which is central to the determination of misrepresentation. 15 This Court has held that while the use of language in a reference letter similar to a NOC Code “is not, per se, grounds for dismissing” a reference letter, it may be reasonable for an officer to have doubts as to whether an applicant meets the requirements as the officer “cannot be confident that the applicant actually has the experience since he cannot articulate his own experience or duties or responsibilities in his own words and in relation to the job he actually performed” (Ansari v. Canada (Minister of Citizenship and Immigration), 2013 FC 849 (F.C.) at para 32). Seraj v. Canada (MCI) Michel M.J. Shore J. 247

16 Subsequently to receiving the Letter of Concern from the Officer, the Applicant submitted a Supplementary Employment Letter as well as an English translation of BACI’s corporate documents. The Supplementary Employment Letter attests to the Applicant’s employment with BACI as a geophysical expert and that his duties include the performance of geophysical research. The letter also states that BACI requires experts to assist them in the making of animation and films in the area of geology and geophysics; and, it is in that respect that the Applicant was hired. Addi- tionally, the English translation of BACI’s minutes dated October 4, 2006, states the “requirements for employing specialists in [...] geophysics, architecture and environment areas [...]. [W]e need to establish archi- tectural, geological, geophysical and environmental sections based on the requested scientific research and visual documentation and the meeting agreed to establish these sections unanimously” (Affidavit of Mr. Mir Jamil Azimzadeh, June 23, 2015, at p 9). 17 The Officer was not satisfied, subsequent to an interview with the Applicant, that the Applicant did in fact perform the duties described in the Letter of Employment. Not only was he of the opinion that there was insufficient information to that effect, he held that the Applicant misrepresented his duties. On examination of all the evidence discussed above, namely the Supplementary Employment Letter and the English translation of BACI’s corporate documents, it was unreasonable for the Officer to hold that a misrepresentation occurred. The evidence, when examined in its entirety, brings to light, even on first blush, a different understanding as to the very context in which the evidence as a whole appears, in light of the duties to which the Applicant may have been assigned. To reach a conclusion, it certainly requires further examination to understand the context in which the Applicant fulfilled his duties, as such examination does not appear to have been undertaken adequately by which to have reached a reasonable conclusion. 18 The Officer appears to have confused insufficiency of evidence with misrepresentation. Undoubtedly, the Officer could have found that there is insufficient evidence to demonstrate that the Applicant performed the tasks described in the Employment Letter; however, the Officer could not reasonably have found that the Applicant or his adviser misrepresented. The Applicant holds a Master degree in geophysics and geo-electricity, as well as a Bachelor degree in physics. The Applicant submitted uncontradicted evidence that he was hired by BACI for his expertise in geophysics as his duties include assisting BACI in its undertakings of animation and movies in the subjects of geophysics and geology. 248 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

19 Therefore, without adequate explanations, having examined the submissions of the parties and the evidence as a whole, the Court finds that it was unreasonable for the Officer to find that the Applicant misrepresented himself or his duties on the basis of the evidence itself.

VII. Conclusion 20 Consequently, the application for judicial review is granted.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review be granted and the matter is to be determined anew by a different decision-maker. There is no serious question of general importance to be certified. Application granted. Canada (MCI) v. Desalegn 249

[Indexed as: Canada (Minister of Citizenship and Immigration) v. Desalegn] The Minister of Citizenship and Immigration, Applicant and Tiruedel Zenebe Desalegn, Respondent Federal Court Docket: IMM-862-15 2016 FC 12 Simon Fothergill J. Heard: November 24, 2015 Judgment: January 7, 2016 Immigration and citizenship –––– Refugee protection — Appeal or redetermination of claim — Evidence –––– Refugee claimant was citizen and popular musician in Ethiopia — She had been arrested and detained after performing song on radio that government perceived to be critical of current regime — Ref- ugee Protection Division (RPD) found claimant lacked credibility and there was lack of corroborative evidence to support her claim — Claimant appealed decision to Refugee Appeal Division (RAD) and submitted several new pieces of evidence pursuant to s. 110(4) of Immigration and Refugee Protection Act — RAD admitted new evidence and granted appeal — RAD also found that RPD had wrongly rejected three documents that RAD considered to be highly probative — RAD substituted its own determination that claimant was at risk in Ethi- opia due to her political opinion and her popularity as musician — Minister of Citizenship and Immigration applied for judicial review — Application granted; matter remitted to differently-constituted panel of RAD for re-determination — RAD admitted new evidence in manner that did not comply with s. 110(4) of Act and improperly relied upon that evidence and other documents found in record to conclude that claimant had well-founded fear of persecution in Ethio- pia — RAD provided little in way of reasons for admitting new evidence — RAD was required to examine each proposed piece of new evidence and decide whether information could have reasonably been adduced during proceedings before RPD — Evidence that merely responded to RPD’s concerns regarding credibility, or that corrected information or mistakes in affidavits that were previously submitted, did not meet Raza criteria — RAD’s reasons for admitting new evidence were neither transparent nor intelligible — RAD relied extensively on newly-admitted evidence in support of its decision to grant claimant’s appeal — RAD’s failure to provide adequate justification for admitting new evidence was sufficient to allow application for judicial review. 250 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Immigration and citizenship –––– Refugee protection — Appeal or redetermination of claim — Standard of review –––– Refugee claimant was citizen and popular musician in Ethiopia — She had been arrested and detained after performing song on radio that government perceived to be critical of current regime — Refugee Protection Division (RPD) found claimant lacked credibility and there was lack of corroborative evidence to support her claim — Claimant appealed decision to Refugee Appeal Division (RAD) and submitted several new pieces of evidence pursuant to s. 110(4) of Immigration and Refugee Pro- tection Act — RAD admitted new evidence and granted appeal — RAD also found that RPD had wrongly rejected three documents that RAD considered to be highly probative — RAD substituted its own determination that claimant was at risk in Ethiopia due to her political opinion and her popularity as musician — Minister of Citizenship and Immigration applied for judicial review — Applica- tion granted; matter remitted to differently-constituted panel of RAD for re-determination — RAD’s decision to substitute its own determination for that of RPD was subject to review against standard of reasonableness — Determinative issue before RPD was claimant’s credibility — RPD rejected claim because of numerous inconsistencies and contradictions in claimant’s testimony, information she provided in her Basis of Claim form, and information contained in forms she submitted to Minister in support of her application for Temporary Resident Visa — RAD opted for wholly different approach; it did not examine RPD’s credibility findings, nor did it address grounds that claimant advanced in support of her appeal — RAD described number of factual findings as “uncontended” — However, many of findings were very much in contention, and some had been explicitly rejected by RPD — RAD owed deference to RPD’s assessments of credibility based on witnesses’ testimony — It was unreasonable for RAD to substitute its own determination of claimant’s credibility without affording deference to RPD’s credibility findings or explaining why RAD considered those findings to be wrong. Cases considered by Simon Fothergill J.: Abdullahi v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 1164, 2015 CarswellNat 5022 (F.C.) — considered Deri v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 1042, 2015 CarswellNat 4212, 389 D.L.R. (4th) 149, 2015 CF 1042, 2015 CarswellNat 6017 (F.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 Fida v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 784, 2015 CarswellNat 2465, 2015 CF 784, 2015 CarswellNat 3817 (F.C.) — referred to Canada (MCI) v. Desalegn 251

Huruglica v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 799, 2014 CF 799, 2014 CarswellNat 3148, 2014 CarswellNat 3149, [2014] F.C.J. No. 845, 30 Imm. L.R. (4th) 115, [2014] 4 F.C.R. 811, 461 F.T.R. 241 (F.C.) — referred to Khachatourian v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 182, 2015 CarswellNat 255, 2015 CF 182, 2015 CarswellNat 2119, [2015] F.C.J. No. 156 (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 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 Ngandu v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 423, 2015 CarswellNat 894, 2015 CF 423, 2015 CarswellNat 2188, 34 Imm. L.R. (4th) 68 (F.C.) — referred to R. v. S. (N.) (2012), 2012 SCC 72, 2012 CarswellOnt 15763, 2012 CarswellOnt 15764, [2012] S.C.J. No. 72, 290 C.C.C. (3d) 404, 353 D.L.R. (4th) 577, 98 C.R. (6th) 1, 297 O.A.C. 200, 437 N.R. 344 (note), [2012] 3 S.C.R. 726, 119 O.R. (3d) 78 (note) (S.C.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.) — followed Singh c. Canada (Ministre de la citoyennet´e et de l’immigration) (2014), 2014 CF 1208, 2014 CarswellNat 5187, 2014 FC 1208, 2014 CarswellNat 6816, [2014] F.C.J. No. 1254 (F.C.) — referred to 252 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

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 (F.C.) — followed Yetna c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CF 858, 2014 CarswellNat 3569, 2014 FC 858, 2014 CarswellNat 4223, [2014] F.C.J. No. 906, 463 F.T.R. 128 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — considered s. 72(2) — considered s. 96 — considered s. 97 — considered s. 110(4) — considered Words and phrases considered: uncontended . . . factual findings . . . described as “uncontended”, i.e., uncontentious or uncontroversial.

APPLICATION for judicial review of decision of Refugee Appeal Division setting aside determination of Refugee Protection Division.

A. Leela Jaakkimainen, for Applicant Ben Liston, for Respondent

Simon Fothergill J.: I. Introduction 1 The Minister of Citizenship and Immigration [the Minister] has brought an application for judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board. The RAD set aside the determination of the Refugee Protection Division [RPD] that Tiruedel Zenebe Desalegn is not a Convention refugee under s 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA], nor a person in need of protection as defined by s 97 of the IRPA. The RAD substituted its own determination that Ms. Desalegn is a Con- vention refugee. The Minister brings this application pursuant to ss 72(1) and 72(2) of the IRPA. 2 For the reasons that follow, I have concluded that the RAD admitted new evidence in a manner that did not comply with s 110(4) of the IRPA, and improperly relied upon that evidence and other documents found in Canada (MCI) v. Desalegn Simon Fothergill J. 253

the record to conclude that Ms. Desalegn has a well-founded fear of persecution in Ethiopia. The application for judicial review is therefore allowed.

II. Background 3 Ms. Desalegn is a citizen of Ethiopia. Her claim for refugee protection was based on the following allegations. 4 Ms. Desalegn is a popular musician in Ethiopia. Her parents are also musicians and known political dissidents. Ms. Desalegn’s parents were arrested and detained in 2005 due to their membership in the opposition group Unity for Justice and Democracy [UDJ], which Ms. Desalegn joined briefly in 2008. Following their release, Ms. Desalegn’s mother fled Ethiopia with Ms. Desalegn’s uncle, a well-known member of the Ethiopian opposition party Ginbot 7. They were both granted asylum in the United States of America. Ms. Desalegn’s father remained in Ethiopia. 5 In May 2010, the police arrested and detained Ms. Desalegn and her former partner due to their support of the UDJ. 6 On April 5, 2013, the police arrested and detained Ms. Desalegn after her song “One Day” aired on the radio in Ethiopia. The government perceived her song to be critical of the current regime. Ms. Desalegn was released after her brother paid a bribe. 7 On June 3, 2013, Ms. Desalegn obtained a Temporary Resident Visa for Canada. Ms. Desalegn managed to leave Ethiopia with the help of a senior official at the Addis Ababa airport. She arrived in Toronto and immediately made a claim for refugee protection. 8 In a decision dated July 15, 2014, the RPD determined that Ms. Desalegn was neither a Convention Refugee nor a person in need of protection. The determinative issue was Ms. Desalegn’s credibility. The RPD also found a lack of objective corroborative evidence to support her claim. 9 Ms. Desalegn appealed the RPD’s decision to the RAD. She challenged the RPD’s decision on two grounds: (i) the RPD erred in its assessment of her credibility because it undertook a microscopic analysis of the evidence; and (ii) the RPD ignored or dismissed corroborative evidence that supported her claim. Ms. Desalegn submitted several new pieces of evidence pursuant to s 110(4) of the IRPA. 254 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

10 In a decision dated January 28, 2015, the RAD admitted the new evidence and granted Ms. Desalegn’s appeal. The RAD found that the RPD had wrongly rejected three documents that the RAD considered to be highly probative. The RAD substituted its own determination that Ms. Desalegn is at risk in Ethiopia due to her political opinion and her popularity as a musician.

III. Issues 11 This application for judicial review raises the following issues: A. Was the RAD’s admission of the new evidence reasonable? B. Was the RAD’s determination that Ms. Desalegn is a Convention refugee reasonable?

IV. Analysis A. Was the RAD’s admission of the new evidence reasonable? 12 Questions regarding the admission of new evidence before the RAD are reviewable by this Court against the standard of reasonableness (Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022 (F.C.) at paras 36-42 [Singh]; Khachatourian v. Canada (Minister of Citizenship and Immigration), 2015 FC 182 (F.C.) at para 37). 13 In support of her appeal, Ms. Desalegn submitted several new pieces of evidence pursuant to s 110(4) of the IRPA to address the RPD’s credibility concerns and to demonstrate that she had actively participated in opposition politics since leaving Ethiopia. The evidence included: (i) an affidavit setting out her personal history and her efforts to obtain additional evidence following the RPD’s decision; (ii) a letter from the Ethio- pian Association of Greater Toronto dated September 9, 2014, confirming that Ms. Desalegn had performed several songs at fundraising events throughout 2013 and 2014; (iii) a letter from the Ethiopian Satellite Tele- vision Service [ESAT] dated September 24, 2014, thanking Ms. Desalegn for singing her song “One Day” at a fundraiser in Toronto in October 2013; (iv) photographs of Ms. Desalegn meeting with the chair- man of Ginbot 7 following the fundraiser in Toronto; (v) a statutory declaration from her mother, Ms. Belayneh, amending her initial account of Ms. Desalegn’s arrest in Ethiopia; (vi) a report by Amnesty International dated July 10, 2014, stating that Ethiopians in contact with members of Ginbot 7 and the ESAT are at risk of imprisonment because the Ethio- pian government views these groups as terrorist organizations; and (vii) a Canada (MCI) v. Desalegn Simon Fothergill J. 255

journal article titled “Refugee Status Determination and the Limits of Memory” by Hilary Evans Cameron. 14 The RAD’s decision makes it difficult for this Court to assess whether it correctly applied the test for determining whether the proposed evidence was admissible. Subsection 110(4) of the IRPA provides as follows: 110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 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 circon- stances, au moment du rejet. 15 Ms. Desalegn says that the RAD’s admission of the new evidence was consistent with the Court’s approach in Singh, in which Justice Gagné held that the test for admitting new evidence in the context of a pre-removal risk assessment [PRRA] found in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.) [Raza] differs from the criteria for admitting new evidence in the context of an appeal before the RAD. Justice Gagné reasoned that Parliament intended the RAD to conduct a full, fact-based appeal, and “when the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised” (at para 55). This decision is currently before the Federal Court of Appeal, and the question of whether the Raza criteria apply to s 110(4) of the IRPA is therefore unsettled. 16 The RAD admitted all of the new evidence with the following explanation: “I have taken into account s 110(4) requirements and the Raza factors — applied not strictly — and find that all documents mentioned above, with the exception of the article by Hilary Evans Cameron, meet the statutory requirements as well as the Raza factors: as they are new, were not reasonably available and are material and relevant.” The RAD then denied Ms. Desalegn’s request for an oral hearing. 17 The flexible approach contemplated in Singh concerns the RAD’s treatment of evidence only once it has met the statutory requirements of s 256 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

110(4) of the IRPA (Fida v. Canada (Minister of Citizenship and Immi- gration), 2015 FC 784 (F.C.) at paras 6-8). As Justice Strickland noted in Deri v. Canada (Minister of Citizenship and Immigration), 2015 FC 1042 (F.C.), the RAD has no discretion to refuse to apply the three ex- plicit conditions for the admissibility of new evidence prescribed by s 110(4). The RAD must therefore determine: (i) whether the evidence arose after the rejection of the claim; (ii) whether it was reasonably available; and (iii) whether the applicant could reasonably have been expected, in the circumstances, to present the evidence before the RPD. 18 In this case, the RAD provided little in the way of reasons for admitting the new evidence. Instead, the RAD stated: “I accept the justification for each of the documents provided by the Appellant in the memorandum and the Appellant’s record.” Assuming that this amounts to an incorpora- tion by reference of the arguments presented by Ms. Desalegn, these are insufficient to meet the statutory requirements of s 110(4). 19 According to the memorandum of argument that Ms. Desalegn submitted to the RAD: ... [s]ome of the information contained with the new letters and Ms. Belayneh’s affidavit may have originated prior to or during the course of the RPD hearing. However, in the Appellant’s case, the above evidence was not reasonably available before or during her RPD hearing because it specifically responds to information and findings contained in the RPD decision. ... The new personal evidence directly responds to the RPD’s central credibility findings and as such is relevant in addressing issues identified in the RPD decision. The Appellant provided substantial personal supporting documentation to corroborate her claim before the RPD. She could not have anticipated that the RPD would utterly ig- nore or unreasonably dismiss all of her corroborative documentation. Accordingly, she was not aware until receipt of the RPD decision that the ‘new’ evidence on appeal would be required to address the RPD Member’s erroneous factual findings. 20 In the alternative, Ms. Desalegn suggested that even if the evidence did not meet the Raza criteria, the RAD should nevertheless accept it pursuant to Elezi v. Canada (Minister of Citizenship & Immigration), 2007 FC 240 (F.C.) at para 45. In that case, this Court held that PRRA officers have the discretion to consider evidence that has probative value, even if it is “technically inadmissible”. 21 In my view, the RAD was required to examine each proposed piece of new evidence and decide whether the information could have reasona- Canada (MCI) v. Desalegn Simon Fothergill J. 257

bly been adduced during the proceedings before the RPD. Evidence that merely responds to the RPD’s concerns regarding credibility, or that cor- rects information or mistakes in affidavits that were previously submitted, does not meet the Raza criteria. 22 Ms. Desalegn notes that Justice Hughes said the following in Abdullahi v. Canada (Minister of Citizenship and Immigration), 2015 FC 1164 (F.C.) at para 11 [Abdullahi]: “Nonetheless, the Applicant, who jus- tifiably was surprised that the evidence he presented to the RPD was not sufficient, endeavoured to provide further evidence to the RAD. I find that the further evidence falls under the category of evidence that could not reasonably be expected as set out in section 110(4) of IRPA.” 23 Abdullahi must be understood within its unique factual context. In that case, the RPD instructed the claimant to provide an affidavit or letter from his roommate to establish his identity. The claimant provided a letter. The RPD then faulted him for not providing an affidavit. Justice Hughes found this to be unreasonable because the claimant had been presented with both options. Abdullahi cannot be taken as authority for the proposition that an appellant before the RAD may present new evidence every time he or she is surprised by the RPD’s decision, particularly in this case where the hearing before the RPD took place over a number of days and there was a hiatus of several months before the RPD rendered its decision. 24 I therefore conclude that the RAD’s reasons for admitting the new evidence are neither transparent nor intelligible. Reasons are adequate if they permit a reviewing court to understand why the tribunal made its decision, and to determine whether the conclusions fall within the range of acceptable outcomes in light of the evidence before the tribunal (N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at paras 16-18). The RAD relied extensively on the newly-admitted evidence in support of its decision to grant Ms. Desalegn’s appeal. Its failure to provide an adequate justification for admitting the new evidence is sufficient to dispose of the application for judicial review. I will nevertheless comment briefly on the second ground for judicial review advanced on behalf of the Minister.

B. Was the RAD’s determination that Ms. Desalegn is a Convention refugee reasonable? 25 The RAD’s decision to substitute its own determination for that of the RPD is subject to review by this Court against the standard of reasona- 258 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

bleness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.); Singh c. Canada (Ministre de la citoyennet´e et de l’immigration), 2014 FC 1208 (F.C.) at para 25). 26 The determinative issue before the RPD was Ms. Desalegn’s credibility. The RPD rejected Ms. Desalegn’s claim because of numerous inconsistencies and contradictions in her testimony, the information she provided in her Basis of Claim form, and the information contained in the forms she submitted to the Minister in support of her application for a Temporary Resident Visa. 27 The RAD opted for a wholly different approach. It did not examine the RPD’s credibility findings, nor did it address the grounds that Ms. Desalegn advanced in support of her appeal. Instead, the RAD referred to the new evidence it had admitted and some other information in the record that it held had not been properly considered by the RPD. The RAD then listed a number of factual findings that it described as “uncontended”, i.e., uncontentious or uncontroversial. 28 However, many of the findings were very much in contention, and some had been explicitly rejected by the RPD. The RAD did not address the RPD’s rejection of Ms. Desalegn’s claim to be a political dissident because she knew very little about the political parties to which she allegedly belonged. Nor did the RAD address the RPD’s finding that there was a lack of objective evidence to corroborate her claim that she had been arrested. Instead, the RAD simply found that Ms. Desalegn had been arrested and continued to be “of interest to the authorities.” Again, the RAD’s reasons are neither transparent nor intelligible. 29 The RAD owes deference to the RPD’s assessments of credibility that are based on witnesses’ testimony (Ngandu v. Canada (Minister of Citizenship and Immigration), 2015 FC 423 (F.C.) at para 31, citing R. v. S. (N.), 2012 SCC 72 (S.C.C.) at para 25). This is an area where the RPD enjoys a particular advantage (Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 (F.C.) at paras 54-55; Yetna c. Canada (Ministre de la Citoyennet´e et de l’Immigration), 2014 FC 858 (F.C.) at para 17). It was unreasonable for the RAD to substitute its own determination of Ms. Desalegn’s credibility without affording deference to the RPD’s credibility findings or explaining why it considered those findings to be wrong. Canada (MCI) v. Desalegn Simon Fothergill J. 259

V. Conclusion 30 The application for judicial review is allowed and the matter is remitted to a differently-constituted panel of the RAD for re-determination. No question is certified for appeal.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed and the matter is remitted to a differently-constituted panel of the RAD for redetermination; 2. No question is certified for appeal. Application granted. 260 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: K. (R.) v. Canada (Minister of Citizenship and Immigration)] R.K. and C.K., Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5525-14 2015 FC 1304, 2015 CF 1304 E. Heneghan J. Heard: July 20, 2015 Judgment: December 23, 2015 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Miscellaneous –––– Refugee claimants were mother and child citizens of Ethiopia — Mother alleged fear of persecution by reason of political opinion, specifically fear of persecution arising from her activities on behalf of political party — Refugee Protection Divi- sion found claimant lacked credibility and declined claim — Refugee Appeal Division (appeal division) heard claimant’s appeal on basis of new issue that had not arisen at original hearing — New issue was sexual assault of claimant while arrested in connection with political opinion — Appeal division clearly stated that sexual assault issue raised question of credibility and that state protection was in issue — Appeal division further stated that oral hearing of appeal as to address new evidence only and not to respond to original decision — Appeal division found conclusion of Refugee Protection Division to be reasonable and rejected claimant’s evidence regarding involvement with relevant political party and that she minimized degree of her involvement to avoid questions about sexual assault — Claimants applied for judicial review — Application granted — Decision of Refugee Appeal Division set aside and matter remitted to different panel of appeal division for new hearing — Once appeal division advised that it would accept new evidence on behalf of claimants and proceed with hearing, it should have dealt with all evidence on de novo basis — Appeal division committed reviewable error by failing to conduct full de novo hearing upon claimants’ appeal — Certified question was whether there was any deference owed by appeal division to Refugee Protection Division’s credibility findings where appeal division held hearing under s. 110(6) of Immigration and Refugee Protec- tion Act. Cases considered by E. Heneghan J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 160 N.R. 315, 1993 CarswellNat 303, [1993] F.C.J. No. 732 (Fed. C.A.) — referred to K. (R.) v. Canada (MCI) 261

Alvarez c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CF 702, 2014 CarswellNat 2620, 2014 FC 702, 2014 CarswellNat 2863, [2014] F.C.J. No. 740 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Thanabalasingham (2004), 2004 FCA 4, 2004 CarswellNat 22, 2004 CAF 4, 2004 CarswellNat 782, 315 N.R. 91, 236 D.L.R. (4th) 329, 10 Admin. L.R. (4th) 285, 247 F.T.R. 159 (note), [2004] F.C.J. No. 15, 38 Imm. L.R. (3d) 1, [2004] 3 F.C.R. 572 (F.C.A.) — 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 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 Newterm Ltd., Re (1988), 38 M.P.L.R. 17, 70 Nfld. & P.E.I.R. 216, 215 A.P.R. 216, 1988 CarswellNfld 21, [1988] N.J. No. 97 (Nfld. T.D.) — considered Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 89, 2004 CarswellNat 544, 318 N.R. 365, 36 Imm. L.R. (3d) 167, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 96 — referred to s. 97 — referred to s. 97(1) — referred to s. 110(1) — referred to s. 110(3) — considered s. 110(4) — referred to s. 110(6) — considered s. 171 — considered s. 171(a) — considered s. 171(a.1) [en. 2010, c. 8, s. 28(1)] — considered s. 171(a.2) [en. 2010, c. 8, s. 28(1)] — considered 262 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

s. 171(a.3) [en. 2010, c. 8, s. 28(1)] — considered Rules considered: Refugee Appeal Division Rules, SOR/2012-257 R. 3(3)(d) — considered R. 21 — considered

APPLICATION by refugee claimants for judicial review of decision by Refugee Appeal Division dismissing claim for refugee protection.

Prasanna Balasundaram, for Applicants A. Leena Jaakkimainen, for Respondent

E. Heneghan J.:

1 Ms. R.K. (the “Principal Applicant”) and her child C.K. (collectively, the “Applicants”) seek judicial review of a decision of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”). In that decision, the RAD confirmed the decision of the Immigration and Refugee Board, Refugee Protection Division (the “RPD”), dismissing their claim for protection as Convention Refugees or persons in need of protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Pro- tection Act, S.C. 2001 c. 27 (the “Act”). 2 The Applicants are citizens of Ethiopia. They came to Canada in Au- gust 2013 with the assistance of a smuggler. The Principal Applicant’s Basis of Claim (“BOC”) form, dated September 6, 2013, sets out the basis of her fear as being her political opinion, specifically a fear of persecution arising from her activities on behalf of the X Party. 3 The Principal Applicant testified before the RPD. She also provided documentary and further evidence including news articles detailing the persecution of the X Party members by Ethiopian police and an Amnesty International Public Statement. The RPD, in a decision dated December 6, 2013, declined her claim on the grounds of lack of credibility. 4 By Notice of Appeal dated December 10, 2013, the Applicants appealed to the RAD. 5 The Applicants filed a written statement pursuant to Rule 3(d) of the Refugee Appeal Division Rules, SOR/2012-257 (the “RAD Rules”), advising as follows: Please be advised that the Appellants are relying on evidence referred to in s. 110(4) of the Immigration and Refugee Protection Act, S.C. K. (R.) v. Canada (MCI) E. Heneghan J. 263

2001, c. 27, namely her affidavit sworn on January 6, 2014 and enclosed in this Appeal Record and the attached exhibits (not including exhibits E, F and G which were already before the Refugee Protec- tion Division). 6 The Applicants did not request that a hearing be held pursuant to subsection 110(6) of the Act. However, the RAD, by Notice dated April 4, 2014, advised it would convoke an oral hearing of the Applicants’ appeal. The RAD identified the issues to be considered at the hearing, as follows: 1. Is the allegation of rape made by the Principal Appellant ... in her affidavit, pages 18 to 24 of the Appellant’s Record credible and trustworthy? 2. If so, are the Principal Appellant and the Minor Appellant ... entitled to refugee protection under sections 96 or 97 of the Immigra- tion and Refugee Protection Act, S.C. 2001, c.27 (IRPA) and, in particular, is it established that the appellants have rebutted the presumption of state protection? 3. All new evidence 4. [sic] 5. [sic] 7 By another notice dated April 23, 2014, the RAD rescheduled the hearing and restated the issues as follows: 1. Is the allegation of rape made by the Principal Appellant ... in her affidavit at pages 18 to 24 of the Appellant’s Record credible and trustworthy? 2. If so, are the Principal Appellant and the Minor Appellant ... entitled to refugee protection under sections 96 or 97 of the Immigra- tion and Refugee Protection Act, S.C. 2001, c. 27 (IPRA) and, in particular, is it established that the appellants have rebutted the presumption of state protection?” [sic] 8 The hearing before the RAD proceeded on May 28, 2014. Question- ing was conducted first by Counsel for the Applicants and then by the RAD. 9 At the outset of the hearing, the RAD clearly stated the oral hearing was granted on the basis of a new issue that had “not arisen at the original hearing” and that issue was the sexual assault of the Applicant while arrested in X date, in connection with her political opinion. The RAD 264 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

further clearly stated that the issue of sexual assault raised a question of credibility. Finally, the RAD said that state protection was in issue. 10 The evidence before the RAD included the Principal Applicant’s personal testimony, new documentary evidence that was submitted pursuant to Rule 21 of the RAD Rules, a report from a psychotherapist and an amended BOC narrative in which the Principal Applicant disclosed that she had been raped by a policeman while detained in X date. She further disclosed that she had deliberately withheld evidence about this incident when she presented her original BOC and while testifying before the RPD in November 2013. 11 At the beginning of the hearing the RAD clearly stated that the oral hearing of the appeal was to address the new evidence only, not to respond to the original decision. 12 The RAD further said that the hearing was to be restricted to matters raised in the Notice of Appeal. 13 The most important part of the new evidence was the Principal Appli- cant’s disclosure of the sexual assault, that she alleged was committed against her during her second detention by the police in X date. 14 The Principal Applicant had disclosed the sexual assault in the affidavit that she submitted as part of her Notice of Appeal. She also testified about this incident. 15 The RAD, in its decision, reviewed the decision of the RPD upon the standard of reasonableness. It purported to apply that standard to the RPD, in light of the new evidence before it. It gave no weight to the report of the psychotherapist or to the Notice from the Police Commis- sion dated X date. 16 The RAD found the conclusion of the RPD upon reavailment to be reasonable. It rejected the Principal Applicant’s evidence about her involvement with the X Party and that she minimized the degree of her involvement in order to avoid questions about the sexual assault. 17 The RAD found that the credibility concerns were significant. It noted inconsistencies in her explanation for non-disclosure of the sexual assault to the RPD. It found insufficient evidence of her membership in the X Party and ultimately concluded that the negative credibility findings of the RPD were reasonable. 18 In their submissions upon this application for judicial review, the Ap- plicants raise the following issues: K. (R.) v. Canada (MCI) E. Heneghan J. 265

1. In adopting the reasonableness standard of review, did the RAD use the appropriate standard, if one was at all warranted? 2. Did the RAD breach its duty of procedural fairness and natural justice in not providing appropriate notice of the case to be met? 3. Is the Panel’s credibility analysis flawed as a result of its failure to properly consider or apply the General Guidelines [sic]? 4. Did the Panel engage in misapprehension of key evidence central to R.K.’s claim? 19 The issue of an alleged breach of procedural fairness is reviewable on the standard of correctness; see the decision in Canada (Minister of Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 43. 20 The question whether the RAD should proceed on a de novo basis when it accepts new evidence raises a question of law and is reviewable on the standard of correctness. The issues of the negative credibility finding and assessment of the evidence are reviewable on the standard of reasonableness; see the decision in Aguebor v. Canada (Minister of Employment & Immigration) (1993), 160 N.R. 315 (Fed. C.A.). On judicial review, in order to meet the reasonableness standard, the reasons offered must be justifiable, transparent, intelligible and fall within a range of possible, acceptable outcomes; see the decision in New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 47. 21 The RAD was created to allow for appeals from decisions of the RPD granting or refusing claims for refugee protection; see subsection 110(1). 22 Subsection 110(3) provides that an appeal will proceed on the basis of the record before the RAD and without a hearing. 23 New documentary evidence may be present to the RAD; see subsection 110(4). Subsection 110(6) allows the RAD to hold a hearing, if the new documentary evidence addresses certain criteria. Subsections 110(4) and 110(6) are relevant to the within proceeding and provide as follows: 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. ... 266 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 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 circon- stances, au moment du rejet. [...] (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois: a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative a` la demande d’asile; c)a ` supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. 24 The first issue raises a question of law and is reviewable on a standard of correctness; see the decision in Alvarez c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2014 FC 702 (F.C.) at paragraph 17. 25 The Applicants argue that the RAD erred by failing to conduct a de novo hearing and in purporting to apply the standard of reasonableness to the findings of the RPD. 26 In my opinion, the dispositive issue in this application is the failure of the RAD to conduct a full de novo review of the Applicants’ claim on the basis of all the evidence before it. 27 The Act is silent as to the manner in which the RAD is to conduct an oral hearing of an appeal. However, in view of the statutory provision that allows it to accept new evidence gives it a discretion to accept new evidence. 28 The Applicants argue that the RAD should use their introduction of new evidence as the basis of a de novo hearing, similar to the procedure followed before the Immigration Appeal Division. K. (R.) v. Canada (MCI) E. Heneghan J. 267

29 The Minister of Citizenship and Immigration (the “Respondent”) argues that the RAD was not required to conduct a de novo hearing upon all the evidence but only upon the new evidence that was presented, after the hearing before the RPD. Otherwise, he submits that the decision of the RAD was reasonable and the application should be dismissed. 30 In Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572 (F.C.A.) at paragraph 6, Justice Rothstein (as he then was) said the following about a de novo hearing: I think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 (F.C.A.), at page 156; Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 (C.A.), at page 166). 31 Section 171 of the Act addresses the process to be followed by the RAD in exercising its appellate function. Subsections 171(a), (a.1), (a.2) and (a.3) are relevant to the within proceeding and provide as follows: 171. In the case of a proceeding of the Refugee Appeal Division, (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; 171. S’agissant de la Section d’appel des réfugiés: a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des el´´ ements de preuve, d’interroger des témoins et de présenter des observations; (a.2) elle n’est pas liée par les règles légales ou techniques de prés- entation de la preuve; 268 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

(a.3) elle peut recevoir les el´´ ements de preuve qu’elle juge cr´edibles ou dignes de foi en l’occurrence et fonder sur eux sa d´ecision; 32 The Applicants submit that these provisions show that Parliament intended that the RAD conduct a de novo review where presiding by way of an oral hearing. 33 The Respondent, on the other hand, argues that only the new evidence should be treated on a de novo basis. 34 I am not persuaded by the submissions of the Respondent. In my opinion, once the RAD advised that it would accept new evidence on behalf of the Applicants and proceed with a hearing, it should have dealt with all the evidence on a de novo basis. 35 Implicit in the RAD’s decision to accept new evidence was its recog- nition that the new evidence related to credibility. Credibility of the Prin- cipal Applicant was a significant issue for the RPD. In a manner analo- gous to proceedings before the Immigration Appeal Division, which are recognized as de novo proceedings where the decision maker makes an independent decision, the RAD should have proceeded on a de novo basis in respect of all evidence. There cannot be a partial de novo proceeding. 36 The Supreme Court of Newfoundland discussed the elements of a de novo hearing in Newterm Ltd., Re (1988), 215 A.P.R. 216 (Nfld. T.D.) at paragraphs 4-5: A hearing de novo is, as the term implies, an altogether fresh or new hearing and not limited to an inquiry to determine if the tribunal acted properly and correctly on the evidence and material before it Black’s Law Dictionary (5th ed.), at page 649 defines, “hearing de novo” in the following manner: Generally, a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing. On hearing ‘de novo’ court hears matter as court of original and not appellate jurisdiction. (My emphasis added). On a hearing de novo the Court is not fettered by the decision of the tribunal and is free to substitute or impose its opinion for that of the tribunal. Its opinion is based on the entirety of the evidence presented at the new hearing. K. (R.) v. Canada (MCI) E. Heneghan J. 269

37 In my opinion, the RAD committed a reviewable error by failing to conduct a full de novo hearing upon the Applicants’ appeal. It is no answer to refer to subsection 171(a.2) of the Act and say that the RAD is master of its own process. The process chosen must give effect to the appeal right conferred by the Act. 38 It is not necessary for me to address the other issues raised by the parties. 39 The Respondent proposed the following question for certification: Is there any deference owed by the Refugee Appeal Division (RAD) to the Refugee Protection Division’s (RPD) credibility findings where the RAD holds a hearing under section 110(6) of the IRPA? 40 The Federal Court of Appeal set out the test for certification in the decision Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365 (F.C.A.), as “a serious question of general importance which would be dispositive of an appeal”. 41 I am satisfied that the proposed question meets this test and the question will be certified.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Refugee Appeal Division is set aside and the matter is remitted to a different panel of the Refugee Appeal Division for a new hearing and, the following question is certified: Is there any deference owed by the Refugee Appeal Division (RAD) to the Refugee Protection Division’s (RPD) credibility findings where the RAD holds a hearing under section 110(6) of the Immigration and Refugee Protection Act, S.C. 2001, c.27? Application granted. 270 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Yaqoob v. Canada (Minister of Citizenship and Immigration)] Fauzia Yaqoob, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-383-15 2015 FC 1370, 2015 CF 1370 Douglas R. Campbell J. Heard: November 25, 2015 Judgment: December 9, 2015 Immigration and citizenship –––– Admission — Temporary entry (visi- tors) — Students –––– Foreign national, citizen of Pakistan, applied to Canada’s High Commission in Islamabad, for study permit — Visa officer denied foreign national’s application, noting she was twice before refused study permit, and officer was not satisfied she was well established in Pakistan and would be genuine student — Foreign national brought application for judicial review — Ap- plication granted — Matter referred back for redetermination by different visa officer — Officer’s reasons were unresponsive to foreign national’s apparently forthright and transparent evidence, and thus it was reasonable to conclude evidence was disregarded — Officer’s decision was not defensible in respect of facts — Officer’s reasons exuded suspicion that foreign national’s application for study permit was being made for improper purpose — Officer breached duty of fairness by failing to provide foreign national opportunity of interview to allow her to disabuse officer’s mind of suspicion which existed in decision-making process. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Procedure — Costs –––– Foreign national, citizen of Pakistan, applied to Canada’s High Commission in Islamabad, for study permit — Visa officer denied foreign national’s application, noting she was twice before refused study permit, and officer was not satisfied she was well established in Pakistan and would be genuine student — Foreign national brought application for judicial review — Application granted — Matter referred back for redetermination by different visa officer — Officer’s reasons were unresponsive to foreign national’s apparently forthright and transparent evidence, and thus it was reasonable to conclude evidence was disregarded — Officer’s decision was not defensible in respect of facts — Officer’s reasons exuded suspicion that foreign national’s application for study permit was being made for improper purpose — Officer breached duty of fairness by failing to provide foreign national Yaqoob v. Canada (MCI) Douglas R. Campbell J. 271

opportunity of interview to allow her to disabuse officer’s mind of suspicion which existed in decision-making process — Given unreasonable and unfair quality of decision making under review, foreign national should be compen- sated for her efforts to engage reasonable and fair consideration — Foreign national was awarded $500 lump sum costs. Cases considered by Douglas R. Campbell J.: 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 Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 22(2) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 216(1) — referred to

APPLICATION by foreign national for judicial review of visa officer’s decision denying her application for study permit.

Mario D. Bellissimo, for Applicant Veronica Cham, for Respondent

Douglas R. Campbell J.:

1 By the present Application, Ms. Yaqoob, a citizen of Pakistan, challenges the decision of a Visa Officer (Officer) dated November 25, 2014 rejecting her request for a study permit to allow her to attend an education program in Canada. 2 Ms. Yaqoob’s application for the study permit was written by her legal Counsel in a detailed letter dated August 5, 2014 and addressed to Canada’s High Commission in Islamabad, Pakistan (Applicant’s Appli- cation Record, pp. 11 - 17). The letter supplied comprehensive details about Ms. Yaqoob’s personal, educational, and professional background, 272 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

including a precise description as to why the program she wished to attend in Canada would be professionally valuable.

I. The Decision 3 The entire reasons for rejection provided by the Officer are as follows: Case reviewed along with all supporting documents. Client is seeking to study at Sheridan College in the field of Business Administration- Marketing for a 3 year diploma. Client already has an MBA and is working in a relevant field. Client has previously been refused two SP’s. Clients [sic] proposed path for continued education does not make sense as they already have an MBA so this type of diploma is not going to enhance any more career prospects. It does not make sense to invest such a large sum of money in this diploma program. After reviewing all aspects I am not satisfied that proposed studies in Canada make sense and justify the expense of studying in Canada. Insufficient information provided regarding how proposed studies would improve career prospects to a degree that would offset the costs of studying abroad. Based on the information on file, I am not satisfied that the PA is well established in Pakistan and would be a genuine student. [Emphasis added] (Applicant’s Application Record, p. 6) On my evaluation, the reasons exude a suspicion that Ms. Yaqoob’s application for a study permit was being made for an improper purpose. Since the Officer’s decision is required to be based on the evidence, an examination of the evidence before the Officer must be carefully considered to determine whether the reasons provided can be supported.

II. The Evidence Submitted on Behalf of Ms. Yaqoob 4 Ms. Yaqoob’s reasons for applying for the study permit are described in her Counsel’s letter under the heading “Program of Studies”: As mentioned above, Fauzia has been accepted into the 3-year Busi- ness Administration — Marketing program with Sheridan College in Brampton. Please find enclosed Letter of Acceptance International Students dated 1l July 2014. The term start date is 2 September 2014 and expected graduation date is in April 2017. The program costs for the first year (2 semesters) consist of: tuition fees-$14,764, inclusive of administrative fees - $476, program fees -$40, service fee - $180, health insurance - $550. The payment due for the first semester was Yaqoob v. Canada (MCI) Douglas R. Campbell J. 273

$7,727. Please find enclosed the Sheridan International Fee Invoice. Fauzia has already paid an amount of $7,777 to Sheridan on 21 July 2014. Please find enclosed her receipt of payment from Sheridan College as well as proof of payment of same issued by TD Canada Trust. Fauzia is looking to develop a more in-depth understanding of the Business Administration with emphasis on Marketing. Having developed acute awareness of international trends while working in the National Bank of Pakistan, she wishes to combine her knowledge in banking and business administration with new trends and new knowledge in marketing, a subject she is very much interested in and wants to pursue even further. She believes that the Business Admin- istration — Marketing program at Sheridan College will provide her with the professional step she needs in order to advance in her career and give her a competitive edge in an increasingly popular field. With a keen interest in marketing, Fauzia is particularly excited about her studies in Canada as she feels that the program at Sheridan University offers a commendable focus on this subject. Upon completion of her studies, Fauzia hopes to have obtained extensive knowledge on the subject and be able to find a good position in the marketing field. In short, Fauzia is confident that this program is the most suitable for her long-term plans. An additional reason for choosing a Canadian institution was that her eldest brother, Naeem is a Canadian citizen, already in Canada, and he is willing to help her while in Canada. In addition, she has another brother, Sohail who is a permanent resident since 2013, currently looking for a job. Being far away from home as an international student, Fauzia and her family find comfort in the fact that she will have her two brothers to support and help her along the way. 5 As to Ms. Yaqoob’s professional life, the following evidence was provided under the heading “Relevant Background Information”: Fauzia is a Pakistani citizen, having been born in Karachi, Pakistan on 21 April 1981. Currently Fauzia resides at C-87, Block 10, Fed- eral B Area in Karachi, Pakistan. Fauzia obtained a Certifi- cate/Diploma in Information Technology at the New Institute of Data Processing in Karachi in June 2001, following which she enrolled in the Master of Business Administration at the Shaheed Zulfikar All Bhutto Institute of Science and Technology, at the Karachi Campus, from the fall 2002 until spring 2004, when she graduated. After obtaining her Master’s degree, Fauzia commenced looking for a job. She was hired as a Project Officer with Standard Chartered Bank from January to November 2005. In December 2005, she began 274 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

work as a Management Information System (MIS)/Budget Officer with the National Bank of Pakistan, Commercial & Retail Banking Group, at their head office in Karachi. She continues to work in this position to date. 6 As to Ms. Yaqoob’s family life, the following details were supplied under the heading “Pakistan versus Ties to Canada”: Fauzia’s mother, Sbamim Fatima, her brother, Shakeel Ahmed, a physician, and her sister, Kaneez Fatima, all live in Karachi. They are a very closely-knit family and they support each other in every aspect of life. Furthermore, as outlined above, Fauzia has a good position with the National Bank of Pakistan, where she has been since 2005. Fauzia has two brothers in Canada, Naeem Ahmed, a Canadian citizen and Sohail Ahmed, a permanent resident. Other than her brothers, she has nobody else in Canada and no other ties here. As outlined above, if Fauzia will be granted the study permit, her eldest brother Naeem, will support Fauzia during her stay in Canada. On balance, Fauzia’s ties to Pakistan are stronger than her ties to Canada. Therefore, we respectfully submit that Fauzia has substantial ties to her home country of Pakistan. Having been born, raised, educated and working in Pakistan, surrounded by the majority of her family and many friends, her life is in Pakistan. 7 And as to Ms. Yaqoob’s future intentions, the following statements were supplied under the heading “Temporary Status / Dual Intent - IRPAs. 22(2)”: Should Fauzia be issued a study permit, she understands the temporary nature of this status, including leaving Canada at the end of her authorized stay. We note that Fauzia had not violated the terms of her temporary status in the past, in the countries she visited. Moreover, she is willing to continue to abide by all terms and conditions imposed. Fauzia also possesses dual intent regarding her status in Canada. Fur- ther to her study permit, she will be eligible to apply for a post-graduate work permit. If she obtains same, then the work experience gathered under her post-graduate work permit (PGWP) will allow Fauzia to apply for permanent resident status under the Canadian Ex- perience Class (CEC). Should she wish to pursue immigration programs available and apply for permanent residence in Canada in the future, this should not prevent such an application. As you are aware, an eventual permanent intention does not preclude an applicant from Yaqoob v. Canada (MCI) Douglas R. Campbell J. 275

becoming a temporary resident, in accordance with section 22(2) of the Immigration and Refugee Protection Act (dual intent). In addition, as indicated by jurisprudence, an applicant’s initial reasons for entering and remaining in Canada may change after one’s arrival in Canada. Such a scenario is described in Patel v. Canada (Minister of Citizenship and Immigration). 2006 FC 224: The current statutory and regulatory scheme does not say that a person’s initial temporary purpose must remain constant and unchanged. The only requirement is the existence of a temporary purpose. See also: Stanislavsky v. Canada (Minister of Citizenship and Immigration) 2003 FC 835. 8 Obviously, the Officer’s reasons are completely unresponsive to the apparently forthright and transparent evidence Ms. Yaqoob submitted, and, thus, it is reasonable to conclude that the evidence was disregarded. As a result, the question is: what evidentiary reason would cause the suspicion exposed in the reasons to arise? Given the dearth of any other reason supported by the evidence, it is clear that Ms. Yaqoob’s history with the High Commission in Karachi was central to the rejection pres- ently under review. 9 This conclusion is based on the Officer’s statements that “client has previously been refused two SP’s” and “based on the information on file, I am not stratified that the PA is well established in Pakistan and would be a genuine student”. In my opinion, it is these statements that expose the unfounded suspicion that, with respect to Ms. Yaqoob’s third application for a study permit, she was not telling the truth about her professional life and family life in Pakistan and her interest in the Business Administration — Marketing program with Sheridan College. 10 In an attempt to ensure that this result would not occur, in the letter or request, Ms. Yaqoob’s Counsel directly addressed the issue: We note that Fauzia previously filed two separate applications for a study permit to Canada. Her first application for a study permit was made in October 2012 that was refused on 22 October 2012. Please see refusal letter attached. In the refusal letter, the immigration officer concluded: You have not satisfied me that you would leave Canada at the end of your stay. In reaching this decision, I considered several factors, including: • Limited employment prospects in your country of residence; 276 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

• Your personal assets and financial status. In June 2013, Fauzia made yet another application for a study permit, which was also refused on 5 June 2013. Please see refusal letter attached. In the refusal letter, the immigration officer concluded: You have not satisfied me that you would leave Canada at the end of your stay. In reaching this decision, I considered several factors, including: • Your travel history; • Your family ties in Canada and in your country of residence; • Purpose of visit; • Your personal assets and financial status. We respectfully submit that the within written submissions herein thoroughly address the factors in issuing a study permit and in particular assuage any concerns expressed by previous officers. [Emphasis added] Given the result, this plea was also apparently disregarded.

III. Reasonableness of the Decision 11 I find that the Visa Officer’s decision is unreasonable. Besides the existence of justification, transparency and intelligibility, reasonableness in decision-making is “concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), para 47) [Emphasis added]. The Officer’s decision is not defensible in respect of the facts.

IV. Breach of the Duty of Fairness 12 Because Ms. Yaqoob’s credibility was the central issue in the decision under review, I find that the Officer breached a duty of fairness owed to her by failing to provide her the opportunity of an interview to allow her to disabuse the Officer’s mind of the suspicion which existed in the decision-making process.

V. Relief 13 As a result, the Officer’s decision must be set aside and Ms. Yaqoob’s application for a study permit must be redetermined. I agree with Counsel for Ms. Yaqoob that the redetermination must be conducted by a different official at a different location than the High Com- Yaqoob v. Canada (MCI) Douglas R. Campbell J. 277

mission in Islamabad. Understandably, Ms. Yaqoob does not trust that this, her fourth attempt to obtain a study permit, will be fairly considered and determined by anyone in that certain office. 14 At the conclusion of the hearing of the present Application, I orally expressed my opinion as stated in these reasons, and, subsequently, the Respondent confirmed that the redetermination can be done at the High Commission of Canada in New Delhi.

Judgment THIS COURT’S JUDGMENT is that the decision under review is set aside and the matter is referred back for redetermination by a different official on the following directions: The redetermination be conducted by an official at the High Commis- sion of Canada in New Delhi, and if, on redetermination, a concern arises that Ms. Yaqoob’s application does not meet the requirements of s. 216(1) of the IRPA, an interview of Ms. Yaqoob be conducted in person, by teleconference, or by video-conference, in the presence of a representative, if she so requests. I find that there are special reasons to order costs in favour of Ms. Yaqoob to be paid by the Respondent. Simply put, given the especially unreasonable and unfair quality of the decision-making under review, Ms. Yaqoob should be provided with compensation for her efforts to engage reasonable and fair consideration. Thus, costs are awarded in the lump sum amount of $500. There is no question to certify. Application granted. 278 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Hameed v. Canada (Minister of Citizenship and Immigration)] Tahira Hameed, Applicant and The Minister of Citizenship and Immigration, Respondent Tahira Hameed, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-6971-13, IMM-1940-15 2015 FC 1353 Anne L. Mactavish J. Heard: November 25, 2015 Judgment: December 8, 2015 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Terrorists –––– Foreign national was citizen of Pakistan and of Urdu-speaking Mohajir ethnic minority — Foreign national was recognized as Convention refugee — Foreign national applied for permanent residence but was found inadmissible to Canada as result of her involvement in MQM-H, organization for which there were reasonable grounds to believe had engaged in terrorism — Foreign national applied for Ministerial relief from inadmissibility determination — Minister refused application for Ministerial relief — Foreign national applied for judicial review — Application dismissed — Minister did not treat foreign national’s past membership in MQM-H as being determinative of her application for Ministerial relief — Instead, Minister balanced competing considerations including nature and extent of foreign national’s involvement with MQM-H, role that she played within organization, and commitment to organization against fact that she had been ordinary member, held no authority within organization and was unaware of MQM-H’s acts of violence — In reviewing reasonableness of Minister’s exercise of discretion under s. 34(2) of Immigration and Refugee Protection Act (Can.), court is not entitled to re-weigh evidence that was before Minister — Where Minister has considered and weighed all of factors relevant to application for Ministerial relief, decision should be found to be reasonable — Minister considered foreign national’s submissions regarding humanitarian and compassionate considerations with respect to best interests her five children in Canada, however according to Supreme Court of Canada jurisprudence, predominant considerations in application for Ministerial relief are Canada’s national security and public safety — Applications for Ministerial relief under s. 34(2) of Act are not intended to be alternate form of humanitarian and compassionate review — Min- Hameed v. Canada (MCI) 279 ister’s decision refusing to grant Ministerial relief to foreign national was reasonable. Cases considered by Anne L. Mactavish 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, [2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — considered Al Yamani v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 381, 2007 CarswellNat 830, 2007 CF 381, 2007 Car- swellNat 2558, 62 Imm. L.R. (3d) 203, [2007] F.C.J. No. 520, 311 F.T.R. 193 (Eng.) (F.C.) — referred to Kanaan v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 241, 2008 CarswellNat 427, 2008 CF 241, 2008 Car- swellNat 1854, 71 Imm. L.R. (3d) 63, [2008] F.C.J. No. 301 (F.C.) — referred to Khalil v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 2014 CarswellNat 3753, 2014 FCA 213, 464 N.R. 98, 2014 CAF 213, 2014 CarswellNat 5945, 30 Imm. L.R. (4th) 203 (F.C.A.) — referred to Soe v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 461, 2007 CarswellNat 1007, 2007 CF 461, 2007 CarswellNat 2635, [2007] F.C.J. No. 620 (F.C.) — considered Statutes considered: Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 Generally — referred to Immigration Act, R.S.C. 1985, c. I-2 s. 19(1)(f)(iii)(B) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25(1) — considered s. 34 — considered s. 34(1)(f) — considered s. 34(2) — considered s. 35 — considered s. 37 — considered

APPLICATION for judicial review by foreign national, from decision of respondent ministry of public safety upholding immigration officer’s decision to dismiss foreign national’s application for permanent residence.

Mr. Lorne Waldman, for Applicant Mr. Bernard Assan, for Respondents, Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness 280 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Anne L. Mactavish J.:

1 Before me are two applications for judicial review brought by Tahira Hameed. The first relates to the decision of an immigration officer that found Ms. Hameed to be inadmissible to Canada for being a member of the Haqiqi branch of the Muttahida Quami Movement (MQM-H), an organization for which there are reasonable grounds to believe has engaged in terrorism. The second application relates to the decision of the Min- ister of Public Safety and Emergency Preparedness refusing to grant Ministerial relief from the inadmissibility finding to Ms. Hameed. 2 Ms. Hameed submits that the Minister’s decision refusing to grant her Ministerial relief was unreasonable to the extent that the decision was based on alleged inconsistencies in her evidence, as the inconsistencies were either minor or non-existent. Ms. Hameed further argues that the Minister gave undue weight to Ms. Hameed’s past membership in the MQM-H, and that he failed to have sufficient regard to the brief, low- level and non-violent nature of her involvement with the organization. Ms. Hameed also asserts that the Minister failed to give sufficient consideration to the compelling personal factors favoring the granting of relief, including the best interests of her five Canadian-born children. 3 Ms. Hameed has not made any substantive submissions with respect to the reasonableness of the inadmissibility finding. She accepts that if the Minister’s decision denying her Ministerial relief is upheld, the application challenging the inadmissibility finding should properly be dismissed. She submits, however, that if the decision of the Minister refusing Ministerial relief is set aside, it should follow that the inadmissibility decision should also be quashed. 4 For the reasons that follow, I have concluded that the Minister’s decision refusing to grant Ministerial relief to Ms. Hameed was reasonable. Consequently, both applications for judicial review will be dismissed.

I. Background 5 Ms. Hameed, who is a nurse by training, is a citizen of Pakistan and a member of the Urdu-speaking Mohajir ethnic minority. She comes from a politically active family who was involved in the Mohajir Quami Movement. In 1993, Ms. Hameed joined the women’s wing of the MQM-H at the urging of her father, and she helped the MQM-H establish a family planning clinic in Karachi, where she volunteered several Hameed v. Canada (MCI) Anne L. Mactavish J. 281

days a week. Ms. Hameed also raised funds for the clinic through the MQM-H. 6 In August of 1995, Ms. Hameed was kidnapped by members of the MQM-A, a rival of the MQM-H, outside of the health clinic where she volunteered. She was then forced to treat a gun-shot victim. While she was treating the victim, the police raided the building in which she was being held and arrested her. Ms. Hameed was released the next day on the promise that she would identify her kidnappers. 7 Ms. Hameed says that she then began receiving threats from the MQM-A, prompting her father to send her to Islamabad in order to keep her safe. However, in November of 1996, Ms. Hameed was the subject of another kidnapping attempt, this one being unsuccessful. Ms. Hameed then fled to Lahore, although she subsequently returned to Karachi. 8 In March of 1997, Ms. Hameed and her brother were the subject of an attack by members of the MQM-A, which caused serious injuries to them both. Two months later, Ms. Hameed’s fianc´e was kidnapped, tortured and killed for being an MQM-H member. On June 10, 1997, Ms. Hameed was wounded in an attack by unknown gunman while at a meeting of the MQM-H’s women’s wing. A month later, her brothers were kidnapped and they have never been seen again. 9 In August of 1997, Ms. Hameed and her father were arrested and tortured by the police, who questioned them about the death of several police officers allegedly killed by members of the MQM-H. Ms. Hameed and her father were later released upon the payment of a bribe. Ms. Hameed’s father advised her that she should leave Pakistan, which she did on August 28, 1997, arriving in Canada two days later. 10 Once in Canada, Ms. Hameed remained in contact with the MQM-H through their office in Chicago, although there is a dispute as to the nature and extent of her involvement with the North American branch of the organization. 11 Ms. Hameed was recognized as a Convention refugee in 1999, and she applied for permanent residence that same year. In 2002, Ms. Hameed was reported to be inadmissible to Canada pursuant to section 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2, as a result of her involvement in the MQM-H. 12 Ms. Hameed applied for Ministerial relief from the inadmissibility determination on April 25, 2002. Her application was first refused on June 19, 2013. However, this decision was later set aside on consent to 282 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

allow the Minister to reconsider his decision in light of the Supreme Court’s decision in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.). 13 On October 16, 2013, Ms. Hameed’s application for permanent residence was denied, and on March 31, 2015, the Minister once again refused Ms. Hameed’s application for Ministerial relief.

II. The Inadmissibility Finding 14 Although she takes issue with findings made with respect to the nature and extent of her involvement with the organization, Ms. Hameed admits that she was a member of the MQM-H while she lived in Paki- stan. She has also not disputed that there are reasonable grounds to believe that the MQM-H has engaged in terrorism, although she says that she was not aware of this at the relevant time. There is thus no substantive reason to set aside the decision finding that Ms. Hameed was inadmissible to Canada under paragraph 34(1)(f) of the Immigration and Ref- ugee Protection Act, S.C. 2001, c. 27. 15 This leaves the question of whether the Ministerial relief decision was reasonable.

III. The Minister’s Decision Denying Relief to Ms. Hameed 16 As is the practice in cases such as this, the Canada Border Service Agency prepared a briefing note summarizing Ms. Hameed’s application for Ministerial relief for consideration by the Minister. 17 The briefing note provides an overview of the Ministerial relief process and identifies the legal test to be applied by the Minister in deciding whether relief should be granted to Ms. Hameed. 18 The document contains background information regarding both the MQM-H, and its predecessor, the MQM. After reviewing Ms. Hameed’s immigration history, the briefing note provides a detailed discussion of her involvement with the MQM-H, including her version of certain events and her position on various issues. The briefing note then provides an assessment of Ms. Hameed’s application, discussing the evidence weighing against her, and explaining why Ms. Hameed’s arguments on various points should not be accepted. The analysis ends with a recommendation by the President of the Canada Border Services Agency that Ministerial relief not be granted to Ms. Hameed. 19 The document concludes with a statement by the Minister that he was “not satisfied that the presence of Ms. Tahira Hameed in Canada would Hameed v. Canada (MCI) Anne L. Mactavish J. 283

not be detrimental to the national interest”. Consequently, Ministerial relief was denied.

IV. Ms. Hameed’s Submissions 20 Ms. Hameed submits that the Minister’s decision was based upon two principle considerations: her past membership in the MQM-H, and the alleged inconsistencies in her evidence. 21 To the extent that the Minister’s decision was based upon her past membership in the MQM-H, Ms. Hameed says that the decision is unreasonable, as the Minister failed to fully appreciate the limited, low-level, humanitarian role that she played within the organization. The Minister further erred, Ms. Hameed says, by finding inconsistencies in her evidence where none existed, or by basing the decision on inconsistencies in her evidence that were minor or inconsequential. 22 Finally, Ms. Hameed submits that the Minister erred by failing to give sufficient consideration to the humanitarian considerations that were raised in her application for Ministerial relief. These considerations included the best interests of Ms. Hameed’s five Canadian-born children, and the impact that denying relief to Ms. Hameed would have on her husband’s immigration status. 23 Each of these arguments will be addressed in turn. Before doing so, however, it is important to understand the principles applicable to judicial reviews of Ministerial decisions under subsection 34(2) of IRPA.

V. Legal Principles Governing Applications for Ministerial Relief 24 It is the applicant for Ministerial relief who bears the onus of satisfy- ing the Minister that his or her presence in Canada would not be detrimental to the national interest: Al Yamani v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 381 (F.C.) at para. 69, (2007), 311 F.T.R. 193 (Eng.) (F.C.). 25 Where the Minister adopts the recommendation contained in a CBSA briefing note, the briefing note will be taken to be the Minister’s reasons: Al Yamani, above at para. 52; Khalil v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 213 (F.C.A.) at para. 29, (2014), 464 N.R. 98 (F.C.A.). 26 The test to be applied by the Minister in deciding whether Ministerial relief should be granted in a given case was discussed by the Supreme Court of Canada in Agraira, above. There, the Court held that “a broad range of factors may be relevant to the determination of what is in the 284 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

‘national interest’, for the purposes of s. 34(2)”: at para. 87. In general, the Minister should be guided by the following factors: 1. Will the applicant’s presence in Canada be offensive to the Canadian public? 2. Have all ties with the regime/organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant may be benefiting from previous membership in the regime/organization? 5. Has the person adopted the democratic values of Canadian society? Agraira, above at para. 87. 27 Applications for Ministerial relief under subsection 34(2) of IRPA are not intended to be an alternate form of humanitarian and compassionate review. Personal factors relating to the individual applicant may, however, be relevant in the context of an application for Ministerial relief, where, for example, they could shed light on the applicant’s personal characteristics in determining whether he or she can be viewed as a threat to the security of Canada: Agraira, above at para. 84. 28 Given the discretionary nature of subsection 34(2) decisions, the standard of review to be applied in reviewing the substance of a decision of the Minister refusing to grant Ministerial relief is that of reasonableness: Agraira, above at paras. 49-50. An interpretation of the national interest that relates primarily to national security and public safety, but which does not exclude the other considerations is reasonable: Agraira, above, at para. 88. 29 With this understanding of the relevant principles governing a case such as this, I will turn next to consider Ms. Hameed’s arguments as to why the Minister’s decision was unreasonable.

VI. Ms. Hameed’s Past Membership in the MQM-H 30 It is a reviewable error for the Minister to refuse an application for Ministerial relief simply because the applicant was a member of an organization for which there are reasonable grounds to believe has engaged in terrorism: Soe v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 461 (F.C.) at paras. 32-35, [2007] F.C.J. No. 620 (F.C.); Kanaan v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 241 (F.C.) at paras. 6-8, (2008), 71 Imm. L.R. Hameed v. Canada (MCI) Anne L. Mactavish J. 285

(3d) 63 (F.C.). Section 34(2) of IRPA is only engaged once an individual has been found to be inadmissible to Canada for being a member of such an organization, and as Justice Phelan noted in Soe, above, at para. 34, treating past membership as determinative of an application for Ministe- rial relief would render the exercise of discretion meaningless. 31 This is not, however, such a case. The Minister did not treat Ms. Hameed’s past membership in the MQM-H as being determinative of her application for Ministerial relief. Instead, the Minister had regard to the nature and extent of her involvement with the MQM-H, the role that she played within the organization, and the commitment to the organization that was demonstrated by her continued involvement with the organization, despite facing intense persecution as a result of that involvement. 32 At the same time, the reasons specifically note Ms. Hameed’s position that: • She was an ordinary member of the MQM-H and held no positions of authority within the organization; • Her participation in the MQM-H primarily consisted of healthcare delivery at a clinic established by the organization; • Any monies that she may have raised for the MQM-H were intended for use in the family planning clinic; and • She was unaware of the MQM-H’s acts of violence, and she would not have joined the organization had she known that it had engaged in violence. 33 The Minister balanced these competing considerations, and, at the end of the day, what Ms. Hameed takes issue with is the weight that was ascribed to the factors relating to her past membership in the MQM-H that militated against the granting of relief relative to the weight that was ascribed to factors that might have favored the granting of Ministerial relief. 34 In reviewing the reasonableness of the Minister’s exercise of discretion under subsection 34(2) of IRPA, the Court is not, however, entitled to re-weigh the evidence that was before the Minister. Where, as here, the Minister has considered and weighed all of the factors relevant to an application for Ministerial relief, the decision should be found to be reasonable: Agraira, above at para. 91. 286 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

VII. The Inconsistencies in Ms. Hameed’s Evidence 35 Ms. Hameed also takes issue with the Minister’s reliance on alleged inconsistencies in the submissions that she has made over the years. Ac- cording to Ms. Hameed, the essential nature of her story has been re- markably consistent, and the Minister “was really over-reaching” in finding material inconsistencies in her evidence where none existed. 36 Inconsistencies were noted in Ms. Hameed’s evidence on a number of points, including the circumstances under which she joined the MQM-H, the nature of the MQM-H meetings that she attended in Pakistan, her role in recruiting members into the MQM-H, and the nature and extent of her involvement with the MQM-H after her arrival in Canada. 37 The briefing note specifically identifies the various submissions that have been made by Ms. Hameed over the years on these points, flagging where there were inconsistencies in her evidence. 38 For example, the note observes that in her application for refugee protection and in other submissions that she has made to Canadian immigration authorities over the years, Ms. Hameed maintained that her decision to join the MQM-H had been a voluntary one, although she says that she joined the organization with the encouragement of her father. 39 In contrast, in her most recent submissions in support of her application for Ministerial relief, Ms. Hameed maintained that her decision to join the MQM-H was not in fact voluntary, but that she was pressured into joining the organization by her father and brother, even though she had no interest in politics. Ms. Hameed stated that it was not open to her to resist the wishes of her male family members, as she lived in a male- dominated society. She further explained that she had not previously mentioned the duress that she was under, as it would have been disloyal for her to speak of her father in this manner. This does not, of course, explain why it was now appropriate for her to do so. 40 Similarly, Ms. Hameed’s initial submissions to the Minister stated that while she was in Pakistan, she was involved in encouraging other women to join the MQM-H’s women’s wing. She now states, however, that she was not involved in recruiting women for the MQM-H’s political activities, but only for the organization’s humanitarian endeavours, such as the health clinic. 41 Insofar as the nature and extent of her involvement with the MQM-H in North America is concerned, Ms. Hameed provided conflicting evidence with respect to the duration and frequency of her contact with the Hameed v. Canada (MCI) Anne L. Mactavish J. 287

MQM-H’s Chicago office. She had variously stated that she ceased being active in the MQM-H soon after her arrival in Canada, that she ceased being in contact with the organization in 1999, and that she was still a member at the time of her CSIS and CIC interviews in 2000 and 2001. 42 Ms. Hameed now says that she was initially in contact with the MQM-H office in Chicago in order to obtain proof of membership in the organization for her refugee hearing. She also now states that she con- tacted the Chicago office on a few subsequent occasions in order to attempt to obtain information regarding her family members still in Pakistan. 43 In each of these cases, the briefing note reviewed the information that Ms. Hameed had provided over time, highlighting instances where her evidence has conflicted. It was ultimately up to the Minister to decide how significant these inconsistencies were, and, once again, it is not the role of this Court, sitting in review of the Minister’s decision, to re-weigh the evidence that was before the Minister.

VIII. The Minister’s Consideration of Ms. Hameed’s H&C Factors 44 Ms. Hameed’s final argument relates to the way that the Minister dealt with the humanitarian and compassionate considerations that were raised by her application for Ministerial relief. 45 Ms. Hameed noted in her submissions to the Minister that she is a Convention refugee, that she has five Canadian-born children, and that her spouse is also in Canada. She submitted that it would be contrary to her children’s best interests to have her removed from Canada, and that her husband’s status in Canada would also be put in jeopardy if she was denied Ministerial relief, as he is a failed refugee claimant who was included in her application for permanent residence. 46 In support of her submissions regarding the interests of her children, Ms. Hameed submits that it is in her children’s best interests to remain with both of their parents in Canada. She also provided the Minister with psychological reports outlining the impact that the family’s uncertain immigration status has had on her children’s mental health. 47 Once again, Ms. Hameed’s submissions regarding her personal circumstances and those of her husband, and her submissions regarding the best interests of her children were all outlined, in detail, in the briefing note. It cannot thus be said that the Minister did not have regard to Ms. Hameed’s submissions regarding the humanitarian and compassionate consideration raised by her application. 288 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

48 Indeed, the briefing note explicitly states that Ms. Hameed’s submissions regarding her personal circumstances had been considered, recog- nizing, however, that according to the Supreme Court of Canada’s decision in Agraira, the predominant considerations in an application for Ministerial relief are Canada’s national security and public safety. 49 Ms. Hameed acknowledges that the Supreme Court held in Agraira that applications for Ministerial relief under subsection 34(2) of IRPA are not intended to be an alternate form of humanitarian and compassionate review. Indeed, the Supreme Court expressly stated that H&C factors are more properly considered in the context of an application for permanent residence on humanitarian and compassionate grounds: Agraira, above at para. 84. 50 Ms. Hameed submits, however, that the decision in Agraira was pre- mised on the notion that H&C relief was in fact available to someone in her situation. Given that this is no longer the case, she says that the ruling in Agraira should be revisited. 51 The decision in Agraira was rendered by the Supreme Court on June 20, 2013. The Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 (FRFCA), received royal assent the previous day. Paragraph 9 of the FRFCA amended subsection 25(1) of IRPA, rendering persons found inadmissible to Canada under sections 34, 35 and 37 of IRPA ineligible for humanitarian and compassionate relief under to subsection 25(1) of the Act. 52 Although the FRFCA was introduced in Parliament on June 20, 2012, the Supreme Court did not consider the effect of the pending legislative change in Agraira, and it may be that the question raised by Ms. Hameed will have to be addressed at some point down the road. There are, however, several reasons why this is not the appropriate case in which to do it. 53 The Supreme Court’s decision in Agraira was binding on the Min- ister when he considered Ms. Hameed’s application for Ministerial relief, just as it is binding on me. Although she filed her last set of submissions with the Minister after the enactment of the FRFCA, Ms. Hameed did not make the argument to the Minister that she is now advancing in her submissions. As a result, the Minister cannot be faulted for failing to consider submissions that were not made to him. We also do not have the benefit of a decision by the Minister on this issue to inform the analysis of Ms. Hameed’s new argument. Hameed v. Canada (MCI) Anne L. Mactavish J. 289

54 Ms. Hameed also did not raise this argument in her application for leave, nor did she raise it in the memorandum of fact and law filed in relation to her application for judicial review. Indeed, it appears that Ms. Hameed raised this argument for the very first time at the hearing of her application for judicial review. This was unfair to the respondent, who may have responded differently to the application, had he been aware that the ongoing relevance of Agraira was under challenge. I am therefore not prepared to decide the case on this basis. 55 The Minister expressly considered all of the factors raised by Ms. Hameed in her submissions, including her various H&C factors, before concluding that he was not satisfied that the presence of Ms. Hameed in Canada would not be detrimental to the national interest, and no reviewable error has been identified in his treatment of Ms. Hameed’s H&C factors.

IX. Conclusion 56 Ms. Hameed has not identified any relevant factors that were not considered by the Minister in deciding her application for Ministerial relief, nor has she identified any irrelevant factors that were taken into consideration by the Minister in concluding that it was not in the national interest to provide her with such relief. All of Ms. Hameed’s submissions are essentially an invitation to have the Court reweigh the evidence that was before the Minister. 57 As noted earlier, that is not the role of this Court, sitting in review of the Minister’s decision. While I might well have weighed the competing factors differently, where, as here, the Minister has considered and weighed all of the relevant factors, the decision should be found to be reasonable. Consequently, Ms. Hameed’s application for judicial review is dismissed.

X. The Proposed Certified Question 58 Ms. Hameed proposes the following question for certification: As a result of the removal of the possibility of seeking humanitarian and compassionate consideration pursuant to section 25 of IRPA for persons inadmissible under section 34, 35 or 37, should the Court reconsider the direction of the Supreme Court of Canada in Agraira which excludes consideration of humanitarian and compassionate factors in an application for Ministerial relief? 290 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

59 As noted earlier, I am not prepared to decide this question in considering Ms. Hameed’s application for judicial review. Consequently, the answer to the question would not be dispositive of this application, and I therefore decline to certify it.

Judgment THIS COURT’S JUDGMENT is that these applications for judicial review are dismissed. Application dismissed. Sharma v. Canada (Minister of Public Safety) 291

[Indexed as: Sharma v. Canada (Minister of Public Safety and Emergency Preparedness)] Abhishek Ajay Sharma, Applicant and Minister of Public Safety and Emergency Preparedness, Respondent Abhishek Ajay Sharma, Applicant and Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-7152-14, IMM-7153-14 2015 FC 1315, 2015 CF 1315 R.L. Barnes J. Judgment: November 26, 2015 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was convicted of sexual assault and received conditional sentence of two years less one day — Enforcement officer from Canada Border Security Agency submitting report that expressed concern that applicant was inadmissible to Canada on ground of serious criminality — Minister’s delegate referred applicant’s case to Immigration Division (ID) for admissibility hearing — ID found applicant to be inadmissible to Canada and ordered his deportation — Applicant brought application for judicial review — Application dismissed — No breach of procedural fairness occurred — Appli- cant had benefit of inquiry into mitigating factors he put forward for consideration, including personal interview — There was no breach of duty of fairness in applicant not having been given copy of inadmissibility report before case was referred to ID — Applicant was provided with all rights of due process provided for in authorities — Applicant was aware of circumstances that triggered his difficulties and he was told of risk of inadmissibility finding — Applicant was given interview and had opportunity to make additional submissions, and he took advantage of opportunities — Argument that decision-makers were not alive, attentive or sensitive to best interests of applicant’s child had no merit — Applicant did not provide information about substance of his custodial or visitation rights or extent to which he was involved in child’s life. Cases considered by R.L. Barnes J.: Chand v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 548, 2008 CarswellNat 1676, 2008 CF 548, 2008 Car- swellNat 2787, [2008] F.C.J. No. 876 (F.C.) — referred to Hernandez v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 429, 2005 CarswellNat 825, 45 Imm. L.R. (3d) 249, 2005 CF 429, 2005 292 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

CarswellNat 3370, [2006] 1 F.C.R. 3, 271 F.T.R. 257, [2005] F.C.J. No. 533 (F.C.) — considered Hernandez v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 FC 725, 2007 CarswellNat 1902, 62 Imm. L.R. (3d) 236, 2007 CF 725, 2007 CarswellNat 4085, [2008] 2 F.C.R. 450, 325 F.T.R. 108 (Eng.), [2007] F.C.J. No. 965 (F.C.) — referred to Naidu v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1103, 2006 CarswellNat 2856, [2006] F.C.J. No. 1392, 56 Imm. L.R. (3d) 125, 2006 CF 1103, 2006 CarswellNat 6171 (F.C.) — 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.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 44 — considered s. 44(1) — considered s. 44(2) — considered

APPLICATION for judicial review of finding of inadmissibility.

Counsel — not provided

R.L. Barnes J.:

UPON hearing these applications for judicial review at Winnipeg, Manitoba on August 18, 2015; AND UPON hearing counsel for the parties and reading the materials filed; AND UPON reserving decision; AND UPON determining that these applications be dismissed for the following reasons: 1 The Applicant, Abhishek Ajay Sharma, challenges two related decisions pertaining to a determination that he is inadmissible to Canada on the ground of serious criminality. At the root of his difficulty lies a conviction for sexual assault for which, on June 11, 2013, he received a custodial sentence of two years less a day. 2 The first decision under review is that of a Canadian Border Security Agency [CBSA] enforcement officer [the Officer], made on March 4, 2014 under section 44(1) of the Immigration Refugee and Protection Act, Sharma v. Canada (Minister of Public Safety) R.L. Barnes J. 293

SC 2001, c 27, [IRPA]. The report sent to the Minister by the Officer stated that Mr. Sharma was inadmissible based on the following circumstances: (a) He is not a Canadian citizen; (b) He became a permanent resident on February 12, 2007; and (c) He was convicted of sexual assault at Winnipeg on June 11, 2013 and received a custodial sentence of two years less one day. 3 The second decision under review is that of the Minister’s delegate made on March 4, 2014 under section 44(2) of the IRPA referring Mr. Sharma’s case to the Immigration Division [ID] for an admissibility hearing. 4 On September 15, 2014, the ID found Mr. Sharma to be inadmissible to Canada and it ordered his deportation. That decision was put to the Immigration Appeal Division [IAD], but it declined to hear the matter due to an absence of jurisdiction. 5 One of the issues before me involves procedural fairness, which must be assessed on the basis of correctness. The second issue raised by Mr. Matas concerns the Officer’s assessment of the best interests of the Ap- plicant’s child. That is an issue reviewable on the standard of reasonableness. 6 Mr. Matas contends that the duty of fairness was breached by the failure by one or the other of the two decision-makers to provide him with a copy of the full inadmissibility report (including a highlights report), thereby depriving him of the opportunity to comment on its contents. 7 In oral argument, considerable attention was paid to the scope of the Officer’s discretion to consider personal or mitigating circumstances in the application of section 44 of the IRPA. 8 The law on this issue continues to be unsettled. One school of thought suggests there is no legal obligation to enquire into so-called humanitarian factors but it is, nevertheless, permissible to do so. Another view holds that there is an obligation to consider mitigating evidence before a reference is made to the ID; however the scope of that duty has yet to be clearly defined. 9 The idea that it is up to individual decision-makers to self-define their authority and the scope of their discretion has little appeal. The fact that the departmental manual directs decision-makers to examine, among other things, the degree of a person’s establishment and the potential for 294 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

rehabilitation supports the presence of a uniform legal entitlement to a broad review of relevant factors, either favouring or negating relief. 10 It is, however, unnecessary for me to resolve this issue because, in this case, Mr. Sharma had the benefit of an inquiry into the mitigating factors he put forward for consideration, including a personal interview. Having received the most favourable approach, he has no basis to com- plain about the scope of the mandate adopted by the Officer. 11 Mr. Matas argues with considerable conviction that it was a breach of procedural fairness for the Minister’s delegate to refer Mr. Sharma’s case to the ID for an inadmissibility hearing without having first given him the opportunity to see and comment on the Officer’s highlights report. In addition Mr. Matas argues for a heightened duty of fairness based on the following factors: (a) Mr. Sharma was given a custodial sentence of two years less one day which, at the time, would have allowed for a substantive appeal to the IAD. The sentencing judge was mindful of the collateral consequences of a longer custodial sentence. (b) Within 8 days of Mr. Sharma’s sentencing, the law changed to eliminate a right of appeal to the IAD for custodial sentences of 6 months or more. In the result, Mr. Sharma lost the opportunity to make a case to the IAD to remain in Canada. (c) The best interests of a child were engaged. (d) It was theoretically open to the CBSA to render an inadmissibility report to the ID within 8 days of Mr. Sharma’s sentencing and to thereby preserve a right of appeal to the IAD. The “failure” by the CBSA to act promptly deprived Mr. Sharma of a meaningful opportunity to avoid deportation. 12 In order to resolve the fairness issue raised on behalf of Mr. Sharma, it is necessary to examine the procedural history of this case. It begins with a letter dated January 14, 2014 where the Officer invited Mr. Sharma to make submissions on a range of factors: It is alleged that you may be inadmissible to Canada under section 44(1) of the Immigration and Refugee Protection Act, specifically: Paragraph 36(1)(a) In that there are reasonable grounds to believe is a permanent resident or a foreign national who is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an act of parliament for which a term of imprisonment of 10 years may be imposed or more than six months has been imposed. Sharma v. Canada (Minister of Public Safety) R.L. Barnes J. 295

A decision to allow you to remain in Canada or to seek to have a removal order issued against you will be made in the near future. The next step in the process is to conduct a review of the circumstances of your case. If the officer forms the opinion that your case should be referred for review by the Minister’s delegate or the Immigration and Refugee Board, the report, along with the details of your case will be forwarded for review. Information such as your age at the time you became a permanent resident of Canada, the length of time you have been here; the location of your family support and related responsibilities; your degree of establishment (work, language, community involvement); any criminal activity in which you may have been involved and any other relevant factors will be considered in the decision making process. You may make written submissions, which need to be submitted no later than January 29, 2014, by providing reasons why a review should not be caused. You can fax any pertinent information to me, at 204-984-4009. Should you choose not to submit any information or documentation; a decision will be made based on the information available on your file. 13 On the same day the Officer convened an interview with Mr. Sharma. Among other topics covered were his family ties (including his 3-year- old son), his education, his employment history, his financial circumstances including child support, and his outside affiliations. 14 A month later, Mr. Sharma sent a 9-page submission to the CBSA arguing for leniency. Included with that submission were numerous letters of community and family support. Two of those letters noted his close ties to his son and of the need to maintain the parent/child relationship. 15 On March 4, 2014, the Officer submitted a report under section 44(1) of the IRPA to the Minister expressing her opinion that Mr. Sharma was inadmissible. Included in that report was a highlights report which touched on his family and community support, his son (then living in Calgary), and the details of his criminal conduct and conviction. The Minister’s delegate reviewed the materials and referred the case to an inadmissibility hearing before the ID. 16 Applying the relevant authorities to the process described above, I do not accept that a breach of procedural fairness occurred. I am also not convinced that any of the evidentiary factors raised by Mr. Matas are germaine to the underlying fairness argument. 296 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

17 It is true that the change in the legislation effectively removed a substantive right of appeal and frustrated the intention of the criminal sentencing court. But substantive rights are not infrequently lost by virtue of legislative change and, absent protective transitional provisions, Parlia- ment is presumed to be cognizant of such consequences. The argument that the CBSA should have acted more quickly also has no merit. It is doubtful that the CBSA was even aware of Mr. Sharma’s sentencing in the 8 days before the legislative change and, in any event, there was no realistic possibility that it could have acted within that time-frame even if it was aware. 18 I am also not convinced that any of these considerations, including the best interests of a child, are relevant to the question of whether Mr. Sharma ought to have been given a copy of the Officer’s highlights report before the Minister’s delegate referred his case to the ID. It was either fair to Mr. Sharma for the CBSA to act as it did or it was not. Neither the consequences flowing from the legislative change nor the fact that a child was involved have any relevance to the fairness of the procedures that were followed. 19 The question that remains is whether the duty of fairness required that Mr. Sharma be given a copy of the inadmissibility and highlights report before his case was referred to the ID. Mr. Matas argues that Justice Judith Snider recognized such a duty in Hernandez v. Canada (Minister of Citizenship & Immigration), 2005 FC 429, [2005] F.C.J. No. 533 (F.C.). I do not read her decision in that way. Indeed at paras 71 and 72, she expressly rejected that argument: 71 Implicit in this duty is, in my view, a requirement that the person being interviewed by an immigration officer is informed of the purpose of that interview so that he may make meaningful submissions. Further, I would think that the duty of fairness would require the immigration officer put to the interviewee any information he has that the interviewee would not reasonably be expected to have. A further implication is that the person should be offered the opportunity to have counsel present at any interview or to assist him in preparing written submissions. All of this is part of what CIC has acknowledged is required for the person to “fully understand both the case against them and the nature and purpose of the report”. 72 Given my conclusion that the duty of fairness is “relaxed”, there are a number of procedures that are not essential. As was concluded in Baker, I would agree that an oral interview by the immigration officer is not always required, as long as the affected person is given Sharma v. Canada (Minister of Public Safety) R.L. Barnes J. 297

an opportunity to make submissions and to know the case against him. Nor do I believe that the duty requires that the Officer’s Report be put to the Applicant for a further opportunity to respond prior to the s. 44(2) Referral. The duty of fairness in this case does not reach the same level as in Bhagwandass v. Canada (Minister of Citizenship and Immigration)[2001] 3 F.C. 3 (F.C.A.). Also see Chand v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 548 (F.C.) at paras 23-26, [2008] F.C.J. No. 876 (F.C.) and Hernandez v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 725 (F.C.) at paras 21-24, [2007] F.C.J. No. 965 (F.C.). 20 It is quite clear from the record before me that Mr. Sharma was afforded all of the rights of due process recognized in the above authorities. He was well aware of the circumstances triggering his difficulties. He was told he was at risk of an inadmissibility finding. He was afforded an interview and given the opportunity to make additional submissions. He took advantage of those opportunities albeit without paying much attention to his parental relationship. In these circumstances, the claimed right to challenge the inadmissibility report in advance of its referral to the ID is simply a demand to replicate what had already been afforded to him. No breach of the duty of fairness arises in these circumstances. 21 The further argument that the decision-makers were not alive, attentive or sensitive to the best interests of Mr. Sharma’s young child is also without merit. If there is a lack of detail on this issue in the highlights report, it is a consequence of a lack of attention paid to it by Mr. Sharma. In Naidu v. Canada (Minister of Citizenship & Immigration), 2006 FC 1103, [2006] F.C.J. No. 1392 (F.C.), the Court addressed the failure of an applicant to make out a best interests case in the following way: 17 Notwithstanding the differing views on this issue, the authorities make it clear that an applicant must present sufficient evidence to engage the humanitarian and compassionate discretion. In this case, Mr. Naidu manifestly failed to meet that burden. It is not sufficient to state that a child’s interests will be affected by a deportation because it will rarely be otherwise. What is required is clear and convincing evidence of the likely effect of a deportation upon an affected child. This would typically include evidence of unique personal or economic vulnerabilities or bonds between the parent and child or, where the child is also leaving Canada, evidence of resulting and material disadvantage or risk to the child. 298 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

18 Here, the PRRA Officer had nothing to go on beyond “the bare recital of basic information” (see Alabadleh at paragraph 18). It is not the obligation of a PRRA Officer to make further inquires or to essentially make the case for an applicant. This point has been conclu- sively determined in Alabadleh, above, and in Owusu v. Canada (Minister of Citizenship and Immigration)[2004] F.C.J. No. 158, 2004 FCA 38, where Justice Evans held at paragraph 8: H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. In our view, Mr. Owusu’s H & C application did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them. 22 In this case Mr. Sharma provided no information about the substance of his custodial or visitation rights nor did he describe the extent to which he was actually involved in the life of his child in the face of their geographical separation. 23 It also bears consideration that Mr. Sharma has potential recourse to humanitarian and compassionate relief where the best interests of his child will presumably attract more meaningful attention from both him and the responsible decision-maker: see Varga v. Canada (Minister of Citizenship & Immigration), 2006 FCA 394, [2006] F.C.J. No. 1828 (F.C.A.). 24 For the foregoing reasons, this application is dismissed. 25 In keeping with his usual thoroughness, Mr. Matas has proposed four questions for certification. Two of those questions pertain to the scope of the discretion afforded to decision-makers under section 44 of the IRPA. I decline to certify those questions because they would not be determinative in the face of what took place. Mr. Matas also raises the fairness question. Notwithstanding the apparent uniformity of the decisions on point in this Court, I will, with some hesitation, certify the following question for appeal: Does the duty of fairness require that a report issued under section 44(1) of the IRPA be provided to the affected person before the case is referred to the Immigration Division under section 44(2)? THIS COURT’S JUDGMENT is that this application is dismissed. Sharma v. Canada (Minister of Public Safety) R.L. Barnes J. 299

THIS COURT’S FURTHER JUDGMENT is that the following question be certified: Does the duty of fairness require that a report issued under section 44(1) of the IRPA be provided to the affected person before the case is referred to the Immigration Division under section 44(2)? Application dismissed. 300 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship and Immigration) v. Paramo de Gutierrez] The Minister of Citizenship and Immigration, Applicant and Carolina Del Valle Paramo de Gutierrez Ivan Jesus Gutierrez Dominguez, Respondents Federal Court Docket: IMM-1937-15 2015 FC 1198, 2015 CF 1198 Russel W. Zinn J. Heard: October 14, 2015 Judgment: October 23, 2015 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Role of hearing officer –––– Officer asked respondents, who had made refugee claims, to attend at interview before Refugee Protection Division (RPD) hearing — Officer questioned respondents on statements they made in their basis of claim forms — RPD rejected respondents’ refugee claims — Refugee Appeal Division granted respondents’ appeal — Minister of Citizenship and Immigration brought application for judicial review — Application dismissed — Officer’s jurisdiction to examine respondents ended once their claims for protection were determined eligible and were forwarded to RPD for determination — Respondents’ rights were breached by officer when he directed them to attend interview for purpose of gathering evidence for upcoming hearing, without informing respondents’ counsel. Cases considered by Russel W. Zinn J.: Dehghani v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 245, 101 D.L.R. (4th) 654, [1993] 1 S.C.R. 1053, 150 N.R. 241, 14 C.R.R. (2d) 1, 10 Admin. L.R. (2d) 1, 20 C.R. (4th) 34, 1993 CarswellNat 57, 1993 CarswellNat 1380, EYB 1993-67290, [1993] S.C.J. No. 38 (S.C.C.) — considered Khela v. Mission Institution (2014), 2014 SCC 24, 2014 CarswellBC 778, 2014 CarswellBC 779, [2014] S.C.J. No. 24, 368 D.L.R. (4th) 630, 64 Admin. L.R. (5th) 171, 9 C.R. (7th) 1, 455 N.R. 279, 307 C.C.C. (3d) 427, 2014 CSC 24, (sub nom. Khela v. Mission Institution (Warden)) 599 W.A.C. 91, (sub nom. Mission Institution v. Khela) [2014] 1 S.C.R. 502, (sub nom. Mission Institution v. Khela) 306 C.R.R. (2d) 66, (sub nom. Khela v. Mission Institution (Warden)) 351 B.C.A.C. 91 (S.C.C.) — followed Canada (MCI) v. Paramo de Gutierrez 301

Khosa v. Canada (Minister of Citizenship & Immigration) (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.) — followed 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 (F.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 10(b) — considered Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 s. 15 — considered Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(2)(g) — considered s. 3(2)(h) — considered s. 4 — considered s. 14 — considered s. 15 — considered s. 15(1) — considered s. 16 — considered s. 16(1) — considered s. 16(1.1) [en. 2013, c. 16, s. 5(1)] — considered s. 16(2.1) [en. 2013, c. 16, s. 5(2)] — considered s. 44(2) — considered s. 99(3) — considered s. 100(1) — considered s. 100(1.1) [en. 2010, c. 8, s. 11(1)] — considered s. 167(1) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 28(d) — considered s. 37(2) — considered

APPLICATION by Minister of Citizenship and Immigration for judicial review of Refugee Appeal Division’s decision granting respondents’ appeal from decision rejecting their refugee claims. 302 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Cheryl D. Mitchell, Mark East, for Applicant Mojdeh Shahriari, for Respondents

Russel W. Zinn J. (orally):

1 This application for judicial review raises two issues important to the Canadian refugee determination process: (1) May an officer require a refugee claimant to attend for questioning at any time prior to the determination of the claim by the Refugee Protection Division [RPD], and (2) If the refugee claimant indicates on the Basis of Claim form that he or she has counsel, is it a denial of procedural fairness and natural justice for an officer to question the claimant without notifying counsel and providing counsel an opportunity to attend?

Background 2 On January 4, 2014, the Respondents, a married couple, arrived in Canada at Pearson International Airport from Venezuela on student visas valid to December 31, 2014. On April 28, 2014, the Respondents advised Citizenship and Immigration Canada [CIC] that they wished to make refugee claims. CIC made an appointment with the Respondents to appear for an interview for that purpose on May 6, 2014. The CIC officer who took their applications for protection determined that they were eligible to make a claim for inland refugee status and transmitted their applications to the RPD where they were marked as received on May 9, 2014. A hearing before the RPD was scheduled for July 10, 2014. 3 On June 26, 2014, Karl Chan, a Hearing Advisor employed by the Canada Border Services Agency [CBSA] at the Pacific Region Inland Enforcement Section of the Enforcement and Intelligence Division, called the Respondents and asked them to attend at an interview that day [the June 26th Interview]. Mr. Chan conducted this interview at the request of Garett Toporowski, Minister’s Representative, Inland Enforce- ment Section, Enforcement Intelligence Division, Pacific Region, Can- ada Border Services Agency. Both gentlemen worked within areas falling under the jurisdiction of the Minister of Public Safety and Emer- gency Preparedness — not the Minister of Citizenship and Immigration. 4 After receiving the call, the Respondents attempted to contact the in- terpreter through whom they communicate with their lawyer, but were unable to do so. They attended the interview without their lawyer. They Canada (MCI) v. Paramo de Gutierrez Russel W. Zinn J. 303

did not advise Mr. Chan that they wished to have their lawyer present and he did not ask them if they wished to have their lawyer present. Mr. Chan did not advise the Respondents’ lawyer of the interview, although it is clear from the record that he was well aware that they had counsel. 5 Mr. Chan questioned the Respondents on statements they made in their Basis of Claim forms regarding the factual basis on which they were seeking protection in Canada. 6 On June 30, 2014, Mr. Toporowski filed a Notice of Intention to In- tervene in the Respondents’ refugee claims hearing on behalf of the Min- ister of Public Safety and Emergency Preparedness. It was indicated that the intervention would be by filing documents only. In addition to two documents from third party sources, the documents filed were (i) the solemn declaration of Karl Chan setting out the questions asked and answers provided at the June 26th Interview, and (ii) a second solemn declaration of Karl Chan relating information he was given by the Spanish translator at the June 26th Interview regarding five email messages he had been shown by the Respondents, together with information he later obtained when following up on this. 7 At the hearing on July 10, 2014, counsel for the Respondents applied to exclude from evidence the documents pertaining to the June 26th Inter- view. First, counsel submitted that Karl Chan lacked jurisdiction to conduct the interview. Second, counsel submitted that because Karl Chan had failed to notify her about the interview, admitting evidence obtained during the interview would breach the Respondents’ right to counsel and, therefore, their right to procedural fairness. 8 The presiding RPD member decided to adjourn the hearing in order to allow the Crown to make submissions on the issues Respondents’ counsel had raised. Written submissions on the procedural challenges were provided by the Respondents and the Crown. On October 15, 2014, when the hearing resumed, the RPD dismissed the Respondents’ application to exclude the documents pertaining to the June 26th Interview, with reasons to follow as part of his final decision. The hearing then proceeded on the merits. 9 On October 31, 2014, the RPD issued its decision. The Panel found that Karl Chan had jurisdiction to conduct the June 26th Interview, and further found that Sections 15 and 16 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] gave Karl Chan, a CBSA Of- ficer, jurisdiction to examine a refugee claimant at any time until their claim for protection has been determined by the RPD. The Panel further 304 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

held that “there was no obligation for the CBSA Officer to notify counsel that the interview was scheduled to occur, or to formally provide the claimants with their right to counsel.” 10 The RPD rejected the Respondents’ refugee claims. The primary basis for the decision on the merits was credibility. In this respect the Panel noted: “The most significant concern with the claimants’ evidence on this issue was a contradiction between Ms. Paramo de Gutierrez’s testimony and the answers the claimants provided during their interview with Officer Chan [i.e. the June 26th Interview].” 11 The Respondents appealed the RPD’s decision to the Refugee Appeal Division [RAD]. The Respondents submitted that the RPD violated their rights to procedural fairness by admitting documents pertaining to the June 26th Interview which, they alleged, was unfairly and improperly conducted without notice to their counsel of record, and that, in any event, their rights to procedural fairness were breached because the officer had no jurisdiction to conduct that interview in the first place. 12 The RAD granted the Respondents’ appeal on the basis that the RPD ought to have excluded the June 26th Interview evidence because the officer had obtained that evidence in breach of the Respondents’ rights to counsel. The Appellants had Counsel of Record from the time that the claims were submitted so any and all communications related to the claims, including to attend an interview at the CBSA, should have included the Appellants’ counsel. It is well-established in law and reflected throughout the immigration-related rules, that when an individual has elected to have representation in a proceeding at the IRB and has provided contact information for that representative, all subsequent communications must be through and include that representative unless there are indications that the representation is for limited purposes, which was not the case in this claim. The requirement to communicate with Counsel was tacitly conceded by the Minister in his response to initial objection by the Appellant’s Counsel by indicating that there was a general ‘courtesy’ of notifying counsel about CBSA interviews and that this courtesy would be extended in any similar future event. The Minister’s representative attempted to distinguish between courtesy and legal requirements but that position is inconsistent with the legal principles regarding the nature of representation, which is that the representative stands in the place of the person being represented. Canada (MCI) v. Paramo de Gutierrez Russel W. Zinn J. 305

13 Given its conclusion on the right to counsel, the RAD did not find it necessary to consider whether the officer had the jurisdiction to question the Respondents when he did, although it made some comments in obiter on that issue. 14 The RAD set aside the RPD’s decision and remitted the matter back to the RPD for re-determination by a different member of the Board. It further ordered that the documents pertaining to the June 26th Interview be excluded from evidence on the re-determination. 15 Both parties agreed that the affidavit evidence filed on this application containing information not before the RAD, was not admissible. It has not been considered by the Court in rendering this decision.

Issues 16 The decision under review was made on the right to counsel issue; however, the Applicant has also raised as an issue whether the RAD erred in refusing to decide whether the officer had authority to interview the Respondents after the eligibility decision had been made. At the hearing of this application, counsel for the Applicant did not reject (and in fact, accepted) the Court’s suggestion that it might be appropriate to also deal with the merits of the jurisdiction issue. There is a practicality in so doing. If this review application is allowed and the RAD decision on right to counsel overturned, then it is likely that the Respondents will then ask the RAD to make a decision on the jurisdiction issue, which may then find its way to this Court. If this review is denied, the importance of the issue is such that an appeal to the Federal Court of Appeal is likely, and there the jurisdiction issue will most likely be raised. 17 In any event, the Court has had the benefit of full submissions on the jurisdiction issue and comity suggests that the RPD decision on jurisdiction will be followed by other Panels in future cases and this is very likely to lead again to future appeals to the RAD. It is also of some note that there may be others affected by the jurisdiction question and who will not have a right to appeal to the RAD. For all of these reasons, although the decision under review did not decide the jurisdiction question, I have concluded that it is important and necessary that the Court address it. 18 In her written and oral submissions, counsel for the Respondents noted that “the facts do not support any suggestion that the Minister had any security or criminality concerns.” I accept that observation as accu- rate. Indeed, the line of questioning by Karl Chan during the June 26th 306 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

interview appeared to be directed to the facts alleged by the Respondents as the basis of their claims for protection. This raises a question of why it was that CBSA officers and not CIC officers were doing the questioning in the first place. 19 It is the Court’s understanding, based on the roles of these two Minis- ters as set out in section 4 of the Act, that CIC intervenes in cases involving credibility or program integrity issues, while CBSA is responsible for cases involving criminality or security issues. Accordingly, one might ask whether these CBSA officers had any jurisdiction or authority to engage in the questioning or intervene at the RPD given the absence of any criminality or security concerns. That question shall remain unanswered as it was not addressed by either party here or by either of the tribunals below. The following analysis shall be based on the assumption that these officers did have departmental authority to engage in the activities they undertook. 20 The issues to be addressed are the following: 1. What is the applicable standard of review; 2. What are the temporal limits, if any, on an officer to question an in-land refugee claimant; and 3. Where the claimant has counsel of record, is it a breach of procedural fairness and natural justice to conduct an interview of the claimant without prior notification to counsel, and if so, should evidence obtained from the interview be excluded from the refugee determination hearing?

Standard of Review 21 The Applicant, citing Khela v. Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502 (S.C.C.) at para 79, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 43, submits that the RAD’s decision to exclude the evidence of the June 26th Interview is subject to the correctness standard of review as the decision was based upon the principles of fairness and natural justice. I agree. 22 The Applicant also submits that review of the interpretation given by the RPD or RAD to the Act and its Regulations, being a question of law not of general importance to the legal system as a whole, and not being outside the expertise of either tribunal, is to be reviewed on the reasonableness standard: Singh v. Canada (Minister of Citizenship and Immigra- Canada (MCI) v. Paramo de Gutierrez Russel W. Zinn J. 307

tion), 2014 FC 1022 (F.C.), at para 42. I do not necessarily agree that the interpretation of the legislative provisions, dealing with the jurisdiction of an officer to interview a refugee claimant, are not questions of law of general importance; however, it is irrelevant which standard applies because I have determined that there is only one reasonable interpretation of the relevant legislative provisions, and it is not that found by the RPD.

The Scheme of the Act 23 Subsection 99(3) of the Act provides that “a claim for refugee protection made by a person inside Canada must be made to an officer.” It also provides that the claimant must be eligible to make the in-land refugee claim. 24 Broadly speaking, the Act provides that a person is ineligible to make an in-land claim if he has been recognized as a Convention refugee by another country to which he can return, he has already been granted protected person status in Canada, the Canada-U.S. Safe Third Country Agreement is engaged, he is inadmissible on security grounds, or because of criminal activity or human rights violations, or he has made a previous claim for protection and was found to be ineligible for referral to the RPD or had the claim rejected by the RPD, or abandoned or withdrew a previous refugee claim. 25 Pursuant to subsection 100(1) of the Act, an officer to whom a claim for refugee protection is made has three working days to determine whether the claim is eligible to be referred to the RPD, and if it is eligible, shall refer the claim. An officer may suspend consideration of eligibility if a report has been referred to a hearing on whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, or if the officer considers it necessary to await a court decision on serious criminal charges facing the claimant. If the claim has not been referred within the three day period and the decision has not been suspended, then the claim is deemed to have been referred to the RPD. 26 Subsection 15(1) of the Act provides that “an officer is authorized to proceed with an examination if a person makes an application to the officer in accordance with this Act” [emphasis added]. Paragraph 28(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations], specifies that a claim for refugee protection made to an officer is an application falling within this provision; the others are applications to enter Canada or permission to transit through Canada. Subsec- 308 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

tion 100(1.1) of the Act provides that a claimant has the burden of prov- ing that the claim is eligible for referral to the RPD. 27 Subsection 16(1) of the Act provides that 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.” 28 The Act was amended on June 11, 2013, by adding subsection 16(1.1) to the Act. It provides: “A person who makes an application must, on request of an officer, appear for an examination.” CIC Opera- tional Bulletin 531 dated June 21, 2013, provides the background to this amendment: “Prior to the coming into force of the [Faster Removal of Foreign Criminals Act, SC 2013, c 16], a person who made an application under the IRPA was subject to an examination by an officer and was obliged to answer truthfully all questions put to them for the purposes of the examination [subsection 16(1) of the IRPA]. There was no express statutory requirement, however, for a person to appear for an examination when asked to do so.”

Jurisdiction Issue 29 The jurisdiction issue is this: Does an officer have jurisdiction to interview a refugee claimant after the eligibility decision has been made? 30 The Applicant took the position below and here that officers have jurisdiction pursuant to subsections 15(1) and 16(1.1) of the Act to require a claimant to attend for an interview at any time up until the RPD has rendered a decision on the claim. 31 The RPD accepted the Applicant’s submission that restricting the right of an officer to examine a claimant to the period prior to the eligibility determination would be inconsistent with the objectives set out in paragraphs 3(2)(g) and (h) of the Act; namely, “to protect the health and safety of Canadians and to maintain the security of Canadian society” and “to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.” 32 The RPD was clearly considering the jurisdictional issue in a much broader context than the application before it. This is evident from the fact that neither of the objectives in paragraphs 3(2)(g) or (h) were engaged in the Respondents’ applications for protection and not a single question was asked of them by Karl Chan that went to either objective. The RPD further notes “the absence of any specific statutory provision Canada (MCI) v. Paramo de Gutierrez Russel W. Zinn J. 309

outlining when the examination of a person making a refugee claim ends” and says that it will give a “plain reading” to paragraph 28(d) of the Regulations, which is that a person is no longer under examination when he or she is no longer making a refugee claim, that is, when the claim is decided by the RPD. 33 In my opinion, this is an unreasonable and frankly incorrect interpretation of the relevant statutory provisions. The Member has ignored or read out a relevant part of subsection 15(1), which gives an officer jurisdiction to conduct an examination “if a person makes an application to the officer in accordance with this Act” [emphasis added]. The Member correctly found that “the Minister’s jurisdiction to determine a refugee claim ends upon a determination of whether the claimant is eligible to appear before the Division for a hearing.” On a purposive interpretation of subsection 15(1), according to which the scope of the legislative tools conferred by the Act is to be determined by reference to their ultimate function, an officer’s jurisdiction to examine an individual ends once the claim has been referred to the RPD. 34 The RPD and the Applicant suggest that an officer’s jurisdiction to examine a person continues as long as that person is making a refugee claim. However, the fact that a person is making a refugee claim is not what gives rise to the right to examine. What gives rise to that right is the fact that a person has made “an application to the officer” under subsection 15(1) of the Act, and is then required, pursuant to subsection 16(1.1), to “appear for an examination” [emphasis added]. Once an officer has finished examining a person and has determined that person to be eligible, the officer has fulfilled his or her statutory obligations. The person’s application is no longer before the officer and therefore, in my view, the officer has no continuing jurisdiction to require that person to attend for other and additional examinations. 35 This purposive interpretation is also consistent with the claimant’s obligation in subsection 16(1) of the Act to “answer truthfully all questions put to them for the purpose of the examination” [emphasis added]. The purpose of the examination that an officer has jurisdiction to require is to determine eligibility. 36 The Member expressed concern that the security objectives of the Act will be undermined if an officer is unable to question claimants after he or she determines their eligibility. This concern is addressed in subsection 16(2.1) of the Act, which provides for a separate interview to inves- tigate security concerns. Unlike subsection 15(1), an officer’s jurisdiction 310 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

to conduct an interview pursuant to subsection 16(2.1) is not restricted to situations where a person makes an application “to the officer.” Instead, it is engaged when a foreign national “makes an application.” It provides that a “foreign national who makes an application must, on request of an officer, appear for an interview for the purpose of an investigation conducted by the Canadian Security Intelligence Service under section 15 of the Canadian Security Intelligence Service Act, RSC, 1985, c C-23 for the purpose of providing advice or information to the Minister under section 14 of that Act and must answer truthfully all questions put to them during the interview.” 37 For these reasons, I conclude that the officer here had no jurisdiction to examine the Respondents after May 9, 2014, when their claims for protection were determined eligible and were forwarded to the RPD for determination.

Right to Counsel Issue 38 The Applicant submits that no statute confers a right to counsel during an examination conducted pursuant to subsection 15(1) of the Act. While subsection 167(1) confers a right to counsel, this right is limited to proceedings before the RPD. That subsection provides: “A person who is the subject of proceedings before any Division of the Board and the Min- ister may, at their own expense, be represented by legal or other counsel.” 39 Given that my interpretation of subsection 15(1) entails that an officer’s right to examine a claimant ends when eligibility is determined and it is only then that there is a proceeding before the RPD, I agree with the Applicant that the Act does not set out any right to be represented by counsel during an eligibility examination. But that doesn’t address the concerns here. 40 Here the Respondents had counsel of record and it was so indicated on their Basis of Claim forms. And here the interview conducted was not for the purpose of determining eligibility, but rather to assess the validity of the Respondents’ claims. 41 The Respondents submit that since the purpose of the June 26th Inter- view was to gather information for use as part of the Applicants’ intervention in that hearing, the right to counsel under subsection 167(1) of the Act was engaged. 42 The Applicant’s position that subsection 167(1) of the Act only confers a right to counsel at a Board hearing is too narrow an interpretation Canada (MCI) v. Paramo de Gutierrez Russel W. Zinn J. 311

of the Act. The subsection confers a right to counsel on anyone who is “the subject of proceedings before...the Board.” This phrase is broad enough to encompass persons who are required to attend pre-hearing interviews that are conducted for the purpose of gathering evidence for a hearing. It would severely impinge on the effectiveness of a refugee claimant’s right to counsel if that right only allowed counsel to make submissions at a hearing itself, and provided him or her with no opportunity to participate in the fact-finding process upon which the hearing is based. Nothing in the Act compels such a narrow interpretation. 43 I do not agree with the Applicant that the answer to this question is informed by the decision of the Supreme Court of Canada in Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053 (S.C.C.) [Dehghani]. In that case, the Court held at page 1077 that “in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b)” of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. The Applicant submits that because the Respondents were not detained within the meaning of section 10(b) of the Charter when they attended the June 26th Interview, their right to counsel was not engaged. 44 Dehghani involved an examination that was conducted at a port of entry for the purpose of processing an application for entry and determining the appropriate procedures that should be invoked in order to deal with an application for Convention refugee status. In other words, it was the sort of routine information gathering exercise that both parties agree does not give rise to a right to counsel. That is not this case. 45 In this case, the information gathering stage was over. The officer had already determined the correct procedure and referred the Respondents’ claims to the RPD for determination. At that point, the Respondents had a statutory right to retain counsel to represent them in respect of their hearing. They took advantage of that right. The right to retain counsel must include the right to have that counsel present during any material aspect of the proceeding and that must include any part of the proceeding that involves the gathering of information from the claimants for the purposes of the proceeding. Accordingly, the right was breached by the officer when he directed the Respondents to attend an interview for the purpose of gathering evidence for the upcoming hearing, without informing the Respondents’ counsel. That right was further breached when the 312 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

RPD failed to exclude from evidence documents pertaining to the June 26th Interview.

Certified Questions 46 The Applicant proposed two questions for certification: 1. Is there an obligation to inform counsel for the claimant if an examination is conducted prior to the Refugee Protection Division hearing, even if there is no right to counsel at the examination? 2. Is there statutory authority for an officer to conduct an examination of refugee claimants pertaining to the claim, including the eligibility of the claim to be referred to the Board, prior to a hearing before the Refugee Protection Division after eligibility has been determined? 47 The Respondent opposes certification of any question submitting that “the facts of the present case do not lend themselves to serious general questions of importance.” 48 In the Court’s view, there are two questions of general importance that would be determinative of this case and which ought to be certified. The questions posed by the Applicant, however, are too broad and are not restricted to the facts before the Court. 49 The following questions will be certified: 1. Does an officer have jurisdiction and authority to examine a refugee claimant pursuant to subsection 15(1) of the Immigration and Refugee Protection Act, SC 2001, c 27, after the claim has been referred to the Refugee Protection Division for determination? 2. If a refugee claimant has indicated on the Basis of Claim form or elsewhere that he or she has counsel of record, is it a breach of procedural fairness for an officer to examine the refugee claimant after the claim has been referred to the Refugee Protection Divi- sion for determination without advising counsel of record of the proposed examination and providing counsel an opportunity to attend?

Post Script 50 Subsequent to the hearing, the Applicant informed the Court of a proposed amendment to the Regulations published on June 20, 2015, in the Canada Gazette, Part I, (Vol 149, No 25) for discussion and consultation, specifically dealing with when an examination of a refugee claimant Canada (MCI) v. Paramo de Gutierrez Russel W. Zinn J. 313

ends. It is proposed to add subsection 37(2) to the Regulations which is proposed to read as follows: The examination of a person who makes a claim for refugee protection at a port of entry or inside Canada other than at a port of entry ends when the later of the following occurs: (a) a final determination is made in respect of their claim, and (b) a decision in respect of the person is made under subsection 44(2) of the Act, and, in the case of a claim made at a port of entry, the person leaves the port of entry. 51 Should the proposed regulation be promulgated, and be valid, it may answer the first certified question. However, it does not address the second certified question. Moreover, there is nothing in the proposed changes that suggest that the effect of the amendment will be retroactive.

Judgment THIS COURT’S JUDGMENT is that this application is dismissed, and the following questions of general importance are certified: 1. Does an officer have jurisdiction and authority to examine a refugee claimant pursuant to subsection 15(1) of the Immigration and Refugee Protection Act, SC 2001, c 27, after the claim has been referred to the Refugee Protection Division for determination? 2. If a refugee claimant has indicated on the Basis of Claim form or elsewhere that he or she has counsel of record, is it a breach of procedural fairness for an officer to examine the refugee claimant after the claim has been referred to the Refugee Protection Divi- sion for determination without advising counsel of record of the proposed examination and providing counsel an opportunity to attend? Application dismissed. 314 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: K. (H.A.) v. Canada (Minister of Citizenship and Immigration)] H.A.K., Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8377-14 2015 FC 1172, 2015 CF 1172 Simon Fothergill J. Heard: August 31, 2015 Judgment: October 16, 2015 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Standard of review –––– Refu- gee claimant was 35-year-old female citizen of Ethiopia who before her arrival in Canada was flight attendant with Ethiopian Airlines — Refugee Protection Division (RPD) of Immigration and Refugee Board determined that claimant was neither Convention refugee nor person in need of protection, having found she lacked subjective fear of persecution as she had passed through China and South Africa on her way to Canada and not claimed protection — Refugee Ap- peal Division (RAD) dismissed claimant’s appeal and confirmed RPD’s decision — Claimant brought application for judicial review — Application granted — RAD wrongly applied standard of reasonableness to its review of RPD’s decision and offered no independent analysis of its own — As it was not possible to determine whether independent assessment of claim would have changed outcome of appeal before RAD, application for judicial review must be granted. Cases considered by Simon Fothergill J.: Denbel v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 629, 2015 CarswellNat 1567, 2015 CF 629, 2015 CarswellNat 3300, [2015] F.C.J. No. 646 (F.C.) — referred to Huruglica v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 799, 2014 CF 799, 2014 CarswellNat 3148, 2014 CarswellNat 3149, [2014] F.C.J. No. 845, 30 Imm. L.R. (4th) 115, [2014] 4 F.C.R. 811, 461 F.T.R. 241 (F.C.) — considered Njeukam c. Canada (Ministre de la Citoyennet´e et de l’Immigration) (2014), 2014 CF 859, 2014 CarswellNat 3429, 2014 FC 859, 2014 CarswellNat 3710 (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. K. (H.A.) v. Canada (MCI) Simon Fothergill J. 315

(4th) 675, 68 Admin. L.R. (4th) 225, 2007 CAF 385, 2007 CarswellNat 6368, [2008] 1 F.C.R. D-7 (F.C.A.) — followed Shukurov v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 949, 2015 CarswellNat 3379 (F.C.) — referred to 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 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97 — considered s. 97(1)(a) — considered s. 110(4) — considered

APPLICATION by refugee claimant for judicial review of decision of Refugee Appeal Division of Immigration and Refugee Board dismissing her appeal and confirming decision of Refugee Protection Division that she was neither Con- vention refugee nor person in need of protection.

Micheal Crane, for Applicant Tamrat Gebeyehu, for Respondent

Simon Fothergill J.: I. Confidentiality Order 1 The Applicant asserts that she will be at risk in Ethiopia if the authorities become aware that she has made a claim for refugee protection in Canada. She has therefore requested that she not be identified in this judgment by name. The Respondent does not object. The style of cause is amended accordingly, and she is referred to in these reasons as the Applicant.

II. Nature of the Matter 2 The Applicant has brought an application for judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board dated December 11, 2014. The RAD dismissed the Ap- plicant’s appeal and confirmed the decision of the Refugee Protection Division [RPD] that she is neither a Convention refugee under s 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA], nor a person in need of protection under s 97. 316 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

3 For the reasons that follow, I have concluded that the RAD wrongly applied the standard of reasonableness to its review of many aspects of the RPD’s analysis, and offered no independent analysis of its own. I am unable to say whether an independent assessment of the Applicant’s claim would have changed the outcome of the appeal before the RAD. The application for judicial review is therefore allowed.

III. Background 4 The Applicant is 35 years old and a citizen of Ethiopia. Before her arrival in Canada she was a flight attendant with Ethiopian Airlines. Her claim for refugee protection was based on the following contentions. 5 In February, 2014, during a stop-over in Germany, the Applicant was seen by a co-worker in a coffee shop talking to other Ethiopians in the Amharic language. Her co-worker ordered her to end the conversation. She returned to Addis Ababa on February 17, 2014. 6 On February 18, 2014, two security agents came to her home and took her to the Maekelawi political detention centre. She was held for seven days and questioned about her involvement in opposition groups. She was beaten and humiliated. 7 The Applicant returned to work. On March 5, 2014 she flew to China and had a brief stop-over before returning to Ethiopia the following day. 8 On March 13, 2014, the Applicant flew to South Africa. While on a stop-over in that country, the captain of the aircraft attempted to sexually assault her. She managed to escape to a co-worker’s room. She reported the incident to the airline’s management when she returned to Ethiopia, but no action was taken. She believed that this was because the captain was an influential member of the ruling party, the Tigrayan People’s Lib- eration Front [TPLF]. 9 The Applicant fled Ethiopia on March 16, 2014. She travelled to Can- ada via Italy and arrived on March 18, 2014. She claimed refugee protection on April 4, 2014. 10 The RPD dismissed the Applicant’s refugee claim. Given her failure to seek refugee protection in China or South Africa, the RPD found that she lacked a subjective fear of persecution. 11 The Applicant appealed the RPD’s decision to the RAD on the ground that the RPD’s conclusion regarding her lack of subjective fear was unreasonable. She also argued that the RPD had failed to properly consider the risks that she faced under s 97(1)(a) of the IRPA. In support K. (H.A.) v. Canada (MCI) Simon Fothergill J. 317

of her appeal, the Applicant submitted two letters from Ethiopian Air- lines that were not before the RPD. The RAD refused to admit the new evidence and confirmed the RPD’s decision that the Applicant is neither a Convention refugee nor a person in need of protection.

IV. Issues 12 This application for judicial review raises the following issues: A. Was the RAD’s refusal to admit the new evidence reasonable? B. Did the RAD apply the correct standard of review to its consideration of the RPD’s decision?

A. Was the RAD’s refusal to admit the new evidence reasonable? 13 The new evidence offered by the Applicant consisted of (a) a letter of decision from Ethiopian Airlines dated July 15, 2014, and (b) a letter from Ethiopian Airlines confirming that the Applicant missed two flights between February 21, 2014 and February 25, 2014 (when she was allegedly detained at the Maekelawi political detention centre). The RAD found that the new evidence did not meet the requirements of s 110(4) of the IRPA because it related to circumstances that arose prior to the RPD’s hearing and the Applicant did not provide a satisfactory explanation for her failure to present it before the RPD. The RAD also found that the letters, even if admitted, would carry little weight: the facts they described were vague, there were numerous spelling errors, and they were not provided directly by the airline but by a third party. 14 The RAD referred to the test for the admission of new evidence found in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385 (F.C.A.) [Raza]. The law is not settled regarding the application of Raza to an appeal before the RAD, given that the test was developed in the context of a pre-removal risk assessment (see Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022 (F.C.) paras 55-58 [Singh] and Denbel v. Canada (Minister of Citizenship and Immi- gration), 2015 FC 629 (F.C.)). This Court’s decision in Singh is currently before the Federal Court of Appeal. 15 Regardless of whether a strict or a more flexible application of the Raza test is preferred, I am satisfied that the RAD’s rejection of the Ap- plicant’s explanation for not adducing the evidence before the RPD was reasonable. The only explanation she offered for her delay in obtaining the letters was that she did not think that the airline would provide her with the information. It was open to the RAD to reject this explanation as 318 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

unsatisfactory. In any event, the Applicant’s detention and the attempted sexual assault by the airline captain were both accepted by the RPD. The letters were therefore not probative of any fact in dispute.

B. Did the RAD apply the correct standard of review to its consideration of the RPD’s decision? 16 The law regarding the standard of review to be applied by this Court to the RAD’s determination of its own standard of review is not settled. This Court’s decision in Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799 (F.C.) [Huruglica] is currently before the Federal Court of Appeal. 17 Pending clarification by higher courts, it is my view that the RAD commits an error when it reviews the RPD’s findings against the standard of reasonableness and fails to conduct its own assessment of the evidence. Some judges of this Court have held that the RAD does not commit a reviewable error when it applies the standard of reasonableness to findings of pure credibility. However, this Court will uphold the RAD’s application of the reasonableness standard to the RPD’s findings of credibility only when it is clear that the RAD has in fact conducted its own assessment of the evidence as a whole (Shukurov v. Canada (Minister of Citizenship and Immigration), 2015 FC 949 (F.C.) at paras 14 to 16). 18 In this case, the RAD stated its intention to conduct its own assessment of the evidence and to determine independently whether the Appli- cant is a Convention refugee or a person in need of protection. However, it is not apparent from a review of the RAD’s decision that this approach was followed in practice. Rather, it appears that the RAD applied the standard of reasonableness to its review of many aspects of the RPD’s analysis, and offered no independent analysis of its own. 19 In its consideration of whether it was reasonable for the Applicant not to seek refugee protection in China, the RAD deferred to the expertise of the RPD: [33] ... The RPD is an expert body and is expected to have knowledge of refugee systems of foreign nations. The RAD finds that the Appellant’s argument in this regard does not have merit. 20 However, the RAD’s own expertise is considered to be at least equal to, and generally to exceed, that of the RPD (Huruglica at para 49; Njeukam c. Canada (Ministre de la Citoyennet´e et de l’Immigration), 2014 FC 859 (F.C.) at para 14). K. (H.A.) v. Canada (MCI) Simon Fothergill J. 319

21 The RAD’s treatment of the RPD’s failure to properly consider the Applicant’s risk pursuant to s 97 of the IRPA was even more deferential. The RAD expressed regret that the RPD had not explicitly analysed this aspect of the Applicant’s claim, but did not proceed to conduct its own independent assessment: [36] ... While it is unfortunate that the RPD fails to mention Section 97(1)(a) of the IRPA in its reasons, the RAD finds that it is not fatal to its decision. The RPD clearly found that the Appellant was not at risk in Ethiopia on either section 96 or 97 grounds. The RPD provided sound reasons, and its findings were grounded in the evidence in the record. 22 I am unable to say whether an independent assessment of the Appli- cant’s claim would have changed the outcome of the appeal before the RAD. The application for judicial review must therefore be allowed.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed and the matter is remitted to a differently-constituted panel of the RAD for re-determination. No question is certified for appeal. Application granted. 320 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

[Indexed as: Wafa v. Canada (Minister of Citizenship and Immigration)] Emal Wafa, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8290-14 2015 FC 1153, 2015 CF 1153 Patrick Gleeson J. Heard: September 15, 2015 Judgment: October 9, 2015 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Foreign national, citizen of Afghanistan, obtained Convention refugee status in 1995 — Between 2001 and 2013 foreign national was convicted of progressively serious criminal offences — In 2010 and in 2013 foreign national was convicted of trafficking crack cocaine and other controlled substances and received custodial sentences — In 2011 foreign national’s permanent residence application was refused based on criminal inadmissibility and deportation order was issued in August 2013 — On completion of his criminal sentence in October 2014 foreign national was transferred to custody of Cana- dian Border Services Agency (CBSA) who detained him on grounds that he was danger to public and would not appear for removal — In process leading up to CBSA seeking opinion from Minister under s. 115(2)(a) of Immigration and Refugee Protection Act, foreign national disclosed he was bisexual — Min- ister’s delegate did not dispute foreign national’s statement that he was bisexual, but attributed little weight to evidence regarding prior same-sex relationships, on basis that he failed to provide objective supporting evidence that he engaged in same-sex relations — Having failed to demonstrate he had previously engaged in same-sex relationship, delegate concluded foreign national’s removal to Kabul would not subject him to personal risk to life, liberty or security of person — Foreign national brought application for judicial review — Application granted — Matter returned for redetermination by different delegate — Delegate had concluded that central claim to risk for bisexuals in Afghanistan was prior sexual relations with other men, not sexual orientation — Reasoning underpinning this conclusion and conclusion itself were fundamentally flawed and undermined intelligibility of decision — Delegate failed to examine whether foreign national, bisexual male who had recently come out to his family, would be at risk in Afghanistan — Result was incomplete and therefore unreasonable risk assessment which undermined reasonableness of decision as whole — Risk as- Wafa v. Canada (MCI) 321 sessment was necessary step in process leading to balancing of risks inherent in removal against magnitude of danger to public if foreign national remained in Canada — Delegate’s risk assessment as it related to foreign national’s sexuality was unreasonable. Cases considered by Patrick Gleeson J.: Alkhalil v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 976, 2011 CarswellNat 3106, 2011 CF 976, 2011 CarswellNat 3974, [2011] F.C.J. No. 1198, 395 F.T.R. 76 (Eng.) (F.C.) — referred to B. (A.) v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1332, 2010 CarswellNat 5017, 381 F.T.R. 312 (Eng.), 2010 CF 1332, 2010 CarswellNat 6499 (F.C.) — considered Ferguson v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1067, 2008 CarswellNat 3353, 74 Imm. L.R. (3d) 306, [2008] F.C.J. No. 1308, 2008 CF 1067, 2008 CarswellNat 6397 (F.C.) — referred to Francis v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1141, 2012 CarswellNat 4079, 2012 CF 1141, 2012 CarswellNat 4765, 45 Admin. L.R. (5th) 191, 419 F.T.R. 42 (Eng.), [2012] F.C.J. No. 1346, [2012] A.C.F. No. 1346 (F.C.) — referred to I. (I.) v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 892, 2009 CarswellNat 2799, 2009 CF 892, 2009 CarswellNat 4957 (F.C.) — referred to La v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 476, 2003 CarswellNat 1116, 2003 CFPI 476, 2003 CarswellNat 2229, 232 F.T.R. 220, 36 Imm. L.R. (3d) 64, [2003] F.C.J. No. 649 (Fed. T.D.) — considered Nagalingam v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 153, 2008 CarswellNat 1221, 70 Imm. L.R. (3d) 54, 292 D.L.R. (4th) 463, [2008] F.C.J. No. 670, 2008 CAF 153, 2008 CarswellNat 3711, 377 N.R. 151, [2009] 2 F.C.R. 52 (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, 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 Okoli v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 332, 2009 CarswellNat 874, 79 Imm. L.R. (3d) 253, [2009] F.C.J. No. 418, 2009 CF 332, 2009 CarswellNat 6758 (F.C.) — considered Ragupathy v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 151, 2006 CarswellNat 1100, 53 Imm. L.R. (3d) 186, 350 N.R. 137, 322 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

2006 CAF 151, 2006 CarswellNat 3509, [2007] 1 F.C.R. 490, [2006] F.C.J. No. 654 (F.C.A.) — followed Sadeghi-Pari v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 282, 2004 CarswellNat 483, 2004 CF 282, 2004 CarswellNat 1672, 37 Imm. L.R. (3d) 150, [2004] F.C.J. No. 316 (F.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — considered Controlled Drugs and Substances Act, S.C. 1996, c. 19 Generally — referred to s. 5(2) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36(1)(a) — considered s. 72(1) — pursuant to s. 115 — considered s. 115(2)(a) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 33 para. (2) — considered

APPLICATION by foreign national for judicial review of Minister’s delegate’s decision that he constituted danger to public in Canada.

Swathi Sekhar, for Applicant Kristina Dragaitis, for Respondent

Patrick Gleeson J.:

1 This application for judicial review, brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], concerns the decision of the respondent Minister’s Delegate [the Delegate], wherein it was determined that the applicant constitutes a danger to the public in Canada, pursuant to paragraph 115(2)(a) of the IRPA. 2 The application is granted for the reasons that follow.

I. Background 3 The applicant is an unmarried male citizen of Afghanistan, born in Kabul on October 6, 1981. He came to Canada on February 14, 1995 Wafa v. Canada (MCI) Patrick Gleeson J. 323

with his elder brother and joined his mother and sister. The applicant and his family received Convention refugee status on May 10, 1995. 4 Between August 14, 2001 and March 4, 2013, the applicant was convicted for various offences of increasing seriousness. The convictions are not in dispute. 5 In determining that the applicant is a danger to the public in Canada, the Delegate focused on the following: A. convictions arising from December 1, 2010 relating to the possession of a schedule I substance for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act for which the applicant received a sentence of seven months [the 2010 Convictions]; and B. convictions arising from March 4, 2013 which related to (1) Traf- ficking in a schedule 1 substance contrary to the Controlled Drugs and Substances Act, (2) Possession for the purpose of trafficking a schedule 1 substance, namely crack cocaine, (3) Possession of a schedule 1 substance, namely heroin, (4) Trafficking a schedule 1 substance, namely crack cocaine, (5) Possession for the purposes of trafficking a schedule 1 substance, namely crack cocaine, and (6) failure to comply with recognizance [the 2013 Convictions]. The applicant received a sentence of eighteen months for the first three offences served concurrently, twelve months for the fourth offence served consecutive to the first count and twelve months of imprisonment for the fifth and sixth count to be served concurrently to the fourth count. 6 In November, 2011 the applicant’s permanent residence application was refused based on criminal inadmissibility, and a deportation order was issued in August, 2013. On completion of his criminal sentence in October, 2014 the applicant was transferred to the custody of the Cana- dian Border Services Agency [CBSA] who has detained him on the grounds that he is a danger to the public and will not appear for removal. 7 In the process leading up to the CBSA seeking an opinion from the Minister under paragraph 115(2)(a) of the IRPA the applicant disclosed that he is bisexual. Although having hidden his sexual orientation he reports having engaged in sexual relationships with other men and being caught on one occasion with another man by a family member. As a result of being caught, news of his sexual orientation has spread to extrem- ist family members in Afghanistan who the applicant fears will kill him. 324 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

8 In the Request for Minister’s Opinion, the Citizenship and Immigra- tion Canada [CIC] analyst [the Analyst] notes the applicant’s declaration of sexual orientation and indicates that the declaration may be viewed as both opportunistic and inconsistent. In response to this statement the applicant specifically requested the Delegate conduct an interview with the applicant if there are further concerns regarding the applicant’s sexual orientation. 9 Currently, the applicant is in a relationship with a female Canadian citizen, with whom he has a four-year old son. The son is in the custody of his mother.

II. Decision Under Review 10 The Delegate notes that the decision is being prepared pursuant to paragraph 115(2)(a) of the IRPA, which incorporates article 33(2) of the United Nations Convention Relating to the Status of Refugees, creating an exception to the general protection provided to convention refugees in Canadian law. The Delegate then sets out the applicant’s criminal history and concludes, based on the 2010 and 2013 Convictions, that the applicant is inadmissible for serious criminality pursuant to paragraph 36(1)(a) of the IRPA. 11 The Delegate concludes on a balance of probabilities that the applicant represents a present and future danger to the Canadian public and his presence in Canada poses an unacceptable risk due to (1) the applicant’s criminal activities, which were serious and dangerous to the public; and (2) the absence of evidence of rehabilitation. In reaching this conclusion the Delegate relies on Justice Fran¸cois Lemieux’s decision in La v. Canada (Minister of Citizenship & Immigration), 2003 FCT 476 (Fed. T.D.) at para 17, (2003), 36 Imm. L.R. (3d) 64 (Fed. T.D.) for the meaning of “danger to the public” under paragraph 115(2)(a) of the IRPA. The Delegate concludes that the applicant’s most recent offences were extremely serious and demonstrate an escalation from petty theft and break and enter convictions to drug trafficking offences involving large sums of illicit substances of an addictive nature, posing a danger to the public. The Delegate notes that despite the applicant’s genuine desire for change, the applicant failed to bring evidence demonstrating his rehabilitation. As a result the Delegate concludes that there is sufficient evidence to formulate the opinion that the applicant is a likely re-offender, whose presence in Canada poses an unacceptable risk to the public. Wafa v. Canada (MCI) Patrick Gleeson J. 325

12 Having concluded that the applicant is a danger the Delegate undertook a risk assessment pursuant to paragraph 115(2)(a) of the IRPA based on the process articulated in Ragupathy v. Canada (Minister of Citizenship & Immigration), 2006 FCA 151 (F.C.A.) at paras 18- 19, (2006), 350 N.R. 137 (F.C.A.), assessing both documentary evidence related to Afghanistan and the applicant’s personal circumstances. On the issue of the applicant’s sexuality, the Delegate did not dispute the applicant’s statement that he is bisexual, but attributes little weight to the applicant’s evidence regarding prior same-sex relationships, in particular the applicant’s evidence where he describes being caught with another male by a cousin. The Delegate takes issue with this evidence on the basis that the applicant failed to bring objective supporting evidence demonstrating that he engaged in same-sex relations. Having failed to demonstrate he has previously engaged in a same-sex relationship, the Delegate concludes, on a balance of probabilities, that the applicant’s removal to Kabul would not subject him to a personal risk to life, liberty or security of the person. 13 In addressing Humanitarian and Compassionate [H&C] considerations, the Delegate finds that the applicant did not demonstrate a degree of establishment in Canada, either social or economic that would cause him disproportionate hardship if removed. Furthermore, while the applicant’s removal will create long-term or even permanent separation from his family, separation will not cause the applicant or his family hardship that is disproportionate or unusual and undeserved. The Delegate concludes that the need to protect Canadian society from the danger the applicant poses outweighs the H&C factors and possible risks that arise from the applicant’s removal to Afghanistan.

III. Issues 14 I have framed the issues raised in this application as follows: 1. Did the Delegate unreasonably conclude that the applicant constituted a danger to the Canadian public; 2. Did the Delegate err in not conducting an interview to put credibility concerns to the applicant; 3. Did the Delegate reasonably determine that the applicant would not be at risk if returned to Afghanistan; and 326 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

4. Did the Delegate reasonably find that H&C considerations did not weigh in favour of the applicant remaining in Canada? 15 After carefully considering the documents, authorities and the oral and written submissions of the parties I need only deal with the third issue, as I am of the opinion that the Delegate’s risk assessment as it relates to the applicant’s sexuality was unreasonable.

IV. Standard of Review 16 Issue 3 calls into question the reasonableness of the findings and conclusion of the Delegate. It is well-established within the jurisprudence of this Court that a delegate’s risk assessment, which engages questions of fact and mixed fact and law, is to be reviewed on a reasonableness standard (Alkhalil v. Canada (Minister of Citizenship & Immigration), 2011 FC 976 (F.C.) at para 16, (2011), 395 F.T.R. 76 (Eng.) (F.C.) and Nagalingam v. Canada (Minister of Citizenship & Immigration), 2008 FCA 153 (F.C.A.) at para 32, (2008), 292 D.L.R. (4th) 463 (F.C.A.)). 17 Where conducting a review on a reasonableness standard, the analysis will address “the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. (New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at para 47).

V. Positions of the Parties and Analysis A. Applicant’s Position 18 The applicant argues that the Delegate conducted an unreasonable risk assessment related to the applicant’s sexual orientation. First the applicant argues that the Delegate imposed unreasonable evidentiary de- mands on the applicant in the form of corroborative evidence of previous same-sex partners. Secondly, the applicant argues that the delegate repeatedly conflated sexual orientation with the act of having sex with someone of the same gender. The Delegate did not recognize that same- sex attraction can be expressed in a multitude of ways and is not limited to sexual acts. In effect the applicant argues that the Delegate’s line of reasoning was that so long as the applicant did not engage in same-sex relations he would not be at risk of persecution in Afghanistan, a line of reasoning, the applicant submits, that is inconsistent with the jurisprudence of this Court. Wafa v. Canada (MCI) Patrick Gleeson J. 327

B. Respondent’s Position 19 The respondent argues that the Delegate’s risk assessment was based on the applicant’s own evidence. Despite self-identifying as a bisexual, there was insufficient evidence for the Delegate to conclude that the applicant had conducted himself as a bisexual male. In addition there was no assertion of an intention to engage in same-sex relations and the evidence before the Delegate was that the applicant intended to marry the mother of his child upon release from jail and parent his son. In effect there had been no outward expression of bisexuality and thus the applicant would not need to suppress his asserted identity. The applicant had conducted himself in Canada as a heterosexual male and there was no reason to find that he would conduct himself differently in Afghanistan.

C. Analysis 20 The Delegate states at page 22 of the Certified Tribunal Record [CTR] that “Mr. Wafa may well be bisexual, and I do not dispute that fact”. The Delegate at page 23 of the CTR also states “I accept that an individual may identify as bisexual, and therefore I do not question Mr. Wafa’s statements regarding his sexual orientation, and I do not ask him to prove his feelings”. In effect the Delegate accepts the applicant’s evidence as it relates to his sexual orientation. The Delegate then proceeds to give little weight to the applicant’s evidence of prior same-sex relationships on the basis that there is a lack of objective supporting evidence. The Delegate also concludes that the applicant’s evidence relating to having been caught with a same-sex partner by a family member “has been concocted by Mr. Wafa to bolster his risk submissions” (CTR at page 23). 21 Having concluded that the applicant had failed to demonstrate prior same-sex relations the Delegate finds that the applicant will not be sub- jected to the risks identified in section 115 of the IRPA and section 7 of the Charter based on sexual orientation. Essentially the Delegate has concluded that the central claim to risk for bisexual individuals in Af- ghanistan is prior sexual relations with other men, not sexual orientation. The reasoning underpinning this conclusion and the conclusion itself are, in my opinion fundamentally flawed and undermine the intelligibility of the decision. 22 It may well have been within the range of reasonable acceptable outcomes for the Delegate to have reached a different conclusion on the applicant’s claim of bisexuality based on the insufficiency of the appli- 328 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

cant’s evidence (Ferguson v. Canada (Minister of Citizenship & Immigration), 2008 FC 1067 (F.C.) at paras 32, 34, (2008), 74 Imm. L.R. (3d) 306 (F.C.); I. (I.) v. Canada (Minister of Citizenship & Immigra- tion), 2009 FC 892 (F.C.) at paras 18-22, 24), but having accepted the applicant’s evidence of his sexuality, including his sworn statements, I am of the opinion that the Delegate was obligated to conduct the risk assessment on that basis. Instead the Delegate has conducted a risk assessment on the basis that the applicant’s sexuality would not be displayed or discovered based on his past behaviour. This approach is not consistent with the jurisprudence of this Court and fails to consider the applicant’s evidence that having come out to his family he no longer has anything to hide (Sadeghi-Pari v. Canada (Minister of Citizenship & Im- migration), 2004 FC 282 (F.C.) at para 29, (2004), 37 Imm. L.R. (3d) 150 (F.C.)). 23 In the context of claim for convention refugee status, Justice Leonard Mandamin addressed the propriety of expecting an individual to practise discretion with respect to their sexual orientation in Okoli v. Canada (Minister of Citizenship & Immigration), 2009 FC 332, 79 Imm. L.R. (3d) 253 (F.C.) where he states at para 36: [36] The board member found that the Applicant did not present sufficient credible evidence that he would be personally targeted by the police or the public in Nigeria based on his sexuality. Although he noted that the British-Danish Fact Finding Mission Report stated that homosexuals in large cities in Nigeria have a well-founded fear from the person’s local community and society at large, he preferred the statement in the Report that homosexuals in larger cities may not have reason to fear persecution as long as they do not present themselves as homosexuals in public. The board member stated: “There was no evidence to suggest that he [the Applicant] would have to remain in hiding, should he live there, although, as with respect to certain elements of his life in Canada, he would possibly have to practice discretion with respect to his sexual orientation in Ni- geria.” The Federal Court has repeatedly found such findings perverse as they require an individual to repress an immutable characteristic (Sadeghi-Pari v. Canada (M.C.I.), 2004 FC 282, para. 29). [Emphasis added] 24 In B. (A.) v. Canada (Minister of Citizenship & Immigration), 2010 FC 1332, 381 F.T.R. 312 (Eng.) (F.C.), Justice Mandamin was consider- Wafa v. Canada (MCI) Patrick Gleeson J. 329

ing the decision of a Pre-Removal Risk Assessment Officer and similarly states: [24] The Officer was required to analyse whether the Applicant, as he is within his personal context, would face a risk of torture, risk to life, or risk of cruel and unusual treatment or punishment. The Appli- cant’s history suggests that the Applicant has lived his life being openly gay, that is, in the conventional sense of being open about his sexual orientation. In conducting a risk analysis based on the assumption that the Applicant would not be openly gay in this manner in Guyana, the Officer made an error in his analysis. In conducting the risk assessment, the Officer was not required to dictate how the Applicant should conduct himself in the future. Nor was it the Of- ficer’s place to speculate that the Applicant would choose wisely to be discreet. What was relevant was the Applicant’s personal risk as an openly homosexual man. [25] There may or may not have been enough evidence for the Of- ficer to conclude that the Applicant would have faced cruel and unusual treatment as a sexual minority in Guyana. Because the Officer based his analysis only on the treatment faced by transves- tites/commercial sex workers and by homosexual persons who were discreet about their sexual orientation, the Officer failed to examine whether the applicant himself, as an openly homosexual man does not fall into either of those categories, would face such a risk. 25 The Delegate in this case failed to examine whether the applicant himself, a bisexual male who had recently come out to his family would be at risk in Afghanistan (Francis v. Canada (Minister of Citizenship and Immigration), 2012 FC 1141 (F.C.) at paras 57-58, (2012), 419 F.T.R. 42 (Eng.) (F.C.)). The result was an incomplete and therefore unreasonable risk assessment. An unreasonable risk assessment undermines the reasonableness of the decision as a whole. The risk assessment is a necessary step in the process articulated by the Federal Court of Appeal in Ragupathy at paras 17-19 that leads to the balancing of the risks inherent in removal and other humanitarian and compassionate circumstances against the magnitude of the danger to the public if the applicant remains in Canada in order to determine if removal from Canada would so shock the conscience as to breach the applicant’s rights under section 7 of the Charter. 26 The parties did not identify a question of general importance. 330 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Judgment THIS COURT’S JUDGMENT is that the application is granted and the matter is returned for redetermination by a different Ministerial Dele- gate. No question is certified. Application granted. Singh v. Canada (MCI) 331

[Indexed as: Singh v. Canada (Minister of Citizenship and Immigration)] Jotika Singh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6610-14 2015 FC 1055, 2015 CF 1055 Simon Fothergill J. Heard: August 11, 2015 Judgment: September 11, 2015 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Sponsors –––– Foreign national applied to sponsor husband as permanent resident — Visa officer concluded that foreign national was ineligible to sponsor husband because she had failed to comply with previous sponsorship undertaking — Immigration Appeal Division (IAD) declined to hear foreign national’s appeal on basis that previous decision was final and new appeal involved same issues and same parties — Foreign national brought application for judicial review — Application dismissed — Procedure adopted by IAD was fair, and its application of doctrine of res judicata was both correct and reasonable — IAD discharged its duty of procedural fairness by clearly identifying issue, explaining procedure to be followed by offering foreign national reasonable opportunity to present her arguments, and informing her of her right to be represented by counsel. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Duty of fairness –––– Foreign national applied to sponsor husband as permanent resident — Visa officer concluded that foreign national was ineligible to sponsor husband because she had failed to comply with previous sponsorship undertaking — Immigration Appeal Division (IAD) declined to hear foreign national’s appeal on basis that previous decision was final and new appeal involved same issues and same parties — Foreign national brought application for judicial review — Application dismissed — Procedure adopted by IAD was fair, and its application of doctrine of res judicata was both correct and reasonable — IAD discharged its duty of procedural fairness by clearly identifying issue, explaining procedure to be followed by offering foreign national reasonable opportunity to present her arguments, and informing her of her right to be represented by counsel. 332 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

Cases considered by Simon Fothergill J.: Angle v. Minister of National Revenue (1974), [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544, 2 N.R. 397, 1974 CarswellNat 375, 28 D.T.C. 6278, 1974 Car- swellNat 375F, [1974] S.C.J. No. 95 (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 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, 54 O.R. (3d) 214 (note), 2001 CSC 44, 54 O.R. (3d) 214 (S.C.C.) — followed Kamtasingh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 45, 2010 CarswellNat 101, 2010 CF 45, 2010 CarswellNat 801, 87 Imm. L.R. (3d) 118, [2010] F.C.J. No. 45 (F.C.) — referred to Khela v. Mission Institution (2014), 2014 SCC 24, 2014 CarswellBC 778, 2014 CarswellBC 779, [2014] S.C.J. No. 24, 368 D.L.R. (4th) 630, 64 Admin. L.R. (5th) 171, 9 C.R. (7th) 1, 455 N.R. 279, 307 C.C.C. (3d) 427, 2014 CSC 24, (sub nom. Khela v. Mission Institution (Warden)) 599 W.A.C. 91, (sub nom. Mission Institution v. Khela) [2014] 1 S.C.R. 502, (sub nom. Mission Institution v. Khela) 306 C.R.R. (2d) 66, (sub nom. Khela v. Mission Institution (Warden)) 351 B.C.A.C. 91 (S.C.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (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 Law v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1006, 2007 CarswellNat 3216, 2007 CF 1006, 2007 CarswellNat 4512, [2007] F.C.J. No. 1303 (F.C.) — referred to Nemeth v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 590, 2003 CarswellNat 1392, 28 Imm. L.R. (3d) 262, 2003 CFPI 590, 2003 CarswellNat 2991, 233 F.T.R. 301, [2003] F.C.J. No. 776 (Fed. T.D.) — referred to Ping v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 1121, 2013 CarswellNat 4064, 2013 CF 1121, 2013 CarswellNat 4717, 442 F.T.R. 22 (Eng.) (F.C.) — referred to Rahman v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1321, 2006 CarswellNat 3568, 2006 CF 1321, 2006 CarswellNat 5947, [2006] F.C.J. No. 1661, 302 F.T.R. 232 (Eng.) (F.C.) — considered Singh v. Canada (MCI) Simon Fothergill J. 333

Sketchley v. Canada (Attorney General) (2005), 2005 FCA 404, 2005 Car- swellNat 4194, 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, 344 N.R. 257, [2005] F.C.J. No. 2056, 263 D.L.R. (4th) 113, [2006] 3 F.C.R. 392, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490 (F.C.A.) — referred to Thompson v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 2015 FC 808, 2015 CarswellNat 2914, 2015 CF 808, 2015 Car- swellNat 4509 (F.C.) — referred to Wagg v. R. (2003), 2003 FCA 303, 2003 CarswellNat 2128, 2003 CAF 303, 2003 CarswellNat 2724, 2003 G.T.C. 1702, [2003] G.S.T.C. 120, [2003] F.C.J. No. 1115, (sub nom. Wagg v. Minister of National Revenue (Customs & Excise)) 308 N.R. 67, (sub nom. Wagg v. Canada) [2004] 1 F.C.R. 206, [2003] A.C.F. No. 1115 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 67(1)(c) — considered Rules considered: Immigration Appeal Division Rules, SOR/2002-230 R. 25(1) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 133(1)(g) — considered

APPLICATION by foreign national application for judicial review of Immigra- tion Appeal Division’s refusal to hear appeal.

Robert I. Blanshay, for Applicant Tamrat Gebeyehu, for Respondent

Simon Fothergill J.: I. Introduction 1 Jotika Singh has brought an application for judicial review of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. The IAD dismissed Ms. Singh’s appeal of the rejection by a visa officer of her husband’s application for a permanent resident visa. The visa officer concluded that Ms. Singh was ineligible to sponsor her husband because she had failed to comply with a previous sponsorship undertaking. 334 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

2 This was the second time that Ms. Singh had attempted to sponsor her husband, and the second time that she had appealed a negative decision to the IAD. The IAD therefore identified the possible application of the doctrine of res judicata as a preliminary issue. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (S.C.C.) [Danyluk] at para 18, Justice Binnie of the Supreme Court of Canada described the operation of the doctrine as follows: The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. [...] An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. 3 The IAD invited Ms. Singh and the Minister to make written submissions regarding the application of res judicata to the appeal. Following its consideration both parties’ submissions, the IAD dismissed Ms. Singh’s appeal. The IAD declined to hear the appeal because its previous decision was final and the new appeal involved the same issues and the same parties. 4 Ms. Singh says that the IAD breached her right to procedural fairness because she was not given an oral hearing and she was therefore left to address the question of res judicata through written submissions without the assistance of counsel. She also argues that the IAD misapplied the doctrine of res judicata by failing to consider her special circumstances. 5 For the reasons that follow, I have concluded that the procedure adopted by the IAD was fair, and that its application of the doctrine of res judicata was both correct and reasonable. The application for judicial review is therefore dismissed.

II. Background 6 Ms. Singh is originally from Fiji. She became a permanent resident of Canada in 2001 when she was sponsored by her first husband, Ramesh Pratap. Shortly afterwards Mr. Pratap sponsored his parents and his brother, all of whom arrived in Canada on May 23, 2003. Ms. Singh co- signed an undertaking to provide them with basic requirements for a period of 10 years, ending on May 23, 2013. Ms. Singh and Mr. Pratap separated in 2004 and divorced in March, 2006. Mr. Pratap died on Au- Singh v. Canada (MCI) Simon Fothergill J. 335

gust 27, 2006. In September 2006, Mr. Pratap’s parents applied for and began receiving social assistance from the Province of Ontario. 7 In 2007, Ms. Singh became a Canadian citizen. She met Karan Shishi through her family’s connections in Fiji, and they married on November 13, 2008. Mr. Shishi’s first application for a permanent resident visa was denied on September 21, 2009 because his sponsor, Ms. Singh, was in default of the undertaking with respect to her former husband’s parents and she was therefore ineligible to sponsor him. Ms. Singh says that she was unaware that her former husband’s parents had received social assistance until she read the visa officer’s decision. 8 Ms. Singh appealed the visa officer’s decision to the IAD, which dismissed the appeal on December 15, 2010. The IAD held that the undertaking was valid, and that Ms. Singh owed a considerable debt to the Province of Ontario for the social assistance received by her former husband’s parents. She was therefore found to be in default of an undertaking within the meaning of s 133(1)(g) of the Immigration and Refugee Protection Regulations, SOR/2002-227, and ineligible to sponsor her new husband. The IAD also considered whether humanitarian and compassionate grounds might justify special relief pursuant to s 67(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27. The IAD acknowledged that some hardship would result from the spouses’ separation, but noted that Ms. Singh had not made any effort to repay her debt or establish a repayment plan. Instead, she chose to travel to visit her new husband and her parents. The IAD concluded that the humanitarian and compassionate considerations were insufficient to warrant special relief. 9 According to Ms. Singh, in the course of her first appeal to the IAD the Minister’s counsel suggested that she could re-apply to sponsor her husband once the period of her undertaking expired in May, 2013. She therefore made a second application to sponsor her husband as soon as the undertaking expired. By letter dated July 9, 2013, a visa officer informed Ms. Singh that she continued to be in default of her undertaking, and she was therefore ineligible to sponsor Mr. Shishi. The letter cau- tioned that her ineligibility would be a significant factor in the assessment of the sponsorship application. The sponsorship application was ultimately denied on October 18, 2013 on the ground that Ms. Singh remained in default of the undertaking. 10 Ms. Singh appealed this second decision to the IAD on November 30, 2013. On March 17, 2014, the IAD wrote to Ms. Singh and the Min- 336 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

ister’s counsel to request written submissions regarding the possible application of res judicata given the previous IAD decision: As this appeal is based on the same grounds of refusal as the first appeal, it appears to be an attempt to re-litigate issues already decided. As such, the doctrine of res judicata or abuse of process may apply to this appeal. Exercising its jurisdiction to control its own process, the IAD requests the parties to present evidence and make submissions on whether or not res judicata applies to this appeal and on whether or not this appeal is an abuse of process. In addition to written argument, you may provide your affidavit and affidavits from any other supporting witnesses setting out the new evidence that is being provided in support of the appeal. The Minister’s counsel may file responding argument and affidavit evidence. The following cases may be of assistance in providing your submissions: • Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 • Sami, Sarda v. M.C.I. (F.C., no. IMM-5709-11), Russell, May 4, 2012; 2012 FC 539 • Dhaliwal, Baljit Kaur v. M.C.I. (F.C. no. IMM-1211-12), Hughes, October 10, 2012; 2012 FC 1182 [Emphasis original.] 11 The IAD’s letter specified that Ms. Singh should provide her submissions by April 14, 2014, that the Minister should provide submissions within 28 days, and that Ms. Singh would then have seven days in which to reply. Ms. Singh was also informed of her right to be represented by counsel at her own expense. The letter from the IAD stated that if it decided to dismiss the appeal on the basis of res judicata or abuse of process, no oral hearing would be held in keeping with Rule 25(1) of the Immigration Appeal Division Rules, SOR/2002-230. 12 Ms. Singh chose not to be represented by counsel. She provided written submissions to the IAD on March 31, 2014, in which she asserted that she had been informed during the first appeal that her application would be processed after the expiry of her undertaking in May, 2013. She asked that the condition regarding the undertaking be waived so that her husband could join her in Canada and help her to repay the debt. She indicated that she was unable to repay the debt alone, and promised that she and her husband would repay it as soon as possible. She also included a letter from her employer confirming that she is trustworthy and Singh v. Canada (MCI) Simon Fothergill J. 337

committed, and that her separation from her husband had caused her dis- tress. A letter from Mr. Shishi described the hardship that their separation had caused him and confirmed his commitment to helping Ms. Singh repay her debt if he were permitted to come to Canada. 13 On July 3, 2014, the Minister filed written submissions which asserted that the doctrine of res judicata was applicable and no decisive new evidence had been presented by Ms. Singh. Ms. Singh did not make any further written submissions in reply, despite having been informed of her opportunity to do so.

III. The IAD’s Decision 14 The IAD summarised the criteria for the application of res judicata found in Danyluk, and concluded that the appeal involved the same parties and issues as the previous appeal. The IAD noted that Ms. Singh had not sought judicial review of its previous decision, and the decision was therefore final. The IAD nevertheless considered whether any special circumstances warranted a hearing of the appeal, in particular whether Ms. Singh had adduced any “decisive new evidence”. The IAD considered Ms. Singh’s written submissions and supporting documents, but concluded that they demonstrated no effort on her part to address her outstanding debt. Her submissions merely reiterated the same position she had taken before the IAD in 2010, i.e., that she would repay the debt once her husband came to Canada. The IAD concluded that there were no special circumstances that would justify an exception to the application of res judicata, and no other issues that required a re-hearing. The IAD therefore declined to hear the appeal.

IV. Issues 15 This application for judicial review raises the following issues: A. Did the IAD’s decision to consider the application of res judicata on the basis of written submissions when Ms. Singh was not represented by counsel breach her right to procedural fairness? B. Did the IAD misapply the doctrine of res judicata? 338 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

V. Analysis A. Did the IAD’s decision to consider the application of res judicata on the basis of written submissions when Ms. Singh was not represented by counsel breach her right to procedural fairness? 16 Questions of procedural fairness are reviewable by this Court against the standard of correctness (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 43; Khela v. Mission Institu- tion, 2014 SCC 24 (S.C.C.) at para 79; Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056 (F.C.A.), at para 46). 17 The concept of procedural fairness is “eminently variable and its content is to be decided in the specific context of each case” (Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para 21). 18 Ms. Singh says that her response to the IAD’s letter requesting written submissions on the application of res judicata should have alerted the IAD to the fact that she did not fully understand what was being asked of her. She argues that the doctrine of res judicata is too complex for a self- represented person to grasp, and that she was entitled to a heightened level of procedural fairness because she did not have the assistance of a lawyer (Nemeth v. Canada (Minister of Citizenship & Immigration), 2003 FCT 590, 233 F.T.R. 301 (Fed. T.D.) [Nemeth] at para 13; Law v. Canada (Minister of Citizenship & Immigration), 2007 FC 1006 (F.C.) at paras 15-19; Kamtasingh v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 45 (F.C.)). 19 I am unable to accept Ms. Singh’s argument. The letter from the IAD that requested written submissions regarding the application of res judicata clearly indicated that Ms. Singh had the right to be represented by counsel at her own expense. The letter explained the doctrine of res judicata and provided references to jurisprudence that might be helpful. The Minister’s written submissions addressed the doctrine and its application in considerable detail. Ms. Singh, despite having been informed of her right to reply, offered nothing in response. While she was not required to seek the assistance of a lawyer, Ms. Singh must accept the consequences of not doing so (Wagg v. R., 2003 FCA 303, [2004] 1 F.C.R. 206 (F.C.A.) at para 25). An administrative tribunal is not required to act as counsel for a self-represented litigant (Thompson v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 808 (F.C.) at para 15). Singh v. Canada (MCI) Simon Fothergill J. 339

20 Nor was the IAD obliged to hold an oral hearing or offer an alternative dispute resolution process. The IAD specifically informed Ms. Singh that no oral hearing would be held if it decided to dismiss the appeal on the basis of res judicata. Furthermore, as Justice Simon No¨el observed in Rahman v. Canada (Minister of Citizenship & Immigration), 2006 FC 1321 (F.C.) [Rahman] at para 34, res judicata is necessarily something to be addressed in advance of a hearing because its purpose is to prevent the re-litigation of questions that have previously been settled by a court of competent jurisdiction. 21 I am therefore satisfied that the IAD discharged its duty of procedural fairness by clearly identifying the issue, explaining the procedure to be followed (including Ms. Singh’s right to reply to the Minister’s submissions), offering Ms. Singh a reasonable opportunity to present her arguments, and informing her of her right to be represented by counsel.

B. Did the IAD misapply the doctrine of res judicata? 22 Res judicata precludes the re-litigation of both the same cause of action (cause of action estoppel) and the same issues or material facts (issue estoppel): Danyluk at para 20. The underlying purpose of the doctrine is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case: Danyluk at para 33. 23 Issue estoppel involves the application of a two-part test. The decision-maker must first determine whether the three preconditions of issue estoppel are met, as described in Angle v. Minister of National Revenue (1974), [1975] 2 S.C.R. 248 (S.C.C.) at para 3: a. the same question has been decided; b. the decision said to create the estoppel was final; and c. the parties to the previous decision or their privies are the same as the parties to the proceeding in which the estoppel is raised. 24 Second, the decision-maker must consider whether the application of issue estoppel or res judicata would lead to an injustice (Rahman at para 20; Danyluk at para 67). 25 Each step of the res judicata analysis attracts a different standard of review. Whether the preconditions to the operation of issue estoppel are met is a question of law and is reviewable by this Court against the standard of correctness (Rahman at para 12). Whether special circumstances 340 IMMIGRATION LAW REPORTER 38 Imm. L.R. (4th)

exist to justify an exception involves the exercise of discretion, and is therefore reviewable against the standard of reasonableness (Ping v. Canada (Minister of Citizenship and Immigration), 2013 FC 1121 (F.C.) at para 17). 26 I am satisfied that the IAD’s determination that the three preconditions for the application of issue estoppel were met was correct: Ms. Singh’s appeal concerned the same question, the previous decision was final, and the parties were identical. Ms. Singh argues that the passage of time, and the strengthening of her bond with Mr. Shishi, required a new assessment of humanitarian and compassionate considerations. The fact remains, however, that the issues addressed in the previous appeal were precisely the same as those raised in the subsequent appeal: whether Ms. Singh was in breach of an undertaking and whether there were sufficient humanitarian and compassionate reasons to overcome this breach. 27 The IAD considered any change in Ms. Singh’s circumstances, including her ongoing marriage to Mr. Shishi, in connection with the second step of the res judicata analysis: whether the application of issue estoppel would lead to an injustice. The IAD reasonably concluded that Ms. Singh had not established the existence of special circumstances to justify an exemption. She offered no new arguments nor had her circumstances changed in any material way since her previous appeal. Most im- portantly, she had made no effort to remedy her outstanding default on her undertaking, merely reiterating her intention to repay the outstanding debt once her husband arrived in Canada. 28 Ms. Singh’s case is in some respects a sympathetic one. She co- signed an undertaking with her former husband to support his parents for a period of 10 years. The marriage did not last, and following her former husband’s death his parents immediately sought social assistance. They collected social assistance for the remaining duration of the undertaking and beyond. The amount owed is now very substantial. Ms. Singh was advised by the IAD in the first appeal of the steps she must take to remedy the situation: either repay the debt or make an alternative arrange- ment with the Province of Ontario. If any future sponsorship application is to succeed, Ms. Singh will have to demonstrate the efforts she has made to deal with the outstanding debt in some fashion.

VI. Conclusion 29 For the foregoing reasons, this application for judicial review is dismissed. No question is certified for appeal. Singh v. Canada (MCI) Simon Fothergill J. 341

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. No question is certified for appeal. Application dismissed.