IMMIGRATION LAW REPORTER Third Series/Troisi`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 99 (Cited 99 Imm

IMMIGRATION LAW REPORTER Third Series/Troisi`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 99 (Cited 99 Imm. L.R. (3d))

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[Indexed as: Griffiths v. Canada (Minister of Citizenship & Immigration)] Carol Joan Griffiths, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3289-10 2011 FC 434 D.G. Near J. Heard: March 1, 2011 Judgment: April 7, 2011 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) –––– Applicant was citizen of Jamaica and came to Canada on temporary resident visa — One year later applicant was found inadmissible, as she intended to establish permanent residence and did not hold visa required to do so — Departure order was issued against applicant, and same day, applicant filed claim for refugee protection due to threat of physical and sexual assault if forced to return to Jamaica — Refugee claim was rejected, citing credibility and availability of state protection as determinative issues — Applicant submitted Pre-Removal Risk Assessment (PRRA) application, which was refused — Applicant applied for judicial review from PRRA decision — Application granted — PRRA officer failed to consider new risk put forward by applicant that applicant had been labelled as police informer for reporting assaults and faced serious threat of retribution as result — Decision of PRRA officer made no mention of alleged risk, indicating that risk had not been considered — Applicant’s allegation was clear, leaving PRRA officer to determine credibility, which officer failed to do — Absent acknowledgement of risk alleged by applicant, decision could not be said to be justifiable, transparent or intelligible — PRRA decision was quashed; matter remitted back to be heard by different officer. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous 2 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d) issues –––– Applicant was citizen of Jamaica and came to Canada on temporary resident visa — One year later applicant was found inadmissible, as she intended to establish permanent residence and did not hold visa required to do so — Departure order was issued against applicant, and same day, applicant filed claim for refugee protection due to threat of physical and sexual assault if forced to return to Jamaica — Refugee claim was rejected, citing credibility and availability of state protection as determinative issues — Applicant submitted Pre-Removal Risk Assessment (PRRA) application, which was refused — Ap- plicant applied for judicial review from PRRA decision — Application granted — PRRA officer failed to consider new risk put forward by applicant that applicant had been labelled as police informer for reporting assaults and faced serious threat of retribution as result — Decision of PRRA officer made no mention of alleged risk, indicating that risk had not been considered — Ap- plicant’s allegation was clear, leaving PRRA officer to determine credibility, which officer failed to do — Absent acknowledgement of risk alleged by applicant, decision could not be said to be justifiable, transparent or intelligible — PRRA decision was quashed; matter remitted back to be heard by different officer. Cases considered by D.G. Near J.: Hnatusko v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 21, 2010 FC 18, 2010 CarswellNat 620, 2010 CF 18, [2010] A.C.F. No. 21, [2010] F.C.J. No. 21 (F.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Owusu v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 38, 2004 CarswellNat 248, 2004 CAF 38, 2004 CarswellNat 1117, 318 N.R. 300, (sub nom. Owusu v. Canada) [2004] 2 F.C.R. 635, [2004] F.C.J. No. 158 (F.C.A.) — considered

APPLICATION for judicial review of decision of Pre-Removal Risk Assess- ment Officer which determined that applicant would not be subject to risk of torture, persecution or cruel and unusual treatment if removed to Jamaica.

Bola Adetunji, for Applicant Margherita Braccio, for Respondent Griffiths v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 3

D.G. Near J.:

1 This is an application for judicial review of the decision of Pre-Re- moval Risk Assessment Officer T. N’Kombe (the Officer) dated April 26, 2010, wherein the Officer determined that the Applicant would not be subject to risk of torture, be at risk of persecution, or face a risk to life or risk of cruel and unusual treatment or punishment if removed to Jamaica. 2 Based on the reasons below, this application is allowed.

I. Background A. Factual Background 3 The Applicant, Carol Joan Griffiths, is a citizen of Jamaica. She arrived in Canada in May 2006 on a Temporary Resident Visa. On April 4, 2007 the Applicant was found to be inadmissible as she intended to establish permanent residence in Canada and did not hold the visa required to do so. A section 44 report was prepared and a departure order was issued against the Applicant. The same day the Applicant filed a claim for refugee protection. 4 The Applicant’s refugee claim was heard August 18, 2009. The Ap- plicant based her claim on the harassment she suffered at the hands of a man named Mickey. Mickey raped the Applicant in 1985. She became pregnant and was forced to give the baby up for adoption. Mickey continued to harass her and also physically attacked the Applicant once after the birth of the baby. To avoid further harassment the Applicant went to St. Martens in 1997 and stayed there for a few years. She returned to Jamaica in 2002, but was again approached by Mickey in 2002 and 2006. As a result she fled to Canada. The Applicant’s claim was rejected on October 13, 2009. The Board cited credibility and the availability of state protection as the determinative issues. 5 On December 8, 2009 the Applicant made a Humanitarian and Com- passionate (H&C) application for permanent residence. That decision is still pending. 6 On March 12, 2010 the Applicant submitted a Pre-Removal Risk As- sessment (PRRA) application. The PRRA application was refused April 26, 2010. This is the decision under review. 4 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

B. Impugned Decision 7 The PRRA Officer determined that the Applicant had not rebutted the findings of the Immigration and Refugee Board, but had presented a new set of risks having to do with violent criminals robbing and raping the citizens of Jamaica. The PRRA Officer noted that these risks were not unknown to the Applicant at the time of her refugee hearing, and yet she did not bring them up then. Nevertheless, the PRRA Officer was of the opinion that the new risk feared was generalized and not personal to the Applicant. While the documentary evidence showed that violence is a problem in Jamaica, the Applicant had not presented clear and convincing evidence of the state’s inability to adequately protect her. The PRRA Officer was satisfied that the country conditions had not deteriorated since the Immigration and Refugee Board’s (IRB) rejection so as to place the Applicant at risk of persecution or cruel and unusual treatment or punishment.

II. Issues 8 This application raises only one issue: (a) Did the PRRA Officer disregard important evidence?

III. Standard of Review 9 The appropriate standard of review to apply to findings of fact, or mixed fact and law in a PRRA decision is reasonableness (Hnatusko v. Canada (Minister of Citizenship & Immigration), 2010 FC 18 (F.C.) at para 25). Judicial deference to the decision is appropriate where the decision demonstrates justification, transparency and intelligibility within the decision making process, and where the outcome falls within a range of possible, acceptable outcomes (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47).

IV. Argument and Analysis A. Did the PRRA Officer Disregard Important Evidence? 10 The Applicant submits that the PRRA Officer ignored evidence before him alleging that the Applicant had been branded as an informer because of various reports she had made to police in Jamaica. 11 The section of her PRRA narrative detailing this claim read: Ms. Griffiths has been raped and beaten on different occasions. She reported these assaults to the police and because of this, she was Griffiths v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 5

branded an informer. Informers don’t fare well in Jamaica. And police remained passive and inactive. Reporting a crime or a personal assault to Jamaican police is really not a good option. It’s extremely difficult to trust the police because the information that is provided to the people who should be protect- ing you is relayed to the criminal element. The thugs will take re- venge and punish the person who reported the crime or punish their close family members. 12 The Applicant made no mention of her status as an informer in her prior refugee hearing. As such, it is indeed a new risk. The Applicant submits that nowhere in the decision is there an analysis of the risk faced by the Applicant because she has been accused of being an informer. 13 The Respondent submits that the Applicant has failed to identify any error with respect to the PRRA decision. The Applicant provided no evidence to support the contention that she had been branded an informer. Furthermore, she provided no evidence to explain the surrounding circumstances or to show that she only found out about this allegation after her refugee hearing. The Respondent disputes that this allegation was even disregarded by the PRRA Officer as he found that other individuals in a similar situation as the Applicant share the same risk. 14 I must disagree with the Respondent. The decision makes no mention of the Applicant’s alleged status as an informer. The PRRA Officer finds that the risk the Applicant describes as refusing, “to be victimized again by the violent criminals who are indiscriminately robbing, raping and murdering the innocent victims of Jamaica...” is a generalized risk. In- deed, by the Applicant’s own description, it was reasonable for the Of- ficer to conclude that this “indiscriminate” violence is a generalized risk. However, nowhere in the decision is it clear that the Officer considers the risk faced by an alleged police informer to be similarly non-personalized. It is not obvious that the PRRA Officer turned his mind to this alleged risk. 15 I am unable to accept the Respondent’s characterization of the informer allegation as a risk that was merely mentioned in passing. In reading the PRRA narrative, it is clear that the Applicant was alleging a specific new risk which was significantly different than the claims put before the IRB during the Applicant’s refugee hearing. Was any corroborating evidence provided by the Applicant? Does the Applicant explain that she was only branded an informer after the refugee hearing, or that this information was not reasonably available at the time of the hear- 6 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

ing? Does the Applicant provide any kind of explanation for this claim? Does any of the documentary evidence provided by the Applicant address the risks faced by police informers in Jamaica? The Respondent mentions these issues in his submissions and certainly it would have been reasonable for the PRRA Officer to point to these questions, the lack of answers to which might cast doubt on the Applicant’s seemingly convenient allegation. Raising any of these issues would also have clearly brought into focus the fact that the Officer considered all of the evidence that was before him. However, absent any kind of indication that he did consider the claim that the Applicant was an informer, the decision is not reasonable in that it is not transparent, intelligible or justifiable. Neither I, nor the Applicant knows why the PRRA Officer did not find that being an informer would put the Applicant at risk. 16 The Respondent cited the Federal Court of Appeal decision Owusu v. Canada (Minister of Citizenship & Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635 (F.C.A.) at paras 9 and 10 in support of his contention that there is no reviewable error: [9] The half-sentence on page four of the seven-page letter, quoted above in [6], said only that Mr. Owusu would be unable to support his family financially if he was deported was too oblique, cursory and obscure to impose a positive obligation on the officer to inquire further about the best interests of the children. The letter did not say that Mr. Owusu had been supporting his children from the money he earned while in Canada, and that they were financially dependent upon him and would be deprived of that support if he was deported. Nor was there any proof before the officer of any of these facts. [10] Counsel argued that the officer should have inferred from what the letter did say that Mr. Owusu’s children would be deprived of the financial support on which they depended if their father was deported. In the circumstances, the officer is not to be faulted for failing to draw this inference. Hence, the immigration officer did not err in rejecting the H & C application without analysing the likely impact of her decision on Mr. Owusu’s children. 17 In that case the applications judge decided to dismiss the judicial review even though he found that the immigration officer erred in law in not being sufficiently attentive to the best interests of the children. He nonetheless decided not to set the decision aside because the claimant had not provided any evidence to support the allegation that his deportation would be contrary to the best interests of his children and because if the matter were remitted for redetermination by another officer on the Griffiths v. Canada (Minister of Citizenship & Immigration) D.G. Near J. 7

same material, the application was bound to be rejected. On appeal, however, the Federal Court of Appeal upheld the outcome but based its decision to do so on the claimant’s failure to discharge his onus of providing a sufficient evidentiary basis on which the officer could make a decision with regards to the best interests of the children,. However, that case is distinguishable from the present matter. The half-sentence on which the claimant based his application for judicial review in Owusu, above, read: Should he be forced to return to Ghana [Mr. Owusu] will not have any ways to support his family financially and he will have to live every day of his life in constant fear. 18 The claimant, Mr. Owusu, ostensibly based his H&C application on establishment in Canada and not the best interests of the child. In essence, the claimant was requiring the officer to go looking for evidence. This “hint” in the letter was, as described by the Court of Appeal, oblique, cursory and obscure. The Applicant’s reference to being an informer in the present matter is not couched in comparable obscurity. Her allegation was quite clear, if not credible. That credibility of the statement would have been for the PRRA Officer to determine. 19 It is trite law that the officer is presumed to have considered all of the evidence before him and that the assessment of weight to be given to the evidence is a matter within the discretion and expertise of the officer. But, in the present case, absent some kind of acknowledgement of the risk alleged by the Applicant, the decision cannot be said to be justifiable, transparent or intelligible. Therefore the judicial review will be granted, the PRRA decision is quashed and the matter remitted back to be heard by a different officer.

V. Conclusion 20 No question was proposed for certification and none arises. 21 In consideration of the above conclusions, this application for judicial review is allowed.

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is allowed. Application granted. 8 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Thamotharampillai v. Canada (Minister of Citizenship & Immigration)] Pakeerathan Thamotharampillai, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4892-10 2011 FC 438 Sean Harrington J. Heard: March 16, 2011 Judgment: April 7, 2011 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) –––– Applicant was Tamil from Sri Lanka who was convicted of possession of narcotic for purposes of trafficking — As applicant’s term of imprisonment was more than two years, he was inadmissible to Canada for serious criminality and disentitled from seeking refugee protection — Applicant demanded Pre-Removal Risk Assessment (PRRA) as person in need of protection — Applicant instructed his immigration consultant to make appropriate submissions and submit further evidence — Immigration consultant did absolutely nothing — PRRA was negative, finding that applicant was not objectively at risk if he returned to Sri Lanka — Applicant applied for judicial review — Application granted — Immigration consultant was clearly incompetent, as he failed to carry out his instructions to file representations — Only issue was whether this incompetence resulted in miscarriage of justice, in that further submissions, that would have been filed by competent consultant, would have had any effect on PRRA decision — Burden on applicant was to establish fairly arguable case, not to establish on balance of probabilities that he would have been successful — Consideration of country conditions and weight to be given to various reports, other than to find that material presented fairly arguable case, would step beyond confines of this judicial review, as findings of fact on country conditions fell within jurisdiction of delegate on Minister of Citizenship and Immigration — Some of applicant’s further material could well have made difference to decision — Audi alteram partem aspect of natural justice required that applicant have fair opportunity to fully present his case. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division –––– Applicant was Tamil from Sri Lanka who was convicted of possession of narcotic for purposes of trafficking — As applicant’s term of im- Thamotharampillai v. Canada (MCI) 9 prisonment was more than two years, he was inadmissible to Canada for serious criminality and disentitled from seeking refugee protection — Applicant demanded Pre-Removal Risk Assessment (PRRA) as person in need of protection — Applicant instructed his immigration consultant to make appropriate submissions and submit further evidence — Immigration consultant did absolutely nothing — PRRA was negative, finding that applicant was not objectively at risk if he returned to Sri Lanka — Applicant applied for judicial review — Ap- plication granted — Immigration consultant was clearly incompetent, as he failed to carry out his instructions to file representations — Some of applicant’s further material could well have made difference to decision — Audi alteram partem aspect of natural justice required that applicant have fair opportunity to fully present his case — Case was too fact-specific to support certified question as to whether applicant had to establish on reasonable probability that result would have been different if further material had been considered. Cases considered by Sean Harrington J.: Cardinal v. Kent Institution (1985), [1985] 2 S.C.R. 643, [1986] 1 W.W.R. 577, 24 D.L.R. (4th) 44, 63 N.R. 353, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 1985 CarswellBC 402, 1985 CarswellBC 817, [1985] S.C.J. No. 78 (S.C.C.) — considered Chukwudebe v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 441, 2009 FC 211, 79 Imm. L.R. (3d) 298 (F.C.) — referred to Doyle v. Olby (Ironmongers) Ltd. (1969), [1969] 2 All E.R. 119, [1969] 2 Q.B. 158 (Eng. C.A.) — considered Hallatt v. R. (2004), 2004 D.T.C. 6176, [2004] 2 C.T.C. 313, 2004 CarswellNat 613, 2004 FCA 104, [2004] F.C.J. No. 434 (F.C.A.) — referred to Liyanagamage v. Canada (Secretary of State) (1994), (sub nom. Liyanagamage v. Canada (Minister of Citizenship & Immigration)) 176 N.R. 4, 1994 Car- swellNat 1327, [1994] F.C.J. No. 1637 (Fed. C.A.) — considered Mancia v. Canada (Minister of Citizenship & Immigration) (1998), [1998] 3 F.C. 461, 45 Imm. L.R. (2d) 131, 1998 CarswellNat 2069, 161 D.L.R. (4th) 488, 226 N.R. 134, 147 F.T.R. 307 (note), 1998 CarswellNat 811, [1998] F.C.J. No. 565 (Fed. C.A.) — considered Onuschak v. Canadian Society of Immigration Consultants (2009), 2009 Car- swellNat 5491, 2009 CarswellNat 4214, 2009 FC 1135, 357 F.T.R. 22 (Eng.), 86 Imm. L.R. (3d) 78, 2009 CF 1135, 3 Admin. L.R. (5th) 214 (F.C.) — considered Robles v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 374, 2003 CarswellNat 815, 2003 CFPI 374, 2003 CarswellNat 1819, 2 Ad- min. L.R. (4th) 315, [2003] F.C.J. No. 520 (Fed. T.D.) — referred to 10 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 97 — considered s. 112(3) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 2 “authorized representative” — considered s. 13.1(1) [en. SOR/2004-59] — considered

APPLICATION by applicant for judicial review of negative Pre-Removal Risk Assessment decision.

Barbara Jackman, for Applicant David Cranton, for Respondent

Sean Harrington J.:

1 Lord Denning once said: We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of the evidence, in which case we can at best order a new trial [Doyle v. Olby (Ironmongers) Ltd., [1969] 2 All E.R. 119 (Eng. C.A.) at page 121]. So it is in this case. What went wrong is that the immigration consultant Mr. Thamotharampillai hired to make representations with respect to a Pre-Removal Risk Assessment (PRRA) failed to make any submissions at all. 2 Mr. Thamotharampillai is a Tamil from Sri Lanka. He is inadmissible to Canada for serious criminality arising from a conviction here for possession of a narcotic for the purposes of trafficking. He was sentenced to a term of imprisonment of at least two years. In accordance with section 112(3) of the Immigration and Refugee Protection Act (IRPA), he was thus disentitled to seek refugee protection. He was, however, entitled to and demanded a PRRA, not as a failed refugee, but rather as a person in need of international protection under section 97 of IRPA. The issue is whether, on the balance of probabilities, he would be subjected to a dan- Thamotharampillai v. Canada (MCI) Sean Harrington J. 11

ger, believed on substantial grounds to exist, of torture or to a risk to his life or to a risk of cruel and unusual treatment or punishment in Sri Lanka. 3 In this assessment, he was only entitled to present new evidence, as that term is defined in IRPA. Since he had been here for some time, in December 2009 the Canadian Border Service Agency delivered to him a package containing current country information. He was given a delay to file representations, arguments and to submit evidence. 4 As he had been using an immigration consultant throughout the process, a consultant who may have passed himself off as a lawyer, Mr. Thamotharampillai instructed him to make appropriate submissions and to submit further evidence in the form of other country reports. 5 The consultant did absolutely nothing. It is not surprising therefore that the assessment was negative. The Minister’s Delegate found that the civil war in Sri Lanka had ended and that country conditions had so changed that Mr. Thamotharampillai, despite his subjective fear, was not objectively at risk of torture, or at risk to his life or at risk of cruel and unusual treatment or punishment were he to return to Sri Lanka. 6 In this judicial review of that decision Mr. Thamotharampillai raises a number of issues. However, it is only necessary to consider one. In my opinion, he was denied natural justice because he was represented by an incompetent immigration consultant. Had the consultant been competent and done his duty, the decision may well have been different. 7 Mr. Thamotharampillai had the option of representing himself (not always a good idea) or engaging an “authorized representative.” In accordance with sections 2 and 13.1(1) of the Immigration and Refugee Protection Regulations an “authorized representative” is a lawyer, notary or a member of the Canadian Society of Immigration Consultants. Mr. Thamotharampillai’s representative is a member of that latter organization, which enjoys special status. For some purposes, it is a federal board or tribunal, as explained in Onuschak v. Canadian Society of Immigration Consultants, 2009 FC 1135, 357 F.T.R. 22 (Eng.) (F.C.). 8 Among other things, the Society has disciplinary powers. Mr. Thamotharampillai has filed a complaint with respect to his immigration consultant’s behaviour. That complaint is still outstanding. 9 In order to succeed in this judicial review, the applicant must establish the facts on which the claim of incompetence is based, that the consultant was incompetent, and that the incompetence resulted in a miscar- 12 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

riage of justice (Robles v. Canada (Minister of Citizenship & Immigration), 2003 FCT 374, 2 Admin. L.R. (4th) 315 (Fed. T.D.), and Hallatt v. R., 2004 FCA 104, [2004] 2 C.T.C. 313 (F.C.A.)). 10 The first two elements are not in issue. The fact of the matter is that the immigration consultant failed to carry out his instructions to file representations. The only question is whether this incompetence resulted in a miscarriage of justice. It is common ground that it is not enough to submit that a competent consultant would have filed further representations. The issue is whether those representations would have had any effect on the Minister’s Delegate’s decision. Mr. Thamotharampillai submits that the onus upon him has been discharged if he has made out a fairly arguable case. The Minister submits there has to be a reasonable probability that this material would have made a difference. 11 There is a distinction to be drawn between malfeasance and nonfea- sance. As a general rule, a party is bound by the actions of his or her agent. However, there are times when a lawyer or authorized representative has failed to mail a completed humanitarian and compassionate application, or has failed to inform the Board of the applicant’s change of address. This is a different category all together, and the category which is applicable in this instance. A number of the cases are reviewed in Chukwudebe v. Canada (Minister of Citizenship & Immigration), 2009 FC 211, 79 Imm. L.R. (3d) 298 (F.C.). 12 Mr. Thamotharampillai’s point is that had his consultant done what he should have done, he would certainly have drawn the following country documentation to the decision maker’s attention, as he has to this Court: a. Amnesty International, “Unlock the Camps in Sri Lanka: Safety and Dignity for the displaced now — A Briefing Paper” (10 Au- gust 2009) ASA 37/016/2009; b. United Nations High Commissioner for Refugees, “UNHCR Eli- gibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” (5 July 2010) HRC/EG/SLK/10/03; c. Australia: Refugee Review Tribunal, Sri Lanka (3 April 2009); d. Australia: Refugee Review Tribunal, Sri Lanka (31 August 2006); e. International Crisis Group, “War Crimes in Sri Lanka” (17 May 2010) Asia Report No 191; Thamotharampillai v. Canada (MCI) Sean Harrington J. 13

f. Human Rights Watch, “Legal Limbo: The Uncertain Fate of De- tained LTTE Suspects in Sri Lanka” (2 February 2010); g. Amnesty International, “Sri Lanka urged to ensure safety of detained former asylum-seekers” (3 September 2010); h. United States Department of State, “2009 Country Reports on Human Rights Practices — Sri Lanka” (11 March 2010); i. Amnesty International, “Australia asylum suspension could harm world’s most vulnerable” (9 April 2010); j. Immigration and Refugee Board of Canada, “Sri Lanka: Libera- tion Tigers of Tamil Eelam (LTTE) activity in Sri Lanka, including arrests, whether LTTE members have been responsible for ex- tortion, disappearances or bombings since the government defeated the LTTE, and whether the LTTE has the capacity to re- group within Sri Lanka (May 2009 — January 2010)” (28 January 2010); k. International Crisis Group, “Sri Lanka: A Bitter Peace” (11 Janu- ary 2010) Asia Briefing No 99; and l. Amnesty International, “Arrest of Sri Lankan opposition leader escalates post-election repression” (9 February 2010). 13 I cannot agree with the Minister’s balance of probabilities submission. Certainly if one fails to file a statement of defence in an action or to appear in an application in time, it is incumbent to show that there may be some merit in the position that should have been advanced earlier. The burden is to establish a fairly arguable case, not to establish on the balance of probabilities that one would be successful. Furthermore, the consideration of country conditions and the weight to be given to various reports lies within the province of the Minister’s Delegate, whose decision is not to be set aside on judicial review unless unreasonable. 14 There is a rebuttable presumption that the Minister’s Delegate has considered the entire record. In this case, it would appear that the delegate not only considered the material he sent to Mr. Thamotharampillai, but also subsequent reports. It seems to me that if I give weight to the evidence which would have been before him had the consultant done his duty, other to find that the material raises a fairly arguable case, I would be stepping beyond the confines of a judicial review. 15 Mr. Thamotharampillai’s counsel has certainly pointed out some material which could well have made a difference. The applicant had been suspected of having links with the Tamil Tigers, which may put him at 14 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

risk as reported in Human Rights Watch, “Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka” (2 February 2010). In United Nations High Commissioner for Refugees, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka” (5 July 2010) HRC/EG/SLK/10/03, it is said: In light of the foregoing, persons suspected of having links with the LTTE may be at risk on the grounds of membership of a particular social group. Claims by persons suspected of having links with the LTTE may, however, give rise to the need to examine possible exclusion from refugee status. 16 Although this is not a case of procedural unfairness, since no criti- cism whatsoever can be levied at the decision maker, procedural unfairness is only one aspect of natural justice. We are entitled to have a fair opportunity to make our case, or our defence, before an unbiased decision maker. The audi alterem partem aspect of natural justice requires that Mr. Thamotharampillai have a fair opportunity to fully present his case. 17 Although Mr. Justice Le Dain was speaking of procedural fairness, I think the following passage from the Supreme Court’s decision in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 (S.C.C.), at paragraph 23, is a` propos: [...] The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. 18 Findings of fact with respect to country conditions fall within the jurisdiction of the Minister’s Delegate, not the Court. I will not speculate as to what the result would have been had the material placed before me been placed before him, other than to find that the material establishes a fairly arguable case.

Certified Question 19 Counsel for the Minister submits that I should certify the following serious question of general importance in order to support an appeal: Where, in the context of a risk assessment, counsel fails to provide further documentation or supplementary submissions in response to the disclosure of updated country condition documents, must an ap- Thamotharampillai v. Canada (MCI) Sean Harrington J. 15

plicant establish a reasonable probability that the result would have been different but for counsel’s failure in order to demonstrate a reviewable error based on the incompetence of counsel? 20 Much is made of the fact that Mr. Thamotharampillai had been given until 4 January 2010 to make further submissions and to present new evidence. The Human Rights Watch and the UNHCR reports, referred to above, post-date that delay, but pre-date the PRRA decision which was delivered on 14 July 2010. Thus, no matter how competent the counsel, the material relied upon could not have been submitted. 21 There are two answers to these submissions. The first is competent counsel should bring to the attention of a decision maker relevant material which has been issued after a hearing but before the decision was made. The second is that the Minister’s Delegate himself also reviewed material published subsequent to the delay he had given Mr. Thamotharampillai. In particular, he states that he reviewed an UHNCR article dated 27 April 1010. In fact, this gave rise to the second ground for judicial review, i.e. that Mr. Thamotharampillai had not been given an opportunity to respond. This raises the dilemma posed by Mancia v. Canada (Minister of Citizenship & Immigration), [1998] 3 F.C. 461, [1998] F.C.J. No. 565 (Fed. C.A.). On the one hand, if a federal tribunal is to rely on extrinsic evidence an opportunity must be given to the applicant to respond thereto. On the other hand, it is permissible for a decision maker to rely upon documents from public sources in relation to general country conditions which need not be disclosed unless they are novel and significant and evidence changes that may affect the decision. The point I wish to make, however, is that in this particular case, having unilaterally decided to consider new material, the Minister’s Delegate could hardly have denied Mr. Thamotharampillai the opportunity to submit post-hearing material. 22 In Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (Fed. C.A.), Mr. Justice D´ecary, speaking for the Court of Appeal, stated that in order to be certified a question must not only be determinative of an appeal, but also transcend the interests of the immediate parties to the litigation and contemplate issues of broad significance or general application. 23 In my opinion, this case is too fact-specific to support a certified question. The miscarriage of justice was that in this particular case the decision maker was bound to consider the material competent counsel would have submitted before the decision was rendered. There is a fairly 16 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d) arguable case to be made that based on such a record the decision may well have been different. That is the miscarriage of justice in this particular case. It is not necessary to establish on the balance of probabilities that the result would have been different.

Order FOR REASONS GIVEN; THIS COURT ORDERS that: 1. The judicial review is granted. 2. The decision is quashed and the matter is remitted to a different Minister’s Delegate for redetermination. 3. There is no serious question of general importance to certify. Application granted. Rabeya v. Canada (Minister of Citizenship & Immigration) 17

[Indexed as: Rabeya v. Canada (Minister of Citizenship & Immigration)] Khatun Rabeya, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2954-10 2011 FC 370 Simon No¨el J. Heard: March 3, 2011 Judgment: March 25, 2011 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Education –––– Claimant was citizen of Bangladesh — Claimant possessed Masters’ degree in Art and Masters’ degree in Business Administration — Claimant’s application for permanent residence under Federal Skilled Worker Class was refused — Immigration Officer considered only one Masters’ degree — Claimant brought application for judicial review — Application granted — Issue raised legal and factual issues; standard of reasonableness applied — Plain reading of s. 73(3)(b)(i) of Immigration and Refugee Protection Regulations supports contention that single educational credential that results in highest number of points is to be considered — There- fore, claimant’s second Masters’ degree should have been considered — If Court was to read credential as simply rank obtained, it would render s. 73(3)(b)(i) useless — Not considering second Masters’ degree, or second educational credential of same level, was absurd and failed to recognize that people can pursue their studies at graduate level in another field after completing first graduate degree. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division. Cases considered by Simon No¨el J.: Bhuiya v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 878, 2008 CarswellNat 2554, [2008] F.C.J. No. 1110 (F.C.) — considered Flavell v. Deputy Minister of National Revenue (Customs & Excise) (1996), 1996 CarswellNat 1013, 1996 CarswellNat 2649, 137 D.L.R. (4th) 45, (sub nom. Flavell v. Minister of National Revenue (Customs & Excise)) 117 F.T.R. 1, [1997] 1 F.C. 640, [1996] F.C.J. No. 962 (Fed. T.D.) — referred to 18 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Hasan v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5101, 2010 CF 1206, 94 Imm. L.R. (3d) 84, 2010 FC 1206, 2010 CarswellNat 4580 (F.C.) — considered Kabir v. Canada (Minister of Citizenship & Immigration) (2010), 92 Imm. L.R. (3d) 163, 2010 CarswellNat 3710, 2010 FC 995, 2010 CarswellNat 4424, 2010 CF 995 (F.C.) — considered Khan v. Canada (Minister of Citizenship & Immigration) (2010), 92 Imm. L.R. (3d) 175, 2010 FC 983, 2010 CarswellNat 3641, 2010 CarswellNat 4423, 2010 CF 983 (F.C.) — considered McLachlan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 975, 2009 CarswellNat 5869, 354 F.T.R. 176 (Eng.), 2009 CarswellNat 2936, 2009 FC 975, 85 Imm. L.R. (3d) 90 (F.C.) — considered Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 2 S.C.R. 539, 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 339 N.R. 1, EYB 2005-95306, [2005] S.C.J. No. 31 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed R. c. Bois (2004), (sub nom. R. v. Daoust) 2004 SCC 6, 2004 CarswellQue 138, 2004 CarswellQue 139, (sub nom. R. v. Daoust) 316 N.R. 203, 18 C.R. (6th) 57, (sub nom. R. v. Daoust) 235 D.L.R. (4th) 216, [2004] 1 S.C.R. 217, (sub nom. R. v. Daoust) 180 C.C.C. (3d) 449, [2004] S.C.J. No. 7, REJB 2004- 53612 (S.C.C.) — considered R. v. McIntosh (1995), 21 O.R. (3d) 797 (note), 178 N.R. 161, 79 O.A.C. 81, [1995] 1 S.C.R. 686, 1995 CarswellOnt 4, 1995 CarswellOnt 518, 36 C.R. (4th) 171, 95 C.C.C. (3d) 481, [1995] S.C.J. No. 16, EYB 1995-67422 (S.C.C.) — referred to R. v. Sharpe (2001), 264 N.R. 201, [2001] 6 W.W.R. 1, [2001] 1 S.C.R. 45, 86 C.R.R. (2d) 1, 2001 SCC 2, 2001 CarswellBC 82, 2001 CarswellBC 83, 194 D.L.R. (4th) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 88 B.C.L.R. (3d) 1, 146 B.C.A.C. 161, 239 W.A.C. 161, REJB 2001-22168, [2001] S.C.J. No. 3 (S.C.C.) — considered Schreiber v. Canada (Attorney General) (2002), (sub nom. Schreiber v. Federal Republic of Germany) 216 D.L.R. (4th) 513, 22 C.P.C. (5th) 207, 167 C.C.C. (3d) 51, 164 O.A.C. 354, 2002 SCC 62, 2002 CarswellOnt 2921, Rabeya v. Canada (Minister of Citizenship & Immigration) 19

2002 CarswellOnt 2922, 61 O.R. (3d) 160 (note), [2002] 3 S.C.R. 269, 292 N.R. 250, [2002] S.C.J. No. 63, REJB 2002-33797 (S.C.C.) — referred to Thomasz v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1159, 2010 CarswellNat 5186, 2010 FC 1159, 2010 CarswellNat 4392 (F.C.) — considered Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 73 — considered s. 73 “diplˆome” — considered s. 73 “educational credential” — considered s. 78 — considered s. 78(1) “´equivalent temps plein” — considered s. 78(1) “full-time” — considered s. 78(1) “full-time equivalent” — considered s. 78(1) “temps plein” — considered s. 78(2)(e) — considered s. 78(2)(e)(i) — considered s. 78(2)(e)(ii) — considered s. 78(2)(f) — considered s. 78(3) — considered s. 78(3)(a) — considered s. 78(3)(b)(i) — considered s. 78(3)(b)(ii) — referred to s. 78(4) — considered

APPLICATION by claimant for judicial review of decision of Immigration Of- ficer refusing her application for permanent residence.

Erin Roth, for Applicant Tamrat Gebeyhu, for Respondent 20 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Simon Noël J.: I. The Facts 1 The Applicant is a citizen of Bangladesh whose application for permanent residence under the Federal Skilled Worker Class was refused. By way of a written notice, an Immigration Officer of the Canadian High Commission in Singapore refused the application on the basis that the Applicant did not meet the standards under the Federal Skilled Worker Class, as per the assessment of 64 points on a 100-point scale. The Ap- plicant was granted leave for judicial review of this determination on De- cember 3, 2010. 2 The Applicant’s documentation and credentials were assessed in light of the Officer’s interpretation of the applicable standards. The central issue in the application is that the Officer awarded 22 points out of 25 for the Applicant’s education credentials. The Applicant contends that 25 points should have been awarded. These three (3) points would have ena- bled her to be granted permanent residence under the Federal Skilled Worker Class. In support of the assessment of the Applicant’s educational credentials, the Officer noted the following: Education — Per application dated 3 Aug 09, PA stated to hv 16 years of education with a Masters’ degree. She did not state to have completed another master deg. PA provided another schedule 1 in Jan 2010 and she stated to hv done a master deg from Feb 08 to Aug 09 with Darul Ihsan University. I am not considering this as she already obtained a master deg in 95 and the two master def are equivalent and not a real progression from one to another. 3 As indicated, the Applicant possesses two (2) Masters’ degrees. In 1995, she obtained a Masters’ degree in Arts (MA), and in August of 2009, she completed a Masters’ in Business Administration (MBA in Marketing). The Officer’s decision to consider only one Masters’ degree was based on an interpretation of the relevant provisions of the Immigra- tion and Refugee Protection Regulations, SOR/2002-227 (Regulations). These read as follows: Definitions 73. The following definitions apply in this Division, other than section 87.1. “educational credential” « diplôme » Rabeya v. Canada (Minister of Citizenship & Immigration) Simon Noël J. 21

“educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue. Definitions 78. (1) The definitions in this subsection apply in this section. “full-time” « temps plein » “full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the work- place that forms part of the course of instruction. “full-time equivalent” « equivalent´ temps plein » “full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis. Education (25 points) (2) A maximum of 25 points shall be awarded for a skilled worker’s education as follows: (...) (e) 22 points for (i) a three-year post-secondary educational credential, other than a university educational credential, and a total of at least 15 years of completed full-time or full- time equivalent studies, or (ii) two or more university educational credentials at the bachelor’s level and a total of at least 15 years of completed full-time or full-time equivalent studies; and (f) 25 points for a university educational credential at the masters’ or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies. Multiple educational achievements (3) For the purposes of subsection (2), points (a) shall not be awarded cumulatively on the basis of more than one single educational credential; and 22 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(b) shall be awarded (i) for the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of the single educational credential that results in the highest number of points, and (ii) for the purposes of subparagraph (2)(e)(ii), on the basis of the combined educational credentials referred to in that paragraph. Special circumstances (4) For the purposes of subsection (2), if a skilled worker has an educational credential referred to in paragraph (2)(b), subparagraph (2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or paragraph (2)(f), but not the total number of years of full-time or full-time equivalent studies required by that paragraph or subparagraph, the skilled worker shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph. Définitions 73. Les définitions qui suivent s’appliquent a` la présente section, a` l’exception de l’article 87.1. (...) « diplôme » “educational credential” « diplôme » Tout diplôme, certificat de compétence ou certificat d’apprentissage obtenu conséquemment a` la réussite d’un programme d’études ou d’un cours de formation offert par un etablisse-´ ment d’enseignement ou de formation reconnu par les autorités chargées d’enregistrer, d’accréditer, de superviser et de réglementer de tels etablissements´ dans le pays de délivrance de ce diplôme ou certificat. Définitions 78. (1) Les définitions qui suivent s’appliquent au présent article. « equivalent´ temps plein » “full-time equivalent” « equivalent´ temps plein » Par rapport a` tel nombre d’années d’études a` temps plein, le nombre d’années d’études a` temps partiel ou d’études accélérées qui auraient et´´ e nécessaires pour compléter des etudes´ equivalentes.´ Rabeya v. Canada (Minister of Citizenship & Immigration) Simon Noël J. 23

« temps plein » “full-time” « temps plein » A` l’égard d’un programme d’études qui conduit a` l’obtention d’un diplôme, correspond a` quinze heures de cours par semaine pendant l’année scolaire, et comprend toute période de formation donnée en milieu de travail et faisant partie du programme. Etudes´ (25 points) (2) Un maximum de 25 points d’appréciation sont attribués pour les etudes´ du travailleur qualifié selon la grille suivante: (...) e) 22 points, si, selon le cas: (i) il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire — nécessitant trois années d’études et a accumulé un total de quinze années d’études a` temps plein complètes ou l’équivalent temps plein, (ii) il a obtenu au moins deux diplômes universitaires de premier cycle et a accumulé un total d’au moins quinze années d’études a` temps plein complètes ou l’équivalent temps plein; f) 25 points, s’il a obtenu un diplôme universitaire de deuxième ou de troisième cycle et a accumulé un total d’au moins dix- sept années d’études a` temps plein complètes ou l’équivalent temps plein. Résultats (3) Pour l’application du paragraphe (2), les points sont accumulés de la fa¸con suivante: a) ils ne peuvent etreˆ additionnés les uns aux autres du fait que le travailleur qualifié possède plus d’un diplôme; b) ils sont attribués: (i) pour l’application des alinéas (2)a) a` d), du sous- alinéa (2)e)(i) et de l’alinéa (2)f), en fonction du diplôme qui procure le plus de points selon la grille, (ii) pour l’application du sous-alinéa (2)e)(ii), en fonction de l’ensemble des diplômes visés a` ce sous-alinéa. Circonstances spéciales (4) Pour l’application du paragraphe (2), si le travailleur qualifié est titulaire d’un diplôme visé a` l’un des alinéas (2)b), des sous-alinéas 24 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(2)c)(i) et (ii), (2)d)(i) et (ii) et (2)e)(i) et (ii) ou a` l’alinéa (2)f) mais n’a pas accumulé le nombre d’années d’études a` temps plein ou l’équivalent temps plein prévu a` l’un de ces alinéas ou sous-alinéas, il obtient le nombre de points correspondant au nombre d’années d’études a` temps plein complètes — ou leur equivalent´ temps plein — mentionné dans ces dispositions. 4 More precisely, the Officer decided that, upon application of subparagraph 72(2)(e)(ii), the Applicant had a Masters’ degree and 16 years of full-time studies, falling short of the 17 years required for her to be granted 25 points. As seen above, this was confirmed by the Officer’s reading of subsection 73(3) of the Regulations, whereby the Applicant could not be twice credited for the same “educational credential”. At no point did the Officer take issue with the validity of any of the Applicant’s credentials or noted that these were not from “recognized institutions”. 5 The Applicant takes issue with this reading of the Regulations and argues that she should have been awarded 25 points for her educational credentials, as her MBA should have been considered as the highest educational credential. 6 The Respondent contends that the Officer’s reading of the Regula- tions is within the law. As such, there is no misinterpretation or error in this case. The Respondent submits that this interpretation is also consistent with the case law.

II. Standard of Review 7 The Officer clearly discarded the Applicant’s second Masters’ degree. Hence, the question before the Court is not one of determining whether the Applicant’s degrees are in progression or if the Officer should have considered the national educational standards in Bangladesh, as suggested by the Applicant. 8 As the Officer chose to not consider the second Masters’ degree, the question before the Court is a question that raises legal and factual issues: does the assessment of educational credentials under sections 73 and 78 of the Regulations allow the Officer to consider two (2) credentials of the same level? More pragmatically, did the Officer err in attrib- uting 22 points to the Applicant for her two (2) Masters’ degrees? 9 In light of the factual underpinning of this question, it is essentially a mixed question of fact and law that is to be reviewed on the reasonableness standard (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.); McLachlan v. Canada (Minister of Citizenship & Rabeya v. Canada (Minister of Citizenship & Immigration) Simon No¨el J. 25

Immigration), 2009 FC 975 (F.C.)). As such, the Court will consider whether the decision falls within the range of acceptable outcomes defensible in fact and law (Dunsmuir, above, at para 47).

III. Analysis 10 The Court notes that questions at the very heart of this matter have been certified in proceedings before this Court in Khan v. Canada (Minister of Citizenship & Immigration), 2010 FC 983 (F.C.); Kabir v. Canada (Minister of Citizenship & Immigration), 2010 FC 995 (F.C.); Thomasz v. Canada (Minister of Citizenship & Immigration), 2010 FC 1159 (F.C.); and Hasan v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 1206 (F.C.). These questions read as follows: In assessing points for education under s. 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time equivalent studies that did not contribute to obtaining the educational credential being assessed? When a skilled worker visa applicant has achieved an educational credential referred to in a particular subparagraph in Regulation 78(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 but not the total number of years of study required by that subparagraph, does section 78(4) require the visa officers to award the number of points based on the applicant’s highest educational credential or based on the applicant’s years of study? 11 In resolving this matter, the Court notes that the state of the law on this matter as it stands is divided. Madam Justice Heneghan, relying on Bhuiya v. Canada (Minister of Citizenship & Immigration), 2008 FC 878 (F.C.), asserted in Kabir, above, Khan, above, and Thomasz, above, that subsection 78(4) “cannot be used to award an applicant full points for an academic credential in special circumstances notwithstanding that he or she has not completed the requisite years of study” (See, inter alia, Khan, at para 19). As such, these decisions call for a strict interpretation of the Regulations, as no person can be awarded “double-points” for the same educational credential. 12 In contrast, Justice Campbell decided in Hasan v. Canada (Minister of Citizenship & Immigration), 2010 FC 1206 (F.C.), that Justice Mandamin’s reasons in McLachlan v. Canada (Minister of Citizenship & Immigration), 2009 FC 975 (F.C.), were determinative on the issue. As such, Justice Campbell undertook an exercise in distinguishing, as the facts underlying the Court’s decision in Bhuiya were such that the rea- 26 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

soning in Bhuiya was ill-suited to the facts of the case. Furthermore, it was decided that the notion of “line of progression” between diplomas was not a proper factor for assessing academic credentials and as such, the complete academic history was a better way to assess the application. 13 More precisely, there is uncertainty in how two (2) Masters’ degrees should be assessed under the Regulations. In Kabir, Madam Justice Heneghan decided that “the language of subsection 78(3) is clear. No points can be awarded for two Masters’ degrees”. In Hasan, Justice Campbell ruled that “if an applicant such as Mr. Hasan has two Masters’ degrees and a total of 17 years or more of full-time studies in his or her complete academic history, the last of the degrees must be assessed together with the applicant’s complete academic history”. 14 I have carefully read the reasons of all of my colleagues on these matters. In the present reasons, I will tend to favour Justice Campbell’s reasons in Hasan, but with some limits. Due to a different factual matrix triggering a different interpretation of the applicable law, I will not rely on Justice Mandamin’s reasons in McLachlan. The Court will also depart from the interpretation of the Regulations given by Madam Justice Heneghan in Khan, above. 15 Firstly, the Court adheres to the views expressed in Hasan, whereby it was noted that the factual matrix in Bhuiya was such that it could not justifiably apply to cases where applicants have two credentials at the same level. As Madam Justice Mactavish indicated in Bhuiya, at para 19: “The fact that Ms. Bhuiya may have spent one additional year in school after obtaining her Masters’ degree does not turn her 16 year Masters’ degree into a 17 year Masters’ degree”. In Bhuiya, the Applicant had completed another diploma, not of Masters’ level, and wanted this recognized in the assessment of the duration of her studies. 16 Surely, the case in Bhuiya is logical: another diploma, of an unrelated or of a “lesser” nature, does not transform into higher credentials. While these other qualifications may even prove beneficial to Canada, the Of- ficer is required to assess the highest education credential (subparagraph 78(3)(b)(ii) of the Regulations). The case here is different: what makes the first Masters’ obtained the “highest educational credential”? 17 As seen above, “educational credential” is loosely defined as “any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training (...)” (s.73 of the Regulations). With respect to my colleague, it is inappropriate to state, in regards to section 78(3) of the Regulations, that “the plain language of this provi- Rabeya v. Canada (Minister of Citizenship & Immigration) Simon No¨el J. 27

sion says that points will not be awarded for two or more educational credentials. This means that although the Applicant holds two degrees at the Masters’ level, he will not receive double points.” (Kabir, above, at para 12). 18 In fact, the question here is not awarding double points, but rather, awarding points for the single credential obtained that gives the higher assessment. The plain reading of subparagraph 73(3)(b)(i) supports the contention that the single educational credential that results in the highest number of points is to be considered. At face value, this means that the Applicant’s second Masters’ degree should have been considered: it was indeed the single educational credential resulting in the highest number of points. 19 Justice Campbell’s analysis goes to legislative intent and to the fact that the number of years of studies must be read disjunctively from the credential obtained. Thus, what is implied in Hasan is that the complete academic history must be considered in assessing the number of years of full-time studies. 20 The Court will not go so far, as this reasoning may lead to illogical results. For example, the case in Bhuiya would have seen the Applicant receive more points for a diploma that is arguably of a lesser value than the highest credential obtained. Again, the Court stresses the fact that the Regulations call for the evaluation of the single educational credential that awards the most points. For example, in Bhuiya, this would have been the Masters’ degree, and the Applicant would not have received points for the diploma undertaken after. This may be where the “logical progression” argument put forward by the Officer originates. Justifica- tion may have been required in cases similar to Bhuiya to exclude the lesser, more recent diplomas, that, as Madam Justice Mactavish noted, do “not transform a 16 year Masters’ degree into a 17 year Masters’ degree”. This concern is assuaged when only the single educational credential that awards the most points is considered, as required by the Regulations. 21 Further, the Court cannot take issue with Justice Mandamin’s findings in MacLachlan, above, because, as already noted, the facts of that case are different. The question then was whether points could be awarded for a credential, despite the requisite number of years not being met. This question has been certified to the Court of Appeal. In the case at bar, the requisite number of years is met if one considers the more recent Masters’ degree. Again, the Court emphasizes the following ques- 28 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

tion: what are the legal grounds to exclude a second degree of the same academic level? 22 As a matter of fact and a matter of law, there are no grounds to exclude a second Masters’ degree. While it is true that paragraph 78(3)(a) of the Regulations states that “points shall not be awarded cumulatively on the basis of more than one single educational credential”, the Court refers to the definition of “educational credential”, where emphasis is placed on the actual credential awarded, not its rank or grade. The problem here is one of interpretation of the word “credential”. 23 It is open for the Court to consider the French definition of “educational credential”, whereby the translation is “diplôme”. In French, no confusion arises from the use of diplôme, as it cannot be understood as a “credential”, or “grade”. As both the English and French version of a statute are authoritative (see, inter alia, Schreiber v. Canada (Attorney General), 2002 SCC 62 (S.C.C.); R. v. Sharpe, 2001 SCC 2 (S.C.C.)), the Court must seek to find the common meaning between the two (2) dispositions, in conformity with the Supreme Court’s approach to bilingual interpretation drawn out in Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51 (S.C.C.) and R. c. Bois, 2004 SCC 6 (S.C.C.). Once the common meaning is established, the Court must assess whether this common meaning falls within the scope of legislative intent. Here, the common meaning is the more restrictive interpretation of “educational credential”, referring to the credential itself, i.e. in French, the “diplôme”, not its rank, or “grade”. As will be seen below, it is also the interpretation that gives full effect to the IRPA’s objectives. 24 Furthermore, sound statutory interpretation requires that when a Court is confronted with two (2) meanings for a provision, it must prefer that which avoids absurd results or strips dispositions of their full effect (R. v. McIntosh, [1995] 1 S.C.R. 686 (S.C.C.); Flavell v. Deputy Minister of National Revenue (Customs & Excise) (1996), [1997] 1 F.C. 640 (Fed. T.D.)). Such is the case here. If the Court was to read “credential” as simply the rank obtained, i.e. Masters’ (or “grade” in French), it would render subparagraph 73(3)(b)(i) useless: an Applicant could never have more than one “credential” of the same level as an applicant is a Masters’ graduate whether he or she has one (1) or two (2) degrees at this level. Thus, “credential” must be read as defined by the Regulations, i.e. as the actual diploma, title, degree or the like, completed (“diplôme” in French). 25 As for “double-counting” of points for the same credential, the plain reading of subsection 78(3) instructs that the worries expressed in case Rabeya v. Canada (Minister of Citizenship & Immigration) Simon Noël J. 29

law is not founded when “educational credential” is considered as described in the present reasons. When the more limited definition of “educational credential” is considered, there can be no double-counting. Rather, paragraph 78(3)(a) of the Regulations instructs against awarding incremental points for every “academic step” met. For example, an applicant with two (2) Bachelor’s degrees and a Masters’ would not be awarded 22 points under subparagraph 78(2)(e)(i) as well as 25 points for the Masters’ under paragraph 78(2)(f), for a total of 47 points. This is what is anticipated by paragraph 78(3)(a) of the Regulations. The French version of paragraph 78(3)(a) confirms this, and instructs that the reader be more attuned to the “cumulative” aspect of paragraph 78(3)(a), rather than the “same credential” aspect of this paragraph (“ils ne peuvent etreˆ additionnés les uns aux autres du fait que le travailleur qualifié possède plus d’un diplôme”, emphasis added). Paragraph 78(3)(a) also confirms that “educational credential” refers to the actual diploma awarded, rather than its rank, as was discussed above. 26 In Hasan, above, Justice Campbell noted the following at para 19: Counsel for Mr. Hasan argues that the decisions in Khan and Kabir neglect to address the operation of s. 78(3)(b)(i) which states that points are to be awarded, including under s. 78(2)(f), “on the basis of the single educational credential that results in the highest number of points”. As the argument goes, in order for this legislative intention to operate to provide a benefit to an applicant with two Masters’ degrees, the factors named in s. 78(2)(f) must be read disjunctively. That is, if an applicant such as Mr. Hasan has two Masters’ degrees and a total of 17 years or more of full-time studies in his or her complete academic history, the last of the degrees must be assessed together with the applicant’s complete academic history. In my opinion, this is the correct approach. 27 As reasoned above, the Court does not believe that a disjunctive reading of the factors in section 78(2)(f) is required. Again, the Applicant does indeed have a Masters’ degree; and this education credential comes after at least 17 years of full-time or full-time equivalent studies. Hence, the criteria of section 78(2)(f) are satisfied. The only “problem”, if it can even be qualified as such, is that the 17 years of studies result from un- dertaking a second Masters’ degree. As the Officer must assess the educational credential awarding the highest number of points, it is confirmed that the second Masters’ degree was to be considered. 28 Not considering the second Masters’ degree, or a second educational credential of the same level, is absurd, as it fails to recognize that people 30 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

can indeed pursue their studies at a graduate level in another field after completing a first graduate degree. In the case at bar, the Applicant completed an MBA, after receiving an MA many years earlier. It is illogical to discount a second Masters’. In fact, subparagraph 78(2)(e)(i) clearly anticipates a situation where two credentials of the same rank are to be considered, in that case, two (2) Bachelor’s degrees. 29 The IRPA’s objectives confirm this reading. More particularly, the Act’s objectives are, among others, “to permit Canada to pursue the maximum social, cultural and economic benefits of immigration” and “to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Can- ada” (section 3 of the IRPA). Furthermore, the criteria to be assessed under section 78 of the Regulations are to be considered “for the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada” (emphasis added). Surely, considering a second Masters’ degree is consistent with the evaluation of the capacity to become economically established in Canada, as well as meeting the IRPA’s objectives. 30 This is confirmed by the Regulatory Impact Analysis Statement - SOR/2002-227, Canada Gazette, Part II, vol 136, no 9, where education is clearly stated as an important consideration recognized by the Cana- dian labour market: The stakeholder consultations consistently highlighted the importance for Canada of immigration by skilled tradespeople and encouraged the department not to overweigh advanced professional education. Consequently, maximum points for a diploma, trade certificate or formal apprenticeship will be raised from 13 to 22, depending on the number of years of education or training. The maximum of 22 points allocated for a three-year skilled trades credential is equivalent to that allocated for two bachelor’s degrees in recognition of the value attached to this type of credential. In addition, the maximum number of points available for education has increased from 16 to 25, recognizing the considerable value that the modern Canadian labour market assigns to education. (emphasis added) 31 Proper interpretation of the Regulations in terms of assessment of education credentials requires that full effect is given to the objectives of the IRPA as well as the important consideration of whether a potential Federal Skilled Worker can become economically established in Canada, as embodied by the factors of section 78 of the Regulations. Thus, the Court sees no opposition in paragraph 78(3)(a) and subparagraph Rabeya v. Canada (Minister of Citizenship & Immigration) Simon No¨el J. 31

78(3)(b)(ii) of the Regulations when “educational credential” is read as defined by section 73 of the Regulations. There is no need to introduce a potentially unpredictable criterion of “the complete academic history”, as this may lead to results that run counter to the Regulations. Rather, the “latest” and “highest” educational credential is the one that is to be considered. In this case, it was the second Masters’ degree, the MBA, which came after 17 years of studies. 32 The evaluation of education credentials on an objective, points-based basis aims to ensure consistency in the evaluation of credentials (Bhuiya, above, at para 17; see also the Regulatory Impact Analysis Statement — SOR/2002-225, above). Hence, the Regulations aim to limit the Officer’s discretion in considering academic credentials. This would be considera- bly eroded if the Court were to accept Justice Campbell’s argument that “the complete academic history” must be considered. Between absolute discretion in assessing educational credentials, which the points-based system avoids, and a mechanistic analysis, there needs to be balance. This balance is found within the points-based system, where the highest credential is to be considered. 33 As for certified questions, the Court has already noted that similar issues have resulted in questions being certified for consideration by the Federal Court of Appeal. It is important in terms of equity and fairness that a question be certified in this proceeding as well, as the underlying facts are very similar and this Court’s judgment offers a different perspective on the interpretation of the Regulations. 34 The Applicant submitted three (3) questions for certification, which read as follows: a. For the purposes of section 78(3)(a0 of the Immigration and Refugee Protection Regulations, what is the significance of “single educational credential” when considering more than one masters’ degree under section 78(2)(f), particularly where one of those degrees is of a higher and/or professional nature? b. For the purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters’ degree under section 78(2)(f) as the “single educational credential that results in the highest number of points”? c. In assessing points for education under section 78(2)(f) of the Immigration and Refugee Protection Regulations, is a visa of- 32 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

ficer to consider points on the basis of a second masters’ degree? 35 The Respondent’s position is that these three (3) questions do not sat- isfy the threshold for certification. Rather, the Respondent submits that the following question should be certified: Is the onus on an Applicant to establish the years of studies related to the educational credential that results in the highest number of points under R78(2)(f) and R78(3)(b)(i) of the Immigration and Refugee Protection Regulations, or is a visa officer expected to be aware of the years of studies associated with that educational credential? 36 This question is not suitable for certification, as it was not an issue arising from the facts of the case. In fact, what was in evidence was that in total, after her MBA, the Applicant had completed 17 years of studies. Thus, the question proposed by the Respondent does not arise in the case at bar. 37 Considering the present reasons and the analysis herein, the Court cannot proceed with certifying the same questions as those certified by Madam Justice Heneghan and Justice Campbell in Kabir, above, Khan, above and Hasan, above. Rather, the analysis herein justifies that a different question be certified. As suggested by the Applicant, the Court will certify the second proposed question, as it is both determinative of the appeal and of general importance, as instructed by the Federal Court of Appeal in Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.). The Court will certify the following question: For the purposes of section 78(3)(b)(i) of the Immigration and Refu- gee Protection Regulations, is a visa officer to consider a second Masters’ degree under section 78(2)(f) as the “single educational credential that results in the highest number of points”? 38 Thus, the application is allowed and the matter is to be sent back for redetermination.

Judgment THIS COURT’S JUDGMENT is that: 1. The application is allowed and the matter is to be sent back for redetermination before the appropriate authority; and 2. The following question is certified: For the purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters’ degree under section 78(2)(f) as the Rabeya v. Canada (Minister of Citizenship & Immigration) Simon No¨el J. 33

“single educational credential that results in the highest number of points”? Appliction granted. 34 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Pusat v. Canada (Minister of Citizenship & Immigration)] Sih Mehmet Pusat, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2253-10 2011 FC 428 Richard G. Mosley J. Heard: January 24, 2011 Judgment: April 7, 2011 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — General principles –––– Applicant was Kurdish citizen of Turkey whose application for permanent residence was refused on basis that applicant was inadmissible as member of Kurdish party listed as terrorist entity — Minister of Citizenship and Immigration agreed to have application re- determined by different officer — Requests by applicant’s counsel for disclosure of evidence as to membership in party were not answered — Immigration officer interviewed applicant — Applicant’s counsel was not provided opportunity to make submissions before officer denied application for inadmissibility — Ap- plicant applied for judicial review — Application granted — Immigration officer did not reply to communications from applicant’s counsel and did not provide any meaningful disclosure before interview — Notes in computer system did not establish that applicant was told his inadmissibility would be subject of interview, as notes had no status as evidence of underlying facts without affidavit attesting to truth of what was recorded — Record contained documents that seemed to have strongly influenced officer’s decision, so their content should have been disclosed to applicant prior to interview — Documents included memorandum from Canada Border Security Agency, recommending applicant be found inadmissible and setting out factors supporting that recommendation — Officer’s analysis mirrored memorandum — Fairness required that applicant be given reasonable opportunity to address those factors before decision was made — Agency’s recommendation was in almost identical terms as in pre- cedent where it was found to have had such influence on decision made that advance disclosure was required to level playing field. Cases considered by Richard G. Mosley J.: B. (S.) v. Canada (Minister of Citizenship & Immigration) (2001), 13 Imm. L.R. (3d) 96, 268 N.R. 337, [2001] 3 F.C. 3, 199 D.L.R. (4th) 519, 2001 Car- Pusat v. Canada (MCI) 35

swellNat 2088, 201 F.T.R. 140 (note), 2001 CarswellNat 478, 2001 FCA 49, [2001] F.C.J. No. 341 (Fed. C.A.) — considered Bowater Mersey Paper Co. v. C.E.P., Local 141 (2010), (sub nom. Bowater Mersey Paper Co. v. Communications, Energy & Paperworkers Union of Canada, Local 141) 289 N.S.R. (2d) 351, (sub nom. Bowater Mersey Paper Co. v. Communications, Energy & Paperworkers Union of Canada, Local 141) 916 A.P.R. 351, (sub nom. CEPU, Local 141 v. Bowater Mersey Paper Co.) 2010 C.C.L.C. 220-022, 2010 CarswellNS 152, 2010 NSCA 19, 3 Ad- min. L.R. (5th) 261, 192 L.A.C. (4th) 193 (N.S. C.A.) — followed Chou v. Canada (Minister of Citizenship & Immigration) (2000), 3 Imm. L.R. (3d) 212, 2000 CarswellNat 405, 190 F.T.R. 78, [2000] F.C.J. No. 314 (Fed. T.D.) — considered Chou v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 2335, 2001 FCA 299, 17 Imm. L.R. (3d) 234, 214 F.T.R. 319 (note), 285 N.R. 188, [2001] F.C.J. No. 1524 (Fed. C.A.) — referred to Haghighi v. Canada (Minister of Citizenship & Immigration) (2000), 189 D.L.R. (4th) 268, 257 N.R. 139, 24 Admin. L.R. (3d) 36, 2000 CarswellNat 1147, [2000] 4 F.C. 407, 2000 CarswellNat 3274, 184 F.T.R. 160 (note), [2000] F.C.J. No. 854 (Fed. C.A.) — considered Jang v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 3377, 2001 CAF 312, 2001 CarswellNat 2322, 2001 FCA 312, 278 N.R. 172, [2001] F.C.J. No. 1575 (Fed. C.A.) — considered Kunkel v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 5549, 2009 CAF 347, 2009 FCA 347, 2009 CarswellNat 4607, 398 N.R. 271, 88 Imm. L.R. (3d) 1, [2009] F.C.J. No. 1700 (F.C.A.) — considered Mekonen v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1133, 2007 CarswellNat 3655, 66 Imm. L.R. (3d) 222, [2007] F.C.J. No. 1469 (F.C.) — considered Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board) (1994), 1994 CarswellNfld 277, 163 N.R. 27, 21 Admin. L.R. (2d) 248, 115 Nfld. & P.E.I.R. 334, 360 A.P.R. 334, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1, 1994 CarswellNfld 211, EYB 1994-67363, [1994] S.C.J. No. 14 (S.C.C.) — considered Ontario Provincial Police Commissioner v. MacDonald (2009), 255 O.A.C. 376, 3 Admin. L.R. (5th) 278, 2009 ONCA 805, 2009 CarswellOnt 7018, [2009] O.J. No. 4834 (Ont. C.A.) — followed Rana v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2725, 2010 CarswellNat 2726, 2010 CF 696, 2010 FC 696 (F.C.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 36 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — followed Suleyman v. Canada (Minister of Citizenship & Immigration) (2008), 330 F.T.R. 205 (Eng.), 2008 FC 780, 2008 CarswellNat 2060, [2008] F.C.J. No. 983 (F.C.) — distinguished Yassine v. Canada (Minister of Employment & Immigration) (1994), 172 N.R. 308, 27 Imm. L.R. (2d) 135, 1994 CarswellNat 219, [1994] F.C.J. No. 949 (Fed. C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34(1)(f) — considered s. 34(2) — referred to s. 72 — pursuant to s. 87 — considered Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 17 — referred to

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

Lorne Waldman, for Applicant John Loncar, for Respondent

Richard G. Mosley J.:

1 An immigration officer at the Canadian Embassy in Ankara, Turkey found that there were reasonable grounds to believe that Sih Mehmet Pusat was a member of the Kurdistan Workers Party (PKK), an organization which the Government of Canada has listed as a terrorist entity. As a result, Mr. Pusat’s application for permanent residency as a member of the family class was denied for a second time. This application for judicial review will be granted on the ground that Mr. Pusat was denied procedural fairness.

Background: 2 This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 3 The applicant is a Turkish citizen and an Alevi Kurd. His wife is a Turkish citizen who came to Canada in October 2003 and was granted Pusat v. Canada (MCI) Richard G. Mosley J. 37

refugee status. She became a Canadian permanent resident on May 16, 2006. The applicant and his family previously sought refugee status in Germany, but he was deported back to Turkey in June 1999 when the claim was denied. 4 The applicant applied for permanent residency in Canada with his wife’s sponsorship. In September 2007, the applicant attended an interview at the Canadian Embassy in Ankara, to discuss his application. The interview focused on whether he qualified as a member of the family class, but did briefly discuss his admissibility. The applicant explained that though he supports some of the PKK’s goals, he does not support the PKK because he did not believe in violence. 5 On September 3, 2009, the application was refused on the grounds that the applicant was inadmissible for being a member of the PKK (the first refusal). The applicant sought judicial review of that decision on the ground that the reasons for suspecting his membership in the PKK had not been disclosed to him. The Minister of Citizenship and Immigration agreed to re-open the application for redetermination by a different officer in return for the applicant discontinuing the application for judicial review. 6 The application was sent back to the Canadian Embassy in Ankara for redetermination and a second interview was scheduled for April 14, 2010. Prior to the second interview, the applicant’s counsel contacted the respondent to obtain disclosure of any evidence of the applicant’s membership in the PKK. The respondent did not answer any of the applicant’s counsel’s three letters. The computer assisted immigration processing system (CAIPS) notes in the certified tribunal record contain entries indicating that the applicant was called a day prior to the interview and advised that he did not need to bring any documents to support the bona fides of his marriage and that the interview was to review his admissibility to Canada, not his eligibility as a member of the family class. That portion of the CAIPS notes is also attached as an exhibit to the affidavit of an assistant in the respondent’s counsel’s office. 7 At the interview, the applicant was again questioned about his involvement with the PKK. The applicant admitted to attending a PKK meeting in Switzerland, to donating money to the party, selling their magazines and event tickets, and to attending events put on by the PKK. He repeated his abhorrence of violence and stated that he was not a member of the PKK, but told the officer that there is social pressure in the Kurdish community to take part in PKK activities and to donate 38 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

money to the party. He stated that any involvement with PKK activities on his part was a result of coercion and social pressure. The applicant also admitted to having lived in Switzerland, even though he had not disclosed this fact on his application. The applicant stated that, since returning to Turkey, he has not been involved in any PKK activities and has not attended any PKK events. 8 The applicant’s counsel was not given the opportunity to make submissions following the interview. The decision was made the next day and communicated to the applicant on April 19, 2011. 9 The certified tribunal record filed with the Court pursuant to Rule 17 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 contains a number of redactions of information in the documents contained in the file of the Immigration Section at the Ankara Em- bassy. The respondent brought a motion under s. 87 of the IRPA to protect that information from disclosure to the applicant and in the public record. On being informed that the respondent did not intend to rely on the redacted information, the applicant advised the Court that he did not object to the motion. The Chief Justice reviewed the redacted information and, being satisfied that it was of no material relevance to the outcome of this proceeding, by order dated November 19, 2010 adjourned the motion sine die. Neither party has requested that the motion be brought back on for determination. The redacted information has not been relied upon in this decision.

Decision Under Review: 10 On April 15, 2010, the officer found that there were reasonable grounds to believe that the applicant was a member of an organization that engages, has engaged or will engage in acts of espionage, subversion or terrorism and was therefore inadmissible pursuant to paragraph 34(1)(f) of the IRPA. Specifically, the officer found reasonable grounds to believe that the applicant was a member of the PKK. This finding was based on the applicant’s financial contributions, attendance at meetings, participation in events, distribution of literature and involvement in fundraising. 11 In the analysis which forms part of his reasons for decision, the officer noted that the applicant claimed to have been coerced or pressured into participating in PKK activities. The officer found that the applicant had changed his story about his involvement with the PKK when he was confronted with the possible conclusion of inadmissibility as a result of Pusat v. Canada (MCI) Richard G. Mosley J. 39

that involvement. The applicant had also failed to disclose his period of residence in Switzerland and had not been truthful about terms of incarceration. In the result, the officer questioned his credibility. He concluded that the applicant’s activities for the PKK were multiple, sustained over time, and would have contributed to strengthening the capacity of the PKK to conduct their militant operations.

Issues: 12 The issues argued on this application included procedural fairness, the reasonableness of the finding that there are grounds to believe that the applicant is a PKK member and the adequacy of the officer’s reasons for so finding. As I have found that the applicant was denied procedural fairness and will grant the application for that reason, I do not consider it necessary to address the other issues.

Relevant Statutory Provisons: 13 Paragraph 34 (1) (f) of IRPA reads as follows: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for ... (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants: ... f)etre ˆ membre d’une organisation dont il y a des motifs raison- nables de croire qu’elle est, a et´´ e ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).

Analysis: Standard of Review 14 Where procedural fairness is in question, as here, the proper approach is to ask whether the requirements of natural justice in the particular circumstances of the case have been met. The question is not whether the decision was “correct” but whether the procedure used was fair. A standard of review analysis is not required: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 (F.C.A.) at paras 52 and 40 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

53. Deference to the decision-maker is not at issue. See: Ontario Provincial Police Commissioner v. MacDonald, 2009 ONCA 805, 3 Ad- min. L.R. (5th) 278 (Ont. C.A.) at para. 37 and Bowater Mersey Paper Co. v. C.E.P., Local 141, 2010 NSCA 19, 3 Admin. L.R. (5th) 261 (N.S. C.A.) at paras. 30-32.

Was there a breach of procedural fairness? 15 The applicant submits that the officer breached procedural fairness by failing to disclose the grounds for suspecting the applicant of PKK membership. The applicant’s counsel repeatedly contacted the respondent prior to the second interview to seek disclosure of the grounds should this suspicion continued to be a live issue, but no response was forthcom- ing. The applicant submits that this breach is particularly egregious in light of the fact that the first decision was set aside for this same reason. 16 The applicant also argues that the officer breached procedural fairness by failing to give him the opportunity to make submissions about his admissibility after the interview. The applicant argues that this failure to allow him to respond breached departmental policy, which requires that the grounds for inadmissibility be disclosed to applicants who should then be allowed to respond before a decision is rendered. The applicant relies on Jang v. Canada (Minister of Citizenship & Immigration), 2001 FCA 312, 278 N.R. 172 (Fed. C.A.). The applicant submits that procedural fairness requires that the applicant get a “fairness letter” and then be given the chance to respond. 17 The respondent says that, according to the CAIPS notes, the applicant was notified prior to his second interview that the subject of the interview would be his admissibility to Canada. The respondent submits that procedural fairness did not require the applicant to be notified of the inadmissibility concerns where they pertain to membership in a terrorist organization: Suleyman v. Canada (Minister of Citizenship & Immigra- tion), 2008 FC 780 (F.C.) at paragraphs 40-41. The disclosure obligation only applies to extrinsic evidence and not to previous statements made by the applicant himself: Kunkel v. Canada (Minister of Citizenship & Immigration), 2009 FCA 347, 88 Imm. L.R. (3d) 1 (F.C.A.). 18 The respondent notes that the applicant had previously been found inadmissible for membership in the PKK, and that the officer based the decision on the applicant’s previous statements and on the documents submitted, as well as the statements made in the second interview. The respondent argues that the applicant was therefore aware of the grounds Pusat v. Canada (MCI) Richard G. Mosley J. 41

for the officer’s suspicion that he was a member of the PKK and that the officer did not base the decision on information not known to the applicant. 19 The record is clear that the respondent did not reply to the communications from counsel and did not provide any meaningful disclosure before the interview, notwithstanding that the application was sent back on consent to be reconsidered for that reason. The respondent’s attempt to rely on the CAIPS notes as evidence that he was informed of the purpose of the interview by a telephone call from someone, presumably an administrative assistant at the Embassy, two days prior to the event, is misplaced. There is no affidavit evidence from the assistant to verify the facts stated in the CAIPS notes. 20 CAIPS notes are routinely admitted as part of the reasons for the decision under review. However, the underlying facts on which they rely must be independently proven. In the absence of an affidavit attesting to the truth of what was recorded as having been done, the notes have no status as evidence of such: Chou v. Canada (Minister of Citizenship & Immigration) (2000), 3 Imm. L.R. (3d) 212, 190 F.T.R. 78 (Fed. T.D.) at para. 13; aff’d 2001 FCA 299, 17 Imm. L.R. (3d) 234 (Fed. C.A.). It is not sufficient to attach the notes as an exhibit to the affidavit of an assistant in the respondent counsel’s office, as was done here. Hence, there is no evidence that the call was in fact made to the applicant or that he was informed of the purpose of the interview. 21 Even if the call was made as the CAIPS notes indicate, the instruction given to the assistant in Ankara was simply to advise the applicant that he need not bring documents to demonstrate the genuineness of his marriage and that his admissibility remained in issue. 22 In a letter sent by facsimile on April 12, 2010, just two days prior to the interview, counsel for the applicant reminded the immigration program manager at the Embassy that the prior refusal had been set aside on the ground that the applicant had not received disclosure of the grounds on which he was suspected of being a member of the PKK. In a letter dated March 30, 2010, counsel had noted that the applicant had been asked to provide documentation establishing the bona fides of his marriage but had not been asked about any issues relating to inadmissibility. In the April 12, 2010 letter, Counsel requested disclosure regarding the suspected inadmissibility in the event that it was still an issue and if so, requested that the interview be postponed and disclosure provided prior to the re-scheduled interview. 42 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

23 Counsel for the respondent agreed at the hearing that the Embassy should not have ignored this correspondence. It was argued, however, that the failure to respond to counsel’s letters did not constitute a material breach of procedural fairness. 24 Kunkel, above, the Federal Court of Appeal decision relied upon by the respondent, concerned disclosure of extrinsic evidence prior to an interview regarding an application for permanent residence. At paragraph 11, the Court said: While extrinsic evidence must be presented to applicants to provide them with a meaningful opportunity to respond, the opportunity to respond will vary, depending upon the factual context. What is fair and reasonable in one instance may not be in another. There is no general requirement that extrinsic evidence be provided to applicants prior to an interview, or that they be given an opportunity to clarify the situation after an interview. It may be that disclosing the evidence during an interview and providing applicants with the opportunity to explain will suffice. What constitutes sufficient notice turns on the circumstances of the particular case. 25 In the particular circumstances of this case, the certified record contains documents that predate the first refusal and appear to have strongly influenced the officer’s decision. In my view, those documents, with redactions if necessary, or at least the gist of the information they contain, should have been disclosed to the applicant prior to the second interview so that he might have been better prepared to answer questions about the grounds for suspecting that he was a member of the PKK. 26 The documents in the certified record include a memorandum from the Canada Border Security Agency’s (CBSA) Counter Terrorism Sec- tion which recommends that the applicant be found inadmissible for being a member of the PKK. The memorandum identifies a number of criteria to be assessed in making a determination of inadmissibility pursuant to paragraph 34 (1) (f) and relates several of those factors to information provided by the applicant in an earlier interview. Other criteria cited in the memorandum have no bearing on the applicant’s history or conduct. The officer’s analysis mirrors that part of the CBSA memorandum which reflects adversely on the applicant. While it is the role of the officer to weigh all of the factors and determine whether the applicant is a member of a terrorist organization, fairness required that the applicant be given a reasonable opportunity to address those factors before a decision was made. Pusat v. Canada (MCI) Richard G. Mosley J. 43

27 This is not a case like Suleyman, above, where due to the extent of the applicant’s extensive involvement in the PKK, membership was not in issue. In that case, the real issue was whether there were sufficient grounds to support a ss. 34 (2) Ministerial exemption. Here, membership was not conceded and it was open to the officer on a balancing of all of the evidence to reach a different conclusion. Fairness required that the officer consider not only the factors that pointed to membership but also those that pointed away such as, for example, the applicant’s argument that members of Kurd communities in Turkey and abroad were coerced to participate in PKK activities. 28 The CBSA memorandum considered by the Officer in this instance was similar to that discussed by Justice Eleanor Dawson, as she then was, in Mekonen v. Canada (Minister of Citizenship & Immigration), 2007 FC 1133, 66 Imm. L.R. (3d) 222 (F.C.). That case also dealt with the issue of disclosure in the context of a paragraph 34 (1) (f) determination. Citing factors applied by the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship & Immigration), [2000] 4 F.C. 407 (Fed. C.A.), and B. (S.) v. Canada (Minister of Citizenship & Immigra- tion), 2001 FCA 49 (Fed. C.A.), Justice Dawson found that the circumstances of that case required the officer to provide the applicant with the CBSA memorandum and other open-source documents to allow him to make submissions that were responsive to the material. This was necessary, she held at paragraph 26 of her reasons, in order for Mr. Mekonen to have a meaningful opportunity to present relevant evidence and submissions and to have his evidence and submissions fully and fairly considered by the officer. 29 At paragraph 19, Justice Dawson found that the CBSA memo in question in that case: [W]as an instrument of advocacy designed, in the words of the Fed- eral Court of Appeal in Bhagwandass [Canada (Minister of Citizen- ship and Immigration) v. Bhagwandass, “to have such a degree of influence on the decision maker that advance disclosure is required ‘to ‘level the playing field’”. 30 The CBSA memorandum in the present case contains a recommendation in almost identical terms to that in Mekonen and states that the information being forwarded to the officer “provides sufficient conclusive evidence to support a determination of inadmissibility pursuant to paragraph 34 (1) (f) IRPA”. As in B. (S.) and Mekonen, disclosure was required to level the playing field. See also: Rana v. Canada (Minister of 44 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Citizenship & Immigration), 2010 FC 696 (F.C.), a case decided by Jus- tice Sean Harrington in which the failure to disclose a similar report in analogous circumstances was found to have denied the applicant procedural fairness. 31 The CBSA memorandum in this case refers to a second document, dated June 11, 2009 and found at page 100 of the certified record, which contains information concerning the applicant held by the Canadian Se- curity Intelligence Service. Much of the content of this report is information that was previously obtained from or disclosed to the applicant, such as inconsistencies between his application and his wife’s refugee claim. While the duty of fairness may not have required further disclosure of that information, any content that went to the question of his membership in the PKK should have been disclosed subject to the need to protect sources and other information of a sensitive nature. 32 The applicant argues that he was entitled to a “fairness letter” similar to those provided in medical inadmissibility cases such as Jang, above, and an opportunity to provide post-interview submissions in response to the officer’s concerns. As the Federal Court of Appeal stated in the ex- cerpt reproduced from Kunkel, above, what fairness requires will depend on the circumstances. Given the failure to provide advance disclosure, it would have been prudent for the respondent to give the applicant an opportunity to respond to the concerns about membership after the interview and before the decision was made. 33 In the event that the Court found that procedural fairness has been breached in this case, the respondent urged the Court to employ the doctrine of no useful purpose and decline to grant a remedy citing Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board), [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1 (S.C.C.) at paras. 51-54 and Yassine v. Canada (Minister of Employment & Immigration) (1994), 172 N.R. 308, 27 Imm. L.R. (2d) 135 (Fed. C.A.) at paras. 9-11. 34 In Mobil Oil, a determination of a question of law by the Court meant that there was only one possible outcome of another hearing. In the present circumstances, the applicant’s admissibility is still in issue and I am not persuaded that he could not offer an explanation for the factors cited in the CBSA memorandum that might result in a finding that there are no reasonable grounds to believe that he is a PKK member. Yassine dealt with an implied waiver of the breach of procedural fairness in that case. The applicant had failed to comment on additional evidence when given the opportunity to do so. In this instance, there was no implied waiver. Pusat v. Canada (MCI) Richard G. Mosley J. 45

The documents were only provided as part of the certified tribunal record in response to this application for judicial review. The applicant has them now and can make informed submissions to the next immigration officer who will consider the matter. 35 No serious questions of general importance were proposed.

Judgment IT IS THE JUDGMENT OF THIS COURT that: 1. The application for judicial review is allowed, and the decision of the Immigration Officer made on April 15, 2010 is hereby set aside. 2. The matter is remitted for redetermination by a different Immigra- tion Officer in accordance with these reasons. Application granted. 46 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Canada (Minister of Citizenship & Immigration) v. Mancuso] The Minister of Citizenship and Immigration, Applicant and Angelo Mancuso, Respondent Federal Court Docket: IMM-4001-10 2011 FC 429 Michel Beaudry J. Heard: April 6, 2011 Judgment: April 7, 2011 Immigration and citizenship –––– Admission — Immigrants — Family class — Marriage for immigration purposes –––– Respondent, Canadian citizen, married P, citizen of Dominican Republic — After they were married, respondent filed application to sponsor P as permanent resident — Respondent’s application was refused on grounds that his marriage was not genuine and was entered into primarily for purpose of P acquiring status of permanent resident — On appeal, board found that spouses were committed to relationship, and consequently allowed appeal — Minister brought application for judicial review — Application granted — Matter was remitted back for redetermination by different decision-maker — Court’s intervention was warranted — Board omitted to discuss several contradictions, such as when couple met, their reacquaintance in 2008, length of their courtship, their intentions concerning having children, and genuineness of marriage — These omissions rendered board’s reasons insufficient and inadequate. Cases considered by Michel Beaudry J.: Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Ma v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2244, 2010 CF 509, 2010 CarswellNat 1375, 2010 FC 509, 368 F.T.R. 116 (Eng.) (F.C.) — followed Mann v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 6218, 2005 CarswellNat 6219 (Imm. & Ref. Bd. (App. Div.)) — considered Canada (MCI) v. Mancuso Michel Beaudry J. 47

Vancouver International Airport Authority v. P.S.A.C. (2010), 320 D.L.R. (4th) 733, 2010 CAF 158, 84 C.C.E.L. (3d) 51, 2010 CarswellNat 3247, (sub nom. Vancouver International Airport Authority v. Public Service Alliance of Canada) 403 N.R. 363, 196 L.A.C. (4th) 1, 9 Admin. L.R. (5th) 79, 2010 FCA 158, 2010 CarswellNat 1700, [2010] F.C.J. No. 809 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 4 — considered

APPLICATION by minister for judicial review of board’s decision allowing respondent’s appeal.

Patricia Nobl, for Applicant Pina Mancuso, for Respondent

Michel Beaudry J.:

1 This is an application for judicial review of the decision rendered on June 21, 2010 by the Immigration Appeal Division (IAD) of the Immi- gration and Refugee Board (IRB), which allowed Angelo Mancuso’s appeal. 2 For the reasons outlined below, the application for judicial review shall be allowed. 3 The Respondent, a Canadian citizen, married Ms. Perla Massiel Urbaez Garcia (Perla), a citizen of the Dominican Republic on April 25, 2008. 4 The Respondent and Perla met when the Respondent was vacationing in the Dominican Republic in 2007. Although they met for the first time in 2007, their romantic relationship began in January 2008. They got engaged in February 2008 and married in April 2008. Perla was 19 years old and the Respondent was almost 59. 5 The Respondent filed an application to sponsor Perla as a permanent resident; it was refused on September 24, 2009. 48 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

6 The ground of refusal was that Perla was a person described in section 4 of the Immigration and Refugee Protection Regulations (IRPR) in that the marriage to the Respondent was not genuine and was entered primarily for the purpose of acquiring status or privilege under the Immi- gration and Refugee Protection Act (IRPA). 7 On appeal, the IAD concluded that the respondent’s wife married him for the purpose of acquiring the status of permanent resident but determined that the spouses were committed to the relationship and consequently allowed the appeal. 8 The IAD relied on the words of Shari A. Stein of the IAD in Mann v. Canada (Minister of Citizenship & Immigration) [2005 CarswellNat 6218 (Imm. & Ref. Bd. (App. Div.))] (TA-3-19094), August 5, 2005) at para 13: Section 4 also creates a two-pronged test and not meeting either prong will suffice to allow the appeal. In particular with respect to the second prong, the intentions of the applicant are still important, as it is the applicant who typically has the most to gain from an immigration perspective. However, with respect to the first prong - whether the marriage is genuine - in my view, it is the intentions of both the appellant and applicant that are of equal and overlapping legal significance. By focusing the legal inquiry on the broad question of whether the marriage is genuine, I believe Parliament intended a shift away from a narrow and potentially myopic focus on the intentions of the applicant at the time of the marriage. This allows for a broader and more global assessment. The focus can be on the shared intentions of both parties to the relationship — as adduced by the evidence in its entirety at the de novo hearing. [...] 9 The IAD stated that in the present case, it is obvious that an exit from the Dominican Republic is attractive to Perla. It went so far as to state that she married the Respondent for the purpose of acquiring the status of a permanent resident and that “had he been a late fifty-year-old diabetic citizen of the Dominican Republic, she would have shown him no interest” (paragraph 9 of the decision). 10 However, despite these findings, it noted that the couple will still en- joy a symbiotic relationship. The IAD understood that Mr. Mancuso benefits from enjoying the companionship of an attractive younger partner while Perla benefits from experiencing a level of material comfort she could have never experienced as the daughter of a day labourer. Canada (MCI) v. Mancuso Michel Beaudry J. 49

11 The Applicant submits that though the standard of review for the factual finding by the IAD is one of reasonableness, the application of s. 4 of the IRPR has to be interpreted on a standard of correctness (Ma v. Canada (Minister of Citizenship & Immigration), 2010 FC 509 (F.C.), para 26 and 27). 12 With regards to the adequacy or sufficiency of the reasons, the Appli- cant contends that it is a question of procedural fairness and is reviewable on a standard of correctness (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), para 43). 13 My analysis is focused mainly on the adequacy or sufficiency of the reasons provided by the IAD; therefore, I will apply the standard of correctness. 14 The Applicant submits that the IAD failed to provide reasons that would even come near the level of adequacy described by the Court of Appeal in Vancouver International Airport Authority v. P.S.A.C., 2010 FCA 158 (F.C.A.) at para 16: [16] ... (a) The substantive purpose. At least in a minimal way, the substance of the decision must be understood, along with why the administrative decision-maker ruled in the way that it did. (b) The procedural purpose. The parties must be able to decide whether or not to invoke their rights to have the decision reviewed by a supervising court. This is an aspect of procedural fairness in administrative law. If the bases underlying the decision are withheld, a party cannot assess whether the bases give rise to a ground for review. (c) The accountability purpose. There must be enough information about the decision and its bases so that the supervising court can assess, meaningfully, whether the decision-maker met minimum standards of legality. This role of supervising courts is an important aspect of the rule of law and must be respected: Crevier v. Attorney General of Quebec [1981] 2 S.C.R. 220; Dunsmuir, supra at paragraphs 27 to 31. In cases where the standard of review is reasonableness, the supervising court must assess “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, supra at paragraph 47. If the supervising court has been prevented from assessing this because too little information has been pro- 50 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

vided, the reasons are inadequate: see, e.g., Canadian Associ- ation of Broadcasters, supra at paragraph 11. (d) The “justification, transparency and intelligibility” purpose: Dunsmuir, supra at paragraph 47. This purpose overlaps, to some extent, with the substantive purpose. Justification and intelligibility are present when a basis for a decision has been given, and the basis is understandable, with some discernable rationality and logic. Transparency speaks to the ability of observers to scrutinize and understand what an administrative decision-maker has decided and why. In this case, this would include the parties to the proceeding, the employees whose positions were in issue, and employees, employers, unions and businesses that may face similar issues in the future. Transparency, though, is not just limited to observers who have a specific interest in the decision. The broader public also has an interest in transparency: in this case, the Board is a public institution of government and part of our democratic governance structure. 15 More specifically, the applicant argues that the IAD’s reasons clearly fail to meet at least two of the four purposes they should serve: the “accountability” and the “justification, transparency and intelligibility”. He contends that the failure to discuss major contradictions and important factors and the lack of a proper analysis of the evidence by the IAD also serve to demonstrate that the reasons do not fulfill their purposes. 16 As such, the Applicant states that the IAD’s decision is based on conclusions that were reached in a perverse and capricious manner and without regard for the material before it, and that it cannot be sustained by a reasonable interpretation of the evidence. 17 The Respondent, on the other hand, underscores that although the IAD did not provide lengthy detailed reasons, it did provide sufficient reasons based on the evidence and testimony to enable a sufficient justification for its conclusion that the parties have a symbiotic relationship. 18 After a careful analysis of the evidence and the reasons provided by the IAD, I find that the omission to discuss several contradictions, such as: when the couple met, their reacquaintance in 2008, the length of their courtship, their intentions concerning having children and the genuiness of the marriage renders the reasons insufficient and inadequate. 19 The Court’s intervention is warranted. 20 The parties did not propose questions for certification and none arise. Canada (MCI) v. Mancuso Michel Beaudry J. 51

Judgment THIS COURT ORDERS that the application for judicial review be allowed. The matter is remitted back for redetermination by a different decision-maker. No question is certified. Application granted. 52 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Pardon Me? Not Necessarily... Bill C-10 Record Suspension & Minimum Sentencing Mario D. Bellissimo*

Overview Federal Justice Minister, Rob Nicholson tabled Bill C-10 on September 20, 2011, The Safe Streets and Communities Act. Also included in Bill C- 10 are proposed amendments to the Criminal Records Act. Designed to prevent serious criminals from seeking a pardon, originally, Bill C-23 was spilt into 2 bills: Bill C-23A, entitled Limiting Pardons for Serious Crimes Act, and Bill C-23B, entitled Eliminating Pardons for Serious Crimes Act. Bill C-23A came into force on June 29th, 2010, while the amendments in Bill C-23B were introduced into the Safe Streets and Communities Act.

Legislative History Prior to Bill C-23A and Bill C-23B, the old pardon regime was quite straightforward. An individual convicted of a summary conviction offence was required to wait 3 years after the completion of his or her sentence to apply for a pardon, while an individual convicted of an indictable offence was required to wait 5 years. Convictions carrying life or indeterminate sentences were excluded from eligibility for a pardon.

Current Regime: Stage 1: Bill C-23A: Limiting Pardons for Serious Crimes Act This bill received Royal Assent on June 29, 2010. Applications received on or after June 29, 2010 will be disposed of under the new measures, while applications received before June 29, 2010 will be disposed of

*The author thanks Zahra Kaderali, Barrister & Solicitor, Bellissimo Law Group, for her invaluable contribution to this article. Pardon Me? Not Necessarily... 53

under the previous legislation. Some important features of Bill C-23A include: • People convicted of a serious personal injury offence who receive a term of imprisonment of two years or more and those convicted of a sexual offence related to a child, prosecuted by way of indictment, will not be able to apply for a pardon until ten years after the end of their sentence. Under the old legislation, they were able to apply after five years. • People convicted of other indictable offences or summary offences for sexual crimes against children would be eligible after five years instead of three years. • Those convicted of other summary offences would be eligible after three years. • The National Parole Board also has the discretion to consider whether granting a pardon will “bring the administration of justice into disrepute.”

New Regime: Stage 2: Bill C-23B: Eliminating Pardons for Serious Crimes Act With respect to the Criminal Records Act, the relevant sections in Bill C- 10 are sections 108–134. Safe Streets and Communities Act (Bill C-10) • Amends section 4(2) of the Criminal Records Act. • If someone is convicted of an offence in Schedule 1, they are ineligible to apply for a “record suspension.” (Schedule 1 has been amended to include offences such as section 146(1) (sexual intercourse with a female under 14 or more but under 16) and section 151 (seduction of a female 16 or more but under 18). • If someone is convicted of three offences, each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment for life, and for each of which the person was sentenced to imprisonment for two years or more, they are ineligible to apply for a “record suspension.” 54 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Safe Streets and Communities Act (Bill C-10) • However, this is subject to section 4(3), which now allows someone who has been convicted of an offence in Schedule 1 to apply for a record suspension if the Board is satisfied that: (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her; (b) the person did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and (c) the person was less than five years older than the victim. (However, the individual has the onus of satisfying the Board that these three conditions are met)

• The definition of “pardon” in section 2(1) of the Criminal Records Act is repealed.

• Amends section 4(1) regarding the eligibility periods to apply for a record suspension. • Amends section 4(1)(a): ten years for offences by indictment or a service offence “is a service offence for which the offender was punished by a fine of more than five thousand dollars, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act”; and section 4(1)(b): five years for offences by summary conviction. • According to section 2.3, a record suspension is evidence of the fact that (i) the Board after making inquiries was satisfied that the applicant was of good conduct, and (ii) the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant’s character. Pardon Me? Not Necessarily... 55

Safe Streets and Communities Act (Bill C-10) • Bill C-10 now amends section 4(2) of the Criminal Records Act. So now, if someone is convicted of an offence in Sched- ule 1, which now includes the offences of 146(1) (sexual intercourse with a female under 14), subsection 146(2) (sexual intercourse with a female 14 or more but under 16) and section 151 (seduction of a female 16 or more but under 18), they are ineligible to apply for a “record suspension.” This accords with the overall purpose of the amendments to protect vulnerable people.

Discretion in the New Regime It is interesting because much of criminal law and theory focuses on the social aspects of individuals and the combination of social and systemic circumstances that bring people before the courts. The new proposed legislation completely does away with this very crucial consideration. Dis- cretion appears paramount under the new regime. Under the new amendments of Bill C-23B, section 2.1 reads, “The Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.”

Principles of Pardons: It does not “Erase” a Criminal Record In the case of Therrien c. Qu´ebec (Ministre de la justice),1 the Supreme Court of Canada provided some guidance on the concept of pardons. What is the effect and meaning of a pardon? The Court held that a pardon does not retroactively erase a conviction. 116 Sections 5 and 6(2) C.R.A. set out the effects of granting a pardon: (1) it is evidence that the National Parole Board, after making the inquiries specified in the Act, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character; (2) it va- cates the conviction and removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder; and (3) it results in any record of the conviction being

12001 SCC 35, 43 C.R. (5th) 1 (S.C.C.). 56 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

kept separate and apart: in other words, the criminal record is ex- punged. In and of themselves, these provisions do not persuade me that the pardon can operate to retroactively wipe out the conviction. Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences. Section 5(a)(ii) C.R.A. provides that the pardon is evidence that “the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character” (emphasis added), im- plying that it still exists and could so reflect. Second, the effects of the pardon are limited to the legal disqualifications created by federal statutes or the regulations thereunder and therefore exclude all the post-sentence consequences provided in provincial legislation, which also suggests that the pardon has only limited effect. Third, the information contained in the criminal record is not destroyed but is kept separate and apart, whence it may re-emerge should the pardoned person subsequently be no longer of good conduct.2

Reason for Legislative Amendment What prompted this change to the pardon regime? As indicated in the CBC article entitled “Pardon bill agreement reached,” some regard changes to be as a result of Karla Homolka being eligible to apply for a pardon. The CBC article is addressing concerns with Bill C-23A. The urgency for the bill stems from revelations that Homolka could apply for a pardon on July 5 if the legislation is not passed. Asked by a reporter if the bill would specifically prevent Homolka from applying for a pardon, Toews said: “I believe that people like the individual you mentioned would not fit the criteria for a pardon.” The opposition parties had been pushing back, saying that the government is using Homolka’s name as a way to get badly drafted legislation passed without proper scrutiny.3

2Ibid., at para. 116. 3See: CBC News, “Pardon bill agreement reached” (16 June 2010), online: . Pardon Me? Not Necessarily... 57

Other media attention to pardons occurred in April 2010, when Graham James received pardons for his 1997 convictions. The old pardon regime was viewed as being too lenient and accessible.4 Interestingly, offenders including Homolka and James are very much the exception to the norm. These individuals are the ones who receive media attention for the horrific and egregious nature of their crimes and receive Canada’s so-called soft hand at granting second chances. However, obviously these individuals are not representative of the general population of individuals applying for pardons in Canada. The Parole Board of Canada notes the following statistics: Number of Pardons Granted In 2009-2010: 24,139 with a grant rate of 98% Last five years: 111,910 Note: Since 1970, more than 400,000 Canadians have received pardons. 96 percent of these are still in force, indicating that the vast majority of pardon recipients remain crime-free in the community.5 According to Gordon H. Maynard of Maynard Kischer Stojicevic, “[i]n 2009-2010 there were 24, 559 pardons processed by the National Parole Board. Two-thirds were for indictable offences; the majority for drinking and driving, assault, theft and drug-related crimes. More than 97% of the eligible pardon applications were granted.”6 Reflecting on these statistics published by the Parole Board of Canada, this indicates that of those who were granted a pardon in 1970, 96% remain crime-free. Clearly this legislation is an overreaction to very few offenders with potentially serious and lasting consequences.

4See: Jim Bronskill and Bruce Cheadle,“Pardon crackdown demands more staff, cash and online sleuthing skills,” The Globe and Mail (11 January 2011), online: . 5See: Parole Board of Canada, PBC QuickStats: Parole, Pardons and Clemency, online: . 6Gordon Maynard, “Life After Crime — Post Criminality Options — Rehabili- tations, Pardons and TRP” (Paper delivered at the 2011 National Citizenship and Immigration Law Conference, Gatineau, Quebec, 13 May 2011), online: . 58 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Stigmatization Section 5(a)(ii) of the current Criminal Records Act reads: Effect of pardon

5. The pardon (a) is evidence of the fact that (i) the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and (ii) the conviction in respect of which the pardon is granted should no longer reflect adversely on the applicant’s character; and (b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification or obligation to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament — other than section 109, 110, 161, 259, 490.012, 490.019 or 490.02901 of the Criminal Code, subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act — or of a regulation made under an Act of Parliament. As indicated by the Supreme Court of Canada in the case of Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Service de police de la Communauté urbaine), the Court explained: [20] As Gonthier J. noted in Therrien, the use of the conditional in s. 5(a)(ii) is significant. A pardon does not have an absolute effect and does not erase the past. Neither a discharge nor a pardon allows a person to deny that he or she was found guilty of an offence (Ther- rien, at paras. 116 and 122). The facts surrounding the offence did occur, but the pardon helps obliterate the stigma attached to the finding of guilt. Consequently, when the time period provided for in the CRA elapses or a pardon is granted, the opprobrium that results from prejudice and is attached solely to the finding of guilt must be re- sisted, and the finding of guilt should no longer reflect adversely on Pardon Me? Not Necessarily... 59

the pardoned person’s character. It must be presumed that the person has completely recovered his or her moral integrity.7 With fewer individuals now eligible for a record suspension, the stigma of their convictions would follow them indefinitely. This again is contrary to the principles of sentencing which considers the importance of rehabilitation.

Immigration Consequences To measure all offenders who wish to sponsor or be sponsored the lengthier waits to be eligible for a record suspension by the same standard will disproportionately impact family reunification. In fact, many of the Immigration and Refugee Protection Act’s objectives will be im- pacted by the passage of this legislation: 3(1) (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; A foreign national with a prior Canadian conviction seeking a work permit to render a key service or fill an essential research position for example in Canada would be rendered inadmissible for a longer period resulting in an unnecessary delays and resort to discretionary remedies like section 24 of the IRPA (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; Same as above (d) to see that families are reunited in Canada; As stated (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; The disenfranchised groups like victims of human trafficking for example who may fall into the criminal justice system further impeded by additional delays and discretionary relief under the proposed legislation (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Govern- ment of Canada in consultation with the provinces; Uneven treatment of offenders inside Canada (5–10 years for record suspension) and offenders outside Canada (5 years to apply for rehabilitation)

72008 SCC 48 (S.C.C.), at para. 20. 60 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; For the reasons stated above a one time offender for example could be unnecessarily stigmatized (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; Based on the statistics only a very small percentage of those who have benefitted from a pardon have reoffended. (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and Current regime satisfied this objective whereas the proposed regime does not alter the class of persons who will never be eligible for pardons. Persons with lifetime sentences (murder convictions and persons with dangerous offender designation) will never be eligible to apply for pardons (or record suspensions) because the ten year clock never starts.

Application (3) This Act is to be construed and applied in a manner that (a) furthers the domestic and international interests of Canada; May impact those interests for reasons discussed. (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; See discussion below re disproportionality of minimum sentences on non- citizens

Effects of Mandatory Minimum Sentences In the Report entitled “Bill C-10: An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make conse- quential amendment to another Act,”8 Wade Riordan Raaflaub explains

8See: Law and Government Division, Bill C-10: An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make conse- quential amendment to another Act, by Wade Riordan Raaflaub (Ottawa: Li- brary of Parliament, LS-525E, 22 February 2007) online, . Pardon Me? Not Necessarily... 61 some of the incidental effects of mandatory minimum sentences. While speaking about mandatory minimum sentences with respect to firearm offences, the principles are equally applicable to the current Bill C-10. A mandatory minimum sentence may not actually bring about severe and consistent sentencing as intended, or may have incidental impli- cations. The possibility of mandatory punishment sometimes results in charges being stayed or withdrawn, or a plea negotiation for a different charge, because prosecutors consider the penalty to be too harsh. Decisions regarding appropriate punishment are therefore transferred from the judiciary to the prosecution. (25) When a charge for an offence carrying a minimum sentence is main- tained, the accused has no incentive to plead guilty, more likely leading to a costly trial. Trials may also result in “jury nullification,” which is a jury’s refusal to convict when the mandatory penalty is perceived to be too harsh.(26) Another possibility is that a case heard by a judge may lead to the imposition of a less severe sentence on the accused for accompanying charges to compensate for the minimum sentence for a particular charge.(27) A survey of Canadian judges found that slightly over half felt that mandatory sentencing laws im- pinged on their ability to impose a just sentence.(28) Incarcerating offenders for longer periods results in increased prison costs, which are not necessarily offset by any reduction in crime rates and recidivism.(29) In addition to the direct costs of incarceration, there is also an opportunity cost to the extent that fewer public funds are available to be spent on law enforcement, community programs and crime prevention initiatives. Finally, mandatory minimum sentences may have an adverse effect on minority defendants, who may be more likely to be charged with offences carrying a minimum penalty.(30) Australian studies, for example, have shown that mandatory minimum sentences disproportionately affect Aboriginal offenders, which has resulted in the repeal of certain sentencing legislation.(31)9

9See: Law and Government Division, Bill C-10: An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make conse- quential amendment to another Act, by Wade Riordan Raaflaub (Ottawa: Li- brary of Parliament, LS-525E, 22 February 2007) online, . 62 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

The issue of the effectiveness of mandatory minimum sentences has also arisen in the media. In the Globe & Mail article entitled “Health researchers slam Tory mandatory-minimum sentence proposal for drug crimes,” dated February 7, 2011, over 500 health professionals from across Canada wrote to Prime Minister Harper and opposition leaders protesting mandatory minimum sentences. “We, the undersigned, are concerned that the federal government is pursuing significant amendments to federal drug legislation, through Bill S-10, which are not scientifically grounded and which research demonstrates may actually contribute to health and social harms in our communities,” the health professionals say in the letter. They say there is no evidence that mandatory minimum sentences will reduce drug use or deter crime, that the sentences would have a disproportionately negative impact on young people and members of Canada’s aboriginal communities, and that they would have a negative impact on public health and HIV rates. “Although the government has not produced detailed budget esti- mates regarding the potential cost of implementing mandatory minimum sentences, similar sentencing regimes introduced in the United States have cost taxpayers billions of dollars,” the letter says. “Dur- ing these difficult economic times, this raises the question of why the federal government proposes to spend scarce financial resources on policies that have been shown to be expensive, ineffective and harmful.”10

An American Influence As indicated by Wade Riordan Raaflaub, the effectiveness of mandatory minimum sentences remains ambiguous. With respect to mandatory minimum sentences involving firearm offences, the effectiveness of these sentences has yielded mixed results in the United States. There has been some evidence that mandatory minimum sentences have been effective in the context of gun-related crime in the United States, although again, the results are mixed overall. An evaluation,

10See: Gloria Galloway, “Health researchers slam Tory mandatory-minimum sentence proposal for drug crimes,” Globe and Mail (7 February 2011) online, . Pardon Me? Not Necessarily... 63

published in 1992, of mandatory gun-use sentencing enhancements (mandatory additional imprisonment) in six large American cities (Detroit, Jacksonville, Tampa, Miami, Philadelphia and Pittsburgh) found that the laws deterred homicide, although not other violent crimes.(17) However, studies of similar laws in Michigan in 1983 and Florida in 1984 found no evidence that crimes committed with firearms had been prevented.(18) A 1981 evaluation of a 1975 Massachusetts law that imposed mandatory jail terms for possession of an unlicensed handgun concluded that the law was an effective deterrent to gun crime in Boston, at least in the short term.(19) A 1984 study of a 1974 Arizona law, imposing additional minimum prison time where a firearm is used in the commission of an offence, found that offenders committed fewer robberies with a firearm as penalties for firearm use became more severe.(20) The law was followed by “highly significant reductions in gun robberies in two large counties, with no evidence of displace- ment to other robberies or property crimes.”(21) More recently, in Richmond, Virginia, a 1997 initiative called “Pro- ject Exile” established, among other things, a five-year mandatory minimum sentence for certain gun crimes. During the first 10 months of 1998, compared with the same period of the previous year, the total number of homicides committed in the city was down 36% and the number of firearm homicides was down 41%.(22)11

Possible Constitutional Challenges/Immigration Consequences There are questions as to whether this legislation will be able to withhold constitutional scrutiny. As indicated in the article entitled “Lawyers gearing up for assault on omnibus bill,” dated September 26, 2011, criminal lawyer John Rosen sees the new legislation as a step back from decisions of the Supreme Court of Canada.12 For example, in the 1987 case R. v. Smith,13 the Supreme Court of Canada struck down a mandatory mini-

11See: Law and Government Division, supra, note 7. 12Michael McKiernan, “Lawyers gearing up for assault on omnibus bill,” Law Times (26 September 2011), online: . 13R. v. Smith, [1987] 1 S.C.R. 1045, 58 C.R. (3d) 193 (S.C.C.). 64 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

mum sentence of seven years for importing narcotics due to disproportionality. The concept of disproportionality for those that are non-citizens could also be an issue of a constitutional challenge. Those who are non-citizens and are convicted of offences which carry a mandatory minimum may suffer a disproportionate impact, as the convictions would likely render them criminally inadmissible and possibly subject them to a removal order. Again this is contrary to the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. With mandatory minimum sentences, mitigating circumstances which often include the social circumstances of the offender may have little to no impact. Similarly, the added punitive aspect of possible removal proceedings and inadmissibility to Canada may have little or no impact when the Court is faced with mandatory minimum sentences.

Overburdening the Judicial System One possible effect of increasing mandatory minimum sentences is less matters resolving by way of guilty plea. The concept of resolving matters through resolution or guilty pleas ensures that the court system is not overburdened with trial matters. This is one of the principles behind of- fering an accused a more favourable plea position before trial rather than the sentence after trial. The principle is the saving of time and resources. However, with mandatory minimum sentences, people charged with these offences will have less incentive to plead guilty if there is little to no negotiation or discretion of the Crown Attorney as to a possible sentence.

Roles and Principles of Sentencing Section 718 of the Criminal Code of Canada reads:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the main- tenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; Pardon Me? Not Necessarily... 65

(b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Additionally, Section 718.1 of the Criminal Code of Canada sets out the fundamental principle of sentencing.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mandatory minimum sentencing casts aside the principle of rehabilitation, one of the fundamental purposes of sentencing. It offers the sentencing judge little to no discretion to take into consideration mitigating circumstances of the offender.

Marginalized Groups The new amendments to the Criminal Records Act and the introduction of more mandatory minimum sentences completely ignores the social and systemic factors facing marginalized groups who often come before the criminal justice system, including victims of human trafficking, mi- nors without immigration status, and protected person claimants. It is a widely known fact that minorities, including Aboriginal and blacks, are disproportionately over-represented in both provincial jails and federal penitentiaries. The historical and systemic issues faced by Aboriginal people have been recognized by the Supreme Court of Canada in the landmark case of R. v. Gladue.14 Section 718.2(e) of the Criminal Code is intended to address the disproportionate incarceration of Aboriginal peoples. The Criminal Code requires that a sentencing judge consider the unique situation of

14[1999] 1 S.C.R. 688, 23 C.R. (5th) 197 (S.C.C.). 66 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Aboriginal peoples and the historical and systemic factors which brought the Aboriginal offender before the Court. As indicated in Gladue: 58 If overreliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians. In the mid-1980s, aboriginal people were about 2 percent of the population of Canada, yet they made up 10 percent of the penitentiary population. In Manitoba and Saskatchewan, aboriginal people constituted something between 6 and 7 percent of the population, yet in Manitoba they represented 46 percent of the provincial admissions and in Saskatchewan 60 percent: see M. Jackson, “Lock- ing Up Natives in Canada” (1988-89), 23 U.B.C. L. Rev. 215 (article originally prepared as a report of the Canadian Bar Association Com- mittee on Imprisonment and Release in June 1988), at pp. 215-16. The situation has not improved in recent years. By 1997, aboriginal peoples constituted closer to 3 percent of the population of Canada and amounted to 12 percent of all federal inmates: Solicitor General of Canada, Consolidated Report, Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act — Five Years Later (1998), at pp. 142–55. The situation continues to be particularly worrisome in Manitoba, where in 1995-96 they made up 55 percent of admissions to provincial correctional facilities, and in Sas- katchewan, where they made up 72 percent of admissions. A similar, albeit less drastic situation prevails in Alberta and British Columbia: Canadian Centre for Justice Statistics, Adult Correctional Services in Canada, 1995-96 (1997), at p. 30.15

Conclusion The separation of offenders from society where necessary and the reparations to the harms done to victims remain sentencing objectives (see s. 718(c) and(e)), but are nevertheless not the sole objectives of sentencing. Sentencing is not a science, and the social factors often systemic and related to mental illness, poverty, lack of immigration status and lack of education should also factor into consideration. The current regime based upon the statistical evidence was meeting the programs objectives. As the animus for change appears to be a few horrific offenders, the discre-

15Ibid., at para. 58. Pardon Me? Not Necessarily... 67 tion should vest in any new system to deny those few rather than unnecessarily penalize so many. 68 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Proposed Amendments to Pardon Regime Will Impact Immigration Applicants Zahra Kaderali*

Introduction With the introduction of the Limiting Pardons for Serious Crimes Act, which received royal assent on June 29, 2010, the pardon regime was substantially changed, now making it more difficult to receive a pardon in Canada. Under the previous regime (pre-Bill C-23A), an individual convicted of a summary conviction offence was required to wait a period of three years after the completion of his or her sentence before applying for a pardon. An individual convicted of an indictable offence was required to wait a period of five years before being eligible to apply for a pardon. Under the old regime, those convicted of a summary conviction offence had to apply for a pardon after the required waiting period and not be convicted of an offence during this period. Prior to the amendments of Bill C-23A, there was no inquiry into the “good conduct” of an individual convicted of a summary conviction offence. This has all changed remarkably. The current Criminal Records Act revamps the old regime with waiting periods now ranging from three to ten years. For example, those individuals convicted of a serious personal injury offence who receive a term of imprisonment of two years or more and those convicted of a sexual offence related to a child, prosecuted by way of indictment will not be able to apply for a pardon until ten years after the completion of their sentence. Furthermore, under the current legislation, the discretion of the National Parole Board in granting pardons has increased with the inquiry into “good conduct” now also applying to summary conviction offences. For those offences with a waiting period of five and ten years, the applicant now has the onus “of satisfying the Board that the pardon would provide

*Zahra Kaderali, Barrister & Solicitor practices law as an Associate with Bellis- simo Law Group. Proposed Amendments to Pardon Regime Will Impact Immigration Applicants 69

a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen.”1 One of the nine bills included in the Safe Streets and Communities Act is Bill C-23B, known as Eliminating Pardons for Serious Crimes Act. Bill C-23B seeks to once again change the regime further by limiting accessi- bility to a pardon or, as it will be referred to, “record suspensions.”

Eligibility The proposed amendments will extend the waiting periods from three to five years for summary conviction offences and five to ten years for indictable offences. Certain offences will altogether be ineligible for a record suspension, including those individuals convicted of a sexual offence in relation to a minor and those convicted of more than three indictable offences or service offences which are subject to a maximum punishment of life imprisonment, and for each of which the individual was sentenced to imprisonment of two years or more. Those individuals who are convicted of an offence either under a federal act or regulation of Canada can apply for a pardon. Even if the individual is not a resident of Canada or a Canadian citizen, he or she may still apply for a pardon.2 What is the purpose of a pardon in Canada? As indicated by Harvey Cenaiko, Chairperson of the National Parole Board, The aim is to reduce the barriers and stigmas faced by an individual with a criminal record if he can demonstrate a commitment to live as a law-abiding citizen. The program has a dual benefit: to assist the individual to move forward in his rehabilitation and to enhance the safety of communities by motivating the individual to remain crime free and to maintain good conduct.3

1Criminal Records Act, RSC 1985, c C-47, s. 4.1(2). 2Parole Board of Canada, Fact Sheet: Paroles, online: . 3Senate, Proceedings of the Standing Senate Committee on Legal and Constitu- tional Affairs, 40th Parl, 3rd Sess, No 11 (22 June 2010), online: 70 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

There is no question that the new “record suspension” regime under the Eliminating Pardons for Serious Crimes Act will have an impact on both Canadians and immigrant applicants. What unintended consequences will surface over time? I will discuss some areas that will inevitably pose some challenges in the future.

The Impact on Equivalency of Foreign Pardons Interestingly, the new proposed regime will have an international effect when it comes to foreign equivalencies of record suspensions in Canada versus abroad. While once equivalent under the former pardon regime, the Canadian “record suspension” system may no longer be equivalent to certain foreign jurisdictions. The Federal Court of Appeal in Saini4 lists the requirements when considering the equivalency of foreign pardons to Canada’s pardon regime. Three elements must be established prior to a foreign discharge or pardon being recognized in Canadian law: “(1) the foreign legal system as a whole must be similar to that of Canada, (2) the aim, content and effect of the specific foreign law must be similar to Canadian law, and (3) “there must be no valid reason not to recognize the effect of the foreign law.”5 As indicated in Saini, the two legal systems must be “similar,” not just “somewhat similar.” While the legal systems are not required to be identical, “[i]t does require, however, that there be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be given recognition in this context.”6 With respect to equivalency with the U.K. and the Rehabilitation of Of- fenders Act, Gordon H. Maynard of Maynard Kischer Stojicevic writes in

. 4Saini v. Canada (Minister of Citizenship & Immigration), 2001 FCA 311, 19 Imm. L.R. (3d) 199 (Fed. C.A.). 5Ibid., at para. 24. 6Ibid, at para. 29. Proposed Amendments to Pardon Regime Will Impact Immigration Applicants 71

his paper, “Life After Crime — Post Criminality Options — Rehabilita- tions, Pardons and TRP,” It is suggested that amendment of the CRA through C23A casts some question on the continued validity of some decisions to respect foreign pardon law, say at least with respect to the UK Rehabilitation of Offenders legislation. The UK legislation is fairly “automatic” — convictions are rendered “spent” upon the passage of time, without the individual assessment of good conduct or “disrepute” to the administration of justice now required for some determinations under the current CRA. It is suggested that the stricter requirements for Canadian pardons/record suspensions will make it more difficult to find equivalent foreign rehabilitative legislation.7 Even for relatively minor offences, a record suspension in the new regime is not automatic despite the passage of the mandated waiting period. Reflecting on the principles in Saini and Burgon8 and expanding on Maynard’s article, while the U.K. legal system as a whole is similar to that of Canada and while there may be no valid reason not to recognize the effect of the foreign law, the issue may be that the aim, content and effect of the specific U.K. legislation is no longer similar to Canadian law. In light of the changes, the question remains whether or not a spent conviction under the Rehabilitation of Offenders Act will be recognized in Canada in the current pardon regime and in the post-Bill C-23B era.

Increases in Discretion, Cost and Time As previously indicated, prior to Bill C-23A, an individual became eligible for a pardon after the passage of three years for a summary conviction offence and after the passage of five years for an indictable offence. “Under the previous pardon procedure, a pardon for a summary convic-

7Gordon Maynard, “Life After Crime — Post Criminality Options — Rehabili- tations, Pardons and TRP” (Paper delivered at the 2011 National Citizenship and Immigration Law Conference, Gatineau, Quebec, 13 May 2011), online: . 8Canada (Minister of Employment & Immigration) v. Burgon (1991), 13 Imm. L.R. (2d) 102 (Fed. C.A.). 72 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

tion offence had to be issued if the applicant had not been convicted of another offence during the three-year period.”9 Under the present regime and in the post-Bill C-23B regime, this is no longer the case. Presently, according to section 4.1(1)(a) of the current Criminal Records Act, the National Parole Board may grant a pardon if satisfied that the applicant during the applicable waiting period “has been of good conduct and has not been convicted of an offence under an Act of Parliament.” Further requirements already in force (through Bill C-23A) for indictable offences include that granting a pardon would provide “a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.”10 What are some potential results of this increase in discretion? As indicated in the Globe and Mail article, published January 2011, entitled “Pardon crackdown demands more staff, cash and online sleuthing skills,” Canada’s strict new regime for granting criminal pardons is turning civil servants into psychologists, spies and even Internet sleuths, The Canadian Press has learned. The Parole Board of Canada says it will need more staff, new funding, better training and access to intelligence sources ranging from Facebook to Interpol in order to enforce rules unanimously adopted by Parliament.11 The article further refers to “new information-sharing arrangements with Interpol, the Canada Border Services Agency and Citizenship and Immi- gration.”12 Increased costs, staff, training, delays in processing and po-

9Legal and Legislative Affiars Division, Bill C-23B: Eliminating Pardons for Serious Crimes Act by Robin MacKay, (Ottawa: Library of Parliament, Publica- tion No: 40-3-C23B-E, 13 October 2010), at p. 2. 10Criminal Records Act, supra, note 1, section 4.1(1)(b). 11Jim Bronskill and Bruce Cheadle,“Pardon crackdown demands more staff, cash and online sleuthing skills,” The Globe and Mail (11 January 2011), online: . 12Ibid. Proposed Amendments to Pardon Regime Will Impact Immigration Applicants 73

tential privacy issues with respect to access to information remain issues in the current regime and could invariably increase post-Bill C-23B. What does this mean for foreign nationals? Simply put, more foreign nationals will be inadmissible for longer. First, they will be inadmissible for longer due to the extended waiting periods currently in force. Second, they will be inadmissible for longer due to the inevitable time increase in processing applications. This could increase further with Bill C-23B. The companion piece written by Mario D. Bel- lissimo, entitled “Pardon Me? Not Necessarily. . .: Bill C-10 Record Sus- pension & Minimum Sentencing”,13 also highlights further immigration consequences.

Potential Charter Considerations: An Uphill Battle For Foreign Nationals? The newly proposed changes in the Safe Streets and Communities Act have triggered discussion on whether it would uphold constitutionally. Apart from increasing the waiting periods to be eligible to apply for a record suspension, the application fee to apply for a record suspension is expected to rise. As indicated by the article entitled “Tories move to quadruple pardon fees despite warnings,” the expected increase could be quadruple the current fee from $150 to $631.14 Especially with regards to increases of mandatory minimum penalties and the proposed increase in fees for these applications, Charter considerations are important. However, do the proposed changes and the current pardon regime engage Charter issues with respect to foreign nationals? In light of the proposal to increase application fees, the anticipated increase in delays, and the resulting impact of more non-citizens being inadmissible for longer, these issues could stimulate Charter discussion with respect to foreign nationals. However, this must still be considered

13Reported ante at p. 52. 14The Canadian Press, “Tories move to quadruple pardon fees despite warnings,” CTV news (9 November 2011), online: . 74 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d) in light of section 6(1) of the Canadian Charter of Rights and Freedoms, which reads:

6. Mobility of citizens — (1) Every citizen of Canada has the right to enter, remain in and leave Canada. Cases including Charkaoui15 and Chiarelli,16 discuss this distinction between mobility rights of Canadians versus non-citizens. As indicated in Charkaoui, The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right “to enter, remain in and leave Canada” in s. 6(1).17 Furthermore, the Supreme Court of Canada in the decision of Medovar- ski explained, The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711, 16 Imm. L.R. (2d) 1 (S.C.C.). Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.18 In light of these decisions and mobility rights of citizens, Charter litigation involving foreign nations may be an uphill battle.

The Impact on Criminal Law: An Increase in Discharges? While Charter litigation may be a challenge, there are still issues of disproportionality when it comes to foreign nationals, the existing pardon regime and the proposed amendments. In light of this, could there be an impact on sentencing law so as to avoid a criminal conviction? Could the

15Charkaoui, Re, 2004 FCA 421, 42 Imm. L.R. (3d) 165 (F.C.A.). 16Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711, 16 Imm. L.R. (2d) 1 (S.C.C.). 17Charkaoui, supra, note 15, at para. 97. 18Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51, 50 Imm. L.R. (3d) 1, at para. 46. Proposed Amendments to Pardon Regime Will Impact Immigration Applicants 75

proposed amendments have an effect on criminal lawyers’ sentencing submissions? If individuals, both Canadian citizens and foreign nationals, are required to wait a period of five years after sentence completion for a summary conviction offence (irrespective of the seriousness), criminal lawyers, Crown Attorneys and judges may consider alternatives to a conviction. One of these alternatives could be through discharges, both conditional and absolute. According to section 730(1) of the Criminal Code of Can- ada, prior to granting a discharge, the court considers “the best interests of the accused” and whether the granting of a discharge is “contrary to the public interest.” Discharges are not available for all offences (those with a minimum punishment or an offence punishable by imprisonment for fourteen years or for life are ineligible). A discharge results in a finding of guilt, but not in a conviction. As indicated in the “Legislative Summary of Bill C-23B,” A person does not need to apply for a pardon if his or her criminal record consists only of absolute or conditional discharges. Absolute or conditional discharges handed down after 24 July 1992 will auto- matically be removed from the criminal records system one year (for absolute discharges) or three years (for conditional discharges) after the court decision.19 The jurisprudence suggests adverse immigration consequences are a factor for consideration in the granting of a discharge, but are to be taken into consideration with all the circumstances. Immigration consequences in isolation are insufficient grounds in the granting of a discharge. The Ontario Court of Appeal in Melo held, In my view the fact that a convicted shoplifter may be in jeopardy under the Immigration Act is not, in itself and in isolation, a sufficient ground for the granting of a conditional or absolute discharge. It is one of the factors which is to be taken into consideration by the trial Court, in conjunction with all of the other circumstances of the case. In a case where clearly on the facts disclosed a discharge would not be granted, the fact that the convicted person may be subject to deportation is not sufficient to “tip the scales” the other way and lead to the granting of a discharge. If the deportation will cause undue hardship to the convicted person in all of the circumstances of the

19Legal and Legislative Affiars Division, supra, note 8. 76 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

case, appropriate powers are available in the Immigration Appeal Board to alleviate the condition thus created. The court ought not to grant a discharge in cases where a discharge would clearly not be called for, merely because it is represented that the immigration authorities or the Immigration Appeal Board may not exercise that degree of compassion or sensitivity to the circumstances that it is suggested the court should exercise.20 The following chart is reproduced from the Citizenship and Immigration Canada’s guide, Rehabilitation For Persons Who Are Inadmissible to Canada Because of Past Criminal Activity: Outcome of Offence Occurred In Offence Occurred Charges/Convictions Canada Outside Canada Charges Withdrawn You are not inadmissi- You may be inad- or Dismissed ble. missible.* Absolute or Condi- You are not inadmissi- You may be inad- tional Discharge ble. missible.* Pardon Granted If pardoned under the You may be inad- Criminal Records Act in missible.* Canada, you are not inadmissible.

Notes: * You must provide an officer with complete details of charges, convictions, court dispositions, pardons, photocopies of applicable sections of foreign law(s), and court proceedings to allow the officer to determine whether or not you are inadmissible to Canada.21 As indicated by the above chart, a discharge granted in Canada does not render a temporary or permanent resident inadmissible. Therefore, the granting of a discharge is beneficial in the sentencing of foreign nationals and permanent residents.

20R. v. Melo (1975), 1975 CarswellOnt 29, 30 C.R.N.S. 328 (Ont. C.A.), at para. 21. 21Citizenship and Immigration Canada, Rehabilitation For Persons Who Are Inadmissible to Canada of Past Criminal Activity, online: . Proposed Amendments to Pardon Regime Will Impact Immigration Applicants 77

Conclusion The Safe Streets and Communities Act is intended to be “comprehensive legislation that will target crime and terrorism and provide support and protection to victims of crime.”22 The new proposed legislation has prompted discussion and media attention as to how to achieve these objectives, including reference to other countries and their attempts at the “get tough on crime” agenda. As indicated in the article, dated October 17, 2011, entitled “Texas conservatives reject Harper’s crime plan, ‘Been there; done that; didn’t work,’ says Texas crime-fighters,” “Republican governors and state legislators in such states of Texas, South Carolina, and Ohio are repealing mandatory minimum sentences, increasing opportunities for effective community supervi- sion, and funding drug treatment because they know it will improve public safety and reduce taxpayer costs,” said Tracy Vel´azquez, ex- ecutive director of the Washington-based Justice Policy Institute. If passed, C-10 will take Canadian justice policies 180 degrees in the wrong direction, and Canadian citizens will bear the costs.23 Criminality and sentencing involves an amalgamation of social factors which often require a delicate balancing of competing objectives. Legis- lation and policies concerning criminality rarely impact simply one area of law. In considering the potential consequences and aftermath of Bill C-10, it is imperative not only to consider repercussions in the area of criminal law and recidivism, but also the effects on other disciplines, including immigration law and practice. But what is clear is that some of the unintended consequences may be felt most acutely in the immigration context.

22See: Department of Justice Canada, Government of Canada Introduces the Safe Streets and Communities Act (20 September 2011), online: . 23Terry Milewski, “Texas conservatives reject Harper’s crime plan, ‘Been there; done that; didn’t work,’ says Texas crime-fighters,”CBC News (17 October 2011), online: . 78 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Canada (Minister of Public Safety & Emergency Preparedness) v. Fabien] Minister of Public Safety and Emergency Preparedness, Applicant and Yves Fabien, Respondent Federal Court Docket: IMM-2432-10 2011 FC 472 James W. O’Reilly J. Heard: January 26, 2011 Judgment: April 18, 2011 Immigration and citizenship –––– Admission — Appeals and judicial review — Appeal division — Miscellaneous issues –––– Applicant was Canadian citizen — Applicant sought to sponsor his spouse, D, to become permanent resident of Canada — Visa officer rejected applicant’s application on ground that marriage was not genuine — Applicant appealed that decision to Immigration Appeal Division (IAD) and succeeded — Minister of Public Safety and Emer- gency Preparedness brought application for judicial review — Application granted — There was no basis for Minister’s argument that IAD refused to allow counsel to call D — Counsel seemed to have abandoned idea, and he made no objection to IAD’s conduct of hearing at time — However, based on evidence before it, IAD’s conclusion that applicant had provided adequate and persuasive testimony that resolved concerns noted by visa officer was unreasonable.

APPLICATION by Minister of Public Safety and Emergency Preparedness for judicial review of decision of Immigration Appeal Division which allowed individual’s appeal from decision of visa officer rejecting individual’s application to sponsor his spouse to become permanent resident.

Camille Audain, for Applicant Yves Fabien, Respondent, for himself

James W. O’Reilly J.: I. Overview 1 Mr. Yves Fabien, a Canadian citizen, sought to sponsor his spouse, Ms. Feta Delima, to become a permanent resident of Canada. The couple married in Haiti in December 2006, having met a few months earlier. A Canada (MCI) v. Fabien James W. O’Reilly J. 79

visa officer rejected Mr. Fabien’s application on the ground that the marriage was not genuine. Mr. Fabien appealed that decision to the Immigra- tion Appeal Division (IAD) and succeeded. 2 The Minister now seeks to overturn the IAD’s decision on the basis that it was arrived at unfairly, and was unreasonable. The Minister submits that the IAD erred by refusing to allow counsel to call Ms. Delima as a witness, and by failing to take account of the evidence that the visa officer relied on in concluding that the marriage was not genuine. 3 I cannot conclude that the IAD acted unfairly. Counsel for the Min- ister simply failed to pursue his wish to question Ms. Delima at the hearing. However, I agree that the IAD’s decision was unreasonable in light of the vague and contradictory evidence before it relating to the marriage. I must, therefore, allow this application for judicial review. 4 The issues are: 1. Did the IAD act unfairly? 2. Was the IAD’s decision unreasonable?

II. The Visa Officer’s Decision 5 The visa officer found a number of circumstances that appeared inconsistent with a genuine marriage between Mr. Fabien and Ms. Delima: • little ongoing communication between them; • little knowledge on Ms. Delima’s part about Mr. Fabien’s life — his job, salary, social activities, financial arrangements, previous marriages, other family members, etc.; • contradictory descriptions of the wedding reception and accounts of subsequent visits by Mr. Fabien to Haiti; • the documentary evidence (letters and cards exchanged between them) appeared to have been contrived to support the application. 6 Based on this evidence, the visa officer concluded that the marriage was not genuine.

III. The IAD’s Decision 7 The IAD set out some of the factors to be considered in deciding whether a couple’s marriage is genuine: • the circumstances surrounding their meeting and the evolution of the relationship: • the circumstances of their engagement and marriage; 80 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

• their behaviour before and after the wedding, including communication between them; • the involvement of the respective families in the engagement and marriage; and • their future plans. 8 The IAD found Mr. Fabien’s testimony to be forthright and credible. Mr. Fabien had recounted the circumstances when he first met Ms. De- lima. They fell in love at first sight; she then moved in with him. She lived in the house owned in Haiti until the earthquake in January 2010. 9 The IAD accepted Mr. Fabien’s assertion that he had spent $3000 on the wedding, which was followed by a reception attended by 45 people. It also found that Mr. Fabien regularly sent money to Ms. Fabien and the couple communicated frequently by telephone. 10 The IAD was satisfied that Mr. Fabien had resolved the contradictions noted by the visa officer and was aware of numerous details about his wife’s life in Haiti. It was persuaded that the marriage was genuine and allowed Mr. Fabien’s appeal.

(1) Did the IAD Act Unfairly? 11 At the hearing before the IAD, counsel for the Minister expressed his intention to call Ms. Delima to testify by telephone. He asked Mr. Fabien if his spouse was prepared to testify to explain the answers she had given to the visa officer. Mr. Fabien said that she was ready and willing. 12 Counsel went on to cross-examine Mr. Fabien. Nothing more was said about the question of Ms. Delima’s testimony. At the end of his cross-examination, counsel simply said he had no further questions and thanked the presiding member. 13 I can see no basis for the Minister’s argument that the IAD refused to allow counsel to call Ms. Delima. Counsel seemed to have abandoned the idea. He made no objection to the IAD’s conduct of the hearing at the time.

(2) Was the IAD’s Decision Reasonable? 14 Mr. Fabien obviously impressed the IAD with his candour and sincer- ity. The IAD concluded from his testimony that the gaps and contradictions noted by the visa officer had been filled in and resolved. 15 However, on a review of the transcript of the hearing before the IAD, I cannot find a basis for the IAD’s conclusion. Canada (MCI) v. Fabien James W. O’Reilly J. 81

16 Mr. Fabien described the frequency of his telephone conversations with Ms. Delima but, when asked, could say little or nothing about their content. I see no basis for the IAD’s finding that Mr. Fabien was familiar with many details about his wife’s life in Haiti. Further, the other gaps in the couple’s knowledge noted by the visa officer remained. 17 With respect to contradictions, these, too, persisted before the IAD. For example, before the visa officer, Ms. Delima had stated that they had not had a wedding reception. Mr. Fabien told the IAD that he had spent $3,000 on a reception for 45 people. Ms. Delima told the visa officer that Mr. Fabien’s last visit to Haiti was in August 2007. Mr. Fabien testified before the IAD that he visited Haiti often, including in August 2008. Again, I cannot see a basis for the IAD’s conclusion that Mr. Fabien’s testimony had cleared up these discrepancies. 18 Overall, I find that the IAD’s decision was unreasonable; it was not a possible, defensible outcome based on the law and the facts.

IV. Conclusion and Disposition 19 I cannot find a basis for the Minister’s suggestion that the IAD acted unfairly. However, based on the evidence before it, I must find that its conclusion - that Mr. Fabien had provided adequate and persuasive testimony that resolved the concerns noted by the visa officer — was unreasonable. Therefore, I must allow this application for judicial review and order a new hearing before a different panel of the IAD. Neither party proposed a question of general importance for me to certify, and none is stated.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed. The matter is referred back to the Board for a new hearing before a different panel; 2. No question of general importance is stated. Application granted. 82 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Almrei v. Canada (Attorney General)] Hassan Almrei, Plaintiff and The Attorney General of Canada, Marc Towaij, John Doe and Jane Doe, Defendants Ontario Superior Court of Justice Docket: CV-10-402443 2011 ONSC 1719 Lederman J. Heard: February 15-17, 2011 Judgment: April 15, 2011 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Security certificates — General principles –––– Ministers of Pub- lic Safety and Emergency Preparedness and of Citizenship and Immigration issued security certificate against plaintiff — After multiple detention reviews, deportation proceedings and constitutional challenges, security certificate review process was amended — Ministers signed second certificate in 2008 against plaintiff — On referral to Federal Court, review judge found that second certificate was not reasonable and released plaintiff unconditionally — Plaintiff brought action against defendants, including federal Crown, for various torts and breaches of ss. 7, 9, and 12 of Canadian Charter of Rights and Freedoms — Plaintiff brought motion for summary judgment against Crown — Motion dismissed — Only criteria at issue as to whether issue estoppel precluded relitigation of review judge’s findings was whether same questions were decided — Review judge drew numerous conclusions in answering questions based on legislative definition of inadmissibility on security grounds and peering through lens of standard of reasonableness — Review judge’s ruling, on plaintiffs’ motion to stay for abuse of process, that Ministers breached duty of candour was not fundamental to disposition of case on its merits and could not form basis of issue estoppel — Given object and purpose of review hearing, civil liability issues were not in reasonable contemplation of Ministers — Rules of evidence did not apply in security certificate review, and there was limited avenue of appeal — Given review judge’s very specific role in security certificate regime, his findings should not be treated as determinative of tortious conduct and Charter breaches that were not in issue before him — Interest of fairness and justice required that discretion should be exercised to deny operation of issue estoppel. Civil practice and procedure –––– Judgments and orders — Res judicata and issue estoppel — Issue estoppel — General principles –––– Ministers of Public Safety and Emergency Preparedness and of Citizenship and Immigration issued security certificate against plaintiff — After multiple detention reviews, Almrei v. Canada (Attorney General) 83 deportation proceedings and constitutional challenges, security certificate review process was amended — Ministers signed second certificate in 2008 against plaintiff — On referral to Federal Court, review judge found that second certificate was not reasonable and released plaintiff unconditionally — Plaintiff brought action against defendants, including federal Crown, for various torts and breaches of ss. 7, 9, and 12 of Canadian Charter of Rights and Freedoms — Plaintiff brought motion for summary judgment against Crown — Motion dismissed — Only criteria at issue as to whether issue estoppel precluded relitigation of review judge’s findings was whether same questions were decided — Review judge drew numerous conclusions in answering questions based on legislative definition of inadmissibility on security grounds and peering through lens of standard of reasonableness — Review judge’s ruling, on plaintiffs’ motion to stay for abuse of process, that Ministers breached duty of candour was not fundamental to disposition of case on its merits and could not form basis of issue estoppel — Given object and purpose of review hearing, civil liability issues were not in reasonable contemplation of Ministers — Rules of evidence did not apply in security certificate review, and there was limited avenue of appeal — Given review judge’s very specific role in security certificate regime, his findings should not be treated as determinative of tortious conduct and Charter breaches that were not in issue before him — Interest of fairness and justice required that discretion should be exercised to deny operation of issue estoppel. Cases considered by Lederman J.: Almrei, Re (2009), 2009 CF 1263, 2009 CarswellNat 4286, 2009 FC 1263, 355 F.T.R. 222 (Eng.), 2009 CarswellNat 5657, 86 Imm. L.R. (3d) 212, [2009] F.C.J. No. 1579, [2009] A.C.F. No. 1579 (F.C.) — considered Angle v. Minister of National Revenue (1974), 1974 CarswellNat 375, 28 D.T.C. 6278, 1974 CarswellNat 375F, [1975] 2 S.C.R. 248, 47 D.L.R. (3d) 544, 2 N.R. 397, [1974] S.C.J. No. 95 (S.C.C.) — considered British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 159 D.L.R. (4th) 50, 19 C.P.C. (4th) 1, 107 B.C.A.C. 191, 174 W.A.C. 191, 50 B.C.L.R. (3d) 1, 1998 CarswellBC 965, 7 Admin. L.R. (3d) 209, [1998] B.C.J. No. 1043 (B.C. C.A.) — considered Danyluk v. Ainsworth Technologies Inc. (2001), 54 O.R. (3d) 214 (headnote only), 201 D.L.R. (4th) 193, 10 C.C.E.L. (3d) 1, 2001 C.L.L.C. 210-033, 272 N.R. 1, 149 O.A.C. 1, 7 C.P.C. (5th) 199, 34 Admin. L.R. (3d) 163, 2001 CarswellOnt 2434, 2001 CarswellOnt 2435, 2001 SCC 44, [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, REJB 2001-25003 (S.C.C.) — considered Heynen v. Frito-Lay Canada Ltd. (1999), 2000 C.L.L.C. 210-003, 179 D.L.R. (4th) 317, 124 O.A.C. 341, 46 C.C.E.L. (2d) 1, 45 O.R. (3d) 776, 1999 Cars- wellOnt 2929, [1999] O.J. No. 3560 (Ont. C.A.) — considered 84 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Heynen v. Frito-Lay Canada Ltd. (2000), 260 N.R. 393 (note), 2000 Carswell- Ont 2979, 2000 CarswellOnt 2980, 140 O.A.C. 200 (note), [1999] S.C.C.A. No. 569 (S.C.C.) — referred to Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2007), 2007 SCC 41, 2007 CarswellOnt 6265, 2007 CarswellOnt 6266, 87 O.R. (3d) 397 (note), 40 M.P.L.R. (4th) 1, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 368 N.R. 1, 285 D.L.R. (4th) 620, [2007] 3 S.C.R. 129, [2007] R.R.A. 817, 50 C.R. (6th) 279, 230 O.A.C. 253, [2007] S.C.J. No. 41 (S.C.C.) — considered Kaymar Rehabilitation Inc. v. Champlain Community Care Access Centre (2010), 2010 CarswellOnt 6906, 2010 ONSC 2248, [2010] O.J. No. 3865 (Ont. S.C.J.) — considered McIntosh v. Parent (1924), 55 O.L.R. 552, [1924] 4 D.L.R. 420, [1924] O.J. No. 59 (Ont. C.A.) — referred to Minott v. O’Shanter Development Co. (1999), 117 O.A.C. 1, 42 O.R. (3d) 321, 168 D.L.R. (4th) 270, 1999 CarswellOnt 1, 99 C.L.L.C. 210-013, 40 C.C.E.L. (2d) 1, [1999] O.J. No. 5 (Ont. C.A.) — considered Odhavji Estate v. Woodhouse (2003), 19 C.C.L.T. (3d) 163, [2004] R.R.A. 1, 233 D.L.R. (4th) 193, 11 Admin. L.R. (4th) 45, [2003] 3 S.C.R. 263, 70 O.R. (3d) 253 (note), 2003 SCC 69, 2003 CarswellOnt 4851, 2003 CarswellOnt 4852, 312 N.R. 305, 180 O.A.C. 201, [2003] S.C.J. No. 74 (S.C.C.) — considered Polgrain Estate v. Toronto East General Hospital (2008), 2008 CarswellOnt 3103, 293 D.L.R. (4th) 266, 90 O.R. (3d) 630, 60 C.R. (6th) 67, 2008 ONCA 427, 53 C.P.C. (6th) 297, 238 O.A.C. 1 (Ont. C.A.) — considered R. v. Consolidated Maybrun Mines Ltd. (1998), 158 D.L.R. (4th) 193, 123 C.C.C. (3d) 449, 225 N.R. 41, 1998 CarswellOnt 1476, 1998 CarswellOnt 1477, 26 C.E.L.R. (N.S.) 262, 38 O.R. (3d) 576 (note), [1998] 1 S.C.R. 706, 108 O.A.C. 161, 7 Admin. L.R. (3d) 23, [1998] S.C.J. No. 32 (S.C.C.) — referred to Schweneke v. Ontario (2000), 2000 CarswellOnt 339, 47 O.R. (3d) 97, 48 C.C.E.L. (2d) 306, (sub nom. Schweneke v. Ontario (Minister of Education)) 130 O.A.C. 93, 41 C.P.C. (4th) 237, [2000] O.J. No. 298 (Ont. C.A.) — considered Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R. (6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179 O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216, [2003] S.C.J. No. 64, REJB 2003-49439 (S.C.C.) — considered Z¨undel, Re (2005), 2005 CarswellNat 538, 2005 CarswellNat 539, 2005 FC 295, 259 F.T.R. 36 (Eng.), 44 Imm. L.R. (3d) 279, 251 D.L.R. (4th) 511, [2005] F.C.J. No. 314 (F.C.) — referred to Almrei v. Canada (Attorney General) Lederman J. 85

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. 7 — considered s. 9 — considered s. 12 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 34 — considered s. 34(1) — considered s. 34(1)(c) — considered s. 34(1)(d) — considered s. 34(1)(f) — considered s. 74(d) — referred to s. 77 — considered s. 78 — considered s. 80 — referred to s. 83(1)(h) — considered Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 20 — referred to R. 20.05 — referred to R. 20.05(1) — referred to

MOTION by plaintiff for summary judgment allowing action with respect to his treatment in security certificate regime as against federal Crown.

Lorne Waldman, Nicole Chrolavicius, for Plaintiff Paul Evraire, Q.C., Marianne Zoric, for Defendant, Attorney General of Canada

Lederman J.: Background Nature of Motion 1 The plaintiff has brought an action for eight million dollars alleging negligence, negligent investigation, misfeasance of public office, false imprisonment and breaches of sections 7, 9 and 12 of the Charter. Pursu- ant to rule 20 of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194, he now moves for partial summary judgment for a finding of liability on the part of one of the defendants, the Attorney General of Canada 86 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(“the federal government”) with respect to one or more of these allegations. The basis for this motion is solely the findings made by Mr. Justice Mosley of the Federal Court in Almrei, Re, 2009 FC 1263, [2009] F.C.J. No. 1579 (F.C.) [Almrei]. 2 The proceedings before Mosley J. were undertaken to determine the reasonableness of a security certificate issued against the plaintiff pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), i.e. whether there were reasonable grounds to believe that the plaintiff was inadmissible to Canada on the grounds alleged. In addition to a reasonableness determination, Mosley J. also considered and ruled on a motion for a stay of proceedings on the ground of abuse of process, which was brought by both the plaintiff and the Special Advocates representing him in closed proceedings. 3 The plaintiff asks that the liability of the federal government be decided by summary judgment based on the operation of issue estoppel and requests an order for a trial only for the determination of the amount of damages arising from this liability. 4 The federal government submits that summary judgment is inappropriate on the basis, inter alia, that issue estoppel does not apply. 5 In the alternative, the plaintiff requests an order specifying those material facts not in dispute and defining the issues to be tried in order for the action to proceed to trial expeditiously pursuant to rule 20.05. 6 What is novel about this rule 20 motion is that the plaintiff is attempting to invoke the doctrine of issue estoppel as a sword to obtain a summary judgment rather than its traditional use as a shield or a defence to preclude further litigation on issues that have already been decided between the parties.

Nature of Security Certificate Proceedings 7 A security certificate may be issued as the initiating process for the removal from Canada of a non-citizen who is inadmissible on some or all of the following security grounds: violating human or international rights, serious criminality or organized criminality. The certificate is signed by both the Minster of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration. Sections 77 and 78 of the IRPA require the certificate to be referred to the Federal Court for determination of reasonableness. The Court then considers whether the named person is inadmissible to Canada as the Ministers allege. Almrei v. Canada (Attorney General) Lederman J. 87

8 The process for the issuance of the security certificate is commenced by the Canadian Security Intelligence Service (“CSIS”) who presents a Security Intelligence Report (“SIR”) to the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Prepared- ness. The SIR sets out the evidence which CSIS relies on in order to justify its conclusion that the person named in the certificate is inadmissible to Canada on security grounds. Once the Ministers review the information and, if they are satisfied that the allegations are well founded, they will sign the security certificate. 9 In the proceedings in the Federal Court, the Ministers may rely on confidential information and evidence which cannot be disclosed because its disclosure would be injurious to Canada’s national security or endanger the safety of a person. The information is provided to the Court and to Special Advocates who represent the named person’s interest during in-camera hearings, but is not provided to the named person or his counsel. A summary of the evidence that allows the person to be reasonably informed of the case is provided to the named person. 10 The rules of evidence do not apply during the proceedings. The designated Federal Court judge may, under section 83(1)(h) of the IRPA, “receive in evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence.” 11 The IRPA provides for two possible outcomes to a reasonableness hearing. If the Court finds that the certificate is not reasonable, it quashes it (s.78 of the IRPA). If the certificate is upheld as being reasonable, pursuant to section 80 of the IRPA, it is conclusive proof that the person named in it is inadmissible and constitutes the basis for an enforceable removal order.

Security Certificates Naming the Plaintiff 12 On October 19, 2001, very soon after the events of September 11, 2001, a security certificate naming the plaintiff as a security threat was issued. In 2008, after a number of detention reviews, deportation proceedings, constitutional challenges to the security certificate procedures, legislative amendments to the security certificate review, and response thereto, a second security certificate was signed by the Ministers against the plaintiff and referred to the Federal Court. 13 In that second certificate, the Ministers stated their opinion that the plaintiff was inadmissible to Canada by reason of sections 34(1)(c), 88 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

34(1)(d) and 34(1)(f) of the IRPA on the basis that there were reasonable grounds to believe that the plaintiff would engage, or has engaged in terrorism, is or was a danger to the security to Canada, or lastly, is or was a member of an organization that there are reasonable grounds to believe engages, will engage or has engaged in terrorism.

Proceedings Before Mosley J. 14 The 2008 security certificate was referred to Justice Mosley for review together with the SIR. A public summary of the SIR along with corresponding open source material was served on the plaintiff and filed with the Court. 15 The proceedings before Mosley J. were complex and comprised extensive private as well as public evidentiary hearings. The Ministers argued that the security certificate was reasonable because the plaintiff was inadmissible to Canada on security grounds for the following reasons: his participation in jihad, his connections to others affiliated with Osama Bin Laden and his network, his alleged shared extremist ideology, and his participation in an international document procurement network. 16 In December 2009, Justice Mosley delivered reasons for finding that the security certificate against the plaintiff was not reasonable. He was very critical of aspects of the federal government’s evidence and how it had been presented to the Court. With respect to the human sources relied upon by CSIS in the case, he thought certain of them had motives to invent stories to cast the plaintiff in a negative light. In relation to the plaintiff’s connections to Arab Afghan veterans, Justice Mosley found that it was not clear whether any of these individuals were part of the Bin Laden network as described by the Ministers, and that Ibn Khattab, a committed jihadist in Afghanistan, could not reasonably be said to be part of Al Qaeda. Mosley J. accordingly vacated the security certificate and released the plaintiff unconditionally. 17 Mosley J. noted at paragraph 6 of Almrei that he would have had no difficulty in upholding the certificate in 2001 on the grounds that the plaintiff constituted a danger to the security of Canada. Specifically, he stated that there were reasonable grounds to believe that he was a member of a terrorist organization on the information available to the Court at that time. He went on to say that the Court, however, was not engaged in that task, but rather was deciding whether, on all of the information and other evidence presented in the proceedings, the security certificate was Almrei v. Canada (Attorney General) Lederman J. 89

reasonable today. In other words, is the assertion that the plaintiff is presently a security risk based on objectively reasonable grounds? 18 In addition, within this case, Mosley J. considered a motion that had been brought by the plaintiff to stay the proceedings as an abuse of process. In ruling on that motion, Mosley J. found that CSIS and the Minis- ters were in breach of their duty of candour to the Court. He did not impose a stay as a result of that finding. Rather, he stated at paragraph 503, “As for a remedy, a determination of the reasonableness of the certificate based on the court’s assessment of all of the information and evidence presented in this case is the most appropriate course of action at this stage of the proceeding.” 19 No appeal proceedings were taken by the federal government. 20 In all, the plaintiff spent more than seven years in detention with a further period of time spent under house arrest on the basis of the two security certificates.

Specific Findings by Mosley J. 21 The following are some of the findings articulated by Mosley J. and which the plaintiff says were fundamental to his decision, and upon which the plaintiff seeks to rely to conclusively establish a breach of the standard of care which cannot be re-litigated: (a) There was no evidence that Mr. Almrei is, or ever has been, a member of Al Qaeda. He also found that there is no evidence that Mr. Almrei is a member of any of the groups affiliated with AI Qaeda or even that Mr. Almrei was a member of a false document network (Ashamalla Affidavit, Exhibit “D”, paras. 400, 478 and 504, Motion Record pp. 174, 186 and 190). (b) Because the Ministers could not establish that Mr. Almrei is a member of Al Qaeda or an affiliated organization, the Minister therefore attempted to bring him within the scope of an amor- phous concept of a network based on his belief and participation in jihad. However, even an unrestricted and broad interpretation of the word organization did not encompass the broad definition that the Government was trying to rely upon; namely: any individuals who may have expressed sympathetic views with Bin Laden and Al Qaeda (Ashamalla Affidavit, Exhibit “D”, paras. 405 and 406, Motion Record p. 175). 90 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(c) The Minister relied on information that may have been obtained through the use of torture or cruel, inhuman or degrading treatment (Ashamalla Affidavit, Exhibit “D”, paras. 151 -153, Motion Record pp. 138 - 139). (d) The Minister admitted during the proceedings that it was a mistake to include references to confessions and other materials that were obtained using these techniques. The Minister recognized that it was inappropriate for the Government to have relied on open source reference documents which made reference to documents regarding Al Qaeda operations and methods that were obtained through the use of “enhanced interrogation techniques” in Guantanamo Bay (Ashamalla Affidavit, Exhibit “D”, paras. 151 - 153 and 191 - 193, Motion Record pp. 138 - 139 and 144). (e) Certain human sources relied upon by CSIS were not credible and that the information that they provided was not reliable and appropriate within the meaning of IRPA (Ashamalla Affidavit, Exhibit “D”, para. 436, Motion Record p. 179). (f) Certain human sources in this case had motives to concoct stories that cast Mr. Almrei in a negative light while others had previously been found, using polygraph tests, to have been deceptive when providing information to CSIS in the past (Ashamalla Affi- davit, Exhibit “D”, paras. 157, 158 and 437, Motion Record pp. 139 - 140 and 180). (g) General inconsistencies were found between reports of communications intercepted by CSIS (between September 12, 2001 and October 18, 2001) and reports of information provided by human sources respecting conversations on the same dates (Ashamalla Affidavit, Exhibit “D”, paras. 144, 145 and 163, Motion Record pp. 137, 138 and 140). (h) The highly relevant information provided by one human source in particular was not credible as it conflicted with surveillance and intercept reports made by CSIS personnel regarding the same dates and times (Ashamalla Affidavit, Exhibit “D”, para. 163, Mo- tion Record p. 140). (i) The Minister’s assertion that Mr. Almrei was a “sleeper” was based solely on inferences from human source information of doubtful reliability (Ashamalla Affidavit, Exhibit “D”, para. 424, Motion Record p. 178). Almrei v. Canada (Attorney General) Lederman J. 91

(j) Information was relied upon by the Minister from a human source on which a polygraph examination had not been performed, as was previously reported (Ashamalla Affidavit, Exhibit “D”, para. 157, Motion Record p. 139). (k) The Minister had submitted documentary evidence that was unreliable, had not been properly researched, and/or had taken information out of context to support propositions that the full text of the documentary evidence did not actually support (Ashamalla Af- fidavit, Exhibit “D”, paras. 139, 163, 164, 197 - 199,283,301,355,358,413,415 - 417,426 and 436, Motion Record pp. 137, 140, 145, 157,160,168, 176, 178 and 179). (l) Many of the documents relied on by the Minister were not from credible sources. For example, as Mosley J. highlighted, even one of CSIS’s own witnesses conceded problems with the Minister’s reliance on Wikipedia as a source. Similar concerns were raised and acknowledged by Mosley J. about the Minister’s reliance on an organization called ERRI that produces a “Daily Intelligence Report” because this source turned out to be a website created by paramedics that later turned into a news aggregator service that picks up and repeats news. No assurances were provided by the website that the information was reliable (Ashamalla Affidavit, Exhibit “D”, paras. 199 and 301, Motion Record pp. 145 and 160). (m) The Minister also did not properly check the facts outlined in much of the documentary evidence it provided (Ashamalla Affida- vit, Exhibit “D”, paras. 413, 415, 416, 422 and 426, Motion Re- cord pp. 176, 177 and 178). (n) In many instances the Minister did not use primary sources to uphold their assertions; instead, the Minister relied on secondary sources that discussed the primary sources. The secondary sources did not have as complete a narrative as the primary sources of many of the events discussed and they were often misleading as they tended to take parts of the primary sources out of context and made the discrete parts of the report look like they supported conclusions that they did not actually support (Ashamalla Affidavit, Exhibit “D”, paras. 139, 163, 164,197,198, 199,283,301,355,358,413,415 - 417 and 426, Motion Record pp. 137,140,145,157,160,168,176 and 178). (o) The public summary had many similar errors (Ashamalla Affida- vit, Exhibit “D”, paras. 139, 163, 164, 197 - 92 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

199,283,301,355,358,413,415 - 417 and 426, Motion Record pp. 137, 140, 145, 157, 160, 168, 176 and 178). (p) Sources relied upon by CSIS were often non-authoritative, misleading or inaccurate. Reports themselves contained erroneous information and serious contradictions (Ashamalla Affidavit, Ex- hibit “D”, para. 413, Motion Record p. 176). (q) The government demonstrated a serious lack of analytical capacity in managing large volumes of information (Ashamalla Affidavit, Exhibit “D”, para. 164, Motion Record p. 140). (r) Witnesses testifying on behalf of the Ministers were unable to provide satisfactory explanations for CSIS’s failure to analyze conflicting reports and to disclose the conflicting information to the Ministers and to the Court (Ashamalla Affidavit, Exhibit “D”, para. 164, Motion Record p. 140). (s) During their investigation, CSIS drew certain inferences that were not well-founded from the information about Mr. Almrei’s statements and actions from human sources suggesting he was a committed Bin Laden supporter and participant in an international false document network (Ashamalla Affidavit, Exhibit “D”, paras. 400, 433, and 478, Motion Record pp. 174, 179 and 186). (t) Reports presented by the Minister to the Court were misleading in many important areas (Ashamalla Affidavit, Exhibit “D”, paras. 199,307,308,413 and 414, Motion Record pp. 145, 160 - 161 and 176). (u) Much of what was contained in the summary relating to Al Qaeda and the Bin Laden network was irrelevant because it did not point specifically to Mr. Almrei (Ashamalla Affidavit, Exhibit “D”, para. 427, Motion Record p. 178). (v) A large amount of the information provided by the Minister, including comments put forward on behalf of the Minister, was speculative (Ashamalla Affidavit, Exhibit “D”, paras. 178,419,424,427 and 453, Motion Record pp. 142, 177, 178 and 182). (w) The government did not rely upon updated information in the Minister’s summary and in other evidence that was put forward (Ashamalla Affidavit, Exhibit “D”, paras. 413,425,426,438 and 500, Motion Record pp. 176, 178, 180 and 189). Almrei v. Canada (Attorney General) Lederman J. 93

(x) The work done to prepare the new SIR in 2008 had not kept pace with developments in the field. The SIR presented in 2008 simply recycled stale information without attempting to offer a more balanced and nuanced view. The government’s evolving knowledge and understanding of the risk was not reflected in the SIR and public summary (Ashamalla Affidavit, Exhibit “D”, para. 426, Motion Record p. 178). (y) No one within the government even attempted to interview Mr. Almrei in recent years to determine whether he supports the Bin Laden ideology. CSIS interviewed Mr. Almrei just once prior to his arrest in October 2001 and made no attempt to interview him thereafter (Ashamalla Affidavit, Exhibit “D”, paras. 293 and 294, Motion Record pp. 158 and 159). (z) Mr. Young, a CSIS witness, testified that the goal was to remove Mr. Almrei from Canada. CSIS thought they had completed their work after the first security certificate was upheld so no real further efforts were made (Ashamalla Affidavit, Exhibit “D”, para. 500, Motion Record p. 189). (aa) CSIS and the Ministers were in breach of their duty of candour to the Court. The duty of utmost good faith and candour implies that the party relying on the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all the information including that which is unfavourable to their case. The government did not abide by this duty in Mr. Almrei’s case (Ashamalla Affidavit, Exhibit “D”, paras. 500 - 503, Motion Record pp. 189 - 190). (bb) The 2008 SIR was assembled with information that could only be construed as unfavourable to Mr. Almrei without any serious attempt to include information to the contrary, or to update their assessment. Information that was inconsistent with that presented to the Court through the SIR only came to light when ordered produced because of Charkaoui 2 (Ashamalla Affidavit, Exhibit “D”, paras. 500 - 503, Motion Record pp. 189 - 190). (cc) CSIS’s assessment in the February 2008 SIR was prepared without sufficient consideration of all the information within its possession and without considering whether the state of knowledge about the risks to national security posed by Islamic extremists had evolved since Mr. Almrei was detained in 2001 (Ashamalla 94 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Affidavit, Exhibit “D”, paras. 500 and 509, Motion Record pp. 189 and 191). (dd) CSIS selectively put evidence before the Court (Ashamalla Affi- davit, Exhibit “D”, paras. 500 - 503, Motion Record pp. 188 - 190).

Basis for Finding Liability 22 The plaintiff submits that these findings of fact together with the legal principles established in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 (S.C.C.) clearly make out a cause of action in negligence and/or negligent investigation. He submits that investigating CSIS personnel are akin to police officers and owe an identified suspect a duty of care. Following from that duty, the plaintiff argues that the appropriate standard of care is that of a reasonable official investigating security certificate matters in all the circumstances. A breach of that standard of care is alleged because, Mosley J. found, the conclusions drawn by CSIS and the Ministers were based on faulty intelligence, inaccurate information, unreasonable inferences and unreliable sources. Based on the same findings, Mr. Al- mrei contends that CSIS breached their duty of candour and good faith to himself and to the Court by failing to present information in its possession fairly in making its case against the plaintiff. As a result, the plaintiff claims he has suffered compensable damage from the wrongful depri- vation of liberty while being detained under a security certificate, as well as damage to his livelihood and reputation. Lastly, he asserts that these damages are causally connected to the breach of the standard of care. 23 In addition, the plaintiff submits that Mosley J.’s findings of facts, particularly his finding of breach of the duty of good faith and candour to the Court, together with the legal principles set out by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 (S.C.C.), established the cause of action in misfeasance in public office. He argues that: first, the Canadian officials knew that they were under obligation to make full disclosure to the Court of all relevant information to the plaintiff’s case, including all exculpatory evidence; second, that they knew or ought to have known that they did not have any objective basis forming reasonable grounds to believe that the plaintiff was a danger to national security, or to the safety of any person, that was based on compelling and credible information; and lastly, that they Almrei v. Canada (Attorney General) Lederman J. 95

were aware or ought to have been aware that these actions would likely harm the plaintiff and result in prolonged detention and other damages. 24 Similarly, the plaintiff submits that the findings of fact demonstrate that the plaintiff was falsely imprisoned, given that the Canadian officials knew that they did not have the requisite evidence and legal authority to detain him. 25 Also, the plaintiff submits that as a result of his imprisonment, the facts establish that the plaintiff suffered deprivations to both his liberty and security of the person not in accordance with the principles of fundamental justice in breach of section 7 of the Charter. Further, he alleges that he was arbitrarily detained and imprisoned contrary to section 9 of the Charter and that his preventative and indefinite detention without reasonable and probable grounds was excessive, cruel and unusual treatment or punishment in violation of section 12 of the Charter.

Legal Analysis 26 The moving party relies on the doctrine of issue estoppel to preclude re-litigation of Mosley J.’s findings, thus grounding a motion for summary judgment under rule 20.

Doctrine of Issue Estoppel 27 The doctrine of issue estoppel has developed to protect the finality of litigation and prevent abuse of the decision-making process. It was defined as an aspect of res judicata by the Supreme Court in Angle v. Minister of National Revenue (1974), [1975] 2 S.C.R. 248 (S.C.C.). It serves to “preclude relitigation of the constituent issues or material facts necessarily embraced therein” (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (S.C.C.), at 476 [Danyluk]). In Dany- luk, Justice Binnie explained issue estoppel in more detail (at 476): Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, [1924] 4 D.L.R. 420at 422 [McIntosh]: When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of ac- 96 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

tion. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis added (by Middleton J.A.)] This statement was adopted by Laskin J. (later C.J.), dissenting in Angle, supra, at pp. 267-68. This description of the issues subject to estoppel (“[a]ny right, question or fact distinctly put in issue and directly determined”) is more stringent than the formulation in some of the older cases for cause of action estoppel (e.g., “all matters which were, or might properly have been, brought into litigation”, Farwell, supra, at p. 558). Dickson J. (later C.J.), speaking for the majority in Angle, supra, at p. 255, subscribed to the more stringent definition for the purpose of issue estoppel. “It will not suffice” he said, “if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment.” The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceeding. In other words, as discussed below, the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings. [Emphasis added]

The Test 28 To trigger the operation of issue estoppel, three preconditions are necessary: (i) That the same question (or issue) has been decided; (ii) That the judicial decision which is said to create the estoppels was final; and, (iii) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppels is raised or their privies. 29 Both parties in this case agree that the second and third criteria are met with respect to the Attorney General of Canada in this motion. As such, the latter two factors will not be discussed any further. 30 Once the preconditions are met, the operation of this equitable doctrine becomes a matter of judicial discretion. The discretion is important to achieve fairness in the unique circumstances of each case. The judge must look at the entirety of the circumstances to determine if the usual Almrei v. Canada (Attorney General) Lederman J. 97

operation of estoppel would work an injustice (Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (Ont. C.A.) at paras 38, 43 (CA) [Schweneke]).

Precondition: Has the Same Question been Decided? 31 Only those issues fundamental to the original judgment can ground the operation of estoppel. As stated above, these fundamental issues may be in the form of a “right, question, or fact” (McIntosh v. Parent [[1924] O.J. No. 59 (Ont. C.A.)], at 422, as cited by Danyluk at 476). If a right, question or fact was an essential and fundamental step in the logic of the prior decision, issue estoppel may arise with respect to that issue in the new, but distinct, cause of action (Kaymar Rehabilitation Inc. v. Champlain Community Care Access Centre, 2010 ONSC 2248 (Ont. S.C.J.) at para 184 [Kaymar]). 32 Different causes of action in separate proceedings may have one or more material facts in common. Justice Binnie provides the example in Danyluk: the existence of an employment contract was a material fact common to the proceeding in front of the tribunal and the subsequent proceeding in court. This material fact, once found, is largely protected from re-litigation by issue estoppel, absent any special circumstances. 33 The first task is to determine which of these rights, questions or facts contained in Justice Mosley’s decision are essential or fundamental to his judgment. Once the fundamental facts are identified, the question will become whether these important findings comprise the same question with respect to the allegations in this motion. 34 The plaintiff suggests that the reasons of Justice Mosley constitute the fundamental findings on the evidentiary issues that led to the determination of the questions asked of him and thus are central and/or fundamental. If not the full reasons, plaintiff’s counsel have listed many excerpts in their factum that represent a large portion of the reasons. They submit that issue estoppel operates to bar a full trial re-litigating any of these conclusions. 35 The federal government insists that the reasons are merely obiter dicta and the issues upon which this Court can rely for the operation of issue estoppel are the questions posed by the statute under which the previous proceeding was initiated. Counsel states that the government must be allowed to argue these in full at trial, as Justice Mosley did not turn his mind to the particular issues in this new civil action. 98 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

36 Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427, 90 O.R. (3d) 630 (Ont. C.A.) [Polgrain] lends some guidance in determining what the fundamental facts might be in any given judgment. The Ontario Court of Appeal confirmed that not every finding by a Court creates an estoppel or lays the foundation for a claim of abuse of process. While this conclusion is articulated in the context of criminal trials, one with very different controlling principles and standards, it is interesting to note the stringent approach to the acceptance of essential findings (at paras 31, 36): An appeal is against the verdict, not the reasons for the verdict. The only part played by the reasons is that they may disclose an error in reasoning that taints the lawfulness of the verdict. That the trial judge went further than he had to and found not simply a reasonable doubt but that the sexual assaults did not occur was not a ground for an appeal...... I am also concerned about the impact on the integrity of the judicial process in another sense. In applying the abuse of process or issue estoppel doctrines a court will be required on occasion to review the reasons for conviction to determine the matters in issue and the essential findings: see Trang v. Edmonton Remand Center (2002), 322 A.R. 212 (Q.B.). But where the accused is acquitted, the only essential finding is simply that the case was not proved beyond a reasonable doubt. The trial judge may arrive at that conclusion for any number of reasons. 37 In Polgrain, in the earlier criminal case, the fundamental issue was whether the accused was guilty beyond a reasonable doubt. Any comments by the trial judge outside of the scope of this determination were not essential, such as a declaration of factual innocence. Similarly, in the proceeding before Mosley J. his comments as to the gathering of evidence and reliability of the evidence presented by CSIS, although relevant to his decision, do not constitute the essential judicial finding of reasonableness or absence of reasonableness which is the touchstone of the security certificate proceeding. 38 The Court in Polgrain also emphasized the importance of the link between the final disposition and the specific rules that lead the decision maker to that conclusion (at para 33). ... That burden of proof is the touchstone of the criminal trial and is the lens through which the facts are viewed and findings made. Any findings by the trial judge must be understood in that context... Almrei v. Canada (Attorney General) Lederman J. 99

39 Mosley J. outlined the issues he would be tackling in his judgment delivered December 14, 2009 (Almrei at para 120): 1) Were the allegations supported by the evidence or more specifically, are any of the grounds in section 34 of the IRPA established on the evidence available? a. Did Mr. Almrei engage in terrorism? b. Did Mr. Almrei pose a danger to the security of Canada? c. Was Mr. Almrei a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorist acts? 2) Was there an abuse of process in which the appropriate remedy would be quashing the certificate? 40 To clarify his task it is prudent to set out section 34 of the IRPA, which identifies those persons who are inadmissible on security grounds. The relevant sections are underlined below: (1) A permanent resident or a foreign national is inadmissible on security grounds for: (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). Note that proof of only one ground is required to determine that the certificate is reasonable: Z¨undel, Re, 2005 FC 295, [2005] F.C.J. No. 314 (F.C.) at paras 16, 17. 41 Justice Mosley drew numerous conclusions in the search for answers to these questions throughout his 513 paragraph judgment. These facts were accepted while peering through the lens of the standard of reasonableness in a security certificate proceeding. As such, only those conclu- 100 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

sions essential to the specific questions asked of Mosley J. are relevant to the same question analysis. 42 The determination of whether the same issue requirement has been met depends on a careful analysis of the factual context and the statutory standard applied in the earlier proceeding (Heynen v. Frito-Lay Canada Ltd. (1999), 45 O.R. (3d) 776 (Ont. C.A.) at para 19 (CA) [Heynen], appeal to SCC dismissed, (2000), [1999] S.C.C.A. No. 569 (S.C.C.)). Justice Goudge explained further (at para 20) in Heynan: This method of analysis is consistent with the observation of Morden A.C.J.O. in Rasanen, supra, at p. 687 that the courts have taken a “fastidious approach” to the “same question” test. Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and the applicable law the answer to the specific question in the earlier proceeding can be said to determine the issue in the subsequent proceeding. The latter two questions are not at issue in this proceeding. 43 In that case, the Court agreed that the appellant’s claim for termina- tion pay under the statute was very different than the question of miscon- duct necessary to find just cause in a wrongful dismissal action. Goudge J.A. concluded the issues were different and as such, issue estoppel did not apply. The “fastidious approach” has been adopted by several cases in Ontario and British Columbia, but was originally articulated in a text by Spencer-Bower and Turner, The Doctrine of Res Judicata, 2nd ed (1969) at p 179. 44 Justice Mosley found that none of the grounds in section 34 of the IRPA were established on the evidence available and thus the security certificate detaining Mr. Almrei was unreasonable. He found that Mr. Al- mrei did not engage in terrorism, pose a danger to the security of Canada, nor was he a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorist acts. If these are the only findings available in this motion, they are clearly not the same questions alleged in tort or as Charter breaches in this action. These facts do not enable conclusions with regard to the issues in this action. 45 Further to the conclusion regarding the reasonableness of the certificate, Mosley J. found that there was a breach of the duty of candour to the Court on the part of CSIS and the Ministers in the context of a Mo- Almrei v. Canada (Attorney General) Lederman J. 101

tion by the Plaintiff and the Special Advocates to stay the proceeding on the ground of abuse of process. 46 Justice Mosley’s finding of a breach of the duty of candour was based on the conduct of CSIS in creating and presenting the SIR, the founda- tional document for the security certificate. The plaintiff characterizes this finding as a breach of the standard of care under the alleged tort liability. The federal government submits that the abuse of process inquiry was supplementary and not a finding in the previous case which could form an estoppel. 47 Mosley J. did not stay the proceeding because he was able to dispose of the case on the merits. The appropriate remedy for the abuse of process was subsumed in his assessment of all the evidence and his finding that the security certificate was not reasonable. 48 Therefore, Mosley J.’s ruling on the Motion to stay and the findings of fact made in that context were, in the end, unnecessary or were not fundamental to his disposition on the merits and like obiter dicta, cannot form the basis of issue estoppel claims.

Judicial Discretion: Would the Operation of Estoppel result in Unfairness or an Injustice? 49 In Minott v. O’Shanter Development Co. (1999), 42 O.R. (3d) 321 (Ont. C.A.), at 340 [Minott], the Court of Appeal stated: Issue estoppel is a rule of public policy and, as a rule of public policy, it seeks to balance the public interest in the finality of litigation with the private interest in achieving justice between litigants. Some- times these two interests will be in conflict, or, at least there will be tension between them. Judicial discretion is required to achieve prac- tical justice without undermining the principles on which issue estoppel is founded. Issue estoppel should be applied flexibly where an unyielding application of it would be unfair to a party who is precluded from re-litigating an issue. 50 The Supreme Court has noted several instances where re-litigation can enhance rather than impeach the integrity of the judicial system: (i) when the first proceeding is tainted by fraud or dishonesty, (ii) when fresh, new evidence that was previously unavailable conclusively im- peaches the original result, or (iii) when fairness dictates that the original result should not be binding in the new context (Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 (S.C.C.) at para 52 [CUPE]). 102 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

51 The discretion must respond to the unique circumstances of each case (Schweneke at paras 38, 43). Since this exercise of discretion is so fact- specific, the Supreme Court has stated that explicit discussion of the factors for and against the exercise of discretion is required; neglect of this duty results in an error in principle (Danyluk at para 65). 52 An open list of factors has been articulated to guide the discretion analysis with respect to administrative proceedings (See R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 (S.C.C.) at para 45; Minott at 341-343; Danyluk at paras 62, 63). While all of these are not directly relevant, some factors are appropriate for non-administrative contexts: the text of the relevant statute, purpose of the legislation, procedural differences, the availability of an appeal, expertise of the decision maker, circumstances giving rise to the prior proceeding (discussed previously), and any potential injustice (Danyluk at para 67, CUPE at para 53). 53 The plaintiff submits that the issues have already been settled by an expert judge who was very thorough in his recantation of the evidence. He also suggests that the federal government was highly motivated to put forward its best evidence and that re-litigation will only serve to waste judicial resources and potentially bring into question the administration of justice by contradicting the results. Moreover, the unusual secret nature of the original in-camera proceeding results in a dearth of evidence for the Superior Court judge trying these issues any further in this civil action. 54 The federal government submits that the object and purpose of the hearings are completely different. The civil liability issues were not in reasonable contemplation by the respondent. Counsel asks for the opportunity to defend against liability, a finding which would result in radi- cally different consequences, because to deny them would be unfair and unjust.

The Factors Text and Purpose of the Statute: 55 There is no explicit reference to any civil proceeding or remedy, as a choice or restriction in the IRPA. Given that the purpose of the IRPA is to control immigration and refugee protection, the availability of a civil remedy was not likely in contemplation of Parliament. Nor was it reasonably within the expectation of the Ministers in presenting the security certificate to the Federal Court for review. Where the focus of the earlier Almrei v. Canada (Attorney General) Lederman J. 103

proceeding is entirely different from that of the subsequent litigation, even though one or more of the same factual issues might be implicated, this will militate against finding an issue estoppel (Kaymar at para 223).

Procedural Differences: 56 In Minott, Justice Laskin of the Court of Appeal agreed that procedural differences may be sufficient to cause a court to exercise its discretion not to apply issue estoppel (at 342-343). Procedurally, it is important to note that the rules of evidence do not apply in security certificate reviews. Section 83(1)(h) of the IRPA allows a designated judge of the Federal Court to “receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence.” In this hearing, Justice Mosley was also privy to secret evidence, unknown to any of the counsel here, upon which he based a secret judgment supplementary to the judgment before this court. Whether this evidence conforms to any rules is unavailable. In addition, there was no discovery process in those hearings.

Availability of an Appeal: 57 An appeal from a determination by the Federal Court for a decision on the reasonableness of a security certificate “may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question” (IRPA at s. 74(d)). This leave or certification provision creates a high standard. Mosley J.’s decision is based primarily on findings of fact and, therefore, would not in all likelihood raise any question of general importance. There is no other avenue of appeal available.

Expertise of the Decision Maker: 58 Justice Mosley is a Federal Court judge with experience in IRPA matters. He had the authority to rule on the certificate issue and not on any issues pertaining to civil remedies. He made his findings of fact under section 34 of the IRPA. His role was very specific within the security certificate regime. Given this specialized role, it is not appropriate to treat these findings as determinative of tortious conduct and individual Charter violations that were not in issue in the proceedings before him. 104 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Potential Injustice: 59 Injustice found for either party will tip the scales toward their prefer- ence for estoppel. This factor must take into account the entirety of the circumstances. The plaintiff submits that the high stakes in the prior proceeding is a factor that should encourage a finding of estoppel. In contrast, the respondent submits there would be an injustice because at the previous trial, the government did not put forward evidence to counter the claims in the current action. In British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 159 D.L.R. (4th) 50, [1998] B.C.J. No. 1043 (B.C. C.A.) at paras 30, 33-4, the British Columbia Court of Appeal held that an action was permitted to continue in part because the alternative consequence was not within the reasonable contemplation of the parties at the initial hearing. 60 On balance, I find that in the interest of fairness and justice the discretion should be exercised to deny the operation of issue estoppel in the circumstances of this case.

Conclusion 61 For the aforesaid reasons, the test for issue estoppel has not been met. In any event, the operation of an estoppel in the circumstances of this case would be unfair to the respondent. 62 Given that litigation on the allegations of negligence, negligent investigation, misfeasance of public office, false imprisonment and breaches of sections 7, 9 and 12 of the Charter is not precluded by the operation of issue estoppel, there is no reason to consider the test for summary judgment under rule 20. 63 As alternative relief, the plaintiff requested an order under rule 20.05(1) “specifying what material issues are not in dispute and defining the issues to be tried.” It is premature to consider such directions given that the action is only at the pleadings stage and no evidence other than the findings of Mosley J. were put before the Court on this motion. 64 The motion is, therefore, dismissed. I find that this motion, although unsuccessful, was nevertheless reasonable. The respondent will have its costs on a partial indemnity basis. Counsel for both parties agreed that an appropriate amount on this scale of costs would be $25,000, all inclusive. Accordingly, the plaintiff is to pay costs in this amount to the respondent, the Attorney General of Canada. Motion dismissed. Budakh v. Canada (MCI) 105

[Indexed as: Budakh v. Canada (Minister of Citizenship & Immigration)] Sirgun Budakh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4830-10 2011 FC 374 Douglas R. Campbell J. Heard: March 17, 2011 Judgment: March 28, 2011 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was Assyrian Christian citizen of Iraq who had criminal record in United States — Applicant had applied for refugee status in Canada; application was rejected for criminality and posing danger to public of Can- ada — Applicant was ordered deported to Iraq but under Pre-Removal Risk As- sessment was found to be at risk if returned to Iraq — Decision was overturned on review by Minister’s delegate after finding that applicant was not at risk in Iraq; initial decision was deemed to be dated — Applicant brought application for judicial review — Application granted — Decision of delegate was made in reviewable error — Evidence presented by applicant that delegate’s finding of internal flight alternative was impossible for applicant to access was not addressed by delegate in any meaningful way in decision and was therefore unreasonable — Purported generalized risk finding was not based on applicant’s claimed identity and was therefore fundamentally flawed — Delegate failed to address evidence of specific reality of risk suffered by Assyrian Christians in Iraq — Delegate failed to meet obligation to consider how generalized Muslim- to-Muslim violence contrasted with Muslim-to-Christian violence — Delegate’s decision was set aside. Cases considered by Douglas R. Campbell J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — followed Karayel v. Canada (Minister of Citizenship & Immigration) (2010), 92 Imm. L.R. (3d) 312, 2010 FC 1305, 2010 CarswellNat 4920, 2010 CarswellNat 5673, 2010 CF 1305 (F.C.) — referred to 106 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Osorio v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 1459, 2005 CarswellNat 5616, 2005 FC 1459, 2005 CarswellNat 3469, [2005] F.C.J. No. 1792 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 36(1)(b) — referred to s. 96 — referred to s. 97 — considered s. 97(1)(b) — considered s. 97(1)(b)(ii) — considered s. 101(2)(b) — referred to s. 103(1)(a) — referred to s. 112 — considered s. 113(d) — referred to s. 113(d)(i) — referred to

APPLICATION for judicial review of decision of delegate of Minister of Citi- zenship and Immigration determining that applicant was not at risk if ordered to return to Iraq.

Marc J. Herman, for Applicant Jamie Todd, for Respondent

Douglas R. Campbell J.:

1 The present Application concerns an Assyrian Christian citizen of Iraq who, with respect to being required to return to that country, on Oc- tober 25, 2005 claimed refugee protection under s. 96 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA) on the basis of a well- founded fear of persecution for reason of religion and under s. 97(1)(b) for risk to life or cruel and unusual treatment or punishment. By operation of the IRPA, it is only the Applicant’s claim under s. 97 that has been determined by a Delegate of the Minister in the negative. 2 The reason for the limited consideration of the Applicant’s claim is the Applicant’s criminal record in the United States. The steps under IRPA leading to the present review are as follows: on May 18, 2005, the Applicant’s claim was suspended under s. 103(1)(a) pending determination of his possible ineligibility for serious criminality; on November 22, 2005, he was found to be inadmissible to Canada under s. 36 (1)(b) of the IRPA for “having been convicted of an offence outside Canada that, if Budakh v. Canada (MCI) Douglas R. Campbell J. 107

committed in Canada, would constitute an offence under an Act of Par- liament punishable by a maximum term of imprisonment of at least 10 years, being a conviction for aggravated sexual assault in the state of Illinois in March 1999; on May 15, 2007 he was found to constitute a danger to the public of Canada under s. 101(2)(b) and leave for judicial review of the decision was dismissed; on August 18, 2008, with respect to a Pre-Removal Risk Assessment (PRRA) application filed April 7, 2008 under s. 112, he was found to be at risk if he was returned to Iraq; and on March 5, 2010, on due process, a review of the decision of Au- gust 18, 2008 by the Minister’s Delegate resulted in a finding that, at that date, he was not at such risk. It is this latter decision that is the subject of the present Application. 3 Because the Applicant had been determined to be inadmissible on the ground of serious criminality, the decision under review was conducted pursuant to s. 113(d) which requires that the PRRA determination only address the factors set out in s. 97 and, pursuant to s. 113(d)(i), a finding of whether the Applicant is a danger to the public in Canada at the date of the decision. It is important to note that the Minister’s Delegate found that the Applicant is not a danger to the public. As a result, the present Application is limited to a review of the s. 97 features of the PRRA finding. For ease of reference, s. 97 is quoted in the Appendix to these reasons. 4 The March 5, 2010 reversal of the August 18, 2008 positive PRRA determination is based on the finding that the 2008 opinion is “dated”. In my opinion, it is important to consider the content of the August 18, 2008 opinion because the task before the Minister’s Delegate was to determine in what way the personalized risk situation in Iraq had changed vis a vis the Applicant’s claimed identity as an Assyrian Christian. The reasons for the August 18, 2008 positive opinion as quoted in the decision under review are as follows: The applicant is a member of the Assyrian Church of the East. He states that he is at risk throughout Iraq and due to his being a Chris- tian and his having lived in the United States for half of his life. He believes he would be perceived as being anti-Muslim and a spy because he is a Christian who lived in the U.S. The applicant stated that there is no protection from the Iraqi government and that some members of the police are suspected of being anti-Christian. The applicant states that he cannot relocate to the North as the Kurdish authorities will not allow him to live there permanently. The applicant would have to be sponsored by a Kurdish resident and he states that his only 108 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

relative who was living in the North (his father’s sister) is currently living in Syria with her husband and children. (...) The May 2008 U.K. Country of Origin Information Report for Iraq reported that insurgent propaganda often described the Multi-Na- tional Force (MNF) as “Christian Crusaders”. Many Iraqis, including insurgents, viewed Christians as collaborators of the MNF and infi- dels and therefore traitors to Iraq. Tens of thousands of Christians left their homes and fled to other countries, mainly Jordan and Syria. The U.K. report also stated that others fled to the relative safety of the Kurdish-controlled (KRG) north to Christian villages. However, in its 2007 country report for Iraq, the Department of State reported that since May the KRG did not allow persons, including citizens from outside the region, to enter unless a Kurdish resident met them in person and guaranteed their stay. Similarly those from outside the region seeking to live within the jurisdiction of the KRG must have a local resident guarantor, and register on arrival with the KRG Resi- dency Office. I find the documentary evidence clearly demonstrates that Christians are at risk in Iraq. I do not find that the DOS report or the U.K. Oper- ational Guidance note provides evidence that the situation for Chris- tians has substantially improved since the UNHCR report. (Decision, pp. 5 - 6) 5 While the decision of August 18, 2008 makes a critical finding of the risk the Applicant would face as a Christian in Iraq, the application before the Minister’s Delegate makes it clear that an evaluation is required of the personalized risk the Applicant would face as an Assyrian Christian. In the decision, this point is acknowledged by the Minister’s Delegate: Counsel has raised several risk-related themes in his March 2010 submissions, the crux of which appears to be Counsel’s contention that Mr. Budakh fears religious persecution because he is an Assyr- ian-Christian: To begin with, it is of critical importance for the Minister to acknowledge, once again, the plight of the Assyrian - Christian populations of Iraq. For example, for many years, Assyrian-Christians of Iraq, similar to other minority groups, have been exposed to cruel and unjust persecu- tory policies and practices of discrimination and harassment on account of both the predominant various Muslim Budakh v. Canada (MCI) Douglas R. Campbell J. 109

religious groups of Iraq and the Iraqi government, itself. Moreover, the fact that Saddam Hussein and the Baath Party no longer rule Iraq, has not reduced the over-all serious risks which Assyrian-Christians currently face in Iraq, particularly from members of various Muslim religious groups, both Shia and Sunni. In fact, it is the prevail- ing view that the plight of Assyrian-Christians in Iraq has worsened since the time of the U.S. occupation in 2003, on account of the rise of radical Muslim fundamentalism throughout the middle-east and elsewhere. The fact that Mr. Budakh received a positive Pre-Removal Risk As- sessment (PRRA) against Iraq on August 18, 2008 and that Canada Immigration (CBSA) has had a formal suspension of all removals to Iraq in place, since 2003, only underscores the aforementioned. To reiterate, the Applicant’s circumstances warrant protection as he has a well-founded fear of persecution and would continue to face a catalogue of compelling and identifiable risks, ranging from serious discriminatory, physical and emotional abuse through socio-economic victimization, should he be returned to Iraq, his country of citizenship, as a consequence of: 1. His known membership in particular social groups, namely the non-Arabic/Christian minority of Iraq 2. His imputed critical political opinion on account of his background and profile 3. His over-all religious, ethnic, political and societal undesirability. (...) No doubt, the Assyrian/Chaldean-Christian minority of Iraq continues to exist under severe disability and, histori- cally, has played a grossly subordinate role to the consid- erably larger Muslim-Iraqi population, ostensibly because of its perceived political, cultural and ideological threat to the welfare of the Iraqi State. (Decision, pp. 6 - 7) 110 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

6 Counsel for the Applicant also makes it clear that the risks the Appli- cant would face if he is required to return to Iraq is not a generalized risk. This argument is also acknowledged by the Minister’s Delegate: Counsel also submits that despite all Iraqis being subject to difficulties at present, Christians are particularly targeted: Needless to say, the ample documentary evidence confirms that all Iraqis are potentially at serious risk of being harmed and mistreated by individuals and organizations, both competing for power and attempting to settle a score, in the absence of a stable Iraqi government and police forces, willing and able to enforce the rule of law. How- ever, the serious risks faced by the applicant is not a general risk faced by all Iraqis. To begin with, the applicant is a member of the Assyrian- Christian minority, which comprise about 3% of the population of Iraq, having been reduced from almost 2 million to about 800,000 since the end of the Gulf War of 1991. Although the Baath Party is no longer in power in Iraq, it is evident that Saddam loyalists continue to operate, wreaking havoc and terror through bombings, beheadings, murders and shootings of civilians, members of Coalition Forces, civilian representations of non-governmental organizations, including aid and religious organizations, the media, opponents of the former regime and Iraqis (including police, security officers, recruits, translators and driv- ers), who are perceived to be cooperating with the Coali- tion Forces. (Decision, p. 7) 7 In response to these submissions, the Minister’s Delegate said this: While Counsel submits that Christians are subjected to greater ill- treatment than other Iraqis, he does not compare and contrast their situation with that of the majority religious/ethnic groups (Shias, Sunnis, Kurds etc). A recent U.S. report explains the security threats in Iraq in detail and describes the various militias involved being the Sunni and Shia militias (Jaish al Mahdi, Al-Qadea in Iraq etc.) and describes that the violence in Iraq is largely about a Sunni-Shia power struggle. Christians are not mentioned as being targeted by these major insurgent groups as they are not identified as a threat to the major players in the Central and Southern regions. (Decision, p. 7) Budakh v. Canada (MCI) Douglas R. Campbell J. 111

This remark exposes a striking diversion from the substance of the Ap- plicant’s application in two respects: with the making of the remark, on the issue of prospective risk, the Applicant’s identity as an Assyrian Christian is not mentioned again, and, indeed, rather than address the risk according to the Applicant’s acknowledged identity as an Assyrian Christian, the Minister’s Delegate decided on risk by defining the Appli- cant as only a “Christian”; and, rather than acknowledge that the Appli- cant’s claim is one of personalized risk as an Assyrian Christian, or even as a Christian, the attempt is made to characterize the risk as only general being that faced by all Iraqis as a result of the Sunni-Shia power struggle. 8 From the point of the diversion, the balance of the decision is devoted to providing a number of observations that ground the conclusion that Christians are not subjected to personalized risk in Iraq: the Christian population of Iraq is dwindling not because “they are disproportionately falling prey to sectarian violence”, but rather to a “growing Christian- Iraqi Diaspora” and “there is no evidence of a religious ‘genocide’” (De- cision, p. 8); “Iraq has seen an improvement in the security situation” (p. 9) and there is an “improvement in stability” (p. 10); “the government responded to protect the Christian community and Christian families who had previously fled were [sic] returning home to Mosul” (p. 11), and this response “demonstrates that effective law enforcement in Iraq is beginning to be realized and that the Christian community’s faith and reliance on law enforcement officials is returning (p. 11); there were “approximately 17 reported attacks on Christians in Iraq in the first 6 months of 2008” and the Christians targeted were mostly owners of certain businesses, those that contravene Muslim norms, Christian activists, Chris- tian proselytizers, apostates, and priests (p. 11); “there is little evidence to suggest that state-agents have been responsible for any ill-treatment of the Christian population”, “rather the attacks on Christians have been perpetrated by militias and criminals” (pp. 11 - 12) and “these attacks have been a by-product of the wider security challenges faced in Iraq and not a main component of the violence (p. 12); and “the government in Iraq is committed to providing state protection to the Christian minorities” (p. 12). 9 Indeed, the Minister’s Delegate also makes an Internal Flight Alterna- tive finding: Having considered Mr. Budakh’s personal circumstances, I have considered it most likely that he would either wish to re-establish himself in Baghdad (where he is from) or in the Kurdish Controlled 112 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

North (where his parents are from and where there is a large concen- tration of Christians). (Decision, p. 12) 10 The conclusion to the decision is as follows: Conclusion on Risk: I am satisfied, based on an extensive review of the country conditions in Iraq that Mr. Budakh, as a Christian, may reasonably decide to relocate to anywhere in Iraq, keeping in mind that he would likely be most familiar with Baghdad, and that the Northern Governorates are considered the most safe. Mr. Budakh is an adult male who is neither elderly nor a youth and there is no evidence before me that he is gay or transgender. He is not encumbered by dependents. There is no evidence before me that Mr. Budakh is politically active, and although he is Christian, there is no evidence before me that he is a priest or likely to try to proselytize if returned to Iraq. There is also no evidence before me that he is likely to try to sell alcohol or otherwise contravene Islamic norms. Therefore, while Iraq is still facing security challenges from criminal elements and insurgent/militia groups and there is no guarantee that Mr. Budakh will not face the same difficulties as other Iraqis - there is insufficient evidence before me that Mr. Budkah [sic] would face individualized risk of being targeted for ill treatment by any state or non-state actors. Consequently, for all of the afore stated reasons, I am satisfied on a balance of probabilities that Mr. Budakh is not likely to face personalized risks as identified in section 97 of IRPA - namely that he is unlikely to be tortured, face cruel or unusual treatment or be killed if returned to Iraq. (Decision, p. 14) 11 Counsel for the Applicant argues that the decision of the Minister’s Delegate is fundamentally flawed because it fails to decide on the basis of the Applicant’s claimed identity; the Internal Flight Alternative finding is erroneous; and the generalized risk finding misapplies the evidence. 12 Counsel for the Minister’s primary argument in response is that the Applicant is required to prove risk on a balance of probabilities, and the statistical evidence of the 17 attacks on Christians out of a Christian population of between 600,000 to 800,000 (Decision, p. 10) does not support such a finding. During the course of oral argument, Counsel for the Min- ister argued that any judicial review concern about the Internal Flight Budakh v. Canada (MCI) Douglas R. Campbell J. 113

Alternative Finding is a “red herring” because the finding is not necessary to consider because the Applicant has failed to prove risk on a balance of probabilities. In addition, Counsel for the Minister argues that the Minister’s Delegate’s finding on generalized risk is supported by the jurisprudence of the Court. 13 I agree with Counsel for the Applicant and find that on each of the three issues advanced the decision is made in reviewable error. 14 First, the Applicant is entitled to a PRRA finding on the basis of his identity as Assyrian Christian, not just as a Christian as found by the Minister’s Delegate. In addition, I agree with Counsel for the Applicant that the decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.) applies in the present case; that is, the more probative the evidence, the more likely the Court will find error when the Board ignores it (see: Karayel v. Canada (Minister of Citizenship & Immigration), 2010 FC 1305 (F.C.) at para. 16). Cogent evidence existed in the record before the Minister’s Delegate that Christians, and, particularly, Assyrian Christians suffer greatly at the hands of the Muslim population of Iraq. The following is an example of evidence before the Minister’s Delegate as referenced at paragraph 18 of the Applicant’s Further Memorandum of Argument: Further, in the recent United Nations IRIN Report entitled “Iraq: Christian community faces new wave of violence,” dated July 15. 2009, the following is noted: A new wave of violence targeting Iraq’s Christian community has raised questions about the safety of religious minorities amid concerns about Iraqi forces’ ability to maintain security after the 30 June withdrawal of US combat forces from cities to outlying bases. On 12 July, there were five attacks on churches in Baghdad and one assassi- nation in the north that left five dead and more than 20 injured, according to Iraqi Interior Ministry’s statements. “These [systematic] attacks on that specific day mean that there are well-organized militant groups who are still active unleashing violence and terrorism against Iraqis in general and Christians specifically,” Younandem Kana, a Christian MP, told Irin. “Extremist Islamists are systematically aiming at driving out the remaining 100,000 Assyro-Chaldaic Christians from the Iraqi capital,” Kamal Sido, a near-east consultant for the Society for Threatened People(GfbV), aid in a statement on 13 July”. 114 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Finally, the recent United States Commission on International Relig- ious Freedom (USCIRF) Annual Report 2009 — Countries of Partic- ular Concern: Iraq, dated May 1, 2009, the following is noted: In December 2008, the Commission recommended that the U.S. De- partment of State should designate Iraq as a “country of particular concern,” or CPC, based on the ongoing, severe abuses of religious freedom in the country and the government’s toleration of these abuses, particularly against Iraq’s smallest and most vulnerable religious minorities. The religious freedom situation in Iraq remains grave, particularly for the smallest most vulnerable religious minorities which include ChaldolAssyrian and other Christians, Sabean Mandae´a˜ns, and Yazidis. In 2003, there were approximately 1.4 million Christians in Iraq, including Chaldean Catholics, Assyrian Orthodox, Assyrian Church of the East, Syriac Orthodox, Armenians (Catholic and Orthodox), Prot- estants, and Evangelicals. Today, it is estimated that only 500,000 to 700,000 indigenous Christians remain in the country. Christian leaders have warned that the result of this flight may be “the end of Christianity in Iraq.” [Emphasis added] I find that the Minister’s Delegate’s failure to address the evidence of the specific reality of risk suffered by Assyrian Christians in Iraq warrants setting the decision aside. 15 Second, with respect to the purported Internal Flight Alternatives of the Kurdish Controlled North, for such a finding to be made the alternative must be reasonable, and in order for it to be reasonable, it must be found to be possible for the Applicant to access. Counsel for the Appli- cant’s argument that the identified alternative in the North is impossible for the Applicant to access is not addressed in any meaningful way in the decision rendered. Thus, in my opinion, the Internal Flight Alternative finding is unreasonable. 16 And third, because the purported generalized risk finding is not based on the Applicant’s claimed identity, in my opinion, it is fundamentally flawed. In any event, in making the generalized risk argument, Counsel for the Minister relies on Justice Snider’s decision in Osorio v. Canada (Minister of Citizenship & Immigration), 2005 FC 1459 (F.C.) to argue that since “generally” is commonly used to mean “prevalent” or “widespread”, simply because a subcategory can be crafted out of the citizenry at large does not remove that group from the generalized risk category. Budakh v. Canada (MCI) Douglas R. Campbell J. 115

As I understand the argument, and with reference to the Minster’s Dele- gate’s remark that the violence in Iraq is largely about the Sunni-Shia power struggle which pervades the country, the Minister’s Delegate reasonably determined that the risk faced by the Applicant as a Christian is faced generally by other individuals (Respondent’s Further Memoran- dum of Argument, para. 35). On my reading of the decision in Osorio, the outcome of a finding as to whether an applicant will face a generalized risk depends on the nature of the group to which he or she belongs, and the nature of the risk. That is, every case must be determined on its own merits. 17 In Osorio, the applicant asserted a fear on behalf of himself and his young Canadian-born son that, should they return to Colombia, they would suffer risk from FARC. On the nature of the claim, Justice Snider made the following findings at paragraphs 22, and 24 to 27: I first note that the Board, in the paragraph concluding this section of their Reasons, states its finding that the risk of the son-in-law “is no greater than or different to the general risk faced by all persons in [Colombia].” From this, it appears that the Board understood the correct test. The question is whether a risk to a sub-group - in this case, parents - can be a risk contemplated by s. 97(1)(b)(ii). The Board evidently believed that it is. The question before me is whether this extension of the concept of “faced generally” was correct or reasonable. In my view, it was. [...] It seems to me that common sense must determine the meaning of s. 97(1)(b)(ii). To put the matter simply: if the Applicants are correct that parents in Colombia are a group facing a risk not faced generally by other individuals in Colombia, then it follows that every Colom- bian national who is a parent and who comes to Canada is automati- cally a person in need or protection. This cannot be so. The risk described by the Applicants and the Board in this case is a risk faced by millions of Colombians; indeed, all Colombians who have or will have children are members of this population. It is difficult to define a broader or more general group within a nation than the group consisting of “parents”. Further, I can see nothing in s. 97(1)(b)(ii) that requires the Board to interpret “generally” as applying to all citizens. The word “generally” is commonly used to mean “prevalent” or “widespread”. Parliament deliberately chose to include the word “generally” in s. 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particu- 116 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

lar group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene. In conclusion, the Board reasonably concluded that the risk to which the son-in-law and his wife would be subject is a general risk and does not make them persons in need of protection under s. 97. [Emphasis added] 18 In the present case, the obligation rested with the Minister’s Delegate to determine on the evidence whether Assyrian Christians are a particular group that meets the definition in s. 97(1)(b)(ii) of the IRPA. In this regard, it was necessary to consider how the generalized Muslim-to-Mus- lim violence relates to, or contrasts with, Muslim-to-Assyrian Christian violence. This obligation was not met by the Minister’s Delegate. 19 I have one final comment with respect to Counsel for the Minister’s argument. 20 As mentioned, the Applicant was convicted of aggravated sexual assault in the state of Illinois in March 1999. The offence was committed when he was 23 years of age; he was sentenced to 7 years incarceration, and was released in 2002. The sentence reflects the acute seriousness of the crime; the Applicant sexually assaulted a 16-year old young woman while she was unconscious. While going through the immigration process with respect to his claim for protection as recounted above, the Ap- plicant was released from detention after posting a $5,000 cash bond and a $10,000 performance bond. There is no suggestion in the evidence that there has been any further criminality. Indeed, after a thorough examination of the evidence, the Minister’s Delegate was “not satisfied that at this point in time, there are reasonable grounds to believe [the Applicant] is a present and future danger to the public (Decision, p. 22). 21 In the course of the rendering the decision under review, the Min- ister’s Delegate fairly, and with care, approached the subject of the sexual assault and the issue of whether the Applicant is a present danger. While I have passed judicial review comment on the risk decision, I find the decision as a whole to be straight-forward and free of extraneous considerations. On this latter point, I have serious concerns about the written argument delivered by Counsel for the Minister. The Respondent’s Fur- ther Memorandum of Argument opens with this comment: When one benefits from the generous hospitality of a host nation, one does not violate the host nation’s trust and generosity by savagely violating one of its children. The Applicant claims to be a Christian facing possible persecution in Iraq. However, as the Applicant is con- Budakh v. Canada (MCI) Douglas R. Campbell J. 117

sidered a serious criminal under IRPA for having been convicted in the U.S. of drugging, raping and almost killing an underage girl, he is only entitled to a restricted consideration of personalized [emphasis in the original] risk under section 97 of IRPA and not the refugee grounds under section 97 [sic]. Humanitarian issues of hardship are not considered under the PRRA. While life may prove difficult in Iraq for the Applicant, the difficulty he may face is of his own making. The second paragraph of the argument is as follows: While the Applicant may have not raped anyone in the last 12 years, such that he may be considered to pose an immediate danger to Canadians, Canadians should not have to suffer the Applicant’s pres- ence as a neighbour. This is what Parliament intended in providing only a restricted PRRA for serious criminals. And at paragraph 4 this view is expressed: The Minister’s Delegate identified that 600,000 to 800,000 Iraqi Christians suffered 17 reported attacks in the first six months of 2008. The Respondent submits that these attacks, as regrettable as they may be, do not demonstrate that the Applicant will personally be at risk of an attack on a balance of probabilities [emphasis in the original]. The Applicant’s identification of documents that detail spo- radic incidents of violence against Christians in Iraq that were not mentioned in the Minister’s Delegate’s reasons is an insufficient basis to warrant revisiting the risk assessment. The Applicant’s desire to have this Honourable Court to [sic] reweigh the documentary evidence before the Minister’s Delegate is an insufficient bases [sic] to warrant intervention. The Applicant has benefited from Canada’s generosity for too long as a serious criminal. It is time for the Appli- cant to leave. [Emphasis added] I find that this language is completely inappropriate because it is inflam- matory and can be taken to be an attempt to persuade an outcome to the present Application through the introduction of a completely extraneous consideration to the issues to be determined. The Applicant’s criminal conduct was dealt with according to law, and his immigration status is in the process of being dealt with according to law. The argument reads like a sentencing submission for greater penalty for the offence which was committed, and for which the penalty has already been paid. In my opinion, there is no room for this kind of irrelevant rhetoric in a solemn judicial inquiry. 118 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Order Accordingly, the decision under review is set aside. There is no question to certify. Application granted.

Appendix

Section 97 of the Immigration and Refugee Protection Act, 2001, c. 27 reads as follows: Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: Budakh v. Canada (MCI) Douglas R. Campbell J. 119

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes internationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. 120 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: R. v. Fawaz] Regina, Respondent and Samir Akram Fawaz, Appellant British Columbia Court of Appeal Docket: Vancouver CA037942 2011 BCCA 315 Prowse, Levine, Hinkson JJ.A. Heard: May 17, 2011 Judgment: July 6, 2011 Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — Visitors and immigrants — Miscellaneous issues –––– Ac- cused was charged in 2002 with two offences under Immigration and Refugee Protection Act and three counts under Criminal Code relating to his alleged use and possession of passport in another name — Accused was subject to exclusion order issued in October 2002 — Accused’s first court appearance was in De- cember 2002 and matter was adjourned number of times from 2003 to 2008 — Preliminary inquiry was not concluded until April 2008 — Accused brought application for stay of prosecution on grounds that his rights under s. 11(b) of Canadian Charter of Rights and Freedoms were infringed — Application was dismissed — Case was old for long time and yet application was brought at last possible moment when it was apparent that trial would proceed — Trial judge held that it was clear that accused was satisfied with pace at which matters proceeded — There was no suggestion of any design to obstruct or frustrate process, but there was considerable readiness to take whatever opportunities presented themselves for adjournment — Actions of accused, while not amounting to waiver, did not support suggestion that applicant was specifically prejudiced by delay — Institutional delay that would appear to be unacceptable must be assessed in light of fact that neither Crown nor defence ever made issue of it — Delay which was manifestly unreasonable might not give rise to remedy when there was no prejudice to accused — Accused appealed — Appeal allowed — Trial judge used two-stage approach to analysis of application; this approach was rejected by British Columbia Court of Appeal in cited decision — Four factors relevant to delay are to be weighed together — Only remedy available for breach of s. 11(b) is judicial stay of proceedings; once trial judge found that delay was unreasonable and breach of accused’s Charter right, if he had applied established law, he would have granted stay — Trial judge also overlooked evidence which was inconsistent with Crown’s submission that delays had worked to accused’s advantage on basis that accused was content to remain in Canada no matter what consequences were to himself or his family — At very least, this R. v. Fawaz 121 evidence may have resulted in him placing more weight on evidence called on behalf of accused as to prejudice suffered by him as result of delay. Criminal law –––– Charter of Rights and Freedoms — Right to be tried within reasonable time [s. 11(b)] — Pre-trial delay –––– Accused was charged in 2002 with two offences under Immigration and Refugee Protection Act and three counts under Criminal Code relating to his alleged use and possession of passport in another name — Accused was subject to exclusion order issued in October 2002 — Accused’s first court appearance was in December 2002 and matter was adjourned number of times from 2003 to 2008 — Preliminary inquiry was not concluded until April 2008 — Accused brought application for stay of prosecution on grounds that his rights under s. 11(b) of Canadian Charter of Rights and Freedoms were infringed — Application was dismissed — Case was old for long time and yet application was brought at last possible moment when it was apparent that trial would proceed — Trial judge held that it was clear that accused was satisfied with pace at which matters proceeded — There was no suggestion of any design to obstruct or frustrate process but there was considerable readiness to take whatever opportunities presented themselves for adjournment — Actions of accused, while not amounting to waiver, did not support suggestion that applicant was specifically prejudiced by delay — Institu- tional delay that would appear to be unacceptable must be assessed in light of fact that neither Crown nor defence ever made issue of it — Delay which was manifestly unreasonable might not give rise to remedy when there was no prejudice to accused — Accused appealed — Appeal allowed — Trial judge used two-stage approach to analysis of application; this approach was rejected by British Columbia Court of Appeal in cited decision — Four factors relevant to delay are to be weighed together — Only remedy available for breach of s. 11(b) is judicial stay of proceedings; once trial judge found that delay was unreasonable and breach of accused’s Charter right, if he had applied established law, he would have granted stay — Trial judge also overlooked evidence which was inconsistent with Crown’s submission that delays had worked to accused’s advantage on basis that accused was content to remain in Canada no matter what consequences were to himself or his family — At very least, this evidence may have resulted in him placing more weight on evidence called on behalf of accused as to prejudice suffered by him as result of delay. Cases considered: R. v. Godin (2009), 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 389 N.R. 1, 245 C.C.C. (3d) 271, [2009] 2 S.C.R. 3, 2009 CarswellOnt 3100, 2009 Carswell- Ont 3101, 2009 SCC 26, 309 D.L.R. (4th) 149, 252 O.A.C. 377, [2009] S.C.J. No. 26 (S.C.C.) — referred to R. v. Guilbride (2006), 2006 BCCA 392, 2006 CarswellBC 2224, 145 C.R.R. (2d) 91, (sub nom. R. v. Thomson) 211 C.C.C. (3d) 465, (sub nom. R. v. 122 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Thomson) 230 B.C.A.C. 128, (sub nom. R. v. Thomson) 380 W.A.C. 128, [2006] B.C.J. No. 2047 (B.C. C.A.) — considered R. v. Kporwodu (2005), 29 C.R. (6th) 60, 75 O.R. (3d) 190, 2005 CarswellOnt 1404, 196 O.A.C. 272, (sub nom. R. v. K.) 195 C.C.C. (3d) 501, 132 C.R.R. (2d) 324, [2005] O.J. No. 1405 (Ont. C.A.) — referred to R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1, 134 N.R. 321, 8 C.R.R. (2d) 193, 53 O.A.C. 241, [1992] 1 S.C.R. 771, 1992 CarswellOnt 984, 1992 CarswellOnt 75, EYB 1992-67508, [1992] S.C.J. No. 25 (S.C.C.) — considered R. v. Rahey (1987), 75 N.R. 81, [1987] 1 S.C.R. 588, 39 D.L.R. (4th) 481, 78 N.S.R. (2d) 183, 33 C.C.C. (3d) 289, 57 C.R. (3d) 289, 33 C.R.R. 275, 1987 CarswellNS 340, 1987 CarswellNS 38, 193 A.P.R. 183, EYB 1987-67384, [1987] S.C.J. No. 23 (S.C.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 Generally — referred to s. 11(b) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to

APPEAL by accused from judgment, reported at R. v. Fawaz (2009), 198 C.R.R. (2d) 306, 2009 BCSC 1438, 84 Imm. L.R. (3d) 286, 2009 CarswellBC 2795 (B.C. S.C.), dismissing accused’s application for stay of prosecution on grounds that his rights under s. 11(b) of Canadian Charter of Rights and Freedoms had been breached.

S.A. Fawaz, Appellant, for himself T. Gerhart, for Respondent

Per curiam: Introduction 1 This appeal concerns a seven-year delay in bringing to trial relatively straightforward criminal charges relating to the use of a forged passport. The provincial court judge who presided at the five-year preliminary inquiry surmised that it was “the oldest running preliminary inquiry in the history of British Columbia”, and the trial judge asked “why is something that takes two days to try seven years old?” R. v. Fawaz Per curiam 123

2 Despite the delay, the trial judge dismissed the appellant’s application for a stay of proceedings. He found the delay was “manifestly unreasonable and in breach of the applicant’s Charter right to be tried within a reasonable time”, but denied the remedy of a stay of proceedings because he found the delay had worked to the appellant’s advantage, and that the appellant had not suffered actual prejudice. 3 This is a case where society’s interest in the effective administration of justice and the accused’s interest in having his trial heard within a reasonable time are both served by a stay of proceedings. There was no good reason for these proceedings to drag on interminably as they did. The trial judge recognized this, but concluded, nonetheless, that a stay of proceedings was not warranted. He erred in coming to that conclusion. 4 We would allow the appeal, set aside the order appealed from, and order the charges against the appellant be stayed.

Background Facts and Procedural History 5 The appellant came to Canada from Syria in 1989. He was refused refugee status in 1990, and after he married a Canadian citizen, was refused entry to Canada as a permanent resident. He left Canada in 1992, returned to Canada on a work permit from 1992 to 1996, and lived in Canada after that, operating a business. His marriage ended in 2001. 6 On October 27, 2002, the appellant was arrested at Vancouver Inter- national Airport while returning from Mexico. He was detained on two offences under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, relating to alleged possession of a forged passport. On October 28, 2002, the immigration authorities ruled that he was inadmissible to Can- ada and issued an exclusion order. According to the evidence before the trial judge, an exclusion order directs the removal of a foreign national from Canada for a period of one year unless the Minister of Citizenship and Immigration gives him written permission to remain. After one year, the applicant might be eligible to return but would require a visa (at para. 4). 7 The appellant remained in immigration custody until November 6, 2002, when, after a detention review hearing, he was released on conditions pending his removal from Canada. 8 The appellant was arrested on his departure from the immigration hearing, and charged with three counts under the Criminal Code: using a forged passport, making false and misleading statements for the purpose 124 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

of procuring a passport, and possession of a forged passport. The execu- tion of the exclusion order was statutorily stayed pending the resolution of the criminal charges (at para. 5). As a result, the appellant remained in Canada pending the outcome of the trial. 9 The appellant appeared for bail on the Criminal Code charges on No- vember 7, 2002, and was released on similar conditions to the terms of his immigration bail. He was required to report twice weekly to immigration authorities, which he did for five years and then monthly until his trial. 10 After the initial bail hearing, the proceedings on the criminal charges moved slowly. A series of adjournments and late disclosures by the Crown repeatedly delayed the preliminary inquiry. These events were summarized by the trial judge (at paras. 5-25). The preliminary inquiry was delayed until June 14, 2005 and not completed until April 22, 2008: a delay of over five years from the date the charges were laid. 11 A trial in Supreme Court was scheduled for October 21-22, 2009, almost seven years from the date of arrest. 12 On October 2, 2009, the appellant brought an application for a stay pursuant to s. 11(b) 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, which provides that any person charged with an offence has the right to be tried within a reasonable time. 13 The appellant took no issue with respect to the 18 months the matter was before the Supreme Court. His application concerned the five-year delay in Provincial Court. 14 The trial judge dismissed the application for a stay of proceedings on October 19, 2009.

Trial Judge’s Reasons for Judgment 15 The trial judge started his analysis of the s. 11(b) application by citing first, the two-part test articulated by Justice McLachlin (as she then was) in concurring minority reasons in R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.) at 810-811 (at para. 27), and then, the factors set out by Justice Sopinka for the majority of the Court (at para. 29). 16 Justice Sopinka described a judicial balancing approach to determining whether a delay has become unreasonable, considering the following four factors (Morin at 787-788): 1. the length of the delay; R. v. Fawaz Per curiam 125

2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and 4. prejudice to the accused. 17 In this approach, prejudice is not considered separately from the length of the delay: see R. v. Godin, 2009 SCC 26 (S.C.C.) at para. 31, [2009] 2 S.C.R. 3 (S.C.C.). 18 Justice McLachlin’s approach was to consider first whether a prima facie or threshold case for unreasonable delay has been made out, taking into account length of delay, waiver and the reasons for the delay (at 810-811). If this threshold case is made out, the court then proceeds to balance the interest of society in requiring the accused person to stand trial with prejudice to the accused’s interests in security and the right to a fair trial (at 811). In this approach, prejudice is considered separately from the length of the delay. 19 In this case, the Crown conceded that the length of the delay raised an issue of its reasonableness, and that an inquiry into the other factors was called for (at para. 28). 20 In the first part of his analysis, the trial judge considered whether the appellant had waived any time periods, and the reasons for the delay. In the course of his discussion of these factors, the trial judge referred repeatedly to the appellant’s failure to protest the delay as it occurred, commenting that this conduct was relevant to the question of prejudice. He quoted, and gave considerable weight to, a submission of appellant’s counsel at the initial bail hearing in 2002, where, in the context of consideration of whether the appellant was a flight risk, counsel said (quoted by the trial judge at para. 6): [F]rankly, it would be in his interest that these charges remain outstanding because it seems to me that the government isn’t going to send him, though he has charges pending before this court, to (sic) - it’s in his interest to turn up at court because that, of course, prolongs his stay. 21 The trial judge found there was no explicit waiver, and he could not infer waiver from the appellant’s conduct, though he concluded the ap- 126 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

pellant’s actions showed that the delay was, “on balance, in his best interests” (at para. 40). He found the Crown’s lack of action to move the case along “the most troubling aspect of this case”, but noted the appellant seemed to take opportunities to adjourn “rather gladly”, and again concluded the appellant’s conduct undermined his “claims to have de- sired a quick outcome” (at para. 41). He made no finding concerning institutional delay (at paras. 42-43). 22 The trial judge concluded this part of his analysis by stating the delay to be “manifestly unreasonable and in breach of the applicant’s Charter right to be tried within a reasonable time”. 23 He then revisited the question of prejudice, and refused to grant a remedy, finding there was no prejudice to the appellant because the delay had worked in his favour. He said (at paras. 44-45): The fact that the defence has not, until now, protested or asserted any prejudice is telling. In noting this fact, I do not make the mistake of suggesting there was a duty upon the defence to advance the case. No one is obliged to assist in his or her own prosecution. On the other hand, the delay, which is manifestly unreasonable and in breach of the applicant’s Charter right to be tried within a reasonable time, may not give rise to a remedy when there has been no prejudice to the applicant. Here, the only reasonable inference to be taken from the assertions of counsel at the applicant’s bail applications and his conduct throughout the course of this matter is that the applicant’s interests in remaining in Canada, that is, in postponing the day he went to trial, served his purposes as he assessed them. No case has been made that witnesses have become forgetful or unavailable or that the case has deteriorated over time such that a fair trial would, in other ways, be compromised. Absent evidence of actual prejudice to the case, the applicant is not entitled to a remedy for stress, anxiety, and depression he says he suffers as a consequence of the uncertainty of his situation. He has elected to accept that uncertainty for the advantage of remaining in Canada. Delay in the resolution of this case has “worked” for him in that way. It does not, in the circumstances, entitle him to a stay of proceedings. [Emphasis added.]

Analysis 24 In our opinion, the trial judge’s analysis of this application was over- whelmed by his focus on the appellant’s failure to protest the delay as it R. v. Fawaz Per curiam 127

occurred and his conclusion that the delay worked to the appellant’s advantage. 25 This focus led him to legal and factual error. 26 In finding the appellant was not entitled to the remedy of a stay of proceedings, though the delay was “manifestly unreasonable” and in breach of his Charter rights, the trial judge erred in principle. 27 In determining that the appellant suffered no prejudice, he gave unwarranted weight to the appellant’s counsel’s statement at the initial bail hearing and to the appellant’s failure to take active steps to expedite his proceedings, while ignoring the appellant’s evidence of steps he took to resolve his immigration and criminal proceedings. 28 We will deal first with the error in principle. The trial judge took a two-stage approach to the analysis of the application. He considered the appellant’s conduct as it related to prejudice in the context of his consideration of waiver and the reasons for the delay, concluding from that part of the analysis that the delay was unreasonable and a breach of the appellant’s Charter right (at para. 44). In this first stage, he followed the approach of the majority in Morin. He then returned to the factor of prejudice in determining whether the remedy of a stay should be granted. At this second stage, he appears to have adopted the approach of McLachlin J. in Morin - having reached a prima facie conclusion that the delay was unreasonable, he then balanced whether the appellant was entitled to a remedy for the delay with his claims to have been prejudiced. 29 This two-stage approach was rejected by this Court in R. v. Guilbride, 2006 BCCA 392 (B.C. C.A.) [hereinafter Thomson], where Finch C.J.B.C. for a unanimous Court said that the approach of the majority of the Supreme Court in Morin, set out in the reasons for judgment of Sopinka J., is the correct approach to s. 11(b) applications, rejecting the analysis articulated by McLachlin J. The Court said (at para. 119): The test is not one of balancing the societal interest against the individual prejudice to the defendant: see R. v. Kporwodu ... The four factors relevant to delay ... along with prejudice to the individual’s security, liberty and fair trial interests, and the societal interests are to be weighed together to determine whether in any given case a period of delay is unreasonable. 30 The Court also pointed out in Thomson that the only remedy available for a breach of s. 11(b) is a judicial stay of proceedings: R. v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.); R. v. Kporwodu (2005), 75 O.R. (3d) 190, 195 C.C.C. (3d) 501 (Ont. C.A.) at para. 2 (C.A.). 128 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

31 Thus, once the trial judge found that the delay was unreasonable and a breach of the appellant’s Charter right, if he had followed the accepted approach of the majority in Morin to its conclusion, and applied the established law that the only remedy for unreasonable delay is a stay of proceedings, he would have granted a stay. 32 In addition to this error in principle, the trial judge also erred in his assessment of the issue of prejudice. 33 In finding that the appellant was not prejudiced, the trial judge repeatedly referred to counsel’s statement at the appellant’s first bail hearing in 2002, shortly after he was charged, that he should not be regarded as a flight risk because he had an interest in remaining in Canada. While that statement was no doubt correct at the time it was made, no one could have contemplated at the time of that bail proceeding that this case would take seven years to come to trial. Counsel’s submissions made in that context in light of the subsequent history of this matter were of marginal relevance and should have been accorded little significance. 34 Further, the trial judge appears to have overlooked evidence which was inconsistent with the Crown’s submission that the delays had worked to the appellant’s advantage on the basis that the appellant was content to remain in Canada no matter what the consequences to himself or his family. There was affidavit evidence attaching a letter from the appellant’s immigration counsel to Crown counsel in January 2003 stating that the appellant was prepared to leave Canada if the charges against him were stayed. (He could not leave if the charges were not stayed without breaching his bail conditions.) In other words, there was evidence to refute the Crown’s submission that the appellant was content to have the criminal charges delayed indefinitely because of his determination to stay in Canada. At the very least, this evidence, which was not referred to by the trial judge, may have resulted in him placing more weight on the evidence called on behalf of the appellant as to the prejudice suffered by him as a result of the delay. 35 The trial judge also gave disproportionate consideration to the appellant’s failure to take action to expedite matters. He acknowledged that “[n]o one is obliged to assist in his or her own prosecution” (at para. 44), and was clearly troubled by the Crown’s failure to make timely disclosure and to marshall its case in a timely way. Nonetheless, in finding that the accused’s conduct throughout showed that he had an interest in delay, the trial judge effectively attributed much of the delay to the absence of actions by the defence to move the case along. R. v. Fawaz Per curiam 129

36 In summary on this point, not only did the trial judge place substantial weight on evidence which had little evidentiary value with respect to the issue of prejudice, he also overlooked relevant evidence which may have caused him to view the appellant’s claim of prejudice in a more positive light. 37 It is important to observe that this is not a case where the trial judge found that there was any chicanery or manipulative behaviour on the part of the appellant in order to delay his trial. Most of the delay arose from Crown counsel repeatedly failing to make disclosure of relevant information, or making last-minute disclosure, thereby necessitating further delays. There were some institutional delays which were no one’s fault, and there were some occasions, particularly in the final 18 months, where defence counsel’s busy calendar contributed to further delays. For the most part, however, this was an apparently straightforward case that simply went off the rails. The system failed. It not only failed the appellant, but it also failed the public, which has a vested interest in having those charged with criminal offences brought to trial in a timely manner.

Conclusion 38 The trial judge determined, weighing all the relevant factors in Morin, that the delay was “manifestly unreasonable and in breach of the [appellant’s] Charter right to be tried within a reasonable time”. Having made those findings, the trial judge should have ordered that the appellant was entitled to the remedy of a stay of proceedings. 39 We would allow the appeal, set aside the order of the trial judge, and order that the charges against the appellant be stayed. Appeal allowed. 130 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Lasisi v. Canada (Minister of Citizenship & Immigration)] Lafisu Eji Lasisi, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1848-10 2011 FC 495 Dani`ele Tremblay-Lamer J. Heard: April 21, 2011 Judgment: April 27, 2011 Administrative law –––– Requirements of natural justice — Right to hearing — Duty of fairness –––– Applicant was citizen of Nigeria — Applicant first came to Canada as visitor in 1992 — Applicant used false identity documents and immigration warrant was issued for his arrest — Applicant then went to United States, where he was convicted of possession of fraudulent identification card — In 2006, applicant returned to Canada, using fraudulent identification — In 2007, applicant married Canadian citizen and submitted application for permanent residence — Applicant also brought application for criminal rehabilitation but it was denied by minister’s delegate — Delegate crossed out year written by analyst, so that sentence effectively read that applicant failed to appear for inquiry in September 1994, not 2004 — Applicant brought application for judicial review — Application dismissed — There was no merit to applicant’s argument that duty of procedural fairness was breached when alteration was made to rehabilitation assessment — It was clear that “2004” appearing in original rehabilitation assessment was typographical error — Analyst undoubtedly meant to indicate that applicant did not appear for inquiry in September of 1994, not 2004 — If anything, alteration revealed that minister’s delegate attentively reviewed analyst’s submissions and considered applicant’s response. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Reasons for decision –––– Applicant was citizen of Nigeria — Applicant first came to Canada as visitor in 1992 — Applicant used false identity documents and immigration warrant was issued for his arrest — Applicant then went to United States, where he was convicted of possession of fraudulent identification card — In 2006, applicant returned to Canada, using fraudulent identification — In 2007, applicant married Canadian citizen and submitted application for permanent residence — Applicant also brought application for criminal rehabilitation but it was denied by minister’s Lasisi v. Canada (MCI) 131 delegate — Applicant brought application for judicial review — Application dismissed — Delegate’s reasons were adequate — Although typewritten reasons may have been preferable, it was not difficult to read and understand delegate’s handwriting — Applicant did not make any request to obtain typed version of reasons — Sufficient details were provided so that applicant could decide whether or not to apply for judicial review, and so decision could be assessed. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was citizen of Nigeria — Applicant first came to Canada as visitor in 1992 — Applicant used false identity documents and immigration warrant was issued for his arrest — Applicant then went to United States, where he was convicted of possession of fraudulent identification card — In 2006, applicant returned to Canada, using fraudulent identification — In 2007, applicant married Canadian citizen and submitted application for permanent residence — Applicant also brought application for criminal rehabilitation but it was denied by minister’s delegate — Applicant brought application for judicial review — Application dismissed — Delegate’s decision was not unreasonable — There was no pending refugee claim in applicant’s case, and refugee protection had not been conferred — Accordingly, s. 133 of Immigration and Refugee Protection Act did not apply — Applicant violated Canadian law when he entered country in 2006 by means of fraudulent identification — This was evidence of continued criminal behaviour similar to criminal behaviour in respect of which applicant claimed to be rehabilitated. Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant was citizen of Nigeria — Applicant first came to Canada as visitor in 1992 — Applicant used false identity documents and immigration warrant was issued for his arrest — Applicant then went to United States, where he was convicted of possession of fraudulent identification card — In 2006, applicant returned to Canada, using fraudulent identification — In 2007, applicant married Canadian citizen and submitted application for permanent residence — Applicant also brought application for criminal rehabilitation but it was denied by minister’s delegate — Applicant brought application for judicial review — Application dismissed — Delegate’s decision was not unreasonable — There was no pending refugee claim in applicant’s case, and refugee protection had not been conferred — Accordingly, s. 133 of Immigration and Refugee Protection Act did not apply — Applicant violated Canadian law when he entered country in 2006 by means of fraudulent identification — This was evidence of continued criminal behaviour similar to criminal behaviour in respect of which applicant claimed to be rehabilitated. 132 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Cases considered by Dani`ele Tremblay-Lamer J.: Hayama v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 1305, 2003 CarswellNat 4769, 2003 FC 1305, 33 Imm. L.R. (3d) 89, 10 Admin. L.R. (4th) 109, 2003 CarswellNat 3514, [2003] F.C.J. No. 1642 (F.C.) — followed Uppal v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 338, 2006 CarswellNat 697, 2006 CF 338, 53 Imm. L.R. (3d) 284, 2006 Car- swellNat 2800, 289 F.T.R. 196, [2006] F.C.J. No. 455 (F.C.) — considered Vancouver International Airport Authority v. P.S.A.C. (2010), 320 D.L.R. (4th) 733, 2010 CAF 158, 84 C.C.E.L. (3d) 51, 2010 CarswellNat 3247, (sub nom. Vancouver International Airport Authority v. Public Service Alliance of Canada) 403 N.R. 363, 196 L.A.C. (4th) 1, 9 Admin. L.R. (5th) 79, 2010 FCA 158, 2010 CarswellNat 1700, [2010] F.C.J. No. 809 (F.C.A.) — considered Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 403(a) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36(1)(b) — considered s. 36(3)(c) — considered s. 72(1) — pursuant to s. 133 — considered

APPLICATION for judicial review of delegate’s decision denying applicant’s application for criminal rehabilitation.

Idorenyin E. Amana, for Applicant Daniel Latulippe, for Respondent

Dani`ele Tremblay-Lamer J.:

1 This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of the Director General of the Case Management Branch at Citizenship and Immigration Canada (the Minister’s delegate), dated De- cember 7, 2009, whereby the Minister’s delegate denied an application submitted by Lafisu Eji Lasisi (the applicant) for criminal rehabilitation under paragraph 36(3)(c) of the IRPA. Lasisi v. Canada (MCI) Dani`ele Tremblay-Lamer J. 133

I. Background 2 The applicant, a citizen of Nigeria, first came to Canada as a visitor in 1992. Although he submitted a claim for refugee status at that time, it was subsequently declared abandoned. The applicant was directed to appear, in September of 1994, at an inquiry that would consider, inter alia, his use of false identity documents. The applicant failed to appear and in April of 1995 an immigration warrant was issued for his arrest. 3 At some point in 1993, the applicant had left Canada for the United States of America (USA). On June 2, 1995, he was convicted in the US of Possession of a Fraudulent ID Card in contravention of Illinois state law and was sentenced to 18 months probation. In November of 2002, the applicant returned to Nigeria where he lived until October 2006. 4 On October 2, 2006, the applicant returned to Canada, using fraudulent identity documents to enter the country. He submitted another refugee claim, but it was eventually rejected as he was deemed ineligible to submit a further claim. A deportation order was issued against the applicant in February of 2007. He submitted a Pre-Removal Risk Assessment application, which was also rejected in March of 2008. 5 On June 20, 2007, approximately a month after marrying a Canadian citizen, the applicant submitted an application for permanent residence as a member of the spouse or common-law partner in Canada class, as well as an application for criminal rehabilitation in respect of the US fraudulent ID offence. With respect to his application for criminal rehabilitation, the applicant indicated, in part: I believe I am rehabilitated because it’s been well over 10 years. I have not re-offended or been involved in any activity that is illegal... I feel ashamed and remorseful for these offences, and have learnt my lesson. 6 On May 28, 2009, an analyst at the Case Management Branch at Citi- zenship and Immigration Canada (CIC) prepared a rehabilitation assessment recommending a negative determination with regards to the application for criminal rehabilitation (the rehabilitation assessment). The assessment indicated that the applicant’s conviction in the US rendered him inadmissible to Canada due to serious criminality under paragraph 36(1)(b) of the IRPA because the US offence was equivalent to “Perso- nation with intent to gain advantage for himself, pursuant to section 403(a) of the Criminal Code of Canada.” 134 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

7 The analyst indicated that CIC officials were, “not satisfied that [the applicant] would not reoffend in a similar manner if placed in a situation of need.” Although it was noted that the applicant had stated the he had learnt from the US conviction and now understood the consequences more fully, the analyst found that the applicant had, nonetheless, re-offended in a similar manner by using false documents to enter Canada in 2006. 8 The rehabilitation assessment was sent to the applicant for comment on August 24, 2009 and the applicant responded with submissions on October 30, 2009.

II. The Decision under Review 9 On December 7, 2009, the Minister’s delegate decided not to grant the application for criminal rehabilitation under paragraph 36(3)(c) of the IRPA. This decision was communicated to the applicant via a letter dated March 18, 2010. The applicant requested reasons which were sent on June 24, 2010. They consisted of the text of the rehabilitation assessment that had been sent to the applicant for comment in August of 2009, cou- pled with the following hand-written note which was dated December 7, 2009 and signed by the Minister’s delegate: Subject has a history of purposely using false documentation. Most recently was in 2006 when he used a false passport to enter Canada. It can be argued that a person has not committed a criminal offense by using a false document to enter Canada for purposes of making a refugee claim. However subject was deemed ineligible for making a claim and therefore demonstrated continued criminal behaviour in using false documentation. I am not satisfied the subject has sufficiently demonstrated evidence of being re-habilitated.

III. Issues 10 The applicant raises three issues for consideration by this Court: a) Did the Minister’s delegate breach the duty of procedural fairness owed to the applicant by making an alteration to the rehabilitation assessment? b) Did the Minister’s delegate err by providing inadequate reasons? c) Was the decision not to grant the applicant’s request for criminal rehabilitation otherwise unreasonable? Lasisi v. Canada (MCI) Dani`ele Tremblay-Lamer J. 135

IV. Legislative Background 11 Paragraph 36(1)(b) of the IRPA indicates that a permanent resident or foreign national is inadmissible on grounds of serious criminality if they have been convicted of an offence outside of Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of at least 10 years: Serious criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for ... (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parlia- ment punishable by a maximum term of imprisonment of at least 10 years; or ... Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants: [...] b) etreˆ déclaré coupable, a` l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction a` une loi fédér- ale punissable d’un emprisonnement maximal d’au moins dix ans; [...] 12 However, paragraph 36(3)(c) of the IRPA indicates, in part, that inadmissibility does not result from the circumstances set out in paragraph 36(1)(b) if, after the prescribed period (five years), the permanent resident or foreign national satisfies the Minister that they have been rehabilitated: Application 36(3) The following provisions govern subsections (1) and (2): ... (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; ... 136 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Application 36(3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2): [...] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, a` l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient a` une catégorie réglementaire de personnes présumées réadaptées; [...]

V. Analysis a) Did the Minister’s delegate breach the duty of procedural fairness owed to the applicant by making an alteration to the rehabilitation assessment? 13 The applicant submits that the Minister’s delegate engaged in “sharp practice” by making an alteration to the text of the rehabilitation assessment relied upon in his reasons. 14 The impugned alteration is found at the beginning of the assessment where the CIC analyst outlined the applicant’s immigration history. After indicating that the applicant had arrived in Canada as a visitor in 1992 and had, in 1993, been directed to appear at an inquiry regarding, among other things, the use of false identity documents, the analyst wrote, “Failed to appear for Inquiry in September 2004 and an immigration warrant for arrest was issued in April 1995” [emphasis added]. In the version of the assessment included in the reasons provided by the Min- ister’s delegate, the “200” was crossed out, and a “199” was written in so that the sentence effectively read, “Failed to appear for Inquiry in Sep- tember 1994 and an immigration warrant for arrest was issued in April 1995” [emphasis added]. 15 The applicant argues that this alteration materially changed the rehabilitation assessment as compared to the version that was provided for comment and response. He submits that this change constitutes unfair and unjust “sharp practice” because the implausibility of the applicant not appearing at an inquiry in September 2004 when the arrest warrant in relation to that nonappearance was issued nine years earlier, was one of the points relied upon by the applicant in his rebuttal submissions. Lasisi v. Canada (MCI) Dani`ele Tremblay-Lamer J. 137

16 There is no merit to this argument. It is clear that the “2004” appearing in the original rehabilitation assessment was a typographical error. The CIC analyst undoubtedly meant to indicate that the applicant did not appear for the inquiry in September of 1994, not 2004. It seems quite unlikely, indeed, that the CIC analyst would have been under the impres- sion that an arrest warrant, issued as it was in April 1995, would have been issued nine years in advance of the event that triggered it — i.e. nine years before the failure to appear. If anything, the alteration reveals that the Minister’s delegate attentively reviewed the analyst’s submissions and considered the applicant’s response.

b) Did the Minister’s delegate err by providing inadequate reasons? 17 The applicant argues that the reasons provided by the Minister’s delegate are inadequate. He submits that the handwritten portion of the reasons were “illegible and very difficult to make out any meaning at all”. This contention is also without merit. Although typewritten reasons may have been preferable, it is not difficult to read and understand the delegate’s handwriting in this case. 18 Furthermore, as the respondent points out, the applicant does not indicate having made any request to obtain a typed version of the reasons. In this regard, I adopt the words of Justice Edmond Blanchard from the Hayama v. Canada (Minister of Citizenship & Immigration), 2003 FC 1305, [2003] F.C.J. No. 1642 (F.C.), at para 15 of the decision: ... If the applicant was unsatisfied with the decision letter and felt it did not adequately explain the decision, a request should have been made for further elucidation. There is no evidence that such a request would have been refused. ... 19 I find that the delegate’s reasons are adequate. The “four fundamental purposes” for the provision of reasons set out by the Federal Court of Appeal in Vancouver International Airport Authority v. P.S.A.C., 2010 FCA 158, [2010] F.C.J. No. 809 (F.C.A.), at para 16, are met. It is clear why the Minister’s delegate decided the way that he did. Sufficient details were provided so that the applicant could decide whether or not to apply for judicial review, and so that this Court can assess whether the decision falls within a range of possible acceptable outcomes. The reasons provided are justified, intelligible and display a discernable rationality and logic. 138 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

c) Was the decision not to grant the applicant’s request for criminal rehabilitation otherwise unreasonable? 20 The applicant submits that the delegate’s ultimate decision is unreasonable because it is based on the erroneous determination that the applicant’s use of false identity documents to re-enter Canada in 2006 constituted “criminal behaviour”. The CIC analyst, in the rehabilitation assessment relied upon by the Minister’s delegate, indicated that the applicant “broke the law” when he reentered Canada in 2006 using a fraudulent passport. The Minister’s delegate agreed with this conclusion and explained in his handwritten reasons that the applicant’s use of fraudulent documentation in 2006 amounted to “criminal behaviour”. 21 The applicant contends that section 133 of the IRPA expressly ex- empts refugees from prosecution for using false documents to enter the country. Thus, the applicant submits the fact that he re-entered the country in 2006 via “improper means” could not properly be considered a violation of Canadian law, nor could it amount to “criminal behaviour”. 22 The question of whether the Minister’s delegate erred in exercising his discretion under paragraph 36(3)(c) of the IRPA is a question that must be reviewed against the reasonableness standard. 23 Section 133 of the Immigration and Refugee Protection Act reads as follows: Deferral 133. A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred. Immunité 133. L’auteur d’une demande d’asile ne peut, tant qu’il n’est statué sur sa demande, ni une fois que l’asile lui est conféré, etreˆ accusé d’une infraction visée a` l’article 122, a` l’alinéa 124(1)a) ou a` l’article 127 de la présente loi et a` l’article 57, a` l’alinéa 340c) ou aux articles 354, 366, 368, 374 ou 403 du Code criminel, dès lors qu’il est arrivé directement ou indirectement au Canada du pays duquel il cherche a` etreˆ protégé et a` la condition que l’infraction ait et´´ e commise a` l’égard de son arrivée au Canada. Lasisi v. Canada (MCI) Danièle Tremblay-Lamer J. 139

24 Justice Carolyn Layden-Stevenson in Uppal v. Canada (Minister of Citizenship & Immigration), 2006 FC 338, [2006] F.C.J. No. 455 (F.C.), at para 21, indicated that section 133 of the IRPA is intended, “to allow bona fide refugees and refugee claimants to use false passports and supporting documents obtained by them for the purpose of making their way into Canada and to shelter them from a finding of inadmissibility for holding and using those documents.” The Minister’s delegate was right to point out that the applicant was not a bona fide refugee. Section 133 indicates that a person may not be charged with offences relating to fraudulent identification, “pending disposition of their claim for refugee protection or if refugee protection is conferred.” There is no pending refugee claim in the applicant’s case and refugee protection has not been conferred. As such, section 133 of the IRPA does not apply. In any event, section 133 of the IRPA only prevents charging an individual with an offence, it does not legalize the use of false identification. 25 Indeed, the applicant did violate Canadian law when he entered the country in 2006 by means of fraudulent identification. Indeed, this was evidence of continued criminal behaviour similar to the criminal behaviour in respect of which the applicant claims to be rehabilitated. As such, I can not find that the delegate’s determination that the applicant had not “sufficiently demonstrated evidence of having re-habilitated” falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law. The delegate’s decision was not unreasonable. 26 For the foregoing reasons, the application for judicial review will be dismissed.

Judgment THIS COURT’S JUDGMENT IS that the application for judicial review is dismissed. Application dismissed. 140 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Kargbo v. Canada (Minister of Citizenship & Immigration)] Rosaline Kargbo, Abdul Kargbo and Alimatu Kargbo, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3081-10 2011 FC 469 James Russell J. Heard: April 14, 2011 Judgment: April 15, 2011 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations –––– Sponsor and children were separated from one another by Sierra Leone civil war, which, inter alia, caused sponsor to suffer post-traumatic stress disorder — Sponsor reached Canada, was declared to be Convention refugee and ultimately was granted permanent residence in Canada — Sponsor ultimately discovered whereabouts of children and brought sponsored family-class application for their permanent residence in Canada, asking for consideration of humanitarian and compassionate grounds — Sponsor’s application was twice refused in error, first following visa officer’s 2009 misunderstanding of children’s qualifications as dependents of sponsor and then by 2010 misapplication of test concerning sponsor’s receipt of social assistance — Sponsor brought application for, inter alia, declaration that humanitarian and compassionate grounds were established in present case — Minister’s discretion was not properly usurped by court — However, it was proper to give directions to officer hearing application to effect that Minister’s counsel saw no “particular factors” weighing against positive decision and that present case “present[s] an extremely compelling case of unusual, undeserved and disproportionate hardship” — Matter was returned for reconsideration on expedited basis in accordance with those findings. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Special costs — Sponsor and children were separated from one another by Sierra Leone civil war, which, inter alia, caused sponsor to suffer post-traumatic stress disorder — Sponsor reached Canada, was declared to be Convention refugee and ultimately was granted permanent residence in Canada — Sponsor ultimately discovered Kargbo v. Canada (Minister of Citizenship & Immigration) 141 whereabouts of children and brought sponsored family-class application for their permanent residence in Canada, asking for consideration of humanitarian and compassionate grounds — Sponsor’s application was twice refused in error, first following visa officer’s 2009 misunderstanding of children’s qualifications as dependents of sponsor and then by 2010 misapplication of test concerning sponsor’s receipt of social assistance — Sponsor brought application for, inter alia, declaration that humanitarian and compassionate grounds were established in present case and for award of special costs — Special costs were properly awarded — “Special reasons” are required for award of costs, and mere errors even prolonging process are not sufficient — Present case, however, “from the beginning, cried out for compassion and prompt action” — Applicants were treated in insensitive manner and were subjected to “needless delays” both at visa post and by Minister in rectifying obvious mistakes — Time was of the essence, given sponsor’s fragile health, and in totality of circumstances, “special reasons were established” — Costs were fixed at $4,000. Cases considered by James Russell J.: Dass v. Canada (Minister of Employment & Immigration) (1996), 1996 Car- swellNat 2497, 32 Imm. L.R. (2d) 209, 193 N.R. 309, 107 F.T.R. 320 (note), [1996] 2 F.C. 410, 1996 CarswellNat 154, [1996] F.C.J. No. 194 (Fed. C.A.) — referred to Harkat v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CAF 179, 2008 CarswellNat 4238, 2008 CarswellNat 1489, 2008 FCA 179 (F.C.A.) — considered Iftikhar v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 49, 2006 CarswellNat 985, 2006 CF 49, 296 F.T.R. 62 (Eng.), 2006 CarswellNat 90 (F.C.) — referred to Johnson v. Canada (Minister of Citizenship & Immigration) (2005), 275 F.T.R. 316, 2005 CarswellNat 2838, 2005 FC 1262, 52 Imm. L.R. (3d) 76, 2005 CF 1262, 2005 CarswellNat 4848, [2005] F.C.J. No. 1523 (F.C.) — considered Legault v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 747, 212 D.L.R. (4th) 139, 288 N.R. 174, 20 Imm. L.R. (3d) 119, 223 F.T.R. 159 (note), [2002] 4 F.C. 358, 2002 CAF 125, 2002 CarswellNat 746, 2002 FCA 125, [2002] F.C.J. No. 457 (Fed. C.A.) — considered Malicia v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 755, 2006 CarswellNat 3208, 2006 CarswellNat 3743, 2006 CF 755 (F.C.) — considered Manivannan v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 5284, 2008 CarswellNat 4769, 2008 FC 1392, 77 Imm. L.R. (3d) 193, 338 F.T.R. 203 (Eng.), 2008 CF 1392, [2008] F.C.J. No. 1754 (F.C.) — considered 142 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Rafuse v. Canada (Pension Appeals Board) (2002), 2002 FCA 31, 286 N.R. 385, 2002 CarswellNat 190, 2002 C.E.B. & P.G.R. 8400 (note), 222 F.T.R. 160 (note), [2002] F.C.J. No. 91 (Fed. C.A.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — considered Tran v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 2223, 2007 FC 806, 63 Imm. L.R. (3d) 216, 2007 CarswellNat 3344, 2007 CF 806 (F.C.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1(1) [en. 1990, c. 8, s. 5] — considered s. 18.1(3) [en. 1990, c. 8, s. 5] — considered s. 18.1(3)(b) [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25 — considered s. 72(1) — pursuant to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — considered Tariffs considered: Federal Courts Rules, SOR/98-106 Tariff B, Table, column III — referred to

APPLICATION by sponsor and aliens for grant of permanent residence in Can- ada on humanitarian and compassionate grounds; APPLICATION by sponsor and aliens for special costs of application.

Jeremiah A. Eastman, for Applicants Ian Hicks, for Respondent

James Russell J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for an order directing the Respondent to find that the Applicants have established humanitarian and compassionate (H&C) grounds for the granting of their permanent Kargbo v. Canada (Minister of Citizenship & Immigration) James Russell J. 143

residence applications, to make a final determination on these applications within a set time, and for special costs.

Background 2 The Principal Applicant and her two children, the Applicant Daughter and the Applicant Son, are citizens of Sierra Leone. In 2000, the Princi- pal Applicant left her children and husband at home and travelled to Freetown to visit her sister. While there, she was kidnapped, brought to a village and forced by rebels to live as a captive “wife.” She escaped a year later and, in time, made her way to Canada. She was accepted as a Convention refugee and became a permanent resident of this country on 2 February 2006. 3 Her husband was killed during the civil war. She has not seen her children since she was captured in 2000, and she was unable to locate them during the civil war and its aftermath. She discovered their whereabouts after she was granted permanent resident status, at which time she submitted a sponsorship application and permanent residence applications to bring them to Canada. She ultimately requested that the applications be considered based on H&C grounds. 4 The application was twice refused in error. The first refusal was issued on 3 June 2009, following a misunderstanding by a visa officer that both the Applicant Daughter and Son had failed to respond to official “Fairness Letters” and that neither met the definition of a dependant. These errors having been discovered, the file was reopened in July 2009, only to be refused a second time on 1 March 2010. The second refusal was based on a misapprehension of the facts and the application of the wrong test in determining whether the Principal Applicant, as a sponsor, should be exempt from the regulatory requirement of not being in receipt of social assistance for a reason other than disability. 5 In light of these errors, in September 2010 the Respondent consented to a re-determination of the H&C application by a different officer. The re-determination has yet to be conducted because the parties cannot agree on the issues of costs, the time limit within which the Respondent must complete the re-determination, and directed verdict.

Issues 6 The parties raise the following issues: 144 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

i. Whether special reasons exist to warrant an award of costs and, if so, the amount of those costs; ii. When the Respondent must complete the re-determination; and iii. Whether a directed verdict is appropriate in these circumstances.

Statutory Provisions 7 The following provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), are applicable in these proceedings: Humanitarian and compassionate considerations — request of foreign national 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or 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. Payment of fees (1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid. Exceptions (1.2) The Minister may not examine the request if the foreign national has already made such a request and the request is pending. Non-application of certain factors (1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national. Provincial criteria (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. Kargbo v. Canada (Minister of Citizenship & Immigration) James Russell J. 145

Séjour pour motif d’ordre humanitaire a` la demande de l’étranger 25. (1) Le ministre doit, sur demande d’un etranger´ se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas a` la présente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives a` l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché. Paiement des frais (1.1) Le ministre n’est saisi de la demande que si les frais afférents ont et´´ e payés au préalable. Exceptions (1.2) Le ministre ne peut etudier´ la demande de l’étranger si celui-ci a déjà présenté une telle demande et celle-ci est toujours pendante. Non-application de certains facteurs (1.3) Le ministre, dans l’étude de la demande d’un etranger´ se trouvant au Canada, ne tient compte d’aucun des facteurs servant a` etablir´ la qualité de réfugié — au sens de la Convention — aux ter- mes de l’article 96 ou de personne a` protéger au titre du paragraphe 97(1); il tient compte, toutefois, des difficultés auxquelles l’étranger fait face. Critères provinciaux (2) Le statut de résident permanent ne peut toutefois etreˆ octroyé a` l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables. 8 The following provisions of the Federal Courts Act, R.S.C. 1985, c. F-7, are applicable in these proceedings: Application for judicial review 18.1 (1) An application for judicial review may be made by the At- torney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. [...] Powers of Federal Court (3) On an application for judicial review, the Federal Court may 146 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Demande de contrôle judiciaire 18.1 (1) Une demande de contrôle judiciaire peut etreˆ présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande. [...] Pouvoirs de la Cour fédérale (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut: a) ordonner a` l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.

Arguments The Applicants The Directed Verdict 9 The Applicants ask the Court to direct the Respondent, first, to find that they have sufficient H&C grounds with respect to their permanent residence applications and, second, to make a final determination on these applications within a set time of the Court’s order. In seeking a directed verdict, they are not asking this Court to approve their permanent residence applications; the visa office will still be able to request that the Applicants undergo medical examinations and police background checks before permanent residence status is granted. 10 The Applicants submit that the undisputed evidence of their forcible separation and brutal treatment demonstrates conclusively that an H&C exemption, pursuant to section 25 of the Act, is warranted with respect to Kargbo v. Canada (Minister of Citizenship & Immigration) James Russell J. 147

their permanent residence applications. See Tran v. Canada (Minister of Citizenship & Immigration), 2007 FC 806 (F.C.) at paragraphs 17-18. 11 Operational Guidelines IP5 state that the assessment of hardship is one way in which a visa officer can determine whether there are sufficient H&C grounds to justify granting the exemption requested by the applicant. Assuming that the exemption were not granted, the officer must inquire whether the applicant would suffer unusual and undeserved hardship, i.e., hardship not anticipated by the Act or Regulations or hardship resulting from circumstances beyond the applicant’s control, or disproportionate hardship, i.e., hardship that would have an unreasonable impact on the applicant due to his or her personal circumstances. 12 The Applicants submit that they would suffer both unusual and undeserved hardship and disproportionate hardship if the permanent residence applications are not granted on H&C grounds. First, they would be separated indefinitely because the Principal Applicant cannot sponsor the Ap- plicant Daughter and Son — they are now too old, and the Principal Ap- plicant receives social assistance because she can no longer work. Second, the Act does not anticipate the separation of a mother from her children due to civil war and through no fault of their own. Third, the hardship would have a disproportionate effect on the Principal Applicant, who suffers from anxiety, depression and Post Traumatic Stress Disorder. 13 The Applicants ask the Court to find that they have established H&C grounds and that their permanent residence visa be issued within a set time-frame.

There Are “Special Reasons” Justifying an Award of Costs 14 The Applicants rely on Manivannan v. Canada (Minister of Citizenship & Immigration), 2008 FC 1392 (F.C.) at paragraphs 59-60, wherein I observed: I do not see evidence of bad faith in this case, but there has been unreasonable delay at the visa post in Colombo. The file has been allowed to drag on for reasons that have not been adequately explained and it has required litigation before the visa post has finally provided the husband’s visa.... As Justice Harrington pointed out in Singh [v Canada (Minister of Citizenship and Immigration), 2005 FC 544] (paragraph 24) this “Court has considered undue delay in processing a claim to be a special reason which would justify costs.” In the present case I believe 148 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

the record shows that there has been undue and unreasonable delay on the part of the visa post in Colombo in a situation that gave rise to significant humanitarian considerations and which has thwarted the family reunification principles that are an essential part of our immigration legislation. 15 The Applicants submit that, as in Manivannan, the delay in their case has been unreasonable and has thwarted the family reunification objectives of the Act. Two years of this delay are due in large part to a concern, raised at the visa post in February 2008, that the Applicant Daugh- ter and Son were not as young as they claimed to be. This remained an issue until January 2010 when, after repeatedly asking them for additional documents proving their age, the visa post resolved its concerns based on a document that was in its possession from the first day it began processing the applications for permanent residence. The Applicants con- tend that the Respondent’s processing of the applications has been marked by intransigence and careless disregard, and that this constitutes special reasons for an award of costs.

The Respondent Directed Verdict Is Not Appropriate 16 The Respondent acknowledges that, pursuant to paragraph 18.1(3)(b) of the Federal Courts Act, the Court may refer a matter back for re-determination with such directions as it considers appropriate. However, the jurisprudence is clear that a directed verdict “is an exceptional power that should be exercised only in the clearest of circumstances.” See Rafuse v. Canada (Pension Appeals Board), 2002 FCA 31 (Fed. C.A.) at paragraph 14. The Respondent relies on my decision in Malicia v. Canada (Minister of Citizenship & Immigration), 2006 FC 755 (F.C.) at paragraph 20, where I said: It is the Court’s view that, when the matter is returned for reconsideration, the Officer responsible is required to re-examine all aspects of the Decision, and the Court should not interfere with this process by isolating one aspect and placing it outside the scope of reconsideration. The Court should not issue a direction that has the effect of making a decision that is for the decision-maker to make and, while the Court may guide the decision-making process, it cannot make the actual decision. 17 The Respondent also notes that the Federal Court of Appeal also has stated that it is not appropriate for the Court to go through the file and Kargbo v. Canada (Minister of Citizenship & Immigration) James Russell J. 149

determine that all the requirements for landing have been met. See Dass v. Canada (Minister of Employment & Immigration), [1996] 2 F.C. 410, [1996] F.C.J. No. 194 (Fed. C.A.) at paragraph 23. The Supreme Court of Canada also has observed that, in H&C matters, “[i]t is the Minister who [i]s obliged to give proper weight to the relevant factors and none other.” See Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 (S.C.C.) at paragraph 37. Moreover, even if the Applicant establishes H&C grounds, the “Minister may allow the exception, but he may choose not to allow it ... when he is of the view that public interest reasons supersede humanitarian and compassionate ones.” See Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125 (Fed. C.A.) at paragraph 17. The Respondent submits that, given the discretionary nature of H&C applications and the exceptional nature of the Court’s power to issue a directed verdict, the Court should allow the Re- spondent to reconsider the applications, which it has agreed to do within seven days of the Court’s order granting the application for judicial review.

There Are No “Special Reasons” to Warrant an Award of Costs 18 The Applicants seek costs in the amount of $8000. The Respondent relies on Rule 22 of the Federal Court Immigration and Refugee Protec- tion Rules in submitting that there are no “special reasons” to warrant an award of costs. The policy behind the “no costs” rule is to ensure that costs are not a deterrent factor for those engaged in immigration litigation. The fact that an immigration officer may have been wrong is not enough to overturn the “no costs” regime. See Iftikhar v. Canada (Minister of Citizenship & Immigration), 2006 FC 49 (F.C.) at paragraphs 13 and 17. 19 Special reasons may exist if one party has engaged in conduct which is unfair, oppressive, improper or marked by bad faith or has unnecessarily or unreasonably prolonged proceedings. See Johnson v. Canada (Minister of Citizenship & Immigration), 2005 FC 1262 (F.C.) at paragraphs 26-27. However, the Respondent has not engaged in such conduct. On the contrary, it did not oppose leave and, by letter dated 28 September 2010, it offered to consent to the Applicants’ application for leave; and it agreed to have the matter re-determined by a different officer. 20 The Applicants have already been awarded costs in the amount of $2000 for having to respond to the Respondent’s unsuccessful motion for 150 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

an extension of time. Consequently, it is respectfully submitted that there are no special reasons in this case to justify an award of costs. 21 In the event that the Court does find special reasons to issue an award of costs, the Respondent submits that the amount should be assessed in accordance with Column III of Tariff B of the Federal Courts Rules. The Applicants are seeking $8000 in costs, which approximate costs on a solicitor and client basis. Such costs are unwarranted in this matter as there is clearly no evidence of “reprehensible, scandalous or outrageous conduct” on the part of the Respondent. See Harkat v. Canada (Minister of Citizenship & Immigration), 2008 FCA 179 (F.C.A.) at paragraph 13.

Analysis 22 Both sides agreed that the Decision should be sent back for re-determination by a different officer. This leaves the Court to deal with the outstanding issues of directed verdict, time-limits for completion of the re-determination and finalization of the permanent residence application, and costs.

Directed Verdict 23 The situation of the Applicants invites great sympathy. Through no fault of their own, they have undergone years of trauma that has been exacerbated by mistakes by the Respondent that have delayed a decision that could finally allow them to be re-united. 24 While it agrees that everything must be done to ensure that a decision is made soon, the Court must also be mindful of jurisprudence on directed verdicts. As the Respondent points out, the case law is replete with warnings that the Court cannot intervene and exercise a discretion that Parliament has said must remain with the Minister, except in truly exceptional circumstances. 25 In the present case, the Applicants are not asking the Court to isolate any particular factor. The Applicants simply want the Court to direct that they have established humanitarian and compassionate grounds in their application for permanent residence. Section 18.1(3)(b) of the Federal Courts Act authorizes the Court to refer a decision back for reconsideration “with such directions as it considers to be appropriate.” 26 While the Court is aware that it should not usurp the Minister’s discretion, my reading of this file, together with submissions from counsel, leads me to the following conclusions: Kargbo v. Canada (Minister of Citizenship & Immigration) James Russell J. 151

a. The facts of this case present an extremely compelling case of unusual, undeserved and disproportionate hardship; b. I can find nothing in the file that should prevent a positive decision for the Applicants on H&C grounds; c. When questioned in open Court whether there were any particular factors that might be weighed against a positive decision, the Min- ister conceded that it had put no such factors forward and could not see anything that would prevent a positive decision. 27 In my view, and without usurping the Minister’s discretion, I think that this decision should be returned for re-consideration with the direction that the officer re-considering the matter will take into account the Court’s view of the merits of the Applicants H&C grounds as well as the Respondent’s concession that there would appear to be nothing on the file to weigh against a positive H&C decision.

Costs-Special Reasons 28 The Applicants seek costs in the amount of $8000. The Applicants do not have the funds to finance this litigation and their counsel is acting on a pro bono basis. Once again, the situation commands great sympathy. After all, the escalation in costs has been caused to a considerable extent by mistakes made by the Respondent.

Rule 22 of the Federal Courts Immigration and Protection Rules 29 The rule in immigration matters, however, is that costs should not be awarded unless the Court finds “special reasons.” 30 While it is true that these proceedings (and I include here the earlier decisions and the attempts to rectify careless mistakes) have been prolonged by mistakes made by the decision-makers, this does not in itself amount to special reasons. 31 The jurisprudence of this Court clearly establishes that being wrong is not enough to warrant costs. 32 This Court has consistently held that “special reasons” may exist if one party has engaged in conduct which is unfair, oppressive, improper or actuated by bad faith or has unnecessarily or unreasonably prolonged proceedings. As Justice Dawson made clear in Johnson v. Canada 152 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(Minister of Citizenship & Immigration), 2005 FC 1262 (F.C.) at paragraphs 26 and 27: 26 Both parties acknowledge that pursuant to Rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232, special reasons must exist for the Court to award costs on application for judicial review. Special reasons may be found if one party has unnecessarily or unreasonably prolonged proceedings, or where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith. 27 The fact that a tribunal has made a mistake does not by itself constitute a special reason for costs. While I find the decision of the RPD to have been perverse, that fact is insufficient to warrant granting costs to Mr. Johnson. In the present case, the Minister did not oppose the application for leave, consented to an extension of time Mr. John- son required, and offered to consent to the decision being set aside on a timely basis after the tribunal record was delivered. In these circumstances, I find that Mr. Johnson has failed to establish the existence of special reasons that would justify an award of costs. 33 Looking at these factors, although it might be argued that the Respon- dent has unnecessarily or unreasonably prolonged recent proceedings to some extent, I think the Applicants have already been granted a costs award that covers that aspect of the problem. But the alternative ground — “where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith” — also needs to be considered. 34 Mistakes have been made in two decisions that, in my view, were perverse but, as Justice Dawson points out, this is not sufficient. This is a case that, from the beginning, cried out for compassion and prompt action. The Applicants have faced trauma that simply cannot be compre- hended by most people. In this context I do believe that, given their backgrounds and vulnerabilities, the Applicants have been treated in a way that has been insensitive, and they have been subjected to needless delays at the visa post in the processing of their applications and needless resistance from the Minister in rectifying obvious mistakes and bringing this matter to a point where a final decision can be made. The processing of their application has taken twice as long as could have been expected, and through no fault of the Applicants. Their application has been refused twice because of careless mistakes and notwithstanding considerable efforts by Applicants’ counsel to expedite the process. All of this has cost the Applicants time and money in a context where time is of the Kargbo v. Canada (Minister of Citizenship & Immigration) James Russell J. 153

essence because of the fragile state of Ms. Rosaline Kargbo and where funds are not available to finance a drawn-out process and careless mistakes. 35 Notwithstanding obvious careless mistakes at the visa post, the Min- ister has continued to resist until, apparently, the arrival of Mr. Hicks as counsel for the Minister and a change of attitude in the face of the compelling H&C factors and an acknowledgment of past mistakes. At the very least, I think I would have to describe the Minister’s approach to this matter until the more recent change of attitude as careless, unfair and oppressive, particularly when the situation of the Applicants cried out for a prompt resolution. On the other side, since the Minister has finally taken stock of the situation and acknowledged past mistakes and injus- tices and there has been some cooperation. Leave was not opposed and the Minister has made suggestions for the timely resolution of the problems. Consequently, I feel that some recognition of past unfairness and oppression is required in the way of costs but that the full amount claimed is too much. I think an appropriate figure would be $4000.

Time-Lines 36 At the hearing of this matter in Toronto, counsel were able to agree on an approach to setting time limits. 37 There was already agreement that the re-consideration decision would be completed within seven days of the date of the Court’s judgment in this review application. All that was needed was a time-limit for the finalization of the permanent residence application. 38 The Minister has indicated that finalization of the permanent residence application can occur within 30 days of receipt by the Minister of a copy of form IMM-1017 which, apparently, will be available when the children have completed their medical examinations with the local Des- ignated Medical Practitioner (DMP). Applicants counsel has agreed to this approach.

Certification 39 Both parties agree there is no question for certification and the court concurrence.

Judgment THIS COURT’S JUDGMENT is that: 154 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

1. The application is allowed. The decision is quashed and the matter will be returned for re-determination by a different officer taking into account the following: a. The re-determination will be made and the Applicants will be notified of the results within seven days of the date of this judgment; b. In making the re-determination, the Officer will bear in mind that the decision is the Minister’s to make but that, after reviewing the file and hearing counsel at the review hearing, it is the view of this Court that, as the file now stands: i. The facts present an extremely compelling case of unusual, undeserved and disproportionate hardship; ii. The Court can see nothing on the file that should prevent a positive decision for the Applicants on H&C grounds; and iii. When questioned in open Court as to whether there were any known factors that might prevent a positive decision for the Applicants, the Minister conceded in a forthright way that there were no factors before the Court that might prevent a positive decision and that, as matters stood, the Minister could not see anything that would stand in the wake of a positive decision. 2. If the re-determination is positive, the Minister will priorize the application for permanent residence on an urgent basis and will employ best efforts to finalize the application as soon as possible and, in any event, will render a final decision and notify the Appli- cants within 30 days of receipt by the Minister of a copy of Form IMM-1017 from the Applicants. 3. The Minister will pay the Applicants special costs in the amount of $4000. 4. There is no question for certification. Order accordingly. Evans v. Canada (MCI) 155

[Indexed as: Evans v. Canada (Minister of Citizenship & Immigration)] Alison Michele Evans, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4432-10 2011 FC 444 Richard G. Mosley J. Heard: March 3, 2011 Judgment: April 11, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — What constituting persecution — Gender-based claims –––– Application of Gender Guidelines — Claim- ant, citizen of Guyana and Antigua, arrived in Canada and brought Convention refugee claim alleging long-term domestic and sexual abuse — Claimant had not reported abuse to authorities in country of origin, and made certain statements which Refugee Protection Division held were not credible — Application was dismissed on credibility finding — Claimant brought application for judicial review — Application granted and matter remitted for re-hearing — Standard of review was reasonableness, but given nature of evidence before Refugee Protec- tion Division that standard required application of Gender Guidelines — Ad- verse credibility finding against claimant was reasonable, given significant discrepancies in her evidence — Refugee Protection Division failed in present case to properly consider application of Gender Guidelines, as “a consideration of the religious and cultural norms of the Christian Guyanese community is important for properly assessing the applicant’s evidence. In both her PIF as well as in oral testimony, the applicant explained that she did not disclose the fact that she was raped because she was embarrassed and ashamed, and because she felt her community would not accept her, in large part for religious reasons” — Failure to properly consider application of Gender Guidelines in circumstances rendered decision unreasonable and matter was appropriately re-determined by new panel. Cases considered by Richard G. Mosley J.: Aguirre v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1367, 2008 FC 571, [2008] F.C.J. No. 732 (F.C.) — followed 156 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Amarapala v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 12, 2004 CarswellNat 28, 2004 CarswellNat 606, 2004 CF 12, [2004] F.C.J. No. 62 (F.C.) — considered Basseghi v. Canada (Minister of Citizenship & Immigration) (1994), 1994 Car- swellNat 2175, [1994] F.C.J. No. 1867 (Fed. T.D.) — considered Diallo v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1450, 2004 CarswellNat 3749, 259 F.T.R. 273 (Eng.), [2004] F.C.J. No. 1756 (F.C.) — considered Henry v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 2755, 2006 FC 1060, 2006 CarswellNat 5600, 2006 CF 1060 (F.C.) — considered Hernandez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 106, 2009 CarswellNat 544, 2009 CarswellNat 236, 2009 FC 106, [2009] F.C.J. No. 109 (F.C.) — considered Higbogun v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2737, 367 F.T.R. 114 (Eng.), 2010 CarswellNat 1107, 2010 FC 445, 2010 CF 445 (F.C.) — considered Jones v. Canada (Minister of Citizenship & Immigration) (2006), 54 Imm. L.R. (3d) 128, 2006 CarswellNat 1017, 2006 FC 405, 2006 CarswellNat 3800, 2006 CF 405, [2006] F.C.J. No. 591 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Myle v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 871, 2006 CarswellNat 2132, 2006 CF 871, 2006 CarswellNat 4885, 296 F.T.R. 307 (Eng.), [2006] F.C.J. No. 1127 (F.C.) — followed Naqui v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 282, 2005 CarswellNat 551, 2005 CarswellNat 4252, 2005 CF 282, 270 F.T.R. 177 (Eng.), [2005] F.C.J. No. 342 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Sun v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1255, 2008 CarswellNat 4116, 2008 CarswellNat 5274, 2008 CF 1255, [2008] F.C.J. No. 1570 (F.C.) — considered Evans v. Canada (MCI) Richard G. Mosley J. 157

Yoon v. Canada (Minister of Citizenship & Immigration) (2010), 94 Imm. L.R. (3d) 47, 2010 CF 1017, 2010 FC 1017, 2010 CarswellNat 4728, 2010 Car- swellNat 4729 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72 — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered

APPLICATION by claimant for judicial review of decision of Refugee Protec- tion Division dismissing claim to Convention refugee status.

Kumar Sriskanda, for Applicant Rafeena Rashid, for Respondent

Richard G. Mosley J.:

1 This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made on June 16, 2010 by the Refugee Protection Division of the Immigration and Refugee Board, wherein it was determined that the applicant is not a Convention refugee or a person in need of protection, pursuant to sections 96 and 97 of the IRPA. For the reasons that follow, this application is allowed.

Background: 2 The applicant, a citizen of Guyana and Antigua, came to Canada on February 7, 2008 and filed for refugee status on February 14, 2008. She is 32 years old. Her claim for protection was based on domestic abuse at the hands of her ex-husband. Since the age of 16, the applicant reports having been physically, sexually and emotionally abused.

Decision Under Review: 3 The Board found, on a balance of probabilities, that the applicant engaged in an “elaborate scheme of fabrication based on exaggerations and embellishments to bolster her claim for refugee status”. In reaching this finding, the Board noted that the applicant’s oral evidence regarding her reason for divorce was inconsistent with her divorce decree; that she did not submit a police report to support her claim; that she did not indicate 158 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

in her personal information form (“PIF”) that her ex-husband was arrested; and that the letter submitted from the applicant’s friend used to support her claim was not corroborative evidence. The Board also rejected the applicant’s testimony that she was forced to stay with her husband for financial support and found that she embellished the claim that her ex-husband did not allow her to have friends over or sit outside.

Issues: 4 The issues are as follows: a. Did the Board take into account the Gender Guidelines where required to do so? b. Did the Board err by making adverse findings of credibility in a perverse and capricious manner? c. As a whole, was the Board’s decision reasonable?

Relevant Statutory Provisons 5 Section 96 of the Act outlines the definition of a Convention refugee: 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Evans v. Canada (MCI) Richard G. Mosley J. 159

6 Section 97 of the Act describes what is meant by “person in need of protection”: 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Con- vention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Convention contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas 160 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhér- ents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médi- caux ou de santé adéquats. (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

Analysis Standard of Review 7 The reasonableness standard applies to credibility findings made by the Board: Aguirre v. Canada (Minister of Citizenship & Immigration), 2008 FC 571 (F.C.). Because deference is owed to the trier of fact, the Court must not intervene unless the Board’s determination does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para. 47; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, 304 D.L.R. (4th) 1 (S.C.C.) at paras. 52-62. 8 In cases where a refugee claimant has alleged various forms of physical, sexual and psychological abuse, this Court must review the Board’s decision with an eye to the Guidelines issued by the Chairperson Pursu- ant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution (“Gender Guidelines”). In such instances the Gender Guidelines “become subsumed in the standard of review of reasonableness as applied to credibility findings”: Hernandez v. Canada (Minister of Citizenship & Immigration), 2009 FC 106 (F.C.) at para. 13; Higbogun v. Canada (Minister of Citizenship & Immigration), 2010 FC 445 (F.C.) at para. 22. Evans v. Canada (MCI) Richard G. Mosley J. 161

(i) Did the Board take into account the Gender Guidelines where required to do so? 9 The Gender Guidelines acknowledge the difficulty for women in re- laying certain traumas to their community or to their state. Sexual abuse is one of those traumas. At C.2 of the Gender Guidelines it says: When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision- maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related persecution in the form of rape, she may be ostracized from her community for seeking protection from the state. Decision-makers should consider this type of information when determining if the claimant should reasonably have sought state protection. 10 The Gender Guidelines also assist in ensuring that social, religious and cultural norms are recognized and do not interfere with a correct assessment of credibility: Diallo v. Canada (Minister of Citizenship & Im- migration), 2004 FC 1450 (F.C.) at para. 33. 11 Here, a consideration of the religious and cultural norms of the Chris- tian Guyanese community is important for properly assessing the applicant’s evidence. In both her PIF as well as in oral testimony, the applicant explained that she did not disclose the fact that she was raped because she was embarrassed and ashamed, and because she felt her community would not accept her, in large part for religious reasons: MEMBER: Now, your husband, according to your PIF, from when you were 16 he has been taking advantage of you. Just tell me in your own words why didn’t you go to the police. CLAIMANT: Cause I’m a Christian, sir, and in my family it’s all about — the way my Mom always stressed that the way we’ve been brought up. So it’s like a shame on my family. And I’m scared that nothing is going to happen but then my character is going to be damaged, because this is what like people in the village like they degrade you and things happen instead of help you; they try to think it’s well, you wanted it or it’s your fault. So I never said anything to my parents or to nobody because I was embarrassed. 12 More than not being able to tell anyone, the applicant felt as though she could not seek support from anyone in her community. In fact, her family encouraged her to live with Mr. Evans because he was the father of her child. She was 16 at the time. He provided food, shelter and finan- 162 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

cial resources to the applicant, until she fled. This was part of the reason why she commenced a relationship with Mr. Evans, despite the rape: MEMBER: Now let’s fast forward to a point where when did he first — apart from the first time when he raped you — okay, because you just testified that he became your boyfriend. CLAIMANT: Well, I have the baby for him. So it’s my baby Daddy. So I don’t have anywhere to go. I don’t have nobody to help me support the baby. So he told me he’s going to pay for the room of his friend and he comes sometimes. [...]. 13 Despite this testimony, the Board came to the conclusion that the applicant was not financially dependent on Mr. Evans and rejected the applicant’s claim that she left him but had to return to him due to a lack of financial means. The Board based this finding on the fact that the applicant worked from January 2006 to June 2007 and so “had some assistance”, at least for a period of time. Although the applicant may have enjoyed a certain level of financial autonomy during the year and half in which she worked, it does not follow that she was not dependent on her ex-husband throughout the duration of their 12-year relationship. The Board failed to consider that the applicant was a vulnerable minor when she began relying on Mr. Evans for financial support and that she appeared to have done so because she could not rely upon her family, due to their disapproval of pre-marital sex and pregnancy. In this way, the Gender Guidelines were not applied by the Board to ensure adequate consideration of social, religious and cultural norms. 14 The Board also placed little probative value on a personal letter from a friend of the applicant, Ms. Greene. This document gave some weight to the applicant’s claim. Although a personal letter may have little value and may, in many cases, be self-serving, in situations involving alleged domestic abuse, the Gender Guidelines instruct that “where the claimant cannot rely on the more standard or typical forms of evidence as “clear and convincing proof” of failure of state protection, reference may need to be made to alternative forms of evidence to meet the “clear and convincing” test.” The applicant testified that she could not go to the police due to the treatment she would receive from her community and so the letter should have been considered in light of this evidence. In failing to do so, the Board also failed to properly apply the Gender Guidelines. 15 So, while the Board did state that the Gender Guidelines were considered, the analysis given in this decision with respect to the applicant’s financial dependence and the personal letter suggests they were not ap- Evans v. Canada (MCI) Richard G. Mosley J. 163

plied in a meaningful way. This Court has held that it is not sufficient for a Board to simply say that the Gender Guidelines were applied and then fail to demonstrate how they were applied: Yoon v. Canada (Minister of Citizenship & Immigration), 2010 FC 1017 (F.C.) at para. 5; Myle v. Canada (Minister of Citizenship & Immigration), 2006 FC 871 (F.C.).

(ii) Did the Board err by making adverse findings of credibility in a perverse and capricious manner? 16 When assessing refugee claims where the alleged ground of persecution is domestic abuse and where claimants come from abusive and controlling relationships, the Board must be mindful of the applicant’s background when making credibility findings. See: Henry v. Canada (Minister of Citizenship & Immigration), 2006 FC 1060 (F.C.). 17 At paragraph 18 of its decision, the Board made the following implausibility finding, impugning the applicant’s credibility: The panel also looked at the claimant’s testimony that she was not allowed to have friends and even sit outside of the house because that meant to her husband that she was looking for other men to be exaggerations and embellishments. For example, this is the same man who would force her to have sex with other men while he watches. As such the panel finds that the claimant’s husband was hardly the kind of person to confine the claimant because of jealousy. 18 This reasoning fails to appreciate the psychological dimensions of abuse and the many forms in which abuse manifests in an abuser. It wrongly assumes that someone who is jealous or controlling would not subject another to demeaning sexual acts. Forcing the applicant to per- form sex acts with his friends and business associates was another way for Mr. Evans to assert control of her. Jealousy and controlling behaviour can coexist. Both are rooted in control and a lack of regard for the individual and her body. The logic of the Board on this issue demonstrates both an insensitivity to the applicant’s situation and a lack of awareness to the broader issue of domestic abuse and sexual assault. As such, this finding of credibility was made in a perverse and capricious manner.

(iii) As a whole, was the Board’s decision reasonable? 19 Not all of the Board’s findings were unreasonable. The applicant gave evidence that she was severely assaulted by her ex-husband, passed out and was taken to the police by her neighbour where she had to file a police report in order to obtain the stitches she needed from the hospital. 164 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

However, the applicant did not produce a police report or a medical report, even when given extra time by the Board to do so. The Board was thus justified in drawing an adverse credibility finding. Failure to provide corroborating documentation can be considered if the Board does not accept an applicant’s explanation for failing to produce certain evidence: Amarapala v. Canada (Minister of Citizenship & Immigration), 2004 FC 12 (F.C.) at paras. 9-12. 20 The applicant also testified that Mr. Evans was eventually arrested and kept in jail for two days. In her PIF, she omitted such information. Although not every omission from a PIF will have a negative impact on an applicant’s credibility (Jones v. Canada (Minister of Citizenship & Immigration), 2006 FC 405, 54 Imm. L.R. (3d) 128 (F.C.) at para. 22; Naqui v. Canada (Minister of Citizenship & Immigration), 2005 FC 282 (F.C.) at para. 23), in this instance, the arrest was an important piece of information which the applicant ought to have included. It was therefore open to the Board to make a negative credibility finding based on the inconsistency between the applicant’s PIF and her oral testimony: Sun v. Canada (Minister of Citizenship & Immigration), 2008 FC 1255 (F.C.) at para. 5; Basseghi v. Canada (Minister of Citizenship & Immigration), [1994] F.C.J. No. 1867 (Fed. T.D.)at para. 33. 21 Finally, the Board’s negative credibility finding regarding the divorce decree cannot be held to be unreasonable. At the hearing, the applicant testified that the reason for her divorce was abuse while the decree produced in evidence stated that it was for malicious desertion. When asked about this contradiction, the applicant said that her ex-husband had other girlfriends and children on the side. It is therefore reasonable that the Board made an implausibility finding regarding what was said by the applicant in her testimony and what was written in an official document. 22 Despite these conclusions, on balance, the errors made with respect to applying the Gender Guidelines and the flawed reasoning regarding the abuse alleged by the applicant, require that this decision be quashed and remitted to a differently constituted panel for redetermination. 23 No serious questions of general importance were proposed for certification.

Judgment IT IS THE JUDGMENT OF THIS COURT that the application is granted, the decision of the Refugee Protection Division dated June 16, Evans v. Canada (MCI) Richard G. Mosley J. 165

2010 is set aside and the matter is remitted to a differently constituted panel for redetermination. No questions are certified. Application granted. 166 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

[Indexed as: Garcia Vasquez v. Canada (Minister of Citizenship & Immigration)] Fredis Angel Garcia Vasquez, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4341-10 2011 FC 477 Andr´e F. Scott J. Heard: March 9, 2011 Judgment: April 19, 2011 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Membership in particular social group –––– Applicant FGV was citizen of El Salvador, born in 1980 — Around 2000 some of FGV’s classmates joined gang and FGV refused to join — In order to avoid gang, FGV joined armed forces of El Salvador under contract for 18 months and worked as civilian security guard when contract ended — Gang continued to try and recruit FGV — FGV rejoined armed forces in October 2004 after government enacted law to fight gangs — In November 2004 FGV was approached by gang members while on leave and physically assaulted in retaliation for putting gang members in jail — FGV resigned and went to San Salvador where he was again threatened — FGV made way through Guatemala, Mexico and United States — FGV arrived in Canada and made application for refugee protection in September 2008 and Immigration and Refugee Board (Board) refused application, as FGV did not belong to particular social group under s. 96 of Immigration and Refugee Protection Act (Act) and faced only generalized risk as person in subgroup of young men recruited to become gang members — FGV brought application for judicial review of Board’s decision — Application granted — Board did not err in finding FGV was not member of particular social group relevant to s. 96, as his time with military of brief and contractual in nature — However, FGV’s participation in anti-gang operation affected and significantly altered risk so as to make it personalized risk not faced by other young men in armed forces or population at large. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Risk to life –––– Applicant FGV was citizen of El Sal- vador, born in 1980 — Around 2000 some of FGV’s classmates joined gang and FGV refused to join — In order to avoid gang, FGV joined armed forces of El Salvador under contract for 18 months and worked as civilian security guard Garcia Vasquez v. Canada (MCI) 167 when contract ended — Gang continued to try and recruit FGV — FGV rejoined armed forces in October 2004 after government enacted law to fight gangs — In November 2004 FGV was approached by gang members while on leave and physically assaulted in retaliation for putting gang members in jail — FGV resigned and went to San Salvador where he was again threatened — FGV made way through Guatemala, Mexico and United States — FGV arrived in Canada and made application for refugee protection in September 2008 and Immigration and Refugee Board (Board) refused application, as FGV did not belong to particular social group under s. 96 of Immigration and Refugee Protection Act (Act) and faced only generalized risk as person in subgroup of young men recruited to become gang members — FGV brought application for judicial review of Board’s decision — Application granted — Board did not err in finding FGV was not member of particular social group relevant to s. 96, as his time with military of brief and contractual in nature — However, FGV’s participation in anti-gang operation affected and significantly altered risk so as to make it personalized risk not faced by other young men in armed forces or population at large. Cases considered by Andr´e F. Scott J.: Armson v. Canada (Minister of Employment & Immigration) (1989), 101 N.R. 372, 9 Imm. L.R. (2d) 150, 1989 CarswellNat 91, [1989] F.C.J. No. 800 (Fed. C.A.) — referred to Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Chekhovskiy v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 970, 2009 CarswellNat 2938 (F.C.) — considered Gabriel v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3823, 2009 FC 1170, 2009 CarswellNat 5434, 2009 CF 1170, [2009] F.C.J. No. 1545 (F.C.) — referred to Garcia v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3723, 2005 CF 807, 2005 FC 807, 2005 CarswellNat 1567, [2005] F.C.J. No. 1008 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Lai v. Canada (Minister of Citizenship & Immigration) (2005), 253 D.L.R. (4th) 606, 332 N.R. 344, 2005 CarswellNat 886, 2005 FCA 125, [2005] F.C.J. No. 584 (F.C.A.) — referred to 168 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

Martinez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3282, 2010 CF 502, 2010 FC 502, 2010 CarswellNat 1296 (F.C.) — considered Matter of Acosta (March 1, 1985), Doc. A-24159781 (U.S. Bd. of Imm. App.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Padilla v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 1, 160 N.R. 156, 1991 CarswellNat 23, [1991] F.C.J. No. 71 (Fed. C.A.) — referred to Perez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 345, 2010 CarswellNat 2141, 2010 CarswellNat 1289, 2010 FC 345, [2010] F.C.J. No. 579 (F.C.) — considered Prophète v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 331, 2008 CarswellNat 625, 70 Imm. L.R. (3d) 128, 2008 CarswellNat 5092, 2008 CF 331, [2008] F.C.J. No. 415 (F.C.) — distinguished Prophète v. Canada (Minister of Citizenship & Immigration) (2009), 78 Imm. L.R. (3d) 163, 387 N.R. 149, 2009 FCA 31, 2009 CarswellNat 282, 2009 CarswellNat 1393, 2009 CAF 31, [2009] F.C.J. No. 143, [2009] A.C.F. No. 143 (F.C.A.) — distinguished Provost v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 5531, 2009 CF 1310, 360 F.T.R. 287 (Eng.), 2009 CarswellNat 4567, 2009 FC 1310, 87 Imm. L.R. (3d) 227, [2009] F.C.J. No. 1683 (F.C.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — followed Xie v. Canada (Minister of Citizenship & Immigration) (2004), [2005] 1 F.C.R. 304, 2004 FCA 250, 2004 CarswellNat 2036, 37 Imm. L.R. (3d) 163, 2004 CarswellNat 3972, 243 D.L.R. (4th) 385, 2004 CAF 250, 325 N.R. 255, [2004] F.C.J. No. 1142 (F.C.A.) — referred to Garcia Vasquez v. Canada (MCI) André F. Scott J. 169

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 97(1)(b)(ii) — considered

APPLICATION for judicial review of Immigration and Refugee Board’s decision refusing application for refugee protection.

Joel Etienne, for Applicant Jelena Urosevic, for Respondent

Andr´e F. Scott J.:

1 This is an application for judicial review of the decision of the Immi- gration and Refugee Board, Refugee Protection Division (the “Board”), pursuant to s 72 (1) of the Immigration and Refugee Protection Act, S.C. 2001 c 27 (the Act) by Fredis Angel Garcia Vasquez (“applicant”). The Board found that the applicant was neither a Convention refugee nor a person in need of protection under ss 96 and 97 of the Act.

I. Facts 2 The applicant is a citizen of El Salvador, born on July 14, 1980. Around the year 2000, some of his classmates joined the Mara Salva- trucha (MS 13) gang. The applicant refused to join. 3 On March 4, 2000, in order to avoid the MS 13, the applicant joined the armed forces of El Salvador under contract, for a period of 18 months, in the Third Brigade, in the province of San Miguel. When his contract ended, he left the armed forces and worked as a civilian security guard for the Serconce Company. The MS 13 continued in their attempts to recruit him. 4 In October 2004, the El Salvadorian government enacted an “An- timaras” law, under which the civil national police force joined with the military in a joint task force to fight both the MS 13 and MS 18 gangs. The applicant rejoined the armed forces as part of the Sixth Brigade of Infantry in the Department of Usutlan under a one-year contract as part of this initiative. He received special training and was tasked with confis- cating firearms and capturing gang members. 170 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

5 In November 2004, while on leave, the applicant was approached by three well known gang members: El Buda, La Pantera, and El Singo. The applicant was physically assaulted, and would have been killed if by- standers had not intervened. He stated that the gang members told him that the attack was in retaliation for his part in putting other gang members in jail. 6 In 2005, the applicant resigned and went to San Salvador. There, he was again recognized by gang members, who told him they had been ordered to kill him. The applicant left El Salvador on January 13, 2006, and made his way through Guatemala and Mexico to the United States, where he stayed illegally for two and a half years. When an order of deportation was issued against him, he came to Canada on September 12, 2008, and requested refugee protection on September 15, 2008. 7 The applicant’s hearing before the Board was held on May 13, 2010. The decision was dated June 4, 2010, and received by the applicant on July 13, 2010.

II. The decision under review 8 The applicant’s identity and credibility were not put into question. 9 With respect to s 96, the Board firstly noted that the Federal Court has held that victims of crime, corruption or vendettas generally fail to establish a link between their fear of persecution and a Convention ground. The Board noted the applicant’s counsel’s argument at the hearing that the nexus arose from the applicant’s membership in the armed forces, more particularly members of the Anti-Gang Task Force, who were responsible for working with police to arrest members of MS 13 and MS 18. The Board quoted from Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.) at page 739, where Justice La Forest identified three possible categories of social group: 70 “The meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the de- fense of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories: (1) groups defined by an innate or unchangeable characteristics; Garcia Vasquez v. Canada (MCI) Andr´e F. Scott J. 171

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the antidiscrimination influences, in that one’s past is an immutable part of the person.” 10 The Board noted that the applicant joined the armed forces in order to escape the influence of MS 13, but found that because he joined for very short periods and was able to leave at the end of his contracts, he had not established that he belonged to a particular social group within the Con- vention ground. The Board found that the applicant was a victim of crime, but that this did not provide a nexus to a s 96 ground. 11 Regarding s 97, the Board accepted the applicant’s testimony and the documentary evidence demonstrating the widespread violence in El Sal- vador at the hands of MS 13. The Board noted that MS 13 is the largest criminal network in the Americas, and one of the most prolific in the world. It also accepted that if a recruit is unwilling to join the El Salva- dorian Maras, the person’s family and friends will all be in danger, as the Maras do not hesitate to eliminate those who defy them. However, the Board also found that the risks faced by the applicant were generalized, and therefore fell into the exception set out in s 97(1) (b)(ii). The Board referenced the National Documentation Package which indicated that the MS brought about major threats to public security in El Salvador, and that the risk of being a victim of violence or crime at the hands of organized gangs is one faced generally by all citizens and residents of El Salvador. 12 The Board noted that the applicant had refused to join the MS 13, and found that subsequent threats and attacks against him were escalations as a result of his original decision not to join. The Board accepted that there were further consequences because the applicant joined the armed forces and worked against the gangs, but found that the subsequent threats and actions against him arose from the initial attempts to recruit him. The Board found that the applicant could not personalize the risk to him beyond membership in the subgroup of young men who are recruited to 172 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d) become gang members. The Board noted that in Perez v. Canada (Minister of Citizenship & Immigration), 2010 FC 345 (F.C.), in which the circumstances were somewhat similar, the Court upheld the Board’s finding that recruitment of young men by MS in Honduras constituted a generalized risk even when there had been repeated attempts with threats and violence.

III. Relevant legislation The relevant portions of the Act are as follows: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Con- vention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if: (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and Garcia Vasquez v. Canada (MCI) Andr´e F. Scott J. 173

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Convention contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhér- ents a` celles-ci ou occasionnés par elles, 174 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médi- caux ou de santé adéquats. (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

IV. Issues and standard of review 13 This application raises the following issues: a. Did the Board err in finding that the applicant did not belong to a particular social group under s 96? b. Did the Board err in finding that the applicant faces a generalized risk under s 97? c. Did the Board ignore, misconstrue or misapprehend cogent and important evidence? 14 The applicable standard is reasonableness, as the issues raised by the application are mixed questions of fact and law. The Court’s role is not to reweigh the evidence or to substitute its own opinion, but rather to ensure that the Board’s decision fits with the principles of justification, transparency and intelligibility, and falls within the range of “possible, acceptable outcomes” (New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9 (S.C.C.) at paras 47, 53; Gabriel v. Canada (Minister of Citizenship & Immigration), 2009 FC 1170 (F.C.) at para 10; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paras 59, 61-62).

V. Analysis a) Did the Board err in finding that the applicant did not belong to a particular social group under s 96? 15 The applicant cites extensively from the Supreme Court of Canada’s decision in Ward, and argues that the applicant’s situation places him in the third category enumerated by Justice La Forest (as cited in the Board’s decision), namely “groups associated by a former voluntary status, unalterable due to its historical permanence”. The applicant points to Justice La Forest’s explanation that this group is “included because of historical intentions, although it is also relevant to the antidiscrimination influences in that one’s past is an immutable part of the person”. Garcia Vasquez v. Canada (MCI) Andr´e F. Scott J. 175

16 The applicant submits that the Board failed to consider whether the applicant’s former membership in the armed forces fell under this third category of social group, in that the applicant cannot alter the “histori- cally permanent” fact of his former membership in the armed forces.

Respondent’s submissions 17 The respondent argues that the Board reasonably found that short and temporary involvement with the military did not establish that the applicant was a member of a particular social group. The respondent notes that the Board specifically found that the applicant was not a member of the armed forces social group, because he joined for very short periods and was able to leave at the end of his contracts. 18 The respondent argues that the Board specifically considered the third category of social group from Ward, but found no historical permanence to the applicant’s status as a former participant in the armed forces. The respondent contends that with no permanence, there is no membership in the social group for the purpose of s 96. The applicant was found not to be a member of the armed forces in this sense. 19 In Ward, cited above, the court defined the three possible categories of persons who could be described as members of a “particular social group” for the purposes of s 96, and who, therefore qualify as Conven- tion refugees and are entitled to refugee protection. This membership would form the required nexus between the persecution feared and the grounds claimed as a basis for that fear (see for example Xie v. Canada (Minister of Citizenship & Immigration), 2004 FCA 250 (F.C.A.) at para 5; Lai v. Canada (Minister of Citizenship & Immigration), 2005 FCA 125 (F.C.A.) at paras 84, 93). 20 The Board did not err in finding that the applicant was not a member of any particular social group relevant to s 96. Since the applicant’s time with the military was brief and contractual in nature the Board’s finding was in the range of “possible, acceptable outcomes”. The jurisprudence of this Court indicates that a temporary employed position does not rise to the level of a social association worthy of protection by the Conven- tion. In Chekhovskiy v. Canada (Minister of Citizenship & Immigration), 2009 FC 970 (F.C.) at para 23, Justice de Montigny states the following: [23] The applicant also tried to make much of the fact that the RPD accepted that the applicant, as a member of the building contractors group, was part of a group associated by a former voluntary status, unalterable due to its historic permanence. In this respect, I would 176 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

stress two points. First, the RPD was not categorical and merely said that “one could argue” along these lines. But more importantly, it seems to me that it would trivialize the notion of “a particular social group” if one were to consider that vocational groups pertain to that concept. This would be inconsistent with the historical roots of that notion, incompatible with the analogous grounds approach developed in the context of anti-discrimination law, and inimical to the whole purpose of Convention refugee protection. 21 On a similar note, Justice Phelan stated the following in the recent case of Martinez v. Canada (Minister of Citizenship & Immigration), 2010 FC 502 (F.C.): [9] The Board was correct in its interpretation of s 96. The Applicant experienced his issues not because of what he was but because of what he did. As set forth in Canada (Attorney General) v Ward, [1993] 2 SCR 689, the groups included in s 96 are determined by reference to basic principles underlying the Refugee Convention (e.g. anti-discrimination). 22 These cases emphasize the following point made by Justice La Forest in Ward at para 67, quoting from the United States Board of Immigration Appeals, Matter of Acosta [(March 1, 1985), Doc. A-24159781 (U.S. Bd. of Imm. App.)], Interim Decision 2986, 1985 WL 56042 (Database FIM- 81A), pp 37-39: ... we interpret the phrase “persecution on account of membership in a particular social group” to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. [...] whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Justice La Forest emphasizes at para 67 that “what is excluded by this definition are groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights”. It was therefore reasonable for the Board to conclude that the applicant’s temporary membership in the armed forces did not rise to the level of an “immutable characteristic” that would be analogous to an anti-discrimination ground, and therefore that the applicant was not a member of a “particular social group” that would provide a nexus to a Convention ground. Garcia Vasquez v. Canada (MCI) Andr´e F. Scott J. 177

b) Did the Board err in finding that the applicant faces a generalized risk under s 97? 23 The applicant argues that when the Board found that the applicant faced only a generalized risk because of his membership in the subgroup of young men recruited to become gang members, the Board failed to consider the heightened risk faced by the applicant as a member of the joint task force assigned to combat MS 13 and MS 18, as a former participant in the military, and as someone who had been threatened in the past. 24 The applicant notes that the Federal Court of Appeal declined to answer the certified question in Proph`ete v. Canada (Minister of Citizenship & Immigration) as to whether a subgroup of individuals facing a significantly heightened risk of crime in a country at generalized risk is still subject to the limitation of s 97(1)(b)(ii). The applicant notes that the court declined to answer this question in a factual vacuum, and indicated that it could not simply find that the risk feared in Haiti in that case was generally faced by all citizens, without evaluating the specific circumstances of the case. 25 In the present case, the applicant argues that the Board failed to assess whether the applicant was more likely to be targeted in the future because he had been targeted in the past, and takes issue with the fact that the Board restricted its analysis to young men at risk of recruitment even after noting the applicant’s military participation. 26 The respondent responds that the Board considered how MS 13 recruits members and noted the consequences of refusing to join, but found that the applicant could not personalize the risk he faced beyond membership in the subgroup of young men recruited by the Maras. The respondent notes that the applicant is not contesting the Board’s findings based on the documentary evidence, but is arguing that the Board failed to evaluate the specific circumstances of the applicant’s case. The respondent submits that the Board did consider these circumstances, but simply found them to be part of a generalized risk. The Board did acknowledge the threats and attacks faced by the applicant, but found that they all arose from his initial refusal to join, and that the risk he faced was not sufficiently personalized. 27 The respondent argues that the fact that recruitment is personal does not constitute a personalized risk, according to Perez v. Canada (Minister of Citizenship & Immigration), 2010 FC 345 (F.C.) at paras 36 and 39. 178 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

28 The respondent submits that the Board did not fail to consider the applicant’s participation in the anti-gang joint task force, and notes that the Board commented that the applicant “faced further consequences” in this regard but concluded that the risk resulted from the gang’s unsuccessful attempts to recruit him and not from his involvement in the armed forces. The respondent contends that the applicant’s argument that the Board limited its analysis to the risk facing young men while ignoring the consequences of the applicant’s military participation is illogical, as the applicant himself admits in his memorandum that the Board specifically mentioned the military participation. The respondent argues that the applicant is simply attempting to have the Court substitute its own opinion for that of the Board. 29 In Prophète v. Canada (Minister of Citizenship & Immigration), 2009 FCA 31 (F.C.A.), the Federal Court of Appeal stated that a person in need of protection is one for whom the return to his home country would subject him personally, in every part of that country, to a risk to his life or to a risk of cruel or unusual treatment that is not faced generally by other individuals in or from that country (para 3). The Court found as follows: 6 Unlike section 96 of the Act, section 97 is meant to afford protection to an individual whose claim “is not predicated on the individual demonstrating that he or she is [at risk] ... for any of the enumerated grounds of section 96” (Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR 239 at para 33). 7 The examination of a claim under subsection 97(1) of the Act ne- cessitates an individualized inquiry, which is to be conducted on the basis of the evidence adduced by a claimant “in the context of a present or prospective risk” for him (Sanchez v Canada (Minister of Cit- izenship and Immigration), 2007 FCA 99 at para 15) (emphasis in the original). 30 In the underlying case, Prophète v. Canada (Minister of Citizenship & Immigration), 2008 FC 331 (F.C.), Justice Tremblay-Lamer noted at para 18 that: [t]he Court may be faced with applicant who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population. Thus, the Court is faced with an individual who may have a personalized risk, but one that is shared by many other individuals. 31 In our view the applicant’s situation can be distinguished from that envisioned by Justice Tremblay-Lamer in Prophète (cited above), as the Garcia Vasquez v. Canada (MCI) André F. Scott J. 179

applicant has been personally targeted in the past, and will be in the future; this risk of targeted recruitment is, contrary to what the Board found, limited and personalized in that the participation of the applicant in the Antimaras task force significantly heightened his risk relative to that of young men in El Salvador. 32 The Board cited documentary evidence about the influence of the Maras gangs throughout the Americas, and specifically about the dangers inherent in their recruitment practices. The Board found that the applicant’s participation in the armed forces stemmed from the fact that he had been targeted for recruitment, and found that the threats and attacks made against him were mainly due to his refusal to join the gang. The Board’s view appears to be that there is no relevant distinction between a refusal to join the gang and participation in an anti-gang task force. This Court finds that this is not a reasonable possible conclusion because the applicant’s participation in the Antimaras operation has affected and significantly altered the risk he faces from MS 13, so as to make it a personalized risk not faced by other young men in the armed forces or in the population at large. The attempt on his life was triggered by the fact that he had openly fought and participated in the imprisonment of MS 13 gang members.

c) Did the Board ignore, misconstrue or misapprehend cogent and important evidence? 33 The applicant cites several cases holding that the Board is required to specifically refer to evidence running contrary to its finding on a central issue, including Garcia v. Canada (Minister of Citizenship & Immigra- tion), 2005 FC 807 (F.C.) at paras 11-17; Armson v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 150 (Fed. C.A.) at paras 9-10; and Padilla v. Canada (Minister of Employment & Immigra- tion), [1991] F.C.J. No. 71 (Fed. C.A.). The applicant then states that the Board’s decision is defective because it failed to consider all the evidence. 34 The respondent argues that the applicant does not explain what evidence was ignored by the Board. The respondent states that the Board is presumed to have considered all evidence, unless the contrary is shown, and argues that the applicant has not pointed to any evidence supposedly missed by the Board. 35 The Federal Court of Appeal in Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425 (Fed. 180 IMMIGRATION LAW REPORTER 99 Imm. L.R. (3d)

T.D.) at paras 15-17, held that the reasons of an administrative agency are not to be read hypercritically by a court, nor is the agency required to mention every piece of evidence before it, but that the more important a piece of opposing evidence that goes unmentioned, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence. A statement by the agency that it considered all the evidence before it will often otherwise suffice, and the Board is generally presumed to have considered all evidence before it (Provost v. Canada (Minister of Citizenship & Immigration), 2009 FC 1310 (F.C.) at paras 30-31). 36 As the applicant has not pointed to any evidence that he considers as running contrary to the Board’s finding on a central issue. In the absence of any such specific indication, the Board is presumed to have considered all of the evidence.

Judgment THIS COURT’S JUDGMENT is that 1. This Court allows this application for judicial review. 2. There is no question of general interest to certify. Application granted.