IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 25 (Cited 25 Imm. L.R. (4th))
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Refugee Appeal Division (RAD) — First Steps in an Important Legal Evolution
Mario D. Bellissimo, LL.B., C.S.*
Joanna Mennie, LL.B.**
Introduction The Refugee Protection Division is often referred to as the RAD. RAD is: An abbreviation of “radical” — a term made popular by the Teenage Mutant Ninja Turtles. Still primarily used by people on the West Coast who find words like “cool”, “awesome”, and “tight” to be tired and overused; “rad” is generally considered to be a much higher praise than the aforementioned superlatives. Also used as a general expression of awe. “Those are some rad shoes.” “Oh, RAD.”1 As the RAD begins to define its jurisdiction and establish its role in the Canadian refugee legal landscape, its goal is not to obtain praise or to be considered cool, but perhaps to develop an “awesome” evolution towards
*Mario D. Bellissimo is a graduate of Osgoode Hall Law School and the founder of Bellissimo Law Group in Toronto, Ontario. Mr. Bellissimo is a Certified Spe- cialist in Citizenship and Immigration Law and Refugee Protection. His practice is focused primarily on litigation with an emphasis on immigration inadmissibil- ity. Mr. Bellissimo has appeared before all levels of immigration tribunals and courts including the Supreme Court of Canada. Mr. Bellissimo acts on a pro bono basis as National Immigration Law and Policy Advisor for COSTI Immi- gration Resettlement Services and serves on multiple stakeholder committees as Chair of the Canadian Bar Association’s National Immigration Section. Mr. Bel- lissimo is the co-author of Immigration Criminality and Inadmissibility and is the Co-Editor-in-Chief of ImmQuest and the Immigration Law Reporter. **Ms. Mennie is an associate lawyer who began her legal career with Bellissimo Law Group, having completed her articling term with the firm. Ms. Mennie practices primarily in our litigation department and has prepared and represented a number of clients for hearings at the Refugee Protection Division. She has also appeared at the Federal Court of Canada, the Immigration Appeal Division, and Immigration Division. 1online: Urban Dictionary
Focus of this Paper: New Evidence and Oral Hearings at the RAD When dealing with issues surrounding serious threat to life, any margin of error is potentially catastrophic. The starting point for any discussion is s. 3(2) of the Immigration and Refugee Protection Act (IRPA):
3 (2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first in- stance about saving lives and offering protection to the dis- placed and persecuted; This is balanced against the reality of limited resources and the govern- ment mandate that administrative efficiency must be promoted in order
2Beverley McLachlin, P.C. Chief Justice of Canada, “Administrative Tribunals and the Courts: An Evolutionary Relationship” (27 May 2013), online: Supreme Court of Canada
A Mix of Competing Appellate Powers As an appellate body created to review the decisions of the RPD, the RAD’s decision-making power is quite broad, yet still restricted. The RAD has the authority not only to send a decision back to the RPD for redetermination, but also to substitute its own finding for that rendered
3IRPA, subsections 113, 110(3), (4) & (6), and IRPR subsection 167. 4Ibid, IRPA, subsection 110(3). 172 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th) by the RPD.5 The jurisdiction to substitute a lower level decision is a key component of a de novo appeal. The focus is to arrive at the correct decision. Like at the Immigration Appeal Division, a de novo standard of review describes a type of legal appeal where the appeals court looks at the case anew, as if the earlier trial had never occurred. Other standards of appel- late review, like at the Federal Court, grant deference to the findings of fact and decisions of the lower court. There are many types of de novo review, but generally the case is effectively re-tried in the appellate fo- rum. In the strictest sense, in a de novo trial, an appellate court hears the testimony and evidence of the case all over again and makes its own findings of fact without reference to the trial transcript or evidence pre- sented in a lower court.6 The power to substitute RPD findings on first analysis lends support to the proposition that the RAD has the power to forge ahead with its own assessment without regard to the RPD hearing. But we must look further than this one legislative inclusion that allows for substituted findings. Appeals before the RAD are largely paper-based with constraints on what evidence may be considered and when an oral hearing may be con- ducted. Subsection 110(6) of the IRPA provides:
(6) The Refugee Appeal Division may hold a hearing if, in its opin- ion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. Subsection 110(3) of the IRPA states:
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Di- vision must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister
5Ibid subsection 111(1). 6IAD would not fall within this category. Refugee Appeal Division (RAD) — First Steps 173
and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. [Emphasis Added] IRPA subsection 110(4) provides: (4) Evidence that may be presented — On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the cir- cumstances to have presented, at the time of the rejection. Read in conjunction, the jurisdiction is clear that the RAD may only con- sider “new evidence” and must not hold a hearing unless this “new evi- dence” relates to (a) a serious credibility issue, which is (b) central to the decision, and (c) could have altered the outcome of the refugee hearing. This is consistent with the interpretation being advanced by the RAD. The case of X, Re, 2013 CarswellNat 5371 (Imm.&Ref.Bd.(Ref.Ap.Div.)) held: [22] Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [23] According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsec- tion 110(3) that raises a serious issue with respect to the credibility of the appellant, that is central to the RPD decision, and that, if ac- cepted, would justify allowing or rejecting the refugee protection claim. [24] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,[2] in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibil- ity of the appellant, is central to the RPD decision, and that, if ac- cepted, would justify allowing or rejecting the refugee protection claim. [25] No new evidence was submitted by the appellants in support of this appeal. As such, the RAD must proceed without a hearing in this appeal. 174 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Access to a new refugee hearing depending on the procurement of “new evidence” clearly has enormous implications for failed refugee claim- ants, and also demands careful consideration of how such “new evi- dence” ought to be defined at the RAD. A body of jurisprudence has clarified what constitutes “new evidence” for the purposes of a PRRA. In the leading case of Raza v. Canada (Minister of Citizenship & Immigra- tion), 2007 FCA 385 (F.C.A.) [Raza], the Federal Court of Appeal out- lined the following factors: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the pro- posed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA applica- tion, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (includ- ing a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the Refugee Appeal Division (RAD) — First Steps 175
RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). It is apparent that this golden standard of “new evidence” is already be- ing transplanted into the RAD context. In the recent case of X, Re, 2013 CarswellNat 5429 (Imm.&Ref.Bd.(Ref.Ap.Div.)), the RAD Member held:7 Admissibility of Evidence Presented on Appeal [10] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of his claim. [11] Even where a document meets the test in Section 110(4), the RAD is not required to admit it into evidence without any further consideration. In Raza,[11] the Federal Court of Appeal set out fac- tors to be considered in assessing “new” evidence. While Raza pre- dates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evi- dence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.[12] The Member proceeds to apply the “new evidence” principles articulated in Raza. Yet, it could most certainly be argued (and will be) that this strict interpretation of “new evidence” ought not to be so easily trans- planted. Specifically, while the legislative language may be similar, the RAD appellate review and the PRRA are distinct legal processes which fulfill very different functions under the Act. PRRA Officers are tasked
7See, for example: X, Re, 2013 CarswellNat 5429 (Imm.&Ref.Bd.(Ref.Ap. Div.)). 176 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th) with evaluating exclusively new risks which have arisen since a refugee decision was rendered (usually a significant passage of time has oc- curred), arguably making their reliance on a more stringent standard of “new evidence” more logical (although not without its own problems). In sharp contrast, however, the RAD is an appellate body specifically tasked with reviewing and substituting the decisions of the RPD when appropriate and with a compressed timeline. In order for this process to be meaningful, the focus must shift to basic fairness for refugee claim- ants and not the strict temporal dimension of when a certain document was received and filed. In Elezi v. Canada (Minister of Citizenship & Immigration), 2007 FC 240, 62 Imm. L.R. (3d) 66 (F.C.), at paragraph 45 for example, the Court considered circumstances only 3 months after the foreign national arrived in Canada. Thus what becomes critical and distinct from the PRRA regime is the context that will be given to the question: Has the applicant established either that the evidence was not reason- ably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circum- stances to have presented the evidence at the RPD hearing? There exist other differences. Jurisprudence is clear that a PRRA is not a rehearing of a refugee claim. PRRA Officers are to respect a negative refugee decision unless there is new evidence which could have affected the ultimate result had this been presented at the hearing. This involves an inherent assumption that the underlying refugee decision was sound; after all, the claimant would have had the option of seeking leave to the Federal Court if the decision was incorrect or unreasonable. This argua- bly makes the focus on the “newness” of the evidence more acceptable in the PRRA context. Claimants before the RAD, however, are making a first attempt to chal- lenge a decision which they believe to be in error, and the RAD has full power to consider appeals on questions of law, fact, or mixed fact and law, pursuant to subsection 110(1) of the IRPA. While emphasis on “new evidence” may therefore be somewhat supportable in the PRRA con- text — as the refugee decision is spent — the same simply cannot be said of the RAD. Instead, the RAD is specifically designed to review the RPD decision at the first instance, without the presumption that the original finding was correct in both fact and law and could only be disturbed with new evidence. Refugee Appeal Division (RAD) — First Steps 177
Drawing lessons from the PRRA context, it is clear that new evidence limitations are especially challenging for those who are unrepresented or underrepresented. It is not uncommon for claimants lacking knowledge of the refugee system to be simply unaware of what materials are rele- vant, leading them to exclude important documentation at the RPD. Im- posing rigid “new evidence” requirements will only exacerbate these concerns, given the increasingly accelerated RPD process. RAD Rule 49 (4) dealing with allegations against counsel may come into play at the RAD as it relates to “new” evidence and principles of natural justice. With hearings set to take place 30 or 60 days after the initiation of a refugee claim, many refugee claimants will inevitably be forced to con- tinue gathering materials throughout the RPD and RAD processes. Lawyers Lobat Sadrehashemi and Jennifer Godwin-Ellis cautioned against a strict PRRA-like interpretation of “new evidence,” and argued: “it would be more appropriate for new evidence to be allowed if it is in the interests of justice, rather than excluding potentially relevant evi- dence simply because it was not presented as soon as it could have been.”8 Basic fairness would favour this approach, especially given the acceler- ated RDP and RAD timelines during which claimants and appellants must scramble to gather necessary evidence. The definition of “new evi- dence” is inextricably linked to accessing a RAD hearing. Claimants seeking a hearing at the RAD will need to know the nature of a hearing before the RAD and the legal and factual circumstances which would fit within the threshold eligibility criteria. As it stands, this is far from de- veloped. So what do we know so far?
Scope of a RAD Hearing?
111. (1) Decision — After considering the appeal, the Refugee Ap- peal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division;
8Sadrehashemi & Godwin-Ellis, “The Refugee Appeal Division: An Un-Ap- pealing Process” (3 March 2013), at p. 11 online:
(b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re- determination, giving the directions to the Refugee Protection Division that it considers appropriate. (1.1) [Repealed, 2012, c. 17, s. 37] (2) Referrals — The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. As discussed, the nature of the RAD’s appellate function remains largely unsettled. While it is clear that “new evidence” related to a key credibil- ity concern is required to get a hearing, what can then be examined at the hearing? Section 57 of the RAD Rules states:
57. Restriction of hearing — (1) A hearing is restricted to matters re- lating to the issues provided with the notice to appear unless the Di- vision considers that other issues have been raised by statements made by the person who is the subject of the appeal or by a witness during the hearing. A number of cases thus far have interpreted the RAD’s power of review narrowly. In X, Re, 2013 CarswellNat 5433 (Imm.&Ref.Bd.(Ref.Ap.Div.)), the RAD held: [11] IRPA neither states nor signals that an appeal to RAD is a hear- ing of the Appellant’s refugee claim, and in fact the provisions set out above indicate otherwise. An Appellant bringing his case to the RAD has a restricted right to bring new evidence.[3] The RAD is required to proceed without a hearing,[4] unless there is new evi- dence which meets the requirements set out in Section 110(6). The effect of the restrictions on new evidence would be a de novo hearing where the Appellant is limited in his ability to present evidence to support his claim, despite having gained a new hearing of that claim. The RAD also notes that, in situations where it holds an oral hearing, the Rules require that a notice be prepared setting out the issues that will be raised at the hearing. The hearing is restricted to matters relat- ing to those issues, an approach not at all consistent with a de novo hearing.[5] Refugee Appeal Division (RAD) — First Steps 179
In a similar vein, X, Re (August 30, 2013), Doc. VB3-01099 (Imm. & Ref. Bd. (App. Div.)), determined: [26] A review of the legislation regarding the RAD makes it clear that an appeal from the RPD to that Division is not a de novo or new hearing. The appeal is based on the RPD record with restrictions on the new evidence that may be presented by a claimant and there may be oral hearings only in limited circumstances. Such an appeal is not a re-litigation of the entire case nor is it intended to duplicate the work of the RPD. In my view, this distinction provides a basis for the RAD, which does not generally conduct hearings, to show deference to the findings of the RPD, particularly with respect to findings of fact or of mixed fact and law. While such interpretations clearly limit the scope of RAD hearings to particular issues, the scope of those issues will be varied. A “one size fits all” approach may not be sustainable.
RAD Hearings: A Work in Progress Given the recent implementation of the RAD, oral hearings to date are limited. The case of X, Re, 2013 CarswellNat 4408 (Imm.&Ref.Bd.(Ref.Ap.Div.)) provides a clear description of why an oral hearing was granted. Although the hearing was ultimately declared abandoned, the Member explained: Application for an Oral Hearing [20] The RAD ordered an oral hearing in this appeal for the follow- ing reasons. [21] Section 110(6) of IRPA provides that the RAD may hold a hear- ing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibil- ity of the Appellant, is central to the decision with respect to her refu- gee claim, and, if accepted, would justify allowing or rejecting that claim. [22] The RAD found that both affidavits submitted by the Appellant meet the test in Section 110(6). Credibility was a critical issue in the RPD’s determination: the panel did not believe the Appellant’s ex- planation for her lack of documents, nor did it believe her identity witness. In the end, the RPD did not believe that the Appellant is who she claims to be, and rejected her claim on that basis. The Ap- pellant’s new evidence is central to the determination of her refugee claim: that claim failed on the basis of identity, and her new evidence 180 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
speaks directly to that issue. Finally, if accepted, her new evidence would remove the justification upon which the RPD relied in re- jecting her claim. [23] Although the Minister’s new evidence was provided when the RAD had already ordered an oral hearing, that evidence also meets the requirements of Section 110(6). It raises serious issues about the credibility of the Appellant, involves the central issue of identity and, if accepted, would justify the rejection of her refugee claim. The case of X, Re, 2013 CarswellNat 4410 (Imm.&Ref.Bd.(Ref.Ap.Div.)) provides a concise summary of RAD rules and procedures for oral hearings. In this case, the RAD ultimately substituted its decision, finding the appellant to be a Convention Refu- gee. This appellant originally claimed refugee protection on the basis of his sexual orientation which is illegal in his country of origin, Nigeria. The RPD refused his claim on the basis that the appellant had failed to establish, with credible or trustworthy evidence, that he is bisexual. The appellant then submitted to the RAD a Record of Solemnization of Mar- riage between himself and his same-sex partner, wedding photographs, and congratulatory Facebook messages, as well as copies of internet re- ports about the passage of a bill criminalizing same-sex marriages in Ni- geria. This evidence was deemed “new,” according to the test articulated in Raza, as it was most certainly relevant, material, credible, and not pre- viously available. Following the RAD hearing, the RAD Member granted the appellant refugee protection, finding that the new evidence established the claimant’s sexual orientation as homosexual or bisexual, which confirmed the alleged risks in Nigeria. This case provides an informative blueprint for a straightforward RAD hearing. However, the “new evidence” procured directly addressed the single credibility finding which had been fatal to the appellant’s claim for protection at the RPD. It will be interesting to see how RAD hearings proceed when the issues are more complex and when the credibility find- ing in question is multifaceted. A particularly interesting case is X, Re, 2013 CarswellNat 5710 (Imm.&Ref.Bd.(Ref.Ap.Div.)), given the RAD’s choice not to conduct an oral hearing notwithstanding that subsection 110(6) requirements had been met. In this case, the Minister appealed the convention refugee de- termination based on a clear error of fact. The claimant filed for protec- tion as a North Korean national who left the country without permission. The RPD found her to be credible and that her fears of persecution in Refugee Appeal Division (RAD) — First Steps 181
North Korea, based on her perceived political opinion, were also credi- ble. The Minister appealed to the RAD and submitted into evidence U.S. Biometric Data confirming that the claimant was actually a South Korean national. This new evidence revealed a clear error in the determination of identity, and rendered the very basis of the claim fraudulent. With re- spect to an oral hearing, the RAD found: Requirement to Hold an Oral Hearing [11] The Appellant’s record does not include a request for an oral hearing. New documentary evidence can justify holding an oral hear- ing pursuant to s. 110(6) of IRPA which states:
110 (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3): a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; b) that is central to the decision with respect to the refugee protection claim; and c) that, if accepted, would justify allowing or re- jecting the refugee protection claim. [12] The RAD finds that, although all of the 110(6) factors have been met, the discretionary nature of the section allows the RAD to deter- mine that an oral hearing is not required. The purpose of oral hear- ings before the RAD is to ensure that the Division does not come to conclusions on serious issues of credibility with respect to a person who is a subject of the appeal unfairly, that is, without giving that person the opportunity to respond to the credibility concerns. In the case at hand, the Respondent has not provided a Notice of Intent to Respond, Respondent’s Record, or otherwise indicated any intention to participate in the appeal. In the absence of any indication that the Respondent would participate, the RAD finds that convening a hear- ing would serve no purpose. While the reasoning here turns on the fact that the claimant did not make a response, the legal interpretation of subsection 110(6) as discretionary in nature is concerning. Reliance on the permissive language in subsec- tion 110(6) raises questions of natural justice. Sadrehashemi and God- win-Ellis point out that despite the apparent optional nature of an oral hearing under subsection 110(6): “[. . .] the government cannot legislate itself out of Charter obligations. The Supreme Court of Canada’s deci- 182 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
sion in Singh9 requires that where credibility is in issue in the refuge context, an oral hearing is required.”10 This provision will likely lead to Charter litigation.
Exclusions, Complex Credibility and Legal Determinations Exclusion cases may well lead to most of the oral hearings at the RAD given the compressed timelines at the RPD.
101. Ineligibility — (1) A claim is ineligible to be referred to the Refugee Protection Division if (a) refugee protection has been conferred on the claimant under this Act; (b) a claim for refugee protection by the claimant has been rejected by the Board; (c) a prior claim by the claimant was determined to be ineligi- ble to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned; (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country; (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for per- sons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Par-
9Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177 (S.C.C.). 10Supra note 8 at p. 13. Refugee Appeal Division (RAD) — First Steps 183
liament punishable by a maximum term of imprisonment of at least 10 years; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is for an offence that, if com- mitted in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprison- ment of at least 10 years.
102. Previous Version — (1) The regulations may govern matters re- lating to the application of sections 100 and 101, may, for the pur- poses of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; (b) making a list of those countries and amending it as neces- sary; and (c) respecting the circumstances and criteria for the applica- tion of paragraph 101(1)(e). (2) The following factors are to be considered in designating a coun- try under paragraph (1)(a): (a) whether the country is a party to the Refugee Convention and to the Convention Against Torture; (b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; (c) its human rights record; and (d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with re- spect to claims for refugee protection. (3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country. Further still, cases pursuant to ss. 103-105 of the IRPA relating to sus- pensions and ineligibilities on grounds of security, violating human or international rights, serious criminality or organized criminality, as well as extradition proceedings, will likely culminate in oral hearings before 184 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th) the RAD, as new evidence will arise in certain cases after the conclusion of the RPD hearing. It seems inevitable that the RAD will eventually be confronted with cases in which credibility-related issues flow into other areas of the deci- sion. For example, consider a claimant who is refused on the basis of credibility and state protection. Assume in this hypothetical case that the RPD did not find it plausible that the police would not have offered pro- tection if the claimant was as injured as he alleged. At the time of the hearing, this claimant did not have a medical report corroborating his experiences and the violence he had endured. Given the RPD timelines, the claimant could not secure this report until after his hearing, and so this document would represent “new evidence,” which was central to the claimant’s credibility. Assume the claimant is granted an oral hearing at the RAD, and the Member seeks to limit this hearing to the content of the medical report and the manner in which it was obtained, leaving the rest of the RPD’s findings untouched. Would this singular approach to the evidence result in a proper assessment? If the claimant’s allegations are corroborated by this medical report, this could suggest that his testimony as to the behaviour of the police is to be believed. Should his credibility in this respect be restored, this would clearly have an impact on the Member’s state protection finding and the claimant’s efforts to avail oneself of that protection. This provides a strong indication that the RPD’s state protection analysis would also have to be reviewed by the RAD. Overcoming the credibility finding also would provide strong support for the RAD to review how the RPD Member interpreted the evidence on other issues. After all, the RPD Member in this example determined that the claimant was not to be believed. Now, perhaps the pendulum would swing in the claimant’s favour with respect to other portions of testimony and documentary evidence. As those involved in the refugee process know, it is often nearly impossible to extract the issue of credibility from the rest of the decision. While it remains to be seen how this issue will be handled by the RAD, if complexities surrounding credibility findings in the RPD context are any indication, this issue is likely to be fraught with controversy and litigation. Further still, credibility determinations involving vulnerable appellants and/or appellants with designated representatives could provide a number Refugee Appeal Division (RAD) — First Steps 185 of issues that may necessarily stretch the considerations at an oral hear- ing. Consider still, appeals based on allegations against counsel under s. 49(4) of the Refugee Appeal Division Rules (i.e., “my counsel told me to say that”). The request to grant oral hearings in these circumstances may provide challenging issues for the RAD to adjudicate. When a matter does proceed to an oral hearing, the next question be- comes whether we can assume on this specific issue that we are dealing with a de novo appeal. Trials de novo are uncommon due to the time and judicial resources required to try the facts of a case more than once. Rules of court procedure in many areas only allow trials de novo in nar- row circumstances. De novo review of legal matters on appeal however, is quite common. Appellate courts often hear legal issues de novo, with no deference afforded to the trial court, where the issue may not have received a full briefing and attention. Interestingly the Federal Court held that in circumstances where new evi- dence was admitted, the Review Tribunal’s proceedings could be consid- ered de novo.11 So it is important to examine how these issues may be and have been considered at the RAD.
RPD versus RAD: Deference and the Standard of Review Once the issues at an oral hearing have been determined, the question then becomes how the RPD’s conclusions on these issues will be mea- sured. What level of deference must RAD Members apply to RPD deci- sions? The standard of review at the RAD is a hotly debated issue which will soon be addressed by the Federal Court. There is an argument to be made that the RAD operates under a statutory regime and should not en- gage in a standard of review analysis. Michael Crane, in an article enti- tled “The Refugee Appeal Division: Standard of Review (How the RAD is applying “reasonableness”), “New Evidence” and other Issues,” argues: Statutory Regime of Administrative Appeal Tribunal — Not Superior Court The Refugee Appeal Division is an Administrative Appeal Tribunal created under a statutory regime. It is not a superior court and is not
11Ibid at p. 17; Canada (Attorney General) v. Lambie, 1996 CarswellNat 2291 (Fed. T.D.); Cashin v. Canadian Broadcasting Corp., [1988] 3 F.C. 494 (Fed. C.A.). 186 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
required to engage in a standard of review analysis. The Nova Scotia Court of Appeal has held in Halifax (Regional Municipality) v. Anglican Diocesan Centre Corporation, 2010 NSCA 3 at para. 23 that an administrative appeal tribunal under a statutory regime should not engage in standard of review analysis. The Refugee Appeal Divi- sion is not a superior court conducting a judicial review and is not bound by the limited standards of review applicable to judicial re- view proceedings before the Federal Courts. The Refugee Appeal Di- vision should just do what the government statue IRPA tells it to do: [23] The Board, itself an administrative tribunal under a statutory regime, does not immerse itself in Dunsmuir’s standard of review analysis that governs a court’s judicial review. The Board should just do what the statute tells it to do. Halifax (Regional Municipality) v. Anglican Diocesan Centre Corporation, 2010 NSCA 3, at para. 23.12 To date, the RAD has adopted a reasonableness standard of review which is deferential to the RPD, at least with respect to paper-based appeals on issues of fact or mixed fact and law. In the case of X, Re (August 26, 2013), Doc. MB3-02209 (Imm. & Ref. Bd. (App. Div.)), the Member drew guidance from the standard of review applicable to the Law En- forcement Review Board.13 With respect to this tribunal, the Alberta Court of Appeal noted that the presence of an appeal in no way meant that deference is not owed to the first-level decision-maker.14 The RAD Member extrapolated the following principles from the Law Enforce- ment Review Board context: [25] In its decision, the Court of Appeal referred to the example of the rela- tionship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial pro- cess. Frequent and unlimited appeals would undermine this pre-
12Crane, Michael “The Refugee Appeal Division: Standard of Review (How the RAD is applying “reasonableness”), “New Evidence” and other Issues” (Paper delivered at the Ottawa Law Conference, 21 March 2014), at p. 1. 13Newton v. Criminal Trial Lawyers’ Assn., 2010 ABCA 399, 2010 Carswell- Alta 2461 (Alta. C.A.) [Newton]. 14Ibid at para 24. Refugee Appeal Division (RAD) — First Steps 187
sumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule. [26] In citing the Supreme Court of Canada, the Court of Appeal noted the importance of promoting the autonomy of the proceeding and its integrity, adding that the same principle applies within admin- istrative proceedings: The same principle applies to the hearings before the pre- siding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding of- ficers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsis- tent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even partici- pate in them. The hearing would be reduced to a type of preliminary inquiry. The Member concluded that a reasonableness standard was similarly ap- propriate at the RAD, except with respect to strict issues of law or natural justice.15 The ultimate remedy in this case is also noteworthy. The Mem- ber allowed the appeal because the RPD erred in law by failing to con- duct a proper section 97 analysis, and sent the matter back to the RPD for redetermination. Interestingly, the Member specifically referred the mat- ter: “ideally to the same member, if he is available, for an analysis of the refugee protection claim under section 97 of the Act.”16 This decision to send the matter back to the same RPD Member further suggests a high degree of deference to the RPD Member who heard the viva voce evidence in the first instance. This is a notable distinction from other forms of review, such as judicial review, wherein the matter is re- mitted to a different decision-maker. This approach could also raise seri- ous issues regarding principles of fundamental justice and the appearance of fairness. Not surprisingly, the RAD’s reliance on a reasonableness standard has been contested by many appellants. For example, in X, Re, 2013 Car-
15Ibid at para 29. 16Ibid at para 50. 188 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th) swellNat 5419 (Imm.&Ref.Bd.(Ref.Ap.Div.)), the RAD Member pro- vided the following assessment: [71] The Appellants observe that the RAD, in previous decisions, has adopted a standard of review of reasonableness. In the Appellants’ opinion, “it seems that the RAD has treated itself as if it were the Federal Court reviewing an RPD decision.”[31] They submit that this is incorrect; as the RAD is a tribunal, it is at a commiserate level with the tribunal being reviewed. They also point out that the Immi- gration Appeal Division (IAD) holds de novo hearings and, as such, is not held to any technical rules of evidence and must consider all the circumstances in the case before it. [...] [77] In the RAD’s view, these respective roles [of the RPD and RAD] suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less or no deference is warranted, as the RPD will not have considered this evidence. As such, a strong argument can be made that certain cases ought to result in de novo proceedings with little to no deference to the RPD finding. Such a legal evolution at the RAD would militate against a “one size fits all” appeal structure at the Division. The Supreme Court of Canada, al- beit in a different context (medical refusals), has already cautioned against administrative expediency being the guiding principle. Supreme Court Justice Abella, in Hilewitz v. Canada (Minister of Citizenship & Immigration), held:17 Interpreting the legislation in this way may be more efficient, but an efficiency argument is not a valid rebuttal to justify avoiding the re- quirements of the legislation. The Act calls for individual assess- ments. This means that the individual, not administrative conve- nience, is the interpretive focus.
Before the First Steps: A Return to Conception To ascertain the true role of the RAD, it seems one must consider the basis upon which this tribunal was created. Interestingly, a review of the
17Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57, 50 Imm. L.R. (3d) 40 (S.C.C.) at para 45. Refugee Appeal Division (RAD) — First Steps 189
Hansard debates on the RAD supports that RAD Members were envi- sioned as highly specialized decision-makers with true, appellate review functions. Central to this requirement of specialization is RAD Members’ prior adjudicative experience and advanced legal skills. Specifically, in the 2 March 2007 Hansard, Mrs. Nina Grewal (Fleet- wood — Port Kells, CPC) noted, “the IRB itself has said that the skill set of members of the RAD would need to be different from other IRB Members.” Later Hansard excerpts demonstrate that Parliament under- stood the scope of a RAD appeal was to be more expansive than the judicial review system, in order to promote consistency in decision-mak- ing and ensure that individuals with more relevant experience are tasked with reviewing lower-level decisions.18 The precedential value of the RAD is also noteworthy. The IRB’s Policy regarding Designation of Three-Member Panels states that in certain cases, the Chairperson can direct that an appeal proceed before a three- Member panel, whose decision “is binding on the Refugee Protection Di- vision (RPD) and on a single-member panel of the RAD.”19 This again supports heightened expertise among RAD Members, as RPD decisions do not hold precedential value. These considerations beg the question: if RAD Members are designed to be experts with increased capacity and experience, then why would con- siderable deference be shown to RPD decisions? The RAD often refers to Newton with respect to the standard of review debate. The RAD Mem- ber in X, Re, 2013 CarswellNat 5419 (Imm.&Ref.Bd.(Ref.Ap.Div.)), wrote: [87] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribu- nal of first instance: In Newton, the Court noted that it is “singularly inefficient” for a first-level hearing to be repeated at the appellate tribunal.[45] The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hear-
18House of Commons Debates, Official Report (Hansard), 40th Parl, 2nd Sess, No 41 (20 April 2009) at 1100 (Hon. Mauizio Bevilacqua & Mrs. Carole Lavalee). 19“Designation of Three-Member Panels”, online: Immigration and Refugee Board of Canada
ings, which would in effect be reduced to a type of preliminary in- quiry. In this respect, it is important to consider that one purpose of IRPA is to “establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system . . ..” One of the principal reasons for favouring a deferential standard of re- view is that the RPD hears and reviews all of the evidence, including viva voce. The fact that the RPD Member heard viva voce evidence is traditionally why deference is owed to the RPD on credibility findings at the Federal Court. Yet, if a hearing is granted by the RAD, credibility will be the focus of the hearing. The RAD will now hear viva voce evi- dence and should be better positioned than the RPD to assess that evi- dence. In such circumstances, a strong argument may be made that less deference should be owed to the RPD when the RAD convokes an oral hearing, again supporting nuanced approaches to different cases.
Conclusion It is clear the law does not limit this debate to an either/or given the structure and mandate of this statutory creature. What is more, in order for the RAD to function and be recognized as a meaningful tribunal by the parties who appear before it, its powers of review cannot be overly deferential. The expertise of RAD Members, precedential value of cer- tain RAD decisions, and the appellate nature of the tribunal entrust the RAD to act as a true appellate body, calling into question errors of fact, law and mixed fact and law, as the legislation permits. In a sense, the RAD could be described as a form of hybrid: it has the formal written argument, structured timelines, and quashing powers of the Federal Court, yet it also has the power to advance its own decision central to the concept of a de novo appeal. While many issues remain to be settled, overreliance on similar legislative language between aspects of RAD appellate review and the PRRA process respectively, is concern- ing given the very different natures of these mechanisms. It is important to remember that at its core, the RAD has been designed to ensure the protection of life if there has been an error or evidence overlooked at the RPD. By relying on the strict PRRA standards of new evidence and tying this to access to an oral hearing, the RAD risks failing in its role of remedying RPD errors, based solely upon when a particular document was submitted. It seems the more reasonable approach requires a consideration of the wider interests of justice, especially given the tre- Refugee Appeal Division (RAD) — First Steps 191 mendous changes the RPD has undergone and the resulting challenges to refugee claimants. Further still, there may be divided opinions on the standard of review at the Federal Court, and as the questions move to the Federal Court of Appeal and likely the Supreme Court of Canada, there will be operational periods of transition. But on the whole, given the timelines at the RPD with respect to new evidence involving exclusions and complex credibility determinations, there will likely be more, rather than less, oral hearings at the RAD. Further still, there is a very strong argument to make that no standard of review analysis should even apply at the RAD, and that decision-makers should instead focus on what ulti- mately is the right decision. In the words of the Chief Justice of the Su- preme Court, “what matters is fundamental fairness, and that what is fundamentally fair depends profoundly on the particular mandate and context of the tribunal in question.” 192 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
[Indexed as: Kinsel v. Canada (Minister of Citizenship and Immigration)] Helen Jean Kinsel and Barbara Elizabeth Kinsel, Appellants and Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Docket: A-35-13 2014 FCA 126 Eleanor R. Dawson, Johanne Trudel, D.G. Near JJ.A. Heard: December 10, 2013 Judgment: May 14, 2014* Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — Citizenship –––– Officer of Citizenship and Immigration Canada refused applicants’ applications for Certificates of Citizenship under Citizenship Act — Applicants brought application for judicial review of deci- sion — Application was dismissed — Applicants appealed — Appeal dis- missed — Applicants lacked standing to bring Charter challenge because they were not primary targets of alleged violation of s. 15 of Charter and because they were not Canadian citizens or residents — It was not necessary to consider merits of Charter challenge.
APPEAL by applicants from decision reported at Kinsel v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1515, 2012 CarswellNat 5167, 2012 CF 1515, 2012 CarswellNat 5512, 15 Imm. L.R. (4th) 220, 52 Admin. L.R. (5th) 283, 423 F.T.R. 299 (Eng.), [2012] F.C.J. No. 1642, [2012] A.C.F. No. 1642 (F.C.), which dismissed application for judicial review.
William A. Kinsel for Appellants Banafsheh Sokhansanj, Phillipe Alma for Respondent
Eleanor R. Dawson J.A.: I. Introduction 1 In 2009, the Citizenship Act, R.S.C. 1985, c. C-29 (Act) was amended to extend citizenship to individuals who had lost or were denied their
*A corrigendum issued by the court on May 29, 2014 has been incorporated herein. Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 193
citizenship for a variety of reasons. At issue in this appeal is the scope of the amendment. 2 This is an appeal from an order of the Federal Court dismissing the appellants’ application for judicial review of a decision by a delegate of the Minister of Citizenship and Immigration. The delegate refused to is- sue citizenship certificates to the appellants because they did not meet the statutory requirements for citizenship set out in the Act. 3 In the Federal Court, the appellants argued that the delegate had erro- neously interpreted the Act. In the alternative, they argued that, if cor- rect, the delegate’s interpretation of the Act violated section 15 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 (Charter). 4 For reasons reported as 2012 FC 1515, 423 F.T.R. 299, the Federal Court dismissed the application for judicial review. For the reasons that follow, I would dismiss the appeal. The appellants have not established that the delegate erred in her interpretation of the Act and the appellants have failed to establish any violation of section 15 of the Charter.
II. The Facts 5 The facts are carefully set out in the decision of the Federal Court and are not in dispute. Simply put, the appellants’ paternal grandmother was a Canadian citizen who (under the then applicable citizenship legislation) ceased to be a Canadian when she became a naturalized citizen of the United States of America. The appellants’ father was born in the United States and at the time of his birth, neither of his parents held Canadian citizenship. The appellants were also born in the United States. At the time of their births, neither of their parents held Canadian citizenship. 6 On April 17, 2009, Bill C-37 came into force. Its effect was to amend the Act and restore citizenship to so-called “lost Canadians”. Under paragraphs 3(1)(f) and 3(7)(d) of the Act, Bill C-37 retroactively restored Canadian citizenship to persons, like the appellants’ paternal grand- mother, who ceased to be a Canadian citizen as a result of acquiring an- other nationality. Under Bill C-37, such persons were deemed to be citi- zens of Canada from the time they lost their citizenship. 7 Additionally, under paragraphs 3(1)(g) and 3(7)(e) of the Act, citizen- ship was granted retroactively to persons born abroad to a Canadian. Thus, the appellants’ father was deemed to be a Canadian citizen from the time he was born. 194 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
8 The issue before this Court is whether Bill C-37 introduced a limit on derivative citizenship (that is citizenship derived from being born to a Canadian parent). It is the position of the Minister that, pursuant to para- graph 3(3)(a) of the Act, Canadian citizenship by descent extends only to the first generation of progeny born abroad. The appellants assert that there is no such limitation affecting their claims. They argue they are entitled to citizenship pursuant to paragraph 3(1)(b) of the Act which ex- tends citizenship to persons born outside of Canada to a Canadian citizen. 9 In the alternative, the appellants argue that if the delegate properly interpreted the Act (as amended by Bill C-37), the legislation is unconsti- tutional on the ground that it violates section 15 of the Charter.
III. Applicable Legislation A. Citizenship Act 10 The relevant portion of the definition of “citizenship” under the Act is: 3. (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977; (b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen; [...] (f) before the coming into force of this paragraph, the per- son ceased to be a citizen for any reason other than the following reasons and did not subsequently become a citizen: (i) the person renounced his or her citizenship under any of the following provisions: [...] (ii) the person’s citizenship was revoked for false rep- resentation, fraud or concealment of material cir- cumstances under any of the following provisions: [...] (iii) the person failed to make an application to retain his or her citizenship under section 8 as it read before the coming into force of this paragraph or did make such an application that subsequently was not approved; Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 195
(g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen; 3. (1) Sous r´eserve des autres dispositions de la pr´esente loi, a qualit´e de citoyen toute personne: a) n´ee au Canada apr`es le 14 f´evrier 1977; b) n´ee a` l’´etranger apr`es le 14 f´evrier 1977 d’un p`ere ou d’une m`ere ayant qualit´e de citoyen au moment de la naissance; [...] f) qui, avant l’entr´ee en vigueur du pr´esent alin´ea, a cess´e d’ˆetre citoyen pour un motif autre que les motifs ci-apr`es et n’est pas subs´equemment devenu citoyen: (i) elle a renonc´e a` sa citoyennet´e au titre de l’une des dispositions suivantes: [...] (ii) sa citoyennet´e a et´´ e r´evoqu´ee pour cause de fausse d´eclaration, fraude ou dissimulation de faits im- portants ou essentiels au titre de l’une des disposi- tions suivantes: [...] (iii) elle n’a pas pr´esent´e la demande vis´ee a` l’article 8, dans ses versions ant´erieures a` l’entr´ee en vigueur du pr´esent alin´ea, pour conserver sa citoyennet´e ou, si elle l’a fait, la demande a et´´ e rejet´ee; g) qui, n´ee a` l’´etranger avant le 15 f´evrier 1977 d’un p`ere ou d’une m`ere ayant qualit´e de citoyen au moment de la naissance, n’est pas devenue citoyen avant l’entr´ee en vigueur du pr´esent alin´ea; 11 What the Minister characterizes to be the limit on derivative citizen- ship introduced by Bill C-37 is found in subsection 3(3). Only paragraph 3(3)(a) is relevant to this appeal: 3. (3) Subsection (1) does not apply to a person born outside Canada (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or 3. (3) Le paragraphe (1) ne s’applique pas a` la personne n´ee a` l’´etranger dont, selon le cas: a) au moment de la naissance ou de l’adoption, seul le p`ere ou la m`ere a qualit´e de citoyen, et ce, au titre de l’un des alin´eas 196 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
(1)b), c.1), e), g) et h), ou les deux parents ont cette qualit´e au titre de l’un de ces alin´eas; 12 Subsection 3(4) is characterized by its heading to be a transitional provision which provides an exception to subsection 3(3): 3. (4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen. 3. (4) Le paragraphe (3) ne s’applique pas a` la personne qui, a` la date d’entr´ee en vigueur de ce paragraphe, a qualit´e de citoyen. 13 It is paragraphs 3(7)(d) and (e) respectively that operated to confer citizenship on the appellants’ paternal grandmother retroactive to the time she lost her Canadian citizenship and on Mr. Kinsel, retroactive to the date of his birth: 3. (7) Despite any provision of this Act or any Act respecting natural- ization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force [...] (d) a person referred to in paragraph (1)(f) — other than a person described in paragraph (c) — is deemed to be a citizen under paragraph (1)(f) from the time the person ceased to be a citizen; (e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born; 3. (7) Malgr´e les autres dispositions de la pr´esente loi et l’ensemble des lois concernant la naturalisation ou la citoyennet´e en vigueur au Canada avant l’entr´ee en vigueur du pr´esent paragraphe: [...] d) la personne vis´ee a` l’alin´ea (1)f) autre que celle vis´ee a` l’alin´ea c) est r´eput´ee etreˆ citoyen au titre de l’alin´ea (1)f) a` partir du moment o`u elle a cess´e d’ˆetre citoyen; e) la personne vis´ee aux alin´eas (1)g) ou h) est r´eput´ee etreˆ citoyen a` partir du moment de sa naissance;
B. Canadian Charter of Rights and Freedoms 14 As stated above, if this Court finds paragraph 3(3)(a) precludes the appellants from claiming citizenship under paragraph 3(1)(b), they argue Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 197
in the alternative that this preclusion violates their equality rights under section 15 in a manner not saved by section 1 of the Charter: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable lim- its prescribed by law as can be demonstrably justified in a free and democratic society. [...] 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without dis- crimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or phys- ical disability. 1. La Charte canadienne des droits et libert´es garantit les droits et libert´es qui y sont enonc´´ es. Ils ne peuvent etreˆ restreints que par une r`egle de droit, dans des limites qui soient raisonnables et dont la jus- tification puisse se d´emontrer dans le cadre d’une soci´et´e libre et d´emocratique. [...] 15. (1) La loi ne fait acception de personne et s’applique egalement´ a` tous, et tous ont droit a` la mˆeme protection et au mˆeme b´en´efice de la loi, ind´ependamment de toute discrimination, notamment des dis- criminations fond´ees sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’ˆage ou les d´eficiences mentales ou physiques.
IV. The Delegate’s Decision 15 The delegate refused the appellants’ applications for citizenship on the ground they did not meet the statutory requirements for citizenship under paragraph 3(1)(b) of the Act. In particular, the delegate found sub- section 3(3) limits citizenship by descent to the first generation of prog- eny born abroad to Canadian citizens. Since the appellants were the sec- ond generation of Canadian-descendents born abroad, subsection 3(3) precluded them from claiming citizenship by descent.
V. The Federal Court’s Decision 16 After setting out the relevant facts, the Judge found the delegate’s decision should be reviewed on a reasonableness standard. In coming to this conclusion, the Judge relied on Federal Court decisions Rabin v. Canada (Minister of Citizenship and Immigration), 2010 FC 1094, [2010] F.C.J. No. 1366 at paragraphs 16 and 17 and Jabour v. Canada 198 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
(Minister of Citizenship and Immigration), 2012 FC 98, [2013] 3 F.C.R. 640 at paragraphs 21 to 29 where reasonableness review was applied to a delegate’s determination on the same issue. The Judge also relied on the fact that determining who is a citizen falls directly within a delegate’s expertise and that, although important to Canadians, citizenship is not of central importance to the legal system as a whole. 17 The appellants argued that because their father was granted citizen- ship retroactive to the date of his birth, history was “rewritten” such that the appellants were born to a Canadian citizen and, therefore, met the requirements of paragraph 3(1)(b) of the Act. In turn, this meant, the ap- pellants were already citizens when subsection 3(4) came into force and, as such, were insulated from the first generation cut-off. 18 The Judge analyzed the relevant provisions of the Act and found that, notwithstanding the appellants’ submissions, subsection 3(4) did not only apply to people born after April 17, 2009 when Bill C-37 came into force. There were two reasons for this conclusion. First, as set out in numerous legislative reports, the purpose of Bill C-37 was to preclude citizenship by descent after the first generation born abroad; the appel- lants’ interpretation would frustrate this purpose. Second, the appellants’ interpretation erroneously suggested their father’s retroactive citizenship under paragraph 3(7)(e) was conferred earlier than their loss of eligibility under paragraph 3(3)(a). In the Judge’s view, the following events all occurred simultaneously when Bill C-37 came into force: • Mr. Kinsel became a citizen from the date of his birth; • The appellants became entitled to citizenship; and • The appellants’ entitlement to citizenship was foreclosed by para- graph 3(3)(a). 19 The Judge then referred to various Parliamentary reports and Citizen- ship and Immigration documents to conclude that paragraph 3(3)(a) was intended to cut-off citizenship by descent after the first generation born abroad, regardless of whether or not an applicant was born before 2009. Further, because the appellants did not argue before the delegate that par- agraph 3(3)(a) was inconsistent with the United Nations’ Convention on the Reduction of Statelessness30 August 1961, United Nations, Treaty Series, vol. 989, p. 175, the Judge ruled she would not consider it on judicial review. Given that the argument was not before her, in the Judge’s view it was reasonable for the delegate not to consider it. Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 199
20 Finally, the Judge found the appellants did not have standing under the Charter to challenge the alleged unconstitutionality of paragraph 3(3)(a) of the Act. The Judge reasoned that the appellants were relying on the alleged denial of their father’s right to pass his citizenship on by descent. Since their father was not a party to this application, the appel- lants did not have standing to rely on the alleged violations of his rights. Moreover, since the appellants were not physically present in Canada, as non-citizens they could not avail themselves of the Charter. 21 For these reasons, the Judge found the delegate’s decision was rea- sonable and the Charter challenge was not well-founded. Accordingly, the Judge dismissed the application for judicial review.
VI. The Issues 22 In my view, the issues to be determined on this appeal are: 1. What are the applicable standards of review? 2. Does paragraph 3(3)(a) of the Act, as amended by Bill C-37, pre- clude the appellants from receiving citizenship by descent? 3. If so, do subsections 3(3) and 3(4) of the Act infringe section 15 of the Charter? 4. If subsections 3(3) and 3(4) infringe section 15 of the Charter, is such infringement justified under section 1 of the Charter?
VII. What are the applicable standards of review? 23 On an appeal from an application for judicial review in the Federal Court, this Court’s role is to identify whether the Judge selected the cor- rect standard of review and applied it correctly. In practice, this requires the reviewing court to step into the shoes of the lower court; the focus of this Court is, in effect, on the administrative decision (Merck Frosst Can- ada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para- graph 247; Agraira v. Canada (Public Safety and Emergency Prepared- ness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 45 and 46. 24 As set out above, the Judge found that the delegate’s interpretation of section 3 of the Act should be reviewed on the standard of reasonable- ness. In reaching this conclusion, the Judge did not have the benefit of the decisions of the Supreme Court in Agraira and McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895. Nor did she have the benefit of this Court’s decision in Kandola v. Can- ada (Minister of Citizenship and Immigration), 2014 FCA 85, [2014] 200 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
F.C.J. No. 322. Indeed, Kandola was released after the hearing of this appeal. As a result, the parties were afforded the opportunity to make written submissions on the applicability of Kandola to this appeal. Those submissions have been received and considered. 25 As in this appeal, Kandola concerned an appeal from the Federal Court on an application for judicial review of a decision. The decision under review was the decision of a delegate of the Minister of Citizen- ship and Immigration not to issue a citizenship certificate. 26 In Kandola, this Court carefully considered the effect of Agraira upon prior jurisprudence. The Court concluded that as a result of Agraira, the determination of the applicable standard of review must be- gin from the premise that the reasonableness standard applies to the re- view of a citizenship officer’s interpretation of paragraph 3(1)(b) of the Act. I agree, for the reasons given by the Court in Kandola at paragraphs 30 to 42. For the same reasons, I conclude that the presumption of rea- sonableness review applies to the delegate’s interpretation of subsection 3(3) of the Act as well. 27 However, the analysis does not end there as it is necessary to consider whether the presumption of reasonableness review is rebutted. 28 In Kandola, the Court found this presumption could be quickly rebut- ted for a number of reasons, including the following: • The absence of a privative clause. • The nature of the question; namely, a pure question of statutory interpretation. • The absence of any discretionary element in the decision. • The absence of anything in the structure or scheme of the Act sug- gestive of the notion that deference should be accorded to the delegate on the question he or she had to decide. 29 These factors are also present in this case. 30 On the basis of Kandola, I am satisfied the presumption of reasona- bleness has been rebutted. The delegate’s interpretation of the Act should be reviewed on the standard of correctness. 31 In the event I am wrong in this conclusion and, as the Attorney Gen- eral submits, Kandola should be distinguished, I rely upon the decision of the Supreme Court in McLean. 32 In McLean, the Supreme Court considered the standard of review to be applied to a securities commission’s interpretation of a limitation pe- Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 201
riod contained in its home statute. Justice Moldaver (writing for the ma- jority) observed that where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision- maker adopts a different interpretation, that interpretation will of neces- sity be unreasonable (McLean, paragraph 38). 33 For reasons developed below, I have conducted the required textual, contextual and purposive analysis of the relevant legislation. I am satis- fied that there is only one reasonable interpretation of the legislation. 34 It follows that whether as a result of the rebuttal of the presumption of reasonableness, or as a result of the fact that there is only a single reason- able interpretation, this Court must interpret the relevant legislation and verify that the delegate’s interpretation is consistent with that interpretation.
VIII. Does paragraph 3(3)(a) of the Act, as amended by Bill C-37, preclude the appellants from receiving citizenship by descent? A. Applicable principles of statutory interpretation 35 Whether the delegate’s decision was correct depends on the interpre- tation of paragraph 3(3)(a) and subsection 3(4) of the Act. 36 The parties do not take issue with the applicable principles of statu- tory interpretation. 37 The Supreme Court has expressed the preferred approach to statutory interpretation in the following terms: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the ob- ject of the Act, and the intention of Parliament. See: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21. See also: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at paragraph 29. 38 The Supreme Court restated this principle in Canada Trustco Mort- gage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 adding at para- graph 10: [...] The interpretation of a statutory provision must be made accord- ing to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other 202 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
hand, where the words can support more than one reasonable mean- ing, the ordinary meaning of the words plays a lesser role. The rela- tive effects of ordinary meaning, context and purpose on the interpre- tive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. 39 Inherent in the preferred approach to statutory interpretation is the un- derstanding that the grammatical and ordinary sense of a provision is not determinative of its meaning. A court must consider the total context of the provision at issue “no matter how plain the disposition may seem upon initial reading” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at paragraph 48). From the text and this wider context the interpreting court aims to ascer- tain legislative intent, “[t]he most significant element of this analysis” (R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 26).
B. Application of the principles of statutory interpretation 40 I next turn to consider the required textual, contextual and purposive analysis needed to determine whether the delegate’s interpretation of the Act was correct.
(i) Textual analysis 41 Upon the coming into force of Bill C-37, Canadian citizenship was restored to the appellants’ paternal grandmother (pursuant to paragraph 3(1)(f) of the Act). The restoration was retroactive to the date she lost her citizenship (paragraph 3(7)(d)). The effect of this was to deem Mr. Kin- sel’s mother to be a Canadian citizen at the time of his birth. 42 As a result, upon the coming into force of Bill C-37, Canadian citi- zenship was also granted to Mr. Kinsel (paragraph 3(1)(g)). This grant was retroactive from the time Mr. Kinsel was born (paragraph 3(7)(e)). 43 Paragraph 3(1)(b) of the Act is a long-standing provision which con- fers citizenship by descent. A person is a citizen of Canada if that person was born outside of Canada after February 14, 1977, and at the time of his birth one of his parents was a Canadian citizen. The appellants rely upon this provision to argue that because their father is now deemed to be a Canadian citizen from the time of his birth, they are Canadian citizens. Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 203
44 In my respectful view, this ignores the effect of paragraph 3(3)(a) of the Act which came into force with the passing of Bill C-37. I repeat paragraph 3(3)(a) for ease of reference: 3. (3) Subsection (1) does not apply to a person born outside Canada (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or 3. (3) Le paragraphe (1) ne s’applique pas a` la personne n´ee a` l’´etranger dont, selon le cas: a) au moment de la naissance ou de l’adoption, seul le p`ere ou la m`ere a qualit´e de citoyen, et ce, au titre de l’un des alin´eas (1)b), c.1), e), g) et h), ou les deux parents ont cette qualit´e au titre de l’un de ces alin´eas; 45 In my view, the text of paragraph 3(3)(a) is unambiguous. Mr. Kinsel became a Canadian citizen by operation of paragraph 3(1)(g). At the time of their births, the appellants’ mother was not a Canadian citizen. Para- graph 3(3)(a) of the Act operates to limit the grant of citizenship by de- scent to the first generation born outside of Canada to a Canadian parent. This limitation applies to the appellants. 46 The appellants argue that subsection 3(4) of the Act removes them from the application of paragraph 3(3)(a). Again, for ease of reference, subsection 3(4) provides: 3. (4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen. 3. (4) Le paragraphe (3) ne s’applique pas a` la personne qui, a` la date d’entr´ee en vigueur de ce paragraphe, a qualit´e de citoyen. 47 I reject the appellants’ argument. In my view, for the reasons that follow, subsection 3(4) does not apply to the appellants. 48 I begin from the premise that prior to the coming into force of Bill C- 37 the appellants were not Canadian citizens. For that reason, subsection 3(4) does not apply to them. 49 It is significant that paragraph 3(3)(a) of the Act includes both paragraphs 3(1)(b) and 3(1)(g) as categories of parentage that are only able to bestow Canadian citizenship on the first generation of progeny born outside of Canada. 50 Unlike paragraph 3(1)(g), paragraph 3(1)(b) has been in effect for many years. Paragraph 3(1)(g), and subsections 3(4) and 3(7) came into 204 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
effect as part of Bill C-37. The result of this legislative scheme is that a child could not obtain Canadian citizenship by descent from a parent whose citizenship depended upon paragraph 3(1)(g) until after Canadian citizenship was granted to that parent. It follows that such a child’s claim to citizenship under paragraph 3(1)(b) could only arise after the coming into force of Bill C-37. Put another way, notwithstanding the retroactive grant of citizenship to their father, the appellants could not have been citizens before Bill C-37 came into effect. They, therefore, fall within paragraph 3(3)(a) of the Act. 51 Contrary to the appellants’ submissions, by enacting subsection 3(4) Parliament intended to protect the vested rights of individuals who were already citizens when Bill C-37 came into force. 52 It follows that I agree with the Judge’s interpretation of the temporal effect of Bill C-37, as described at paragraph 17 above. 53 In my view, the text of the relevant portions of section 3 considered above are precise and free of ambiguity. Therefore, their ordinary mean- ing should play a dominant role in the interpretive process. They support the delegate’s conclusion that subsection 3(3) of the Act, as amended by Bill C-37, limits citizenship by descent to the first generation of progeny born outside of Canada. 54 I next consider the relevant contextual factors.
(ii) Contextual analysis 55 The appellants rely upon two other provisions of the Act as providing relevant context for the proper interpretation of paragraph 3(3)(a) and subsection 3(4) of the Act: subsection 5(5) and section 6. 56 Subsection 5(5) states: (5) The Minister shall, on application, grant citizenship to a person who (a) is born outside Canada after the coming into force of this subsection; (b) has a birth parent who was a citizen at the time of the birth; (c) is less than 23 years of age; (d) has resided in Canada for at least three years during the four years immediately before the date of his or her application; (e) has always been stateless; and (f) has not been convicted of any of the following offences: [...] [Emphasis added.] Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 205
(5) Le ministre attribue, sur demande, la citoyennet´e a` quiconque remplit les conditions suivantes: a) il est n´e a` l’´etranger apr`es l’entr´ee en vigueur du pr´esent paragraphe; b) l’un de ses parents naturels avait qualit´e de citoyen au mo- ment de sa naissance; c) il est ag´ˆ e de moins de vingt-trois ans; d) il a r´esid´e au Canada pendant au moins trois ans au cours des quatre ans pr´ec´edant la date de sa demande; e) il a toujours et´´ e apatride; f) il n’a jamais et´´ e d´eclar´e coupable de l’une des infractions sui- vantes: [...] [Le soulign´e est de moi.] 57 The appellants argue that subsection 5(5) provides for the protection of stateless persons only if they are born after Bill C-37 came into effect on April 17, 2009. They assert that, properly interpreted, Bill C-37 did not require protection for stateless persons born on or before the coming into force of the Bill because the Bill granted citizenship to second gen- eration Canadians born abroad. Thus, the delegate’s alleged misinterpre- tation of the Act is said to re-create the risk of statelessness because sec- ond-generation Canadians born abroad are denied citizenship. 58 This argument must fail. The appellants have not shown that subsec- tion 5(5) fails to satisfy Canada’s obligations as a signatory to the Con- vention on the Reduction of Statelessness if it only applies to those chil- dren born after April 17, 2009. In particular, they have not shown why Canada was obliged as a signatory to provide such protection with retro- active effect. 59 The second provision relied upon by the appellants is section 6 of the Act: 6. A citizen, whether or not born in Canada, is entitled to all rights, powers and privileges and is subject to all obligations, duties and lia- bilities to which a person who is a citizen under paragraph 3(1)(a) is entitled or subject and has a like status to that of such person. [Emphasis added.] 6. Tout citoyen, qu’il soit n´e ou non au Canada, jouit des droits, pouvoirs et avantages conf´er´es aux citoyens qui ont cette qualit´e aux termes de l’alin´ea 3(1)a); il est assujetti aux mˆemes devoirs, obliga- tions et responsabilit´es, et son statut est le mˆeme. [Le soulign´e est de moi.] 206 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
60 The appellants say that the delegate’s interpretation violates this pro- vision of the Act by denying their father the right, by virtue of his status as a Canadian citizen, to confer citizenship on the appellants. I agree this is a valid contextual factor to be weighed against the text and purpose of the legislation. 61 There is also a third relevant contextual factor: the clause-by-clause analysis which accompanied Bill C-37 (Appeal Book, Volume 2 at page 243). In respect of paragraph 3(3)(a) of the Bill, the clause-by-clause analysis explained that subsection 3(3) limits citizenship to the first gen- eration born to a Canadian parent abroad. Persons born outside Canada do not acquire citizenship by descent if their parent was also born abroad. 62 In respect of subsection 3(4) of the Bill, the clause-by-clause analysis advised that the subsection clarified that, notwithstanding subsection 3(3), no one would lose their Canadian citizenship on the coming into force of the Bill, even if they were the second or subsequent generation born abroad. This applies to protect second or subsequent generations of Canadians who held Canadian citizenship prior to the coming into force of Bill C-37. 63 The clause-by-clause analysis is a relevant contextual factor that sup- ports the interpretation reached under the textual analysis. 64 Further, prior to the enactment of Bill C-37, a child born outside of Canada to a Canadian citizen after February 14, 1977 was entitled to citi- zenship. However, such a child lost their citizenship on attaining the age of 28 unless the child: a. applied to retain his citizenship; and b. registered as a citizen and either resided in Canada for at least one year immediately preceding the date of his application, or estab- lished a substantial connection with Canada 65 Subsection 3(4) was intended to protect such second or subsequent generation Canadians born abroad who already had Canadian citizenship from losing it on the coming into force of Bill C-37. 66 In my view, interpreting paragraph 3(3)(a) of the Act to limit citizen- ship by descent to the first generation of progeny born abroad when a parent holds citizenship under paragraph 3(1)(g) is consistent with the preponderance of the contextual factors. 67 I next turn to the purposive analysis. Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 207
(iii) Purposive analysis 68 The genesis of Bill C-37 was a report prepared by the House of Com- mons Standing Committee on Citizenship and Immigration entitled “Re- claiming Citizenship for Canadians: A Report on the Loss of Canadian Citizenship”. 69 The report contained a number of recommendations. Recommenda- tion 4 urged that the Act be amended to provide that the following three classes of persons are Canadian citizens: • Anyone who was born in Canada at any time, retroactive to the date of their birth. The only exceptions contemplated were for those persons born in Canada to an accredited foreign diplomat, and those persons who later renounced their citizenship as an adult. • Anyone who was born abroad at any time to a Canadian mother or father, retroactive to the date of their birth, if they are the first generation born abroad. The only exception contemplated was for those persons who later renounced their citizenship as an adult. • Anyone who became a naturalized Canadian citizen at any time. The only exceptions contemplated were for those who renounced their citizenship as an adult, and those who obtained their citizen- ship by false representation, fraud, or knowingly concealing mate- rial circumstances. 70 To the extent Bill C-37 flowed from the Report of the Standing Com- mittee, this recommendation reflects that one purpose of Bill C-37 was to grant Canadian citizenship to those born in Canada who lost their citizen- ship (other than by renunciation) and to allow those formerly lost Cana- dian citizens to confer Canadian citizenship on their foreign born prog- eny, if the progeny was the first generation born abroad. The first generation born abroad were not to be able to bestow Canadian citizen- ship on their foreign born children. 71 A second, more relevant statement of legislative purpose is found in the Legislative Summary prepared by the Library of Parliament, Parlia- mentary Information and Research Service in respect of Bill C-37 (Ap- peal Book, Volume 1 at page 197). Under the heading “Description and Analysis”, the Summary noted: Bill C-37 amends the Citizenship Act in four main ways. It adds five new situations to the list defining who is a citizen. It provides for retroactive application of these new citizenship provisions. It pre- 208 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
cludes Canadians from passing down Canadian citizenship to their offspring born abroad after one generation. And it provides some re- lief for the stateless offspring of Canadians. Other provisions of Bill C-37 address various technical or housekeeping matters, including coordinating the coming into force of Bill C-37 with an Act adopted in June 2007 amending the Citizenship Act in relation to foreign adoptions. 72 Under the heading “Citizenship by Descent Limited to First Genera- tion”, the Summary stated that “Bill C-37 precludes citizens from pass- ing citizenship down to their children born abroad after one generation.” 73 The delegate’s interpretation of the effect of Bill C-37 is consistent with these statements of purpose. 74 At the very least, there is nothing in the purpose to suggest Parliament intended to exempt second generation descendants like the appellants from the one generation rule when they only received Canadian citizen- ship on the coming into force of Bill C-37. 75 The appellants argue that the objects of Bill C-37 included the desire to solve the “lost Canadian” problem by restoring citizenship retroac- tively and to satisfy Canada’s international obligations as a signatory to the Convention on the Reduction of Statelessness. They argue their inter- pretation is consistent with these objects. 76 In support of the first object and the appellants’ argument that they are entitled to citizenship because subsequent to the time of their births, their father was granted Canadian citizenship retroactive to the time of his birth, they rely upon a passage of the Summary found in Appeal Book, Volume 1 at page 198 under the heading “Retroactive Application of Citizenship Provisions”. 77 In my view, the appellants take the passage out of context. It contains a general statement as to why lost citizens required retroactive grants of citizenship. The Summary later clarified in significant detail that there was a one generation limit to grants of citizenship by descent to children born abroad. 78 I have already dealt with the appellants’ argument based upon the Convention on the Reduction of Statelessness. 79 The appellants also point to documents generated by Citizenship and Immigration Canada, such as Operational Bulletin 102, that are said to contain passages which support their interpretation of the legislation. They submit that these passages should be taken as binding admissions against interest made by the Minister. Kinsel v. Canada (MCI) Eleanor R. Dawson J.A. 209
80 I reject this submission for the following reason. Assuming, without deciding, that there are passages in Citizenship and Immigration Canada documents that support the appellants’ position, it is well-established in the jurisprudence that such documents do not bind a court. 81 For these reasons, interpreting paragraph 3(3)(a) of the Act to limit citizenship by descent to the first generation born abroad to Canadian citizens is consistent with the purpose of the legislation.
(iv) Conclusion of statutory interpretation analysis 82 Having conducted the required textual, contextual and purposive analysis I am satisfied the delegate’s interpretation of the legislation was either correct or, alternatively, the only reasonable interpretation. In any event, because the delegate’s decision meets the higher standard of cor- rectness, the standard of review applied does not affect the outcome of the appeal. 83 It is, therefore, necessary to consider the arguments advanced by the appellants pursuant to section 15 of the Charter.
IX. Do subsections 3(3) and 3(4) of the Act infringe section 15 of the Charter? 84 As described above, the Judge dismissed the Charter arguments on the basis that the appellants lacked standing to challenge the alleged un- constitutionality of the legislation. 85 Both in their written and oral submissions, the appellants and the re- spondent advanced arguments on the issues of standing, as well as the application of sections 15 and 1 of the Charter. For the following rea- sons, I prefer to deal with the merits of the appellants’ contention that the subsections 3(3) and 3(4) infringe section 15 of the Charter. 86 First, in my respectful view, the appellants’ argument concerning the territorial application of the Charter was not well developed. This is an important issue that required fuller submissions, tied to all of the relevant jurisprudence. 87 Second, it is a serious matter to invoke the Charter to challenge the validity of legislation enacted by Parliament. The important Canadian rights and freedoms enshrined in the Charter should not be devalued by ill-considered challenges devoid of a proper evidentiary foundation. For the two reasons that follow, I conclude that this is such a challenge. 210 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
88 First, the appellants’ Charter argument is not clearly articulated. The submissions may be described as sketchy, contained in six paragraphs of a 91 paragraph memorandum of fact and law. 89 The analogous ground proffered by the appellants is dual citizenship. They argue that individual Canadians, such as their grandmother and fa- ther, historically found themselves discriminated against as being some- how suspect, less worthy members of society because they wanted or needed to be citizens of more than one country. 90 However, in Corbi`ere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, 239 N.R.1, the Supreme Court discussed the criteria by which a ground of a distinction is identified as being anal- ogous to an enumerated ground. In the Court’s view, section 15 of the Charter “targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion”. “Con- structively immutable” grounds are grounds that are “changeable only at unacceptable cost to personal identity” (paragraph 13). 91 The Supreme Court has consistently described analogous grounds in such fashion. See, for example, Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61 at paragraph 335. 92 As the appellants’ representative conceded in oral argument, in the circumstances before the Court, dual citizenship is neither an immutable nor constructively immutable characteristic. The appellants are citizens of the United States who are fully able to apply for permanent resident status in Canada. Such status can lead to the grant of Canadian citizenship. 93 Of equal importance is my second concern. To date, the most authori- tative pronouncement as to what violates section 15 of the Charter is con- tained in Quebec (Attorney General) v. A. At paragraph 332 Justice Abella, writing for the majority on this point, observed that at the root of section 15 is awareness that certain groups have been historically dis- criminated against, and that perpetuation of this discrimination should be curtailed. State conduct that widens, not narrows, the gap between the historically disadvantaged and the rest of society based on an enumerated or analogous ground is discriminatory. 94 A flexible and contextual inquiry is needed to determine if a distinc- tion has the effect of perpetrating arbitrary disadvantage because of membership in an enumerated or analogous group. Evidence is required to establish elements such as historic discrimination or disadvantage, and Kinsel v. Canada (MCI) D.G. Near J.A. 211
that the impugned legislation perpetuates such discrimination or disadvantage. 95 The appellants adduced no evidence to support the alleged violation of their equality rights. While each appellant and their father filed affida- vits in support of the appellants’ application, the affidavits are wholly bereft of evidence relevant to section 15. 96 The appellants’ affidavits are each half a page long and consist of four paragraphs which are confined to biographical information. The fa- ther’s affidavit is 12 paragraphs long, contains biographical information, information with respect to the procedural background of this case and attaches as an exhibit his legal opinion, as an American attorney, as to why the delegate’s decision is wrong in law. 97 No other evidence was filed on the appellants’ behalf. 98 In sum, there is no evidence before this Court to establish the ele- ments of a section 15 claim. 99 For these reasons, I would dismiss the appellants’ challenge under section 15 of the Charter. As I have found no violation of the Charter, it is not necessary to consider section 1. 100 Before leaving this issue, I observe for completeness that because I chose not to deal with the issue of the appellants’ standing to bring a challenge under the Charter, these reasons should not be seen to confirm or reject the Judge’s analysis on the issue of standing.
X. Conclusion 101 For these reasons, I would dismiss the appeal. 102 I see no reason to depart from the principle that costs follow the event. Therefore, I would award the costs of the appeal to the respondent.
Johanne Trudel J.A.:
I agree.
D.G. Near J.A.:
I agree. Appeal dismissed. 212 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
[Indexed as: Muhammad v. Canada (Minister of Citizenship and Immigration)] Arshad Muhammad, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3681-13 2014 FC 448, 2014 CF 448 Cecily Y. Strickland J. Heard: September 19, 2013 Judgment: May 9, 2014 Immigration and citizenship –––– Refugee protection — Removal — Gen- eral principles –––– Applicant was Pakistani citizen denied refugee protection on basis that he was excluded from consideration due to membership in terrorist organization — Decision was upheld on judicial review — Application for per- manent residence on humanitarian and passionate grounds and pre-removal risk assessment (“PRRA”) application were dismsissed — Warrant for applicant’s removal was issued — Eight years later, applicant was arrested by Canadian Border Services Agency (“CBSA”) — On second PRRA application, Minister’s Delegate (“MD”) rejected assessment that applicant would be at risk if returned to Pakistan — Judicial review was granted but on redetermination, second MD also held that applicant had not established he would face risk of torture, risk to life or risk of cruel or unusual punishment — Applicant brought application for judicial review — Application granted — MD was not bound by PRRA officer’s risk assessment — Neither Immigration and Refugee Protection Regulations nor PRRA operational manual limited role of MD to that of weighing risk and secur- ity assessments — Situating MD in Case Management Branch of Immigration Canada did not mean there was lack of structural independence or impartial- ity — Mere fact that no risk was found in some or all of citizen’s counsel’s cases did not establish institutional bias — Public comments of Minister regarding Canada CBSA wanted list were insufficient to give rise to apprehension of bias — Neither meeting between CBSA and Immigaration Canada nor email from Minister’s office to MD created reasonable apprehension of bias or consti- tuted abuse of process — Decision of second MD was unreasonable because it was based on selective reading of documentary evidence and was inconsis- tent — Record did not support MD’s finding that applicant would only be ad- ministratively detained and questioned on arrival in Pakistan and then quicky released and asked to appear later for further questioning — Record did not sup- port finding that it was speculative that applicant would be at risk of torture in Muhammad v. Canada (MCI) 213 particular area of Pakistan — Record indicated that torture prevalent and wide- spread in Pakistan — MD failed to clearly identify documentation upon which she relied to justify decision — Matter remitted to third MD for redetermination. Immigration and citizenship –––– Refugee protection — Practice and proce- dure in refugee claims — Judicial review — Natural justice — Bias –––– Pre-removal risk asssessment — Applicant was Pakistani citizen denied refugee protection on basis that he was excluded from consideration due to membership in terrorist organization — Decision was upheld on judicial review — Applica- tion for permanent residence on humanitarian and passionate grounds and pre- removal risk assessment (“PRRA”) application were dismsissed — Warrant for applicant’s removal was issued — Eight years later, applicant was arrested by Canadian Border Services Agency (“CBSA”) — On second PRRA application, Minister’s Delegate (“MD”) rejected assessment that applicant would be at risk if returned to Pakistan — Judicial review was granted but on redetermination, second MD also held that applicant had not established he would face risk of torture, risk to life or risk of cruel or unusual punishment — Applicant brought application for judicial review — Application granted — Situating MD in Case Management Branch of Immigration Canada did not mean there was lack of structural independence or impartiality — Mere fact that no risk was found in some or all of citizen’s counsel’s cases did not establish institutional bias — Public comments of Minister regarding Canada CBSA wanted list were insuffi- cient to give rise to apprehension of bias — Neither meeting between CBSA and Immigaration Canada nor email from Minister’s office to MD created reasona- ble apprehension of bias or constituted abuse of process — Decision of second MD was unreasonable because it was based on selective reading of documentary evidence and was inconsistent. Cases considered by Cecily Y. Strickland J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — referred to Almrei v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 3223, 2007 FC 1025, 2007 CF 1025, 2007 CarswellNat 5184, 316 F.T.R. 49 (Eng.), [2007] F.C.J. No. 1292, [2007] A.C.F. No. 1292 (F.C.) — referred to 214 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Bell v. Cessna Aircraft Co. (1983), 46 B.C.L.R. 145, 36 C.P.C. 115, 149 D.L.R. (3d) 509, 1983 CarswellBC 187, [1983] 6 W.W.R. 178 (B.C. C.A.) — re- ferred to Bell Canada v. C.T.E.A. (2003), 227 D.L.R. (4th) 193, 2003 CarswellNat 2427, 2003 CarswellNat 2428, 2003 C.L.L.C. 230-021, [2004] 1 W.W.R. 1, 2003 SCC 36, 3 Admin. L.R. (4th) 163, (sub nom. Bell Canada v. Canadian Telephone Employees Assn.) 306 N.R. 34, 109 C.R.R. (2d) 65, 46 C.H.R.R. D/495, 242 F.T.R. 318 (note), (sub nom. Bell Canada v. Canadian Telephone Employees Assn.) [2003] 1 S.C.R. 884, REJB 2003-43800, [2003] S.C.J. No. 36 (S.C.C.) — followed Benitez v. Canada (Minister of Citizenship & Immigration) (2006), 54 Imm. L.R. (3d) 27, 290 F.T.R. 161 (Eng.), 2006 FC 461, 2006 CarswellNat 1062, [2007] 1 F.C.R. 107, 2006 CarswellNat 2496, 40 Admin. L.R. (4th) 159, 2006 CF 461, [2006] F.C.J. No. 631 (F.C.) — referred to Bertillo v. Canada (Minister of Citizenship & Immigration) (1994), 1994 Car- swellNat 2671, [1994] F.C.J. No. 1617 (Fed. T.D.) — referred to Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — considered British Columbia (Securities Commission) v. McLean (2013), (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Ad- min. L.R. (5th) 237, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 2013 SCC 67, [2014] 2 W.W.R. 415, 366 D.L.R. (4th) 30, (sub nom. McLean v. British Columbia Securities Commission) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67 (S.C.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Huntley (2010), 15 Admin. L.R. (5th) 1, 375 F.T.R. 250 (Eng.), 93 Imm. L.R. (3d) 36, 2010 CF 1175, 2010 FC 1175, 2010 CarswellNat 4345, 2010 CarswellNat 4386, [2012] 3 F.C.R. 3, [2010] F.C.J. No. 1453 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Tobiass (1997), 142 D.L.R. (4th) 270, 1997 CarswellNat 211, 1997 CarswellNat 1115, [1997] 1 F.C. Muhammad v. Canada (MCI) 215
828, 208 N.R. 21, 122 F.T.R. 80 (note), [1997] F.C.J. No. 2 (Fed. C.A.) — considered Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 1995 CarswellNat 264, 1995 CarswellNat 700, 26 Admin. L.R. (2d) 1, (sub nom. Matsqui Indian Band v. Canadian Pacific Ltd.) [1995] 2 C.N.L.R. 92, 122 D.L.R. (4th) 129, 85 F.T.R. 79 (note), [1995] 1 S.C.R. 3, 177 N.R. 325, [1995] S.C.J. No. 1 (S.C.C.) — followed Cervenakova v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1281, 2010 CarswellNat 5757, 18 Admin. L.R. (5th) 38, 381 F.T.R. 74 (Eng.), 2010 FC 1281, 2010 CarswellNat 4915, [2010] F.C.J. No. 1591 (F.C.) — referred to Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 Car- swellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — referred to Chieu v. Canada (Minister of Citizenship & Immigration) (2002), 37 Admin. L.R. (3d) 252, [2002] 1 S.C.R. 84, 2002 SCC 3, 2002 CarswellNat 5, 2002 CarswellNat 6, 18 Imm. L.R. (3d) 93, 208 D.L.R. (4th) 107, 280 N.R. 268, [2002] S.C.J. No. 1, REJB 2002-27421 (S.C.C.) — referred to Cie p´etroli`ere Imp´eriale c. Qu´ebec (Tribunal administratif) (2003), 5 Admin. L.R. (4th) 1, 310 N.R. 343, (sub nom. Imperial Oil Ltd. v. Quebec (Minister of the Environment)) 231 D.L.R. (4th) 577, 2003 SCC 58, 2003 CarswellQue 2315, 2003 CarswellQue 2316, (sub nom. Imperial Oil Ltd. v. Quebec (Minister of the Environment)) [2003] 2 S.C.R. 624, 5 C.E.L.R. (3d) 38, REJB 2003-49134, [2003] S.C.J. No. 59 (S.C.C.) — referred to Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115, 1976 CarswellNat 434, 1976 CarswellNat 434F, [1976] S.C.J. No. 118, [1976] A.C.S. No. 118 (S.C.C.) — followed Correa v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 252, 2014 CarswellNat 627 (F.C.) — considered Delgado v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1131, 2011 CarswellNat 3984, 2011 CarswellNat 4808, 2011 FC 1131, [2011] A.C.F. No. 1390, [2011] F.C.J. No. 1390 (F.C.) — considered Douglas v. Canada (Attorney General) (2014), 2014 FC 299, 2014 CarswellNat 768, 2014 CarswellNat 769 (F.C.) — referred to Dunova v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2734, 367 F.T.R. 89 (Eng.), 2010 CarswellNat 1137, 2010 FC 438, 2010 CF 438, [2010] F.C.J. No. 511 (F.C.) — considered E.A. Manning Ltd. v. Ontario (Securities Commission) (1995), 1995 Carswell- Ont 1057, 7 C.C.L.S. 125, 18 O.S.C.B. 2419, 32 Admin. L.R. (2d) 1, 23 216 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
O.R. (3d) 257, 80 O.A.C. 321, 125 D.L.R. (4th) 305, [1995] O.J. No. 1305 (Ont. C.A.) — referred to Finch v. Assn. of Professional Engineers & Geoscientists (British Columbia) (1996), 18 B.C.L.R. (3d) 361, [1996] 5 W.W.R. 690, 38 Admin. L.R. (2d) 116, 73 B.C.A.C. 295, 120 W.A.C. 295, 1996 CarswellBC 735, [1996] B.C.J. No. 743 (B.C. C.A.) — referred to Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A-1307-91, [1993] A.C.F. No. 598, [1993] F.C.J. No. 598 (Fed. C.A.) — referred to Geza v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 124, 2006 CarswellNat 706, (sub nom. Kozak v. Canada (Minister of Citizenship & Immigration)) 349 N.R. 309, 52 Imm. L.R. (3d) 163, 2006 CAF 124, [2006] 4 F.C.R. 377, 2006 CarswellNat 2310, 267 D.L.R. (4th) 54, 41 Ad- min. L.R. (4th) 45, [2006] F.C.J. No. 477 (F.C.A.) — referred to Hassan v. Canada (Minister of Employment & Immigration) (1992), 147 N.R. 317, 1992 CarswellNat 562, [1992] F.C.J. No. 946 (Fed. C.A.) — referred to Herrera Acevedo v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 167, 2010 CarswellNat 2121, 2010 FC 167, 2010 CarswellNat 346 (F.C.) — referred to I.B.E.W., Local 894 v. Ellis-Don Ltd. (2001), (sub nom. Ellis-Don Ltd. v. Ontario Labour Relations Board) 52 O.R. (3d) 160 (note), (sub nom. Ellis- Don Ltd. v. Ontario Labour Relations Board) 2001 C.L.L.C. 220-028, (sub nom. Ellis-Don Ltd. v. Ontario (Labour Relations Board)) [2001] 1 S.C.R. 221, 2001 SCC 4, [2001] O.L.R.B. Rep. 236, (sub nom. Ellis-Don Ltd. v. Labour Relations Board (Ont.)) 265 N.R. 2, (sub nom. Ellis-Don Ltd. v. Ontario (Labour Relations Board)) 194 D.L.R. (4th) 385, 2001 CarswellOnt 99, 2001 CarswellOnt 100, (sub nom. Ellis-Don Ltd. v. Labour Relations Board) 140 O.A.C. 201, 26 Admin. L.R. (3d) 171, (sub nom. Ellis-Don Ltd. v. Ontario (Labour Relations Board)) 66 C.L.R.B.R. (2d) 216, REJB 2001- 22165, [2001] S.C.J. No. 5 (S.C.C.) — referred to Kastrati v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1141, 2008 CarswellNat 3688, 2008 CF 1141, 2008 CarswellNat 6407, [2008] F.C.J. No. 1424 (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 Kim v. Canada (Minister of Citizenship & Immigration) (2005), 272 F.T.R. 62 (Eng.), 2005 FC 437, 2005 CarswellNat 823, 44 Imm. L.R. (3d) 201, 30 Admin. L.R. (4th) 131, 2005 CarswellNat 4856, 2005 CF 437, [2005] F.C.J. No. 540 (F.C.) — referred to Muhammad v. Canada (MCI) 217
Li v. Canada (Minister of Citizenship & Immigration) (2010), 401 N.R. 18, 2010 CarswellNat 2065, 2010 CAF 75, 317 D.L.R. (4th) 447, [2010] 3 F.C.R. 347, 2010 CarswellNat 586, 2010 FCA 75, 88 Imm. L.R. (3d) 6 (F.C.A.) — considered Lipp´e c. Charest (1990), 1990 CarswellQue 98, 64 C.C.C. (3d) 513, (sub nom. R. c. Lipp´e) [1991] 2 S.C.R. 114, 5 M.P.L.R. (2d) 113, 5 C.R.R. (2d) 31, (sub nom. Lipp´e v. Qu´ebec (Procureur g´en´eral)) 128 N.R. 1, 1990 Carswell- Que 1875, REJB 1990-95652, [1990] S.C.J. No. 128 (S.C.C.) — considered Mohammad v. Canada (Minister of Employment & Immigration) (1988), [1989] 2 F.C. 363, 55 D.L.R. (4th) 321, 91 N.R. 121, 1988 CarswellNat 164F, 21 F.T.R. 240 (note), 1988 CarswellNat 164, [1988] F.C.J. No. 1141 (Fed. C.A.) — referred to Mugesera c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), (sub nom. Mugesera v. Canada (Minister of Citizenship & Immigration)) 197 C.C.C. (3d) 225, 15 C.P.C. (6th) 51, 2005 SCC 39, 2005 CarswellNat 1738, 2005 CarswellNat 1739, 254 D.L.R. (4th) 193, 30 C.R. (6th) 107, (sub nom. Mugesera v. Canada (Ministre de la Citoyennet´e & de l’Immigration)) 335 N.R. 220, 47 Imm. L.R. (3d) 1, [2005] 2 S.C.R. 91, EYB 2005-91970, [2005] S.C.J. No. 40 (S.C.C.) — referred to Muhammad v. Canada (Minister of Citizenship and Immigration) (2012), 423 F.T.R. 242 (Eng.), 2012 FC 1483, 2012 CarswellNat 4991, 2012 Car- swellNat 5664, 2012 CF 1483, 15 Imm. L.R. (4th) 146, [2012] F.C.J. No. 1592, [2012] A.C.F. No. 1592 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9, 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 Car- swellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65 (S.C.C.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador 218 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
(Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control & Licensing Branch) (2001), 2001 SCC 52, 2001 CarswellBC 1877, 2001 CarswellBC 1878, (sub nom. Ocean Port Hotel Ltd. v. Liquor Control & Licensing Branch (B.C.)) 155 B.C.A.C. 193, (sub nom. Ocean Port Hotel Ltd. v. Liquor Control & Licensing Branch (B.C.)) 254 W.A.C. 193, [2001] 10 W.W.R. 1, 34 Admin. L.R. (3d) 1, 204 D.L.R. (4th) 33, 274 N.R. 116, 93 B.C.L.R. (3d) 1, [2001] 2 S.C.R. 781, [2001] S.C.J. No. 17, REJB 2001- 25683 (S.C.C.) — considered Pavicevic v. Canada (Attorney General) (2013), 2013 FC 997, 2013 Car- swellNat 3668, 2013 CF 997, 2013 CarswellNat 5070, 20 Imm. L.R. (4th) 37 (F.C.) — referred to Placide c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), (sub nom. Placide v. Canada (Minister of Citizenship and Immigration)) 359 F.T.R. 217 (Eng.), 2009 CF 1056, 2009 FC 1056, 2009 CarswellNat 5444, 2009 CarswellNat 3181 (F.C.) — considered Provincial Court Judges’ Assn. (New Brunswick) v. New Brunswick (Minister of Justice) (2005), 2005 CarswellNB 405, 2005 CarswellNB 406, 201 O.A.C. 293, [2005] 2 S.C.R. 286, (sub nom. New Brunswick Provincial Court Judges’ Association v. New Brunswick (Minister of Justice)) 288 N.B.R. (2d) 202, (sub nom. New Brunswick Provincial Court Judges’ Association v. New Brunswick (Minister of Justice)) 751 A.P.R. 202, 49 Alta. L.R. (4th) 211, (sub nom. Provincial Court Judges Assn. of New Brunswick v. New Brunswick (Minister of Justice)) 135 C.R.R. (2d) 55, (sub nom. Ontario Judges’ Assn. v. Ontario) 85 O.R. (3d) 79 (note), 2005 SCC 44, 367 A.R. 300, 346 W.A.C. 300, 30 Admin. L.R. (4th) 1, 14 C.P.C. (6th) 1, 336 N.R. 201, 255 D.L.R. (4th) 513, [2006] 1 W.W.R. 407, 135 C.R.R. (2d) 57, [2003] S.C.C.A. No. 458, EYB 2005-93017, [2005] S.C.J. No. 47 (S.C.C.) — referred to Qu´ebec (Commission des affaires sociales) c. Tremblay (1992), 1992 Carswell- Que 114, 3 Admin. L.R. (2d) 173, [1992] 1 S.C.R. 952, 47 Q.A.C. 169, 136 N.R. 5, 90 D.L.R. (4th) 609, 1992 CarswellQue 108, EYB 1992-67795, [1992] S.C.J. No. 20 (S.C.C.) — considered R. v. S. (R.D.) (1997), 161 N.S.R. (2d) 241, 477 A.P.R. 241, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 1997 CarswellNS 301, 1997 CarswellNS 302, 10 C.R. (5th) 1, 218 N.R. 1, 1 Admin. L.R. (3d) 74, [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (S.C.C.) — considered R. v. Valente (No. 2) (1985), 52 O.R. (2d) 779, (sub nom. Valente c. R.) [1986] D.L.Q. 85, 1985 CarswellOnt 129, (sub nom. Valente v. R.) 24 D.L.R. (4th) 161, (sub nom. Valente v. R.) 49 C.R. (3d) 97, (sub nom. Valente v. R.) [1985] 2 S.C.R. 673, (sub nom. Valente v. R.) 37 M.V.R. 9, 64 N.R. 1, 14 O.A.C. 79, (sub nom. Valente v. R.) 23 C.C.C. (3d) 193, (sub nom. Valente Muhammad v. Canada (MCI) 219
v. R.) 19 C.R.R. 354, 1985 CarswellOnt 948, [1985] S.C.J. No. 77 (S.C.C.) — followed Raza v. Canada (Minister of Citizenship & Immigration) (2006), 58 Admin. L.R. (4th) 283, 304 F.T.R. 46 (Eng.), 2006 CF 1385, 2006 CarswellNat 6063, 2006 CarswellNat 3923, 2006 FC 1385, [2006] F.C.J. No. 1779, [2006] A.C.F. No. 1779 (F.C.) — referred to Rosenberry v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 882, 2010 CarswellNat 3998, 2010 CF 882, 2010 CarswellNat 3201, 374 F.T.R. 116 (Eng.), 221 C.R.R. (2d) 128, [2010] F.C.J. No. 1101 (F.C.) — considered Say v. Canada (Solicitor General) (2005), 2005 CarswellNat 3720, 2005 CF 739, [2006] 1 F.C.R. 532, 2005 FC 739, 2005 CarswellNat 1510, 46 Imm. L.R. (3d) 255, 274 F.T.R. 172 (Eng.), [2005] F.C.J. No. 931 (F.C.) — considered Say v. Canada (Solicitor General) (2005), 2005 FCA 422, 2005 CarswellNat 4271, 50 Imm. L.R. (3d) 159, 2005 CAF 422, 2005 CarswellNat 5289, 345 N.R. 340, [2005] F.C.J. No. 2079 (F.C.A.) — referred to Sheriff v. Canada (Attorney General) (2006), 268 D.L.R. (4th) 543, 25 C.B.R. (5th) 204, 350 N.R. 230, [2007] 1 F.C.R. 3, 2006 CarswellNat 1223, 2006 FCA 139, 2006 CAF 139, 2006 CarswellNat 2432, 46 Admin. L.R. (4th) 174, [2006] F.C.J. No. 580 (F.C.A.) — referred to Sing v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 915, 2011 CarswellNat 2846, 2011 CF 915, 2011 CarswellNat 4333, 36 Admin. L.R. (5th) 183, (sub nom. Lai v. Canada (Citizenship and Immigration)) [2013] 2 F.C.R. 56 (F.C.) — referred to Singh v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1576, 2008 FC 669, 2008 CarswellNat 2897, 2008 CF 669 (F.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — referred to Tran v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 361 F.T.R. 101 (Eng.), 2010 FC 175, 2010 CarswellNat 369, 2010 Car- swellNat 1669, 2010 CF 175, [2010] F.C.J. No. 207 (F.C.) — referred to 2747-3174 Qu´ebec Inc. c. Qu´ebec (R´egie des permis d’alcool) (1996), 1996 CarswellQue 965, 1996 CarswellQue 966, (sub nom. 2747-3174 Qu´ebec Inc. v. Quebec (R´egie des permis d’alcool)) 140 D.L.R. (4th) 577, (sub nom. 2747-3174 Qu´ebec Inc. v. R´egie des permis d’alcool du Qu´ebec) 205 N.R. 1, [1996] 3 S.C.R. 919, 42 Admin. L.R. (2d) 1, EYB 1996-67914, [1996] S.C.J. No. 112 (S.C.C.) — referred to 220 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
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 Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 6 — referred to s. 6(1) — considered s. 6(2) — considered s. 44 — considered s. 44(2) — considered s. 55 — considered s. 68 — referred to s. 72(1) — referred to s. 77(1) — considered s. 97 — considered s. 97(1)(b)(ii) — considered s. 98 — considered s. 101 — considered s. 112 — considered s. 112(3) — considered s. 112(3)(c) — considered s. 113 — considered s. 113(d) — considered s. 113(d)(i) — considered s. 113(d)(ii) — considered s. 114 — considered s. 114(1)(b) — considered Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 Generally — referred to Treaties considered: Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, C.T.S. 1987/36; 23 I.L.M. 1027; 1465 U.N.T.S. 85; U.N. Doc. A/39/51 Article 1 — considered Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to Article 1F — considered Article 1F(a) — considered Article 1F(c) — considered Muhammad v. Canada (MCI) Cecily Y. Strickland J. 221
Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 172 — considered s. 172(1) — considered s. 172(2) — considered s. 172(2)(a) — considered s. 172(2)(b) — considered s. 172(4) — considered
APPLICATION by citizen of Pakistan for judicial review of decision dismissing his application for protection under s. 112 of Immigration and Refugee Protec- tion Act.
Lorne Waldman, Clarisa Waldman, for Applicant Jamie Todd, Sharon Stewart Guthrie, Jane Steward, for Respondent
Cecily Y. Strickland J.:
1 This is an application for judicial review of a negative decision made by Ms. Karine Roy-Tremblay, a Director of Case Determination [Min- ister’s Delegate] of Citizenship and Immigration Canada [CIC], dated May 17, 2013. The Applicant is identified under subsection 112(3)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA]. His application for protection was therefore examined under the structure set out in section 172 of the Immigration and Refugee Protection Regula- tions, SOR/2002-227 [the IRPA Regulations]. This judicial review is brought pursuant to subsection 72(1) of the IRPA.
I. Procedural Background A. Overview 2 The Applicant is a citizen of Pakistan and a Sunni Muslim. He arrived in Canada in August 1999 using a false Italian passport and claimed refu- gee protection. His claim was denied on October 16, 2001, because he was determined to be excluded from consideration as a Convention refu- gee pursuant to section 98 of the IRPA (which incorporates Articles 1F (a) and (c) of the UNHCR 1951 Convention Relating to the Status of Refugees [the Refugee Convention]) as a result of his membership in a terrorist organization. His application for judicial review of that decision was denied on February 6, 2002. 222 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
3 The Applicant subsequently applied for permanent residence in Can- ada on humanitarian and compassionate grounds. This was refused on November 5, 2002. He submitted a first Pre-Removal Risk Assessment [PRRA] application on October 30, 2002, which was refused on March 19, 2003. Prior to receiving these two negative decisions, the Applicant allegedly wrote to his former counsel advising that he was leaving Mon- treal to go back to Pakistan, but he actually relocated to Toronto. The Applicant received notice that he was to attend an interview with CBSA in January 2003. He did not attend and claimed that he feared that if he had presented himself, he would have been jailed and returned to Paki- stan. A warrant for his removal was issued on July 3, 2003. 4 The Applicant was arrested in July of 2011 after the Canadian Border Services Agency [CBSA] released his name, photograph and last known whereabouts on its website along with the details of twenty-nine other individuals, under the heading “Wanted by the CBSA” [CBSA wanted list]. The website description stated: “These individuals are the subject of an active Canada-wide warrant for removal because they are inadmissi- ble to Canada. It has been determined that they violated human or inter- national rights under the Crimes against Humanity and War Crimes Act, or under international law.”
B. First Restricted PRRA Decision 5 On August 3, 2011, the Applicant submitted a second PRRA applica- tion, claiming that new facts had arisen since July 2011. He submitted that he was now a person in need of protection because of the publicity surrounding his case and that the possible risks to him in Pakistan in- cluded extreme physical abuse while in custody, unlawful detention and extrajudicial killing. On October 7, 2011, the PRRA Officer found that the Applicant would be at risk if returned to Pakistan [PRRA assessment]. 6 The PRRA Officer assessed the Applicant’s risk on the basis that he would be perceived as a member of a terrorist organization. The Appli- cant had originally claimed to have joined, or expressed interest in join- ing, such an organization but was no longer relying on that assertion as a basis for refugee status. He now claimed that he had not actually been a member of such a group and had lied to Canadian authorities, believing that it would aid his refugee claim. His new PRRA submissions were thus based upon his belief that he would be perceived to be a member of a terrorist organization. Muhammad v. Canada (MCI) Cecily Y. Strickland J. 223
7 The PRRA Officer examined objective documentary evidence identi- fying human rights abuses at the hands of state authorities and law en- forcement in Pakistan. The PRRA Officer found that the Applicant’s case had been widely reported in Canada and somewhat reported in En- glish-language media in Pakistan, he concluded that the Pakistani author- ities were likely aware of the allegations made against the Applicant. Given the consensus within objective documentation concerning the mis- treatment of Pakistani citizens at the hands of the Pakistani police and security forces, the PRRA Officer found that it was more likely than not that the Applicant would face risk if returned. The PRRA Officer found that there was an internal flight alternative [IFA] with respect to the threat by vigilante groups, but not with respect to the threat by state authorities. 8 Next, as was required by subsection 113(d)(ii) of the IRPA, on De- cember 15, 2011, CBSA produced an assessment of the nature and sever- ity of any acts committed by the Applicant and the danger that he consti- tuted to Canadian security [security assessment]. It concluded that there was no information that linked him directly to any of the terrorist organi- zation’s crimes against humanity or terrorist acts and that there was in- sufficient information to establish that the Applicant was a danger to the security of Canada. CBSA wrote that while the Applicant was presumed to be complicit by association in the acts of the terrorist group, the juris- prudence regarding complicity by association required credible evidence of actions furthering the perpetration of crimes for the purposes of sec- tion 113(d)(ii). It was not established that the Applicant was directly in- volved in perpetrating international crimes, and thus his complicity by association “may not be sufficient to justify his removal from Canada should he be found at risk.” 9 The PRRA and CBSA’s security assessments were disclosed to the Applicant in December 2011 for comment before being sent to a Min- ister’s delegate who would render the final decision. The Minister’s Delegate rejected the PRRA assessment on February 16, 2012 [first re- stricted PRRA]. The Applicant sought judicial review of that decision, which was granted by Justice Boivin on December 18, 2012 (Muhammad v. Canada (Minister of Citizenship and Immigration), 2012 FC 1483 (F.C.) [Muhammad]). Justice Boivin found that the Minister’s Delegate had failed to adequately justify, on the basis of the evidence, why she had concluded that the Applicant would likely not be at risk. 224 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
C. Second Restricted PRRA Decision (Decision under Review) 10 The Minister’s delegate who conducted the redetermination was Ms. Roy-Tremblay. On May 17, 2013, she also found that the Applicant had not established that he would face a risk of torture, a risk to life, or a risk of cruel and unusual treatment or punishment should he be returned to Pakistan [second restricted PRRA or the Decision]. That Decision is the subject of the present proceeding. The Applicant filed his application for judicial review on May 24, 2013. 11 Subsequently, on May 28, 2013, the Applicant learned through the affidavit of Reg Williams, a former Director of Enforcement with CBSA, that on February 3, 2012, a meeting had been held between Ms. Glenda Lavergne, the former Director General, Border Operations, CBSA; Ms. Susan Kramer, Director, Case Management Division at CIC; and, Mr. Michel Dupuis, Director General of Case Determination at CIC, to dis- cuss the Applicant’s case. As a result, and pursuant to an Order of Justice No¨el dated June 26, 2013, the Applicant cross examined Ms. Lavergne, Ms. Kramer, Mr. Dupuis and Ms. Roy-Tremblay during the period July to September 2013 on affidavits they had sworn concerning that meeting and the relationships between CBSA and CIC. 12 The Applicant’s removal from Canada to Pakistan, which was sched- uled for June 2, 2013, was stayed by order of Justice Gleason on June 1, 2013, until a decision is made on the present application for leave and judicial review. The Applicant applied for release from immigration de- tention on numerous occasions. However, following reviews by the Im- migration and Refugee Board [the Board], his detention was continued as he was determined to be unlikely to appear for removal.
D. Related Procedural Matters 13 There have been many procedural matters related, in one way or an- other, to this application for judicial review. Only those with an immedi- ate bearing on this matter are noted below. 14 On June 26, 2013, Justice No¨el also ordered disclosure of any docu- ments relating to an allegation by the Applicant of an abuse of process and failure to observe the duty of candour by CBSA and CIC. At a deten- tion review in September 2013, the Applicant presented new, recently discovered information which had been obtained as a result of those dis- closures. This included email exchanges between CBSA and CIC during October 2011. In those exchanges CBSA expressed concern about the PRRA assessment, which it considered could have an impact on the de- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 225
tention review scheduled for October 21, 2011, and CBSA’s decision that it would not be disclosed to the detention review hearing member prior to the upcoming detention review. 15 In response to a subsequent allegation by the Applicant that CBSA had breached its duty of candour by withholding the PRRA assessment, the Board concluded on September 26, 2013, that the non-disclosure was not an abuse of process. However, on October 16, 2013, in Court file IMM-6232-13, Justice Beaudry allowed the Applicant’s application for judicial review of that decision by the Board and found that CBSA had made a conscious decision to withhold the information from the deten- tion review hearing member which did amount to a breach of the duty of candour. 16 As a result of Justice Beaudry’s decision, the detention decision was remitted back for redetermination. Upon reconsideration, the Board de- termined on October 25, 2013, that continued detention was still war- ranted. On October 28, 2013, the Applicant applied for judicial review of that detention decision. On November 21, 2013, Justice McVeigh dis- missed his application for review of the redetermination, finding that the Board had reasonably denied release from detention. 17 On September 9, 2013, the Applicant filed a notice of a constitutional question in the present application for judicial review. He alleged that the Minister’s Delegate was not independent and impartial and, therefore, could not make decisions on a risk of torture, a subject matter which engages section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter] and thus requires an independent decision-making process.
II. Legislative Background 18 In this matter, the process involved for removal is governed by sub- section 112(3) of the IRPA. Pursuant to subsection 112(3)(c), a person whose refugee claim is rejected on the basis of section F of Article 1 of the Refugee Convention, as is the case with the Applicant, cannot obtain refugee protection. Section F (a) is contained in a Schedule to the IRPA and states that the provisions of the Refugee Convention shall not apply to any person with respect to whom there are serious reasons for consid- ering that they have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. 226 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
19 A PRRA for someone described in subsection 112(3)(c) is often re- ferred to as a “restricted PRRA”. Subsection 113(d) states that, in the case of a subsection 112(3) applicant, consideration shall be on the basis of factors set out in section 97 of the IRPA, and, the factors described in that subsection. In this case, the section 97 factors must be considered along with whether the application should be refused because of the na- ture and severity of acts committed by the Applicant or because of the danger he constitutes to the security of Canada (subsection 113(d)(ii)). 20 Further, pursuant to subsection 114(1)(b), a positive restricted PRRA decision in such a case would only result in the staying of a removal order against an applicant with respect to the country in respect of which he or she was determined to be in need of protection. It would not result in the granting of refugee protection. Subsections 172(1) and (2) of the IRPA Regulations provide that before making a decision to allow or re- ject the application of someone identified in subsection 112(3) of the IRPA, the Minister (or the Minister’s delegate) shall consider the written assessment on the basis of the section 97 factors (the PRRA assessment), a written assessment on the basis of the factors set out in subsection 113(d)(i) or (ii) of the IRPA (the security assessment), whichever the case may be (in this case, subsection 113(d)(ii)), and any written re- sponse to the assessments from the applicant. This is the process which was undertaken in this case.
III. Decision Under Review 21 As noted above, on May 17, 2013, the Minister’s Delegate rendered the Decision in which she determined that the Applicant would not be at risk of torture, death, or cruel and unusual treatment or punishment should he be returned to Pakistan. Having concluded that the Applicant would not face the risks identified in section 97 of the IRPA, the Min- ister’s Delegate found that it was not then necessary to balance her as- sessment of the situation he would face in Pakistan against CBSA’s as- sessment of the seriousness of any crimes committed by the Applicant and of any danger he posed to Canada. 22 The Minister’s Delegate stated that in making her Decision she had considered the PRRA Officer’s risk assessment, CBSA’s security assess- ment, and the Applicant’s response to both. 23 She provided a description of the appointment process for her role and position. In that regard, she noted that CIC’s Immigration Legisla- tion Operational Manual IL3 — Designation of Officers and Delegation Muhammad v. Canada (MCI) Cecily Y. Strickland J. 227
of Authority [IL3 Manual], defines the designation of officers and the delegation of authority as contained in the Instrument of Designation and Delegation signed by the Minister pursuant to subsections 6(1) and 6(2) of the IRPA. 24 The Minister’s Delegate described the IL3 Manual and provided a ta- ble of delegated authorities. With respect to subsections 112, 113, and 113(d)(ii) of the IRPA and section 172 of the IRPA Regulations, she stated that authority had been delegated to her by the Minister pursuant to subsection 6(2) of the IRPA and that only such delegated persons can determine an application for protection from a person whose claim was rejected on the basis of subsection 112(3)(c) of the IRPA. The designated positions listed, including herself as the Director, Case Determination, have the delegated authority to consider, and allow or reject, an applica- tion for protection from a person who has been found to be inadmissible on grounds of security, violating human or international rights, organized criminality, whose refugee claim was rejected on the basis of section F of Article 1 of the Refugee Convention, or, who is named in a certificate under subsection 77(1) of the IRPA. Officials in these positions can as- sess whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. 25 The Minister’s Delegate stated that the PRRA officer who prepared the risk assessment does not have such delegated authority and does not have the jurisdiction to make a decision concerning a person described in subsection 112(3) of the IRPA. She referred to Placide c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 1056 (F.C.) [Placide] in which Justice Shore found that a PRRA officer’s assessment under section 97 cannot constitute a decision but instead is a “form of advice or suggestion”. She stated that for her to be bound by the PRRA or security assessments would be a fettering of her discretion. 26 With respect to the Applicant’s allegations of a reasonable apprehen- sion of bias, she stated that once a delegation of authority is granted to a person as described in the IL3 Manual, that decision-maker is fully inde- pendent and impartial in the decision-making process. Her appointment to the position of Director, Case Determination was a merit based selec- tion process in accordance with the Public Service Employment Act and was based on her experience and knowledge of the IRPA and IRPA Reg- ulations. Such processes are free from any Ministerial intervention given 228 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
that the Public Service of Canada is independent of the executive branch of government. 27 The Minister’s Delegate also stated that she had never been involved in the “Most Wanted List” program which falls within the CBSA’s man- date along with removals. Further, that the restricted PRRA process is impartial, independent and free of intervention of any kind, especially by the Minister, his office, or other senior officials. Case Determination Di- rectors are officials from CIC and not from CBSA, and they are not close to the Minister of CIC or to senior officials in charge of removals and enforcement. Even if one part of the Case Management Branch works on high profile cases, her role is entirely separate and she is not involved in any of their discussions. She reports to the Director General who, in turn, reports to an Associate Assistant Deputy Minister. The Director General never interferes with her cases or decisions. 28 The Minister’s Delegate then set out the required analysis under sec- tion 97 of the IRPA in the context of Article 1 of the Convention Against Torture and the concept of “cruel and unusual treatment or punishment” in section 12 of the Charter. She noted that Pakistan is a federal republic where democratic rule was restored in 2008 and that the Pakistan Peo- ple’s Party (PPP), which the Applicant joined in 1996, was elected in February 2008 and is now the governing party in Pakistan in coalition with smaller parties. 29 The Minister’s Delegate considered the documentary evidence, spe- cifically citing two reports: the US Department of State Country Report on Human Rights Practices 2011 [USSD 2011] which identifies the pres- ence of human rights abuses including extrajudicial killings, torture and disappearances, and a 2012 UK Border Agency report, Pakistan Country of Origin Information (COI) Report [UKBA 2012], which noted some positive achievements in the area of human rights. She stated that other, unspecified, reports mentioned that despite the work that still needs to be done in Pakistan with respect to human rights, some important progress had been made. 30 The Minister’s Delegate concluded that the risk faced by the Appli- cant was generalized. As well, since he is an adult man from Punjab and a Sunni Muslim, this profile placed him at a lower risk than the general population in Pakistan. 31 As to the security situation in Pakistan, while it has improved since 2011, she acknowledged that more was still required to be done. The risk of fatality is one that is faced generally by everyone in Pakistan, how- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 229
ever, that the evidence before the Minister’s Delegate indicated that Pun- jab is one of the most secure areas in the country. She found that there was insufficient evidence to indicate that the Applicant would become a target for non-state actors in Pakistan due to being perceived as associ- ated with a terrorist group because of having been on CBSA’s wanted list. On a balance of probabilities, she was not satisfied that the risk that the Applicant would be associated with a terrorist group by state or non- state actors put him at risk pursuant to section 97. 32 The Minister’s Delegate concluded that the Applicant would be at very low risk of being of interest, being arrested, or being detained once he was in Pakistan and then went on to consider the risks he might face when entering Pakistan. 33 She considered each of the Applicant’s alleged grounds for risk in- cluding: that he is a failed refugee claimant; that he used a fraudulent document to travel to Canada; that his name and likeness were made public through CBSA’s wanted list; and, that he was identified as being linked to a terrorist organization. 34 She noted that May 2005 correspondence from the Human Rights Commission of Pakistan, cited in UKBA 2012, stated that failed Pakis- tani refugee claimants were not usually detained upon return to Pakistan. With respect to the use of a fraudulent passport, the Minister’s Delegate noted that traveling with a fraudulent document is unlawful in Pakistan and there was therefore a possibility that the Applicant could face charges, and that this would increase the chances that he would spend time in detention. 35 While acknowledging that he would be exposed to difficult condi- tions if detained, such as “overpopulated prisons, few doctors available for medical examination of detainees and reported acts of mistreatments including beating, prolonged isolation, or denial of food or sleep”, she also noted that the USSD 2011 report indicated that if he was charged with a criminal offence, he would be brought before a judge within 24 hours and would be able to apply for bail. She found that it was specula- tive to say that he would likely be tortured or exposed to cruel or unusual treatment while in prison, as there was insufficient evidence to establish that he would personally be at any greater risk of those treatments than other prisoners. She also found that the documentary evidence indicated that such situations occurred in specific cases and were mostly reported as occurring in the provinces of Balochistan and Khyber Pakhtunkhwa (KP), and the Federally Administered Tribal Areas (FATA). 230 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
36 With respect to being placed on CBSA’s wanted list for connections with a terrorist organization, the Minister’s Delegate found that the sub- ject terrorist organization’s name had never been made public. Therefore, she concluded that the Pakistani authorities would not be able to link the Applicant to a specific organization. The documentation pertaining to ar- rest and detention of suspected members of terrorist organizations showed that, in most cases, the arrested persons were linked to specific terrorist acts. Further, as the Applicant had resided in Canada since 1996, the Minister’s Delegate considered that Pakistani authorities would be unable to link him to any specific terrorist organization or specific terror- ist acts committed in Pakistan. Based on this, it was more likely than not that the Applicant would be released quickly from any initial detention that was based on suspected links to a terrorist organization. 37 The Minister’s Delegate noted that the UKBA 2012 report quoted the Asian Human Rights Commission as commenting on a speech by Paki- stan’s foreign minister to the effect that the government of Pakistan had encountered difficulty in prosecuting militants linked to either terrorist organizations or terrorist acts on Pakistani soil. 38 The Minister’s Delegate concluded that while the documentary evi- dence indicated that Pakistan is in a difficult situation for the respect of human rights and security conditions, and while the Applicant might be administratively detained and questioned upon his arrival, the evidence did not support the allegation that he would be at a risk of torture, risk to life or cruel and unusual punishment pursuant to section 97. 39 Having made a negative determination on risk, the Minister’s Dele- gate stated that she was therefore not required to balance the risk identi- fied by the PRRA assessment against CBSA’s security assessment, pur- suant to subsection 172(4) of the IRPA Regulations. She denied the application for protection.
IV. Issues 40 I would frame the issues in this application for judicial review as follows: 1. What is the standard of review? 2. Is the Minister’s Delegate bound by the PRRA Officer’s conclu- sions with respect to risk of return to torture? Muhammad v. Canada (MCI) Cecily Y. Strickland J. 231
3. Were the principles of procedural fairness violated, and, more spe- cifically: i. Is the structure of the decision-making process pursuant to section 112(3) independent and impartial; and, is the Min- ister’s Delegate an independent decision-maker? ii. Was there a reasonable apprehension of bias as a result of interest in the CBSA’s wanted list or an abuse of process? 4. Did the Minister’s Delegate reasonably conclude that the Appli- cant would not be at a risk if returned to Pakistan? 41 The Respondent submits that it is unnecessary to consider the Charter where a case can be determined on the basis of administrative law and statutory interpretation (Baker v. Canada (Minister of Citizenship & Im- migration), [1999] 2 S.C.R. 817 (S.C.C.) at para 11 [Baker]; Chieu v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 84 (S.C.C.) at para 19; Tran v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 175 (F.C.) at para 36). 42 I agree that this Court does not have an obligation to respond to a constitutional question if it is possible to answer the questions posed by applying principles of administrative law. As Justice L’Heureux Dub´e stated in Baker, above: [11] Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the ap- pellant and the interveners who supported her position. 43 In my view, the procedural fairness aspect of the present application can be decided by applying certain of those principles. Therefore, the Charter argument need not be addressed.
V. Analysis Issue 1: What is the standard of review? Applicant’s Submissions 44 The Applicant submits that aside from the issue of the reasonableness of the Decision, all issues relating to independence, bias and abuse of process are to be reviewed on a correctness standard as they relate to procedural fairness (Kastrati v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 1141 (F.C.) at paras 9-10). 232 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
45 In terms of the reasonableness of the Decision, the Applicant submits that N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) [Newfoundland Nurses] is not a direc- tion for the Court to abandon its supervisory function in relation to judi- cial review (A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.) at para 54) [Alberta Teachers]).
Respondent’s Submissions 46 The Respondent submits that the standard of review for the assess- ment of the evidence is reasonableness. Significant deference is war- ranted on judicial review of a Director, Case Determination’s assessment of risk (Muhammad, above, at para 28; Placide, above, at para 92; Sing v. Canada (Minister of Citizenship & Immigration), 2011 FC 915 (F.C.) at para 39 [Sing]). 47 So long as the Minister’s Delegate took into account the relevant con- siderations and came to a conclusion reasonably supported on the evi- dence, it is not open to the Applicant to invite the Court to reweigh the evidence, regardless of whether the evidence might also support a differ- ent conclusion (New Brunswick (Board of Management) v. Dunsmuir [2008 CarswellNB 124 (S.C.C.)], above, at para 47; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) [Khosa]). A decision-maker need not refer to every item of evidence and is presumed to have considered all of the evidence before her (N.L.N.U., above, para 16; Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.)). 48 The Respondent does not make submissions on the applicable stan- dard of review for the remaining issues.
Analysis 49 An exhaustive analysis is not required in every case to determine the proper standard of review. Rather, courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particu- lar category of question (Khosa, above, at para 53; Dunsmuir, above, at paras 57 and 62). 50 For the second issue, being whether the Minister’s Delegate is bound by the PRRA assessment, this was before Justice Boivin in Muhammad, above. There, Justice Boivin found that it was a question of jurisdiction Muhammad v. Canada (MCI) Cecily Y. Strickland J. 233
involving the interpretation of the IRPA and the IRPA Regulations re- viewable on a standard of correctness (Dunsmuir, above, paras 50 and 59; Muhammad, above, at para 28). In my view it could also, however, be reviewable on the reasonableness standard as “[d]eference will usu- ally result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular famil- iarity” (Dunsmuir, above, at para. 54; British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.) at paras 19-23; A.T.A., above, at para 34). 51 The third issue pertains to procedural fairness and natural justice and is to be reviewed on a standard of correctness (Geza v. Canada (Minister of Citizenship & Immigration), 2006 FCA 124, [2006] 4 F.C.R. 377 (F.C.A.) at para 44). More specifically, whether the structure of the sub- section 112(3) decision making process, and whether the Minister’s Delegate is independent and impartial, are issues of procedural fairness (Douglas v. Canada (Attorney General), 2014 FC 299 (F.C.) at para 71; Bell Canada v. C.T.E.A., 2003 SCC 36, [2003] 1 S.C.R. 884 (S.C.C.) at para 21 [Bell Canada]). Institutional bias and independence are also re- viewed on a correctness standard (Singh v. Canada (Minister of Citizenship & Immigration), 2008 FC 669 (F.C.) at para 25 [.Singh]). Issues of abuse of process also concern procedural fairness and are re- viewed on a correctness standard (Pavicevic v. Canada (Attorney Gen- eral), 2013 FC 997 (F.C.) at para 29; Herrera Acevedo v. Canada (Minister of Citizenship & Immigration), 2010 FC 167 (F.C.) at para 10). On a standard of correctness, no deference is afforded and the Court will undertake its own analysis of the questions (Dunsmuir, above, at para 50). 52 As to the fourth issue, the standard of review applicable to the Min- ister’s Delegate’s assessment of the evidence is reasonableness (Muham- mad, above, at para 28; Dunsmuir, above). In reviewing the Decision on the standard of reasonableness, the Court should not intervene unless the Board came to a conclusion that is not transparent, justifiable and intelli- gible and within the range of acceptable outcomes based on the evidence before it (Dunsmuir, above, at para 47; Khosa, above, at para 59). It is not the role of a reviewing court to substitute its own view of a preferable outcome or to reweigh the evidence (Khosa, above, at para 59). 234 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Issue 2: Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture? Applicant’s Submissions 53 The Applicant submits that the role of the Minister’s Delegate is not to conduct a new risk assessment. Rather, that the role is restricted to the weighing and balancing of the positive risk assessment already made by the PRRA Officer against the CBSA security assessment. This interpreta- tion is supported by a plain reading of the legislation including subsec- tions 112(3) and 114 of the IRPA and subsection 172 of the IRPA Regulations. 54 The Applicant refers to Chapter PP3, Pre-removal Risk Assessment (PRRA), of CIC’s Operational Manual (PRRA Operations Manual) which he interprets as follows: Step 1: PRRA Officer assesses the application and either finds no risk, in which case application is dismissed right then and there is no further processing, or the officer finds there is risk, in which case she writes up her reasons and sends them to the removals officer. This is the same as for any PRRA application, except that the PRRA of- ficer’s positive assessment is not dispositive of the application, as only a MD [minister’s delegate] can render a final decision to allow a s.112(3) PRRA. Instead the applicant goes to Step 2. Step 2: An analyst at National Security Division prepares an assess- ment, in accordance with R172(2)(b), with respect to whether the ap- plicant’s presence in Canada is a danger to the country’s security, or the nature or severity of the acts committed by the applicant are such that the application should be refused. At Step 3, both assessments are disclosed to the applicant for comment, Finally, at Step 4, the minister’s delegate is provided with the 2 as- sessments and the applicant’s comments, and renders a decision based upon them, either refusing the application, or allowing it and granting a stay of removal. [Applicant’s Emphasis] 55 The Applicant submits that the PRRA Officer’s risk assessment is fi- nal and that the Minister’s Delegate cannot disregard it and come to her own conclusion. This interpretation is consistent with section 172(4) of the IRPA Regulations, the PRRA Operations Manual and jurisprudence which has described the role of the Minister’s Delegate as one of a Muhammad v. Canada (MCI) Cecily Y. Strickland J. 235
“weighing exercise” (Li v. Canada (Minister of Citizenship & Immigra- tion), 2010 FCA 75 (F.C.A.) at paras 10 and 54 [Li]). 56 The PRRA Officer’s expertise in determining risk and assessing cred- ibility has been confirmed (Raza v. Canada (Minister of Citizenship & Immigration), 2006 FC 1385 (F.C.) at para 10; Kim v. Canada (Minister of Citizenship & Immigration), 2005 FC 437 (F.C.); Hassan v. Canada (Minister of Employment & Immigration), [1992] F.C.J. No. 946 (Fed. C.A.)), and it was not intended that the Minister’s Delegate can go be- hind a PRRA Officer’s assessment. 57 The Applicant submits that this Court should not follow Placide, above (followed in Delgado v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 1131 (F.C.) [Delgato]) because it was based on a wrong statement made in obiter. Justice Shore relied on the wrong dele- gated authority in finding that the Minister’s Delegate is not bound by a PRRA Officer’s opinion. He relied on section 101, but it is actually sec- tion 55, which, the Applicant submits, by its express wording makes it clear that the role of the Minister’s Delegate is merely to do the balanc- ing with the positive PRRA assessment. 58 The Applicant also submits that Justice Shore’s analysis failed to ap- preciate that the decision of whether or not to allow the PRRA only arises after the PRRA Officer has made a positive determination, mean- ing that the Minister’s Delegate is only permitted to balance what is to be done after the positive PRRA. Therefore, Placide should not be fol- lowed, in accordance with the exceptions to judicial comity (Almrei v. Canada (Minister of Citizenship & Immigration), 2007 FC 1025 (F.C.) at paras 61-62). Furthermore, the authority and independence of the Min- ister’s Delegate is directly before this Court which was not the situation in Placide.
Respondent’s Submissions 59 The Respondent also refers to the PRRA Operations Manual; how- ever, its interpretation of that document differs from that of the Appli- cant. The Respondent explains it as follows: Step 1 — the Risk Assessment — A CIC officer (titled “PRRA Of- ficer”) prepares an opinion on whether the applicant is at risk based on s. 97 grounds, if removed. If the PRRA Officer is of the opinion that there is no risk, the Restricted PRRA application is rejected and the applicant is removed from Canada according to ss. 172(4) of the Immigration and Refugee Protection Regulations (the “Regula- 236 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
tions”). If the PRRA Officer is of the opinion that there is a risk, the Restricted PRRA application is not yet finalized and moves to the next steps. Step 2 — the Restriction Assessment — A CBSA officer prepares an opinion, called the Restriction Assessment, as to whether the Re- stricted PRRA application should be refused notwithstanding the risks identified due to the nature and severity of the acts committed, or because the applicant is a danger to the security of Canada, ac- cording to ss. 113 (d) of the IRPA. Step 3 — the Applicant’s submissions — the Risk Assessment and the Restriction Assessment are provided to the applicant for com- ments according to ss. 172(2) of the Regulations. For reasons of ad- ministrative efficiency, the assessments are given to the applicant to- gether after they are both completed. Step 4 — Minister’s Delegate decision — the Risk Assessment, Re- striction Assessment and the applicant’s submissions are provided to a CIC Minister’s Delegate, (e.g. Director, Case Determination). The Minister’s Delegate uses this information, in addition to his/her own research, to make the final Restricted PRRA decision. The final deci- sion determines whether the application is allowed or rejected - i.e. whether or not the applicant can be removed to the country of re- moval (per ss 114(1) of the IRPA). [Respondent’s Emphasis] 60 The Respondent submits that at step 4, according to section 172(1) of the IRPA Regulations, the Minister’s Delegate is bound to consider the materials submitted, but is not bound by the initial PRRA assessment. This interpretation is consistent with the jurisprudence (Placide, above; Muhammad, above, at paras 29-31, 42; Delgado, above, at para 6). The Respondent states that Li, above, does not support the argument that the jurisdiction of the Minister’s Delegate is limited to weighing the assess- ments before her. Further, the Federal Court of Appeal’s statement that the Minister’s Delegate conducts a “weighing exercise” does not mean that the Minister’s Delegate’s jurisdiction is limited as the Applicant suggests. 61 The Respondent refers to the Minister’s Instrument of Designation and Delegation and CIC’s IL3 Manual in support of its position that the PRRA Officer does not have the delegated authority to render a final PRRA decision. This can only be made by the persons holding the posi- tions listed in the IL3 Manual, which permits the Director, as the Min- ister’s Delegate, to “consider, allow or reject, an application for protec- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 237
tion (PRRA) from a person...whose claim was rejected on the basis of section F or Article 1” (Placide, Delgado, both above; Say v. Canada (Solicitor General), 2005 FC 739 (F.C.), aff’d 2005 FCA 422 (F.C.A.) [Say]). Say concerned the jurisdiction of a Minister’s delegate involving a person described in subsection 112(3), were based on a rational reading of the relevant statutes, regulations, manuals and Instruments of Delega- tion. The Applicant has not demonstrated that this jurisprudence is mani- festly wrong (Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 (B.C. C.A.), at 511). 62 The Respondent submits that the Applicant’s interpretation of the scheme would be contrary to the intent of risk assessments because it could bind an assessment where there is a time lapse between the PRRA and a Minister’s delegate’s decision. It also fails to explain why both assessments are sent to the delegate for review, regardless of the outcome of the security assessment. Where the security assessment is negative, sending it and the initial PRRA assessment to a Minister’s delegate serves no purpose if its only role is to balance the two assessments. 63 The Respondent submits that the Minister’s Delegate is qualified to perform the restricted PRRA assessment, having been hired through a merit-based selection process which includes a demonstrated knowledge of the PRRA process and the IRPA.
Analysis 64 This issue has previously been before this Court. Based on both the legislation and that jurisprudence, it is my view that the Minister’s Dele- gate is not bound by the PRRA Officer’s risk assessment. 65 The Applicant’s PRRA application was processed according to sub- sections 172(1) and (2) of the IRPA Regulations and the IRPA legislative scheme as described above. Section 172(1) states that before “making a decision to allow or reject” an application described in section 112(3) of the IRPA, a Minister’s delegate “shall consider” the risk and security as- sessments and written response to them by an applicant. It does not re- strict the consideration to a weighing of the assessments nor state that a Minister’s delegate is bound by them. 238 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
66 The PRRA Operational Manual also describes this process, but as will be seen, not necessarily in the definitive manner(s) proposed by each party: Applicant not described in A97 If the PRRA officer finds no danger of torture, no risk to life and no risk of cruel and unusual treatment or punishment, the assessment terminates at this point. The officer finalizes the assessment and prepares the refusal letter, which is sent with the file to the CBSA Removals office... Applicant described in A97 If the PRRA officer finds the applicant described in A97, the officer prepares the assessment referred to in R172(2)(a) and sends it and any supporting documentation to the CBSA removals office. The removals officer prepares supporting documentation regarding the restrictions set out in A112(3)(a),(b),(c), or (d), and A113(d)(1) or (ii), as applicable, and sends it, as well as the PRRA assessment and supporting documents, to the Coordinator, Danger to the Pub- lic/Rehabilitation Case Review, Case Management Branch (CMB), CIC. CMB will manage these cases, and forward the security, organ- ized crime, and modern war crime cases to National Security Divi- sion, CBSA, for assessment. An analyst at Danger to the Public/Rehabilitation, Case Review, or National Security Division, as applicable, prepares an assessment, in accordance with R172(2)(b), with respect to whether the applicant’s presence in Canada is a danger to the public or a danger to the coun- try’s security, or the nature or severity of the acts committed by the applicant are such that the application should be refused. The assess- ment referred to in R172(2)(b), including the supporting documenta- tion, is returned to the CBSA removals office. The removals officer delivers the assessments referred to in R 172(2)(a) and (b), and the supporting documentation, to the appli- cant. Any new extrinsic evidence that is related and central to the assessment is disclosed. The applicant then has 15 days to respond in writing. The applicant is instructed to send any submissions directly to the removals office. The applicant may request an extension of time to respond.... Upon receipt of the applicant’s submissions, the removals officer re- turns the two assessments, and the supporting documentation, as well as the applicant’s submissions, to the Coordinator, Danger to the Public/Rehabilitation, Case Review, CMB. An analyst adds a cover- ing memo to the package confirming that the applicant has seen the Muhammad v. Canada (MCI) Cecily Y. Strickland J. 239
assessments, ensure that the applicant’s submissions, if any, are in- cluded, and forwards the file to the C&I Minister’s delegate. The C&I Minister’s delegate considers the assessments, the sup- porting documentation, and the applicant’s submissions, and renders a decision on the application. The decision is then returned to the CBSA removals office, concurrently, if NSD prepared an R172(2)(b) assessment, NSD will be notified of the decision.... [Emphasis added] 67 Thus, the PRRA Operation Manual also does not limit the Minister’s Delegate’s role to that of weighing the risk and security assessments. 68 The Minister’s Delegate in her affidavit dated August 22, 2013, made reference to section 17.2 of the PRRA Operational Manual. It concerns the circumstances in which persons who are granted stays pursuant to subsections 112(3) and 172(2)(b) of the IRPA are re-examined, due to a change of circumstance, pursuant to section 172(2)(a) of the IRPA Regu- lations. The process to be followed in that event is set out, including: Once in receipt of the submissions of the individuals, the CBSA re- moval officer will forward the submissions to the Coordinator, Dan- ger to the Public / Rehabilitation CMB for consideration by the C&I Minister’s Delegate, who makes a decision to cancel or maintain the stay based on a balancing of the factors in A97(1) and A113(d)(i) and (ii) as applicable. The stay will be maintained if the C&I Minister’s Delegate is of the opinion after balancing the risks to the individual against the risk to society that the individual, because of the risk that would be faced on removal, should be allowed to remain in Canada. However, should the C&I Minister’s Delegate decide that risk to the individual no longer exists, or that the risk that the individual poses to Canada and Canadians outweighs the risk to the individual, the stay will be cancelled... 69 This suggests that not only may the Minister’s Delegate balance the risk and security assessments, but that he or she may also make a deci- sion as to whether a risk still exists. Clearly if such a decision is made it may, or may not, be in accordance with the PRRA Officer’s risk assessment. 70 The language of subsection 172(1) of the IRPA Regulations is that, before making a decision to allow or reject an application described in subsection 112(3) of the IRPA, the Minister “shall consider the assess- ments” referred to in subsection 172(2), being the PRRA assessment and the security assessment. The PRRA Operational Manual is also consis- tent in describing these as assessments and requiring a Minister’s dele- 240 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
gate to consider them prior to rendering a decision. Contrary to the sug- gestion of the Respondent, a PRRA officer’s contribution is not described as an “opinion”. Nor does the PRRA Operational Manual state that the decision of a Minister’s delegate must be based on the assess- ments alone as suggested by the Applicant. 71 A plain reading of these provisions does not lead to a conclusion that the Minister’s Delegate’s jurisdiction is circumscribed by the PRRA Of- ficer’s finding as contained in his risk assessment submitted for her con- sideration. While the Minister’s Delegate must consider, or weigh, these assessments, the provisions do not go further and circumscribe her ability to reconsider their conclusions. Indeed, subsection 172(1) acknowledges that the Minister’s Delegate may allow or reject the application. This is of note because only positive risk assessments proceed to the Minister’s Delegate. Thus, as here, she may receive a positive risk assessment, meaning that an applicant is at risk if returned, and a negative security assessment, meaning that the applicant does not pose a risk to the secur- ity of Canada. If she were only required to balance these two risks then the outcome would be obvious and foregone. The risk to the Applicant would outweigh the risk to Canada. She would have no latitude to reject the application on that basis. 72 In my view, the jurisprudence also suggests this finding. In Li, above, one of the issues before the Federal Court of Appeal was whether a PRRA officer was entitled to consider an application pursuant to subsec- tion 113(d) of the IRPA after he or she determines that a person is ex- cluded from protection under section 98. As to the role of a Minister’s delegate, the decision addressed this only peripherally: [10] The PRRA officer concluded that there was a real risk that the Li brothers would be tortured, given the nature of the charges pend- ing against them. She then sent the file on to the Minister’s delegate for consideration of the factors militating against allowing the Li brothers to stay in Canada, that is, the nature and severity of the crimes alleged against them. This weighing exercise has yet to be competed.... [...] [54] ...Notwithstanding the PRRA officer’s conclusion that section 98 applied to the Li brothers, she went on to find that they were at risk of torture if returned to China and forwarded the file to the Min- ister’s delegate for weighing of the factors relevant to their removal to China in the face of that risk.... Muhammad v. Canada (MCI) Cecily Y. Strickland J. 241
73 However, the issue of the jurisdiction of a Minister’s delegate to make a decision following the risk and security assessments was substan- tially considered by Justice Shore in Placide, above. 74 In Placide, the applicant was a Haitian citizen who sought judicial review of the decision of a Minister’s delegate denying his application for refugee protection. Between 1989 and 2005 the applicant had been convicted of forty-four criminal offences and a removal order was issued against him. He then applied for a PRRA which was granted on the basis that he would face a risk to his life or a risk of cruel or unusual treatment or punishment if returned to Haiti. Subsequently, the Minister’s delegate rejected the applicant’s application for protection on the basis that he would not be subjected to danger of torture or a risk to his life or of cruel or unusual punishment if he were returned. The Minister’s delegate also found that the applicant was a present and future danger to the Canadian public. 75 The Court dismissed the application for judicial review of that deci- sion and, in the context of a change of circumstances analysis, noted that the Minister’s delegate did not “reverse” the PRRA officer’s decision and that “the reasons provided by the officer are only an assessment which the Minister’s delegate has to consider in his final decision, but which he or she is not bound by”. The delegate made his own decision as required under the IRPA on the basis of the evidence before him at the time of his decision. The Court stated that the applicant was attempting to give the PRRA risk assessment “weight that it does not have”. 76 Justice Shore stated the following about the scheme of the relevant provisions: [60] In general, any foreigner who is subject to a removal order that is in force and who is not named in a security certificate or a danger opinion may apply to the Minister for protection (subsection 112(1) of the IRPA). If a foreigner, like Mr. Placide, is described in subsec- tion 112(3) of the IRPA, refugee protection may not result (subsec- tion 112(3) in limine). Consideration of such a person’s application, in contrast to that of a regular application, which is considered on the basis of sections 96 to 98 of the IRPA, is — in a situation such as Mr. Placide’s — on the basis of the grounds for protection set out in sec- tion 97 and the nature and severity of acts committed by the applicant or the danger that the applicant constitutes to the security of Canada (subparagraph 113(d)(i) of the IRPA). [61] Before making a decision, the Minister’s delegate must take into consideration the written assessments of the grounds for protection 242 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
described in section 97 and the factors set out in subparagraph 113(d)(i) of the IRPA (subsection 172(1) of the IRPR). The two as- sessments are disclosed to the applicant, who has 15 days to file writ- ten submissions with the Minister’s delegate. If the delegate con- cludes that the applicant is not described in section 97, he or she is not required to take the factors set out in subparagraph 113(d)(i) into consideration and can reject the application for refugee protection (subsection 172(4) IRPR). This process is in fact a codification of Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 S.C.R. 3, 2002 SCC 1, at paras. 122-123). [62] Finally, if, however, the Minister’s delegate concludes that the applicant would be subjected to a risk described in section 97, he or she must assess the factors set out in subparagraph 113(d)(i) and, if applicable, conduct a balancing exercise to determine whether the ap- plicant’s situation is exceptional enough to warrant his removal to a country where torture is used (paragraph 113(d) of the IRPA; Suresh, above, at paras. 76-79; Charkaoui (Re), 2005 FC 1670 (CanLII), [2006] 3 F.C.R. 325, 2005 FC 1670, at paras. 12-13)). [63] In this context, it is obvious that the PRRA officer who con- ducted the assessment, dated November 16, 2007, merely gave ad- vice or made a suggestion that is not binding upon the Minister’s delegate. In accordance with section 6 of the IRPA, the Minister did not delegate to the PRRA officer but to National Headquarters only the power to dispose of an application for protection described in subsection 112(3) of the IRPA (Immigration Manual, ch. 1L3, CIC Instrument of Designation and Delegation, Item 48 (Delegated au- thority - Form an opinion whether, in relation to the eligibility of a claim under subsection 101(2) of the Act, a person who is inadmissi- ble on grounds of serious criminality by reason of a conviction outside Canada is a danger to the public in Canada.) This is delegated to National Headquarters). [64] In fact, case law requires that the delegate make the decision himself and give reasons for it: “the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion” (Suresh, above, at para. 126). The process is similar to that of Thomson v. Canada (Deputy Min- ister of Agriculture), 1992 CanLII 121 (SCC), [1992] 1 S.C.R. 385, at pages 399 to 401, in which the Court ruled that the holder of a power who receives a recommendation is not required to follow it (case law has several similar examples: Jaballah (Re), 2004 FCA 257 (CanLII), [2005] 1 F.C.R. 560, 2004 FCA 257, at paras. 17-22 (PRRA; obiter); Robinson v. Canada (Canadian Human Rights Com- mission) reflex (1995), 90 F.T.R. 43, 52 A.C.W.S. (3d) 1098, at para. Muhammad v. Canada (MCI) Cecily Y. Strickland J. 243
23; Jennings v. Canada (Minister of Health) reflex (1995), 97 F.T.R. 23, 56 A.C.W.S. (3d) 144, at paras. 31-32, aff’d by (1997), 211 N.R. 136, 56 A.C.W.S. (3d) 144, leave to appeal to S.C.C. refused, see [1997] S.C.C.A. No. 319; Abdule v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 282, 92 A.C.W.S. (3d) 578 at para. 14). [65] Otherwise, the Minister’s delegate would not really be exercis- ing the power conferred on him. The Minister’s delegate would merely be approving assessments administratively and giving them force of law. This would essentially give PRRA officers a deci- sion-making power which the Minister decided to delegate to an- other officer in the public service. [Emphasis added] 77 Based on Placide, the PRRA Officer’s risk assessment is merely ad- vice or a suggestion which does not bind the Minister’s Delegate, who is permitted to make her own decision with reasons. Further, any balancing of the risk and security assessments only comes into play if the Min- ister’s Delegate determines that a section 97 risk exists. 78 The Applicant submits that this Court should not follow Placide as it was based on a wrong section of the Instrument of Designation and be- cause the Court in that case failed to appreciate the PRRA officer’s opin- ion as being formed before the Minister’s delegate’s opinion. 79 As to the first point, I believe the Applicant refers to paragraph 63, above, which made reference, in parenthesis, to the Immigration Manual, ch. 1L3, CIC Instrument of Designation and Delegation, Item 48. While the reference to Item 48 may have been misplaced (the correct reference possibly being section 68), in my view this is inconsequential. The rele- vant point is that in accordance with section 6 of the IRPA, the Minister did not delegate to the PRRA officer, but only to National Headquarters, the power to dispose of an application for protection of a person de- scribed in subsection 112(3) of the IRPA, which is also the case in this matter (IRPA, section 6, CIC Instrument of Delegation Item 68). In any event, Placide still stands on the basis of its reliance on the other deci- sions described in paragraph 64 which indicate that delegates are to make the decision themselves and give reasons. 80 As to the second point, I do not believe that this has merit or that the Court in Placide failed to appreciate that the PRRA officer’s opinion was formed before the Minister’s delegate’s opinion. To the contrary, the Court set out the legislative process in detail as well as a chronology of 244 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
the facts. This demonstrates that the Court was well aware of when the PRRA officer’s decision was made. 81 Placide was also followed by Justice Hughes in Delgado, above. In that case, the Board allowed the applicant’s wife’s claim for refugee pro- tection but found that the applicant was excluded by reason of Article 1F(a) of the Convention. The applicant sought a PRRA and the PRRA officer determined that the applicant would be at risk if he were to be removed to Angola. However, a CBSA security assessment concluded that the applicant was complicit in crimes against humanity. The Min- ister’s delegate rejected the applicant’s application for a stay of removal and concluded that, on balance, there was insufficient evidence to demonstrate risk to life or that the applicant would face more than a mere possibility of cruel and unusual treatment and punishment or torture in Angola. 82 On judicial review of that decision, the applicant advanced a similar argument to that made in this case. Specifically, that under the scheme of the IRPA and the IRPA Regulations, the risk decision should have been made by a PRRA officer and not the Minister’s delegate. Justice Hughes relied on Placide, above and found that the Minister’s delegate makes the final decision on the restricted PRRA application. 83 I would also note that in the earlier decision of Muhammad, above, Justice Boivin relied on Placide in finding that the Minister’s delegate was entitled to conduct her own research because she was not engaging in a mere review of the PRRA officer’s assessment and need not limit herself to the information considered at that level. 84 Based on the foregoing, it is my view that the Minister’s Delegate makes the final decision on the restricted PRRA application and was not bound by the PRRA Officer’s risk assessment. Thus, whether reviewed on the correctness or reasonableness standard, there was no reviewable error.
Issue 3: Were the principles of procedural fairness violated, more specifically: (i) Is the structure of the decision-making process pursuant to section 112(3) independent and impartial; and, is the Minister’s Delegate an independent decision-maker? (ii) Was there a reasonable apprehension of bias or an abuse of process? Muhammad v. Canada (MCI) Cecily Y. Strickland J. 245
Applicant’s Position (i) Structural Independence and Impartiality, Individual Independence 85 The Applicant submits that the Minister’s Delegate lacks the neces- sary independence to make an assessment on a risk of torture. Section 7 of the Charter is engaged when one can be deported to a country to face a risk of torture, therefore, the principles of fundamental justice require that the Applicant is entitled to have his risk assessed by an independent and impartial tribunal. 86 The Applicant refers to Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 (S.C.C.) [Matsqui Indian Band] and R. v. Valente (No. 2), [1985] 2 S.C.R. 673 (S.C.C.) [Valente] which set out the test for independence and impartiality as including three criteria being security of tenure, financial security and administrative control. These criteria apply equally to tribunals although the level of independence can vary. Judicial independence can be both individual and institutional (Provincial Court Judges’ Assn. (New Brunswick) v. New Brunswick (Minister of Justice), 2005 SCC 44, [2005] 2 S.C.R. 286 (S.C.C.)). The requirements of independence and impartiality will vary depending on the nature of the administrative decision (Cie p´etroli`ere Imp´eriale c. Qu´ebec (Tribunal administratif), 2003 SCC 58, [2003] 2 S.C.R. 624 (S.C.C.); Bell Canada, above). 87 The Applicant states that the Minister’s Delegate’s position does not possess the hallmarks of independence required to satisfy a reasonable person that she holds the requisite degree of independence or impartiality for the following reasons: • The Minister’s Delegate is situated in the Case Management Branch (CMB) of CIC which deals with sensitive cases; • The Case Review division provides support and advice on cases to senior management and the Minister of CIC; • The CMB has ministerial advisors who report directly to the Minister; • The CMB participates in litigation management; • The Manager of the CMB, who is the Manager to whom the Min- ister’s Delegate reports, is also involved in managing sensitive high profile cases; • The Manager meets regularly with the delegates to discuss issues related to their cases; 246 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
• There is no independent scheduling system and no effort is made to insulate delegates from other functions of the CMB; and • The intermingling of the Minister’s Delegate’s function with the other CMB functions undermines the perceptions that she is an independent and impartial decision-maker. 88 The Applicant submits that the fact that the Minister’s Delegate is selected through a competition does not make her independent. Further, in high profile cases where the government has invested political capital in removing individuals from Canada, situating the decision-maker close to the Minister does not create an image that she is independent and impartial. 89 In order to assess whether there is institutional impartiality, the struc- ture for the decision-making process and the decision-makers chosen must be such that they would be perceived by a reasonable person re- viewing the matter objectively to be acting impartially. In the context of security certificate cases decided by Minister’s delegate’s who almost al- ways found that the applicant faced no risk, the findings were overturned by this court as being unreasonable. 90 The Applicant submits that while in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control & Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 (S.C.C.) [Ocean Port], the Supreme Court concluded that, absent Charter considerations, the legislature is free to craft a structure for administrative tribunals, it acknowledged that the Charter may require a more independent structure. 91 The Applicant submits that although this Court has held that a PRRA officer has the requisite level of independence from the Minister to ob- jectively decide risk, this was based on fixed term tenure and such an officer is not as close to the Minister’s office as his delegate. 92 The Applicant states that the test for independence and institutional impartiality requires both the existence of institutional structures that provide sufficient independence and impartiality and the impartiality of decision-makers, both of which were not met in these circumstances.
(ii) Reasonable Apprehension of Bias or Abuse of Process 93 The Applicant submits that a reasonable and informed person, view- ing this matter realistically and practically, would believe that the Min- ister’s Delegate is incapable of being impartial in her assessment of the Applicant’s restricted PRRA application. Muhammad v. Canada (MCI) Cecily Y. Strickland J. 247
94 The Applicant submits that both Ministers concerned, as well as CBSA, have a direct and personal interest in the outcome of his case because of its implications for the CBSA wanted list. These parties have invested significant political capital in the list and were at the time of the Decision looking to expand the criteria for inclusion. If the Applicant was found to be at risk as a consequence of being placed on the list, this would be embarrassing to the government as it would be counter-produc- tive to its stated goals. 95 The Applicant submits that this interest is further evidenced by Min- ister Kenney’s many public statements and comments regarding the CBSA wanted list. The Minister defended the list in the face of criticism that it violates fairness and is ineffective as it may expose individuals to risk. The present case is distinguished from most of the case law because the Minister has referred to the Applicant specifically and to the CBSA’s list on which he was named (Bertillo v. Canada (Minister of Citizenship & Immigration), [1994] F.C.J. No. 1617 (Fed. T.D.); Dunova v. Canada (Minister of Citizenship & Immigration), [2010] F.C.J. No. 511 (F.C.) [Dunova]; Cervenakova v. Canada (Minister of Citizenship & Immigra- tion), [2010] F.C.J. No. 1591 (F.C.) [Cervenakova]). The Applicant was also closely monitored by Ministers and senior officials. The Manager of Case Management intervened in an unprecedented fashion to expedite the decision-making process from six months to eight weeks. 96 Therefore, given the absence of insulation between the decision- maker and the Minister, and given the interest in the CBSA wanted list and the close proximity of the decision-maker to the Minister, there was a reasonable apprehension of bias.
Respondent’s Submissions (i) Structural Independence and Impartiality, Individual Independence 97 The Respondent agrees that section 7 of the Charter is engaged. Therefore, the issue is whether the PRRA legislative scheme comports with the principles of fundamental justice. This requires procedural fair- ness, which includes independence and impartiality. Tribunal members are presumed to be impartial (Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3 (S.C.C.) at paras 44, 113; Bell Can- ada, above, at para 21; Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.) at paras 29, 32; Mugesera c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 SCC 39, [2005] 2 S.C.R. 91 (S.C.C.) at para 13 [Mugesera]; E.A. Manning Ltd. v. Ontario (Securities 248 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Commission) [1995 CarswellOnt 1057 (Ont. C.A.)], 1995 CanLII 1706; Finch v. Assn. of Professional Engineers & Geoscientists (British Co- lumbia) [1996 CarswellBC 735 (B.C. C.A.)], 1996 CanLII 773). 98 The Respondent submits that there must be an actual breach of natu- ral justice or procedural fairness to trigger judicial review and that an apprehended lack of independence is insufficient to justify intervention (I.B.E.W., Local 894 v. Ellis-Don Ltd., 2001 SCC 4, [2001] 1 S.C.R. 221 (S.C.C.) at paras 34, 49 [Ellis-Don]). Independence and impartiality are related but “separate and distinct values or requirements” (Valente, above; at p 685; Bell Canada, above, at para 18). The “criteria for inde- pendence is not absence of influence but rather the freedom to decide according to one’s conscience and opinions” (Qu´ebec (Commission des affaires sociales) c. Tremblay, [1992] 1 S.C.R. 952 (S.C.C.)). 99 The decision-maker must appear impartial in the objective view of a reasonable and well-informed observer (Cie p´etroli`ere Imp´eriale c. Qu´ebec (Tribunal administratif), [2003] 2 S.C.R. 624 (S.C.C.) at para 20). The test for reasonable apprehension of bias is whether or not an informed person, viewing the matter realistically and practically and hav- ing thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly (Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.), at 394 [Committee for Jus- tice]). The burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality (Mugesera, above, at para 13), the threshold is a high one (R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.) at para 111-113 [R v S(RD]) and the grounds for the apprehension as well as the evidence to support it must be substantial (Committee for Justice & Liberty, above, at p 394; Say, above, at para 22). 100 As to institutional bias, the Applicant must demonstrate an apprehen- sion of bias in a “substantial number of cases” (Lipp´e c. Charest (1990), [1991] 2 S.C.R. 114 (S.C.C.), at 141 [Lipp´e]; Matsqui, above). The mindset of a reasonable person is not to be equated with the mindset of either a losing party or the “unduly suspicious” (Canada (Minister of Citizenship & Immigration) v. Huntley, 2010 FC 1175 (F.C.) at paras 225-259; Geza v. Canada (Minister of Citizenship & Immigration), 2006 FCA 124 (F.C.A.)). Further, substantial deference is owed to the appro- priate organization of public servants devoted to the administration of the vast range of responsibilities of the government (Say, above, at para 22). Absent evidence to the contrary, public servants are presumed to be inde- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 249
pendent and impartial (Dunova, above; Mohammad v. Canada (Minister of Employment & Immigration) (1988), [1989] 2 F.C. 363 (Fed. C.A.) [Mohammad]). 101 On the question of institutional independence, the Respondent sub- mits where an applicant is impugning the independence or impartiality of a decision-maker, the onus is on the applicant to prove the allegation and not on the Minister to disprove it (Huntley, above, at paras 275-278). Here, the Applicant has failed to adduce sufficient evidence to prove that the Minister’s Delegate was insufficiently independent.
(ii) Reasonable Apprehension of Bias or Abuse of Process 102 The Respondent asserts that the evidence establishes that the Min- ister’s Delegate is adequately insulated from any external pressures, has an obligation to ensure there is no bias in decision-making, makes her own decisions, and works for CIC and not for CBSA. The Respondent made lengthy submissions summarizing the evidence in support of this position. 103 As to the February 3, 2012 meeting between CBSA and CIC, the Re- spondent submits that even if it could be characterized as an attempt to influence the final outcome of the Decision, what transpired at the meet- ing was never communicated to the Minister’s Delegate. The evidence is that Ms. Lavergne expressed her concerns to Mr. Dupuis. These concerns may have been based on a misunderstanding of the restricted PRRA pro- cess and potential lack of oversight of a junior officer. Mr. Dupuis ex- plained that process to her. As to Ms. Lavergne’s expressed concern about the impact of the positive PRRA assessment on CBSA’s enforce- ment mandate, the Respondent submits that this is to be expected in the circumstances surrounding the new policy initiative. 104 The Respondent submits that the Applicant’s attempt to demonstrate that CBSA’s interest in maintaining the wanted list led its officials to attempt to influence the process is without basis. While a positive deci- sion for the Applicant could have implications, the evidence is that it would not have undermined the entire program. 105 The Respondent submits that there was never an explicit attempt to try to influence Mr. Dupuis or the Minister’s Delegate or to influence the ultimate outcome. Ms. Kramer’s feeling or intuition about the outcome of the meeting on the ultimate decision should be accorded little weight in light of the evidence that the meeting intended to clarify procedural matters. There was no factual basis to support her intuition. 250 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
106 The Respondent submits that as to the communication from the Min- ister’s Office, this was simply a request for a file status update for the High Profile Case List communications document. There is nothing to suggest any interaction between the Minister’s Delegate and the Min- ister’s Office regarding the substance of the Decision. The evidence of the Minister’s Delegate was that she did not consider the communication to be an attempt to influence her decision. Direct communications with the Minister’s Office, such as media relations, question period notes and other requests for information, are handled by other officials in her work unit and are outside the scope of the Minister’s Delegate’s functions. 107 The Respondent submits that simply because the Minister’s Delegate may have been aware of the high profile nature of the Applicant’s case, this does not demonstrate that her Decision was in any way subject to external influence. She is employed in a unit which works on such cases and it is not unusual. Her evidence was that she did not feel any pressure to decide the Applicant’s case in a particular way as a result of the Min- ister’s public statements. 108 The Respondent submits that the requisite link has not been estab- lished between the conduct alleged to be inappropriate, the meeting, and an ability to influence the outcome of the Decision. Even if the first re- stricted PRRA decision was flawed by reason of interference in the form of the meeting, this would have been fully addressed when this Court sent that matter back for redetermination. The Decision under review is the second restricted PRRA decision, thus the Applicant’s challenge is a collateral attack on the first restricted PRRA decision as there was no similar meeting prior to the determination on May 17, 2013. 109 The Respondent submits that this Court has already found that a Min- ister’s delegate is capable of arriving at an independent decision and de- ciding a PRRA application impartially (Sing, above, at paras 33-37). Even if the Director, within the scope of her position, advises the Min- ister of certain matters, this is insufficient to establish a lack of indepen- dence (Sheriff v. Canada (Attorney General), 2006 FCA 139, [2007] 1 FCR 3 (F.C.A.)). 110 The Respondent submits that grounds for a perception of a lack of independence and impartiality must be “substantial” (Say, above). In Say, this Court considered whether the transfer of the PRRA unit from CIC to the Minister of Public Safety and Emergency Preparedness gave rise to a reasonable apprehension of institutional, systemic or structural bias with respect to processing PRRA applications. It found that a fully informed Muhammad v. Canada (MCI) Cecily Y. Strickland J. 251
person would not have a reasonable apprehension that bias would infect decision-makers in the PRRA program in “a substantial number of cases”. Therefore, a decision-maker being part of a government branch is insufficient to support institutional bias.
Summary of Relevant Evidence 111 It is helpful at the outset to briefly summarize some of the more rele- vant evidence forming part of the record in this matter:
(i) Minister’s Delegate and CMB 112 The Minister’s Delegate was hired as a Director, Case Determination, following an internal public service competition process. 113 Her affidavit evidence was that she was appointed with indeterminate status by CIC in accordance with the PSEA. The job description for the Minister’s Delegate calls for “extensive experience making recommen- dations and/or decisions under the Immigration and Refugee Protection Act [IRPA]”. 114 The Minister’s Delegate is situated in the CMB office, which office is divided into the Case Review division and Litigation Management divi- sion. The stated raison d’ˆetre of the CMB is “effective management of High Profile, complex, contentious & sensitive cases.” The Case Review division provides support and advice on cases to senior management and the Minister of CIC. It also reviews and manages contentious, complex, high profile and sensitive immigration cases, provides guidance to CIC officers, and collaborates with CIC and CBSA. 115 The Minister’s Delegate reports to Mr. Dupuis, the Director-General of the CMB, who in turn reports to the Associate Assistant Deputy Min- ister. Mr. Dupuis would have regular meetings with the Directors to dis- cuss operational matters and individual files. Mr. Dupuis stated that he had advised the Minister’s Delegates not to discuss their cases with him, that he has never discussed the contents of their decisions and that his practice is to emphasize to the Directors that their decisions are theirs alone. Mr. Dupuis also prepared the mid-year and year-end performance reviews for the Directors of case determination, which included the Min- ister’s Delegate. 116 Mr. Dupuis confirmed that there are two ministerial advisers who are a part of the Case Review Branch and who report to him through their Director. They have a direct connection with the Minister’s Office. 252 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
117 The Minister’s Delegate’s affidavit evidence was that she was aware of the importance of maintaining the independence of a decision-maker and rendering an impartial decision, which was also emphasized in her employment training. CIC’s PRRA operational manual advises PRRA officers of their obligation to ensure that they are not, and do not appear to be biased when exercising their decision-making powers. The Min- ister’s Delegate stated that her decisions are always her own and that, generally speaking, the only communications she has with Mr. Dupuis regarding a particular decision concerns who will assume carriage of a particular matter and the timing of the decision. However, she does from time to time consult with peers regarding a particular case, which in- cludes general discussions of the facts and various aspects to be consid- ered. She did not discuss the substance of her Decision in this case with Mr. Dupuis nor did he attempt to discuss it with her. She also did not communicate with anyone from CBSA about her decision. 118 The only communication she had with senior officials was a status update regarding the timing of her Decision. She received an email which was forwarded to her from Mr. Dupuis. The email was from Heather Primeau, dated January 30, 2013, and the subject line was “Hpcl question” (Hpcl stood for “high profile cases list”). The email stated that “Kennedy has asked where we are at with the arshad Muhammad prra”. The Minister’s Delegate did not know what Kennedy’s role was but she knew he was with the Minister’s Office. She stated that such questions occasionally occurred but that she did not have direct communications with Kennedy or the Minister’s Office and did not consider the email to be an attempt to influence her Decision. Mr. Dupuis confirmed that Heather Primeau was his director at Case Review and that “Kennedy” was Kennedy Hong who was in the Case Management Unit of the Min- ister’s Office. He also confirmed that the Minster’s Delegate responded to him, providing an update on the status of the restricted PRRA.
(ii) Interest in the CBSA Wanted List 119 With regard to the CBSA wanted list, the evidence establishes that there was considerable government interest in the list and that CBSA considered it to be an important new initiative. The evidence is that the federal government utilizes this list to locate individuals who are sus- pected war criminals. The evidence also includes media coverage sug- gesting that a positive risk opinion might undermine the government’s efforts to remove the individuals who are on the list. Muhammad v. Canada (MCI) Cecily Y. Strickland J. 253
120 When the wanted list was first established and publicized in July 2011, Minister Kenney stated that those who have been involved in war crimes “arrive here by fraud, they will be identified, they will be located, and they will face the consequences”. The Minister further referred to individuals on the list as foreign criminals who had been captured and he thanked all those Canadians who called the tip line. 121 The evidence of the Minister’s Delegate was that she was aware of the CBSA wanted list program and had reviewed the news reports and the Minister’s public statements submitted with the Applicant’s submis- sion. She did not feel any pressure to decide the case in a particular way and political agendas do not interfere with her decisions.
(iii) Meeting between CBSA and CIC 122 Prior to the issuance of the Decision under review, a meeting was held on February 3, 2012 between CBSA and CIC which concerned, “Muhammad-discussion on next steps”. The attendees were Ms. Glenda Lavergne, the former Director General, Border Operations at CBSA, Ms. Susan Kramer, Director, Case Management Division at CBSA, and Mr. Dupuis. The evidence is that Ms. Lavergne expressed her concern over the quality of, and a lack of oversight over, the Applicant’s positive PRRA risk assessment and how a positive decision by the Minister’s Delegate would impact the wanted list which was an important initiative to CBSA. 123 Ms. Kramer stated that the purpose of the meeting was to express concerns about the initial PRRA assessment. If the Applicant received a positive PRRA because of being posted on CBSA’s wanted list, there was a possibility that the website could no longer be used as an effective tool. She stated that she found the meeting ‘odd’ as it was the first time she observed a meeting where her Director General sought to discuss a specific case with CIC. She stated that she and her colleagues do not normally meet with an independent decision-maker in advance of the de- cision and that she thought the meeting was ill advised. While there was no indication that the Minister’s Delegate would decide in a particular way, following the meeting she felt comfortable that they would have a ‘good decision’ based on the meeting. 254 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Analysis (i) Structural Independence or Impartiality, Individual Independence 124 In my view, the Applicant’s argument that there is a lack of structural independence or impartiality as a result of situating the Minister’s Dele- gate in the CMB office cannot succeed. 125 An allegation of a lack of institutional impartiality requires that an informed person, viewing the matter realistically and practically and hav- ing thought the matter through, would have a reasonable apprehension of bias in a substantial number of cases (2747-3174 Qu´ebec Inc. c. Qu´ebec (R´egie des permis d’alcool), [1996] 3 S.C.R. 919 (S.C.C.) at para 44) [.2747-3174 Qu´ebec Inc.]; Lipp´e, above). 126 In R. v. S. (R.D.), above, at paras 111 to 113, Justice Cory, in the context of judicial independence, observed that “the threshold for a find- ing of real or perceived bias is high”, and emphasized that “the reasona- ble person must be an informed person” with knowledge of all the rele- vant circumstances, including “the traditions of integrity and impartiality that form a part of the background” and would be “apprised also of the fact that impartiality is one of the duties the judges swear to uphold”. 127 Say, above, is relevant to this application. There, the federal govern- ment transferred the PRRA program from CIC to CBSA, then later trans- ferred it back. The applicant in Say argued that while the program was located within CBSA, a question of institutional impartiality arose. Jus- tice Gibson applied the test for a reasonable apprehension of bias as de- scribed in Committee for Justice & Liberty, above, and acknowledged that the requirements of procedural fairness, which include independence and impartiality, vary for different tribunals, as set out in Bell Canada, above, and stated: [22] Against the foregoing, I will approach the allegations now before the Court of lack of independence or impartiality, or institu- tional bias, on a standard of reasonable apprehension of bias or lack of independence or impartiality, not viewed through the eyes of a person of “very sensitive or scrupulous conscience”, but rather taking into account the guidance from the Supreme Court of Canada as quoted above. That guidance directs me to bear in mind that grounds for a reasonable apprehension of bias or perception of a lack of insti- tutional independence and impartiality must be “substantial”. I am satisfied that this is particularly true on the facts of this matter where I am further satisfied that substantial deference is owed to Govern- ment decisions that relate to appropriate organization of public ser- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 255
vants devoted to the administration of the vast range of responsibili- ties of the Government of Canada. 128 Justice Gibson found that the only evidence adduced on behalf of the applicants tending to support institutional basis or want of impartiality and independence was anecdotal at best, while acknowledging that the test is the perception in the mind of the reasonably informed observer. In contrast, the respondent had adduced evidence that PRRA decision-mak- ers generally had security of tenure and received extensive training in- cluding the importance of impartiality and independence, and that their immediate supervisors were without enforcement or removal responsibil- ities, which insulated the PRRA decision-makers. 129 Justice Gibson dismissed the argument, stating: [38] I am satisfied that what Chief Justice Lamer described as “a rea- sonable apprehension of a bias on an institutional level,” and in the case there before the court, he was dealing with a court as an institu- tion, applies equally to what is sometimes described as “structural bias” or “systemic bias” and to a reasonable apprehension of lack of independence and impartiality in the totality of members of an insti- tution such as public officials charged with a largely adjudicative function, and, more specifically, such as members of the PRRA deci- sion-making group. [39] On the evidence before the Court in this matter, I conclude that there would not be a reasonable apprehension of bias, in the mind of a fully informed person, in a substantial number of cases. That is not to say that there could not well be a reasonable apprehension of bias, as a matter of first impression, in the mind of a less than fully in- formed person, in a substantial number of cases. The mandate of the CBSA was portrayed in the substantial amount of public information surrounding its establishment as a security and enforcement mandate, a mandate quite distinct from a “protection” mandate. But the evi- dence before the Court indicates that its mandate was, at least in the period in question, rather multifaceted and that there was a conscious effort to insulate the PRRA program from the enforcement and re- moval functions of the CBSA. Thus, I conclude that a “fully in- formed person” would not have a reasonable apprehension that bias would infect decision makers in the PRRA program in a “substantial number of cases. [Emphasis original] 256 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
130 In Singh, above, one of the issues addressed also concerned whether the PRRA process raised the question of institutional bias. Justice Blanchard dismissed this argument and found that: [38] The Applicant submits that PRRA reviews are conducted by “low-level officials with little or no independence and with no recog- nized competence in analysis of human rights or international law, and the courts are not ensuring access to an effective remedy.” Fur- ther, the Applicant argues that the “decision-maker is not someone of recognized competence, but rather an employee of the Ministry that wishes to deport the Applicant. There is no real judicial indepen- dence for the PRRA Officers.” The Applicant states that “all deci- sions rendered by PRAA officers show a systematic bias in favour of deportation and against the application of international human rights law.” [39] The Applicant is in essence raising the question of institutional bias of the PRRA process. That question was considered by my col- league, Mr. Justice de Montigny in Lai v. Canada (Minister of Citi- zenship and Immigration), 2007 FC 361. I reproduce below paragraphs 64 and 74 of his reasons: [64] Because an allegation of bias is of such momentous importance, the grounds to establish such an apprehension must be substantial and must rest on something more than pure speculation or conjecture: Committee for Justice & Liberty, above, at pages 394-395; Arthur v. Canada (At- torney General), [2001] F.C.J. No. 1091, 2001 FCA 223, at paragraph 8. In the present case, I have not understood counsel’s submission to be that the PRRA officer was personally biased. What we are dealing with here is an allegation of institutional bias, which would have arisen in all the cases decided while the Minister of Citizenship and Immigration had overlapping statutory “intervention” and “protection” authority during the transition period fol- lowing the IRPA’s enactment... [74] In coming to this conclusion, I am comforted by the decision reached by my colleague Justice Frederick Gib- son in Say v. Canada (Solicitor General), [2005] F.C.J. No. 739, 2005 FC 739 (aff’d, [2005] F.C.J. No. 2079, 2005 FCA 422).... Also see Doumbouya v. Canada (Minister of Citizenship and Immi- gration), 2007 FC 1187at paragraph 99; Kubby v. Canada (Minister of Citizenship and Immigration), 2006 FC 52 at paragraph 9; and Muhammad v. Canada (MCI) Cecily Y. Strickland J. 257
Oshurova v. Canada (Minister of Citizenship and Immigration), 2005 FC 1321 at paragraph 5. [40] I adopt the reasoning and conclusions articulated by Mr. Justice de Montigny in Lai, above. Regarding the PRRA process in the cir- cumstances of this case, I am also of the view that there is no reason- able apprehension of bias, either from an institutional or from an in- dividualized point of view. It follows, therefore, that there can be no infringement of the principles of fundamental justice or procedural fairness. 131 In Rosenberry v. Canada (Minister of Citizenship & Immigration), 2010 FC 882 (F.C.), the issue concerned the procedure laid out in section 44 of the IRPA, which provides that an officer who is of the opinion that a permanent resident or a foreign national in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be trans- mitted to the Minister. The ultimate decision is then made by a Min- ister’s Delegate pursuant to subsection 44(2). 132 The applicant argued that the procedure laid out in section 44 violates the principles of fundamental justice because the Minister’s delegate re- views a report prepared by an officer from the same department in order to adjudicate whether or not the person referred to in that report should be removed. The applicant argued that the same department is acting in both an executive and judicial capacity, thus violating the constitutional principle of the division of powers. 133 Justice O’Keefe stated that, “Working in the same department has not been considered as a reason to find a lack of independence, especially in the context of a decision in which neither the officers involved nor the institution has any substantial interest.” 134 Based on the foregoing and given that an allegation of a lack of insti- tutional impartiality is of such potential significance from both an opera- tional and a procedural fairness perspective, the grounds to establish it must be substantial. The evidence adduced by the Applicant in this case is insufficient to meet this requirement and satisfy his onus of demon- strating want of impartiality in a substantial number of cases. The mere fact that the Minister’s Delegate is situated in the CMB, particularly when considered together with the evidence concerning her relationship to and communications with both Mr. Dupuis and the Minister’s Office, does not meet the onus. 135 In addition to his concern arising from the situating of the Minister’s Delegate in the CMB and the structure of that office, the Applicant relies 258 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
on a Statutory Declaration of Hadayt Nazami, a lawyer with the Appli- cant’s counsel’s firm, as evidence of a want of impartiality in a substan- tial member of cases. This affidavit states that where PRRA assessments were performed by Minister’s delegates in the context of security certifi- cate cases, the Minister’s delegates “always”, and unreasonably, found that the applicants faced no risk upon deportation: 7. Post Suresh, where either the PRRA assessment or the danger opinion was made in the context of Security Certificate Cases, the Minister’s Delegate always found that there was no risk of torture faced by the individual named in the Certificate. All of the persons represented by my firm in this situation were subsequently successful in obtaining stays of their removals from the Federal Court due to the unreasonableness of the Minister’s Delegate’s finding. 136 However, neither Mr. Nazami nor the Applicant have identified the decisions in question or produced any form of statistical analysis sup- porting this conclusion. Nor is the basis upon which Mr. Nazami states that the Minister’s delegate “always” found that there was no risk sup- ported by reference to all such dispositions in all cases so decided. And, in any event, each of those decisions is based on its individual facts. Thus, the mere fact that in some, or all, such cases it was found that there was no risk, without more, does not establish institutional bias. In my view, this evidence is insufficient to establish a want of independence in a substantial number of cases. 137 Where a substantial number of cases cannot be identified, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis (Benitez v. Canada (Minister of Citizenship & Immigration), 2006 FC 461 (F.C.) at para 196; Lipp´e, above). Here, this involves a consideration of whether the Min- ister’s Delegate lacked the hallmarks of independence, those being secur- ity of tenure, financial security and administrative control (Matsqui, above, at para 73, 75), and whether there was a reasonable apprehension of bias or abuse of process as a result of interest in the wanted list. 138 The classic articulation of the test for what constitutes a reasonable apprehension of bias was authored by Justice de Grandpr´e (as he then was) in Committee for Justice & Liberty, above, as: [T]he apprehension of bias must be a reasonable one, held by reason- able and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... [The] test is “what would an informed person, viewing the matter realistically and prac- tically — and having thought the matter through — conclude. ...” Muhammad v. Canada (MCI) Cecily Y. Strickland J. 259
139 Abuse of process is a common law principle invoked principally to stay proceedings in the context of a delay where to allow them to con- tinue would be oppressive (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.) at para 116 [Blencoe]). However, in Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 1 F.C. 828 (Fed. C.A.) [Tobiass], it was used to sup- port an argument of interference in the decision-making process. Abuse of process must only be invoked in the “clearest of cases” and such cases will be “extremely rare” (Blencoe, above, at para 120). The Supreme Court of Canada stated the following in Blencoe, above: [120] In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the adminis- trative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Brown and Evans, supra, at p. 9-68). Ac- cording to L’Heureux Dub´e J. in Power, supra, at p. 616, “abuse of process” has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the pro- ceedings must, in the words of L’Heureux Dub´e J., be “unfair to the point that they are contrary to the interests of justice” (p. 616). “Cases of this nature will be extremely rare” (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive. 140 It is not disputed that there was considerable government interest in the CBSA’s wanted list and that there were concerns about the implica- tions of a positive risk assessment on the list. It is therefore certainly not outside the realm of possibilities that, given this interest, a decision- maker could be inclined toward a certain result in the absence of suffi- cient hallmarks of independence. 141 However, the Applicant has not put forth any evidence to demonstrate that the Minister’s Delegate was not independent and impartial. Absent evidence to the contrary, a decision-maker is presumed to be impartial (Mugesera, above). Allegations of a lack of independence or a reasona- ble apprehension of bias are serious and cannot be based on pure specu- lation or limited evidence. Here, the Applicant’s submissions in this re- gard are also rebutted by the evidence of the Minister’s Delegate, Mr. Dupuis and others. 260 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
142 In Sing, above, the applicant argued that the Minister’s Delegate was not an officer of the PRRA unit but a “Minister’s Delegate” and, there- fore, was not independent from the Minister. Justice Shore noted that: [34] Pursuant to section 6 of the IRPA, the Minister of Citizenship and Immigration has delegated PRRA Officers and certain officials of CIC at National Headquarters, including the Director of Case De- termination, to make PRRA decisions. The decision-maker in Mr. Lai’s PRRA application is the Director, Case Determination of the Case Management Branch at the National Headquarters of the De- partment of Citizenship and Immigration (CIC — Instrument of Des- ignation and Delegation, Operational Manual, IL3, Column 52). 143 Applying the Committee for Justice & Liberty test, the Court con- cluded that the delegate had arrived at an independent and fair decision. 144 In Mohammad, above, the Federal Court of Appeal found that the ad- judicator in that case, who was an immigration officer pursuant to the IRPA, had security of tenure, which is generally available to public ser- vants. Similarly in Dunova, above, described in greater detail below, Chief Justice Crampton found that PRRA officers are independent as they are members of the Public Service of Canada which is independent from the executive branch of government. Here, the Minister’s Delegate is also a member of the Public Service of Canada and therefore, by corol- lary, the same principles apply.
(ii) Reasonable Apprehension of Bias or an Abuse of Process? 145 The Applicant also submits that a reasonable apprehension of bias ex- ists as a result of the comments made by the Minister of CIC and CBSA’s interest in the outcome of the Applicant’s case as having impli- cations for the wanted list. In this regard, the parties refer to Dunova, above, with the Applicant stating that it is distinguished from the present case. 146 In Dunova, the Court took note of the fact that Minister Kenney had made public comments concerning whether certain countries host perse- cution. Justice Crampton found that the Minister’s political comments did not in and of themselves give rise to a reasonable apprehension of bias. He also stated the following which, in my view, equally applies in the present case: [69] Even if a reasonably informed person, viewing the matter realis- tically and practically, might reasonably apprehend the Minister to be biased based on the comments that he was reported to have made, that does not provide a sufficient basis for concluding that such a Muhammad v. Canada (MCI) Cecily Y. Strickland J. 261
person also would reasonably apprehend the Officer to be biased. The Officer is a member of the Public Service of Canada. It is well accepted that the Public Service of Canada is independent of the ex- ecutive branch of government. Absent evidence to the contrary, the Officer also should be presumed to be independent and impartial. No such evidence to the contrary was presented by the Applicant. 147 Similarly, in the present case, the public comments made by the Min- ister regarding the CBSA wanted list are insufficient to give rise to an apprehension that the Minister’s Delegate, the decision-maker, was bi- ased. According to the evidence, the Minister’s Delegate is a member of the Public Service of Canada who was hired through public service staff- ing advertisement and notification. The presumption is that a decision- maker is impartial, absent evidence adduced to the contrary. Here, there is no evidence that the Minister’s comments influenced the Minister’s Delegate. Her evidence was that she was not influenced and that her po- sition required that she ensure that not only she was not biased, but also that she did not appear to be biased. 148 This leaves the question of whether the meeting between CBSA and CIC or the email from the Minister’ Office to the Minister’s Delegate created a reasonable apprehension of bias or constituted an abuse of process. 149 This Court has already ruled on CBSA’s failure to disclose the posi- tive PRRA assessment in the context of the Applicant’s detention review. Justice Beaudry found that a conscious decision to withhold the informa- tion from a detention hearing member of the Board amounted to a breach of the duty of candor. 150 With respect to the Respondent’s submission that the Applicant’s challenge to the second restricted PRRA decision is a collateral attack on the first restricted PRRA decision, it is of note that the subject meeting was held on February 3, 2012, before the first decision was rendered. However, the Applicant only became aware of the meeting after Justice Boivin’s judicial review decision concerning the first restricted PRRA decision. Therefore, this evidence is new in the context of the present judicial review. I also understand the Applicant’s submissions to suggest that it is the decision-making process which was tainted. Therefore, in my view, the fact that the meeting was held before the first restricted PRRA decision is not consequential to the Court considering this argument. 262 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
151 The question is whether the Minister’s Delegate, in making the sec- ond restricted PRRA decision, the Decision under review, was influ- enced, or could have been influenced, by the meeting. There is no evi- dence in the record that the Minister’s Delegate was actually influenced or that she deliberately acted unfairly in any way. The test, however, is whether a reasonable person, having known about the meeting between CBSA and CIC, would conclude that the Minister’s Delegate could be free of bias or whether that person would conclude that the meeting had tainted the decision-making process. 152 In order to find that the meeting constituted an abuse of process, the process must have been “tainted to such a degree” that this would be one of the “clearest of cases”. In other words, overwhelming evidence would be required showing that the proceedings under scrutiny were unfair to the point that they are contrary to the interest of justice. 153 The February 3, 2012 meeting was certainly ill-advised as it could easily be perceived as, and indeed may have been, an attempt to influ- ence the decision-making process. Ms. Kramer’s evidence was that she found the meeting to be unusual as normally such a meeting would take place after a decision is rendered. In addition, Ms. Kramer stated that following the meeting, she was comfortable that “a good decision” would be made. 154 Nevertheless, I am not persuaded that what occurred is sufficient to meet the test for a reasonable apprehension of bias or a finding of an abuse of process. Here, there is a significant link in the chain of events which is missing. While there is clear evidence of CBSA expressing its concerns to CIC over the implications of a positive PRRA assessment on the wanted list, there is no evidence that the actual decision-maker, the Minister’s Delegate who rendered the Decision, was influenced by or bi- ased as a result of the meeting. There is no evidence that the concerns raised in the meeting were conveyed by Mr. Dupuis or any other person attending the meeting to the Minister’s Delegate. 155 As to the email from the Minister’s Office to the Minister’s Delegate, this was again ill-advised, but I am satisfied that the evidence demon- strates that this comprised only of a request for a status update and does not meet the test of reasonable apprehension of bias or a finding of an abuse of process. 156 In conclusion, the principles of procedural fairness were not breached on the basis of the structure of the decision-making process, a lack of Muhammad v. Canada (MCI) Cecily Y. Strickland J. 263
independence of the Minister’s Delegate, a reasonable apprehension of bias, or, an abuse of process.
Issue 4: Did the Minister’s Delegate reasonably conclude that the Applicant would not be at risk if returned to Pakistan? Applicant’s Submissions 157 The Applicant submits that the Minister’s Delegate ignored the vast majority of the evidence which clearly demonstrated that in Pakistan, tor- ture and ill-treatment are widespread and common amongst the police dealing with suspected criminals and the military dealing with suspected terrorist suspects. 158 Although the Minister’s Delegate acknowledged that because the Ap- plicant travelled to Canada on a forged passport he could face question- ing and criminal charges in Pakistan, she concluded that there was insuf- ficient evidence that the Applicant personally would be at risk of torture. However, the Applicant submits that the documentary evidence estab- lished that someone in his position has a high likelihood of being tortured in the course of a criminal investigation. For example, the Asian Human Rights Commission report, The State of Human Rights in Pakistan 2012 [AHRC 2012] indicates that torture by the military in the context of counter terrorism is endemic and that it is also widespread in routine in- vestigations by the police. The failure to address this evidence, which points to an opposite conclusion from the one reached by the Minister’s Delegate, is a reviewable error. 159 Furthermore, although the Minister’s Delegate stated that the likeli- hood of torture is speculative because torture and mistreatment in deten- tion happen mostly in Balochistan, KP and the FATA, this is contra- dicted by documentary evidence that was before her including the UKBA 2012 report which states that every police station has its own private tor- ture centre. The documentary evidence confirms that torture is routine and pervasive and does not support the finding that it occurs only in the stated areas. 160 While the Minister’s Delegate concluded that the Applicant would be brought before the authorities in Pakistan within twenty four hours, the Applicant submits that the evidence is that this amendment to the law only applies to the jurisdiction of the FATA. In addition, evidence dem- onstrates that pretrial detention in Pakistan is prevalent, is excessively long, and is a serious problem. The evidence does not indicate that those subject to short periods of detention do not run the risk of torture. Fur- 264 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
ther, there is no evidence to indicate that the Applicant would be able to afford bail or that he would be granted bail, as it is routinely denied. To have reached the conclusions that she did, the Minister’s Delegate had to have ignored the evidence. 161 The Minister’s Delegate stated that only those who are linked to spe- cific terrorist acts are arrested, which would not include the Applicant, yet she found that he would be detained but would be released quickly. The evidence is that the authorities do not just arrest those who are con- nected to a specific terrorist act. The evidence does not specify that only those who are detained for a protracted period of time are subjected to torture. Terrorist suspects are detained on an arbitrary and clandestine basis. Civilians are detained on grounds of links with terrorist organiza- tions, held indefinitely and tortured. Arrests and detentions of terrorist suspects occur without specific charges and the military arbitrarily ar- rests civilians simply to extract confessions. It is therefore reasonable to assume that, because CBSA had identified the Applicant as belonging to a terrorist organization, he is likely to be detained upon his return to Pa- kistan. The evidence is clear that torture is widespread and pervasive in detention. 162 The Applicant also points out that the findings of the Minister’s Dele- gate are contradictory to Justice Boivin’s decision, which found that the first restricted PRRA decision made in this matter by a Minister’s dele- gate was contrary to the bulk of the country conditions evidence. In addi- tion to ignoring evidence, the Applicant submits that the Decision is also internally inconsistent. Having concluded that he would likely face “dif- ficult detention conditions”, which the documentary evidence described as often extremely poor, and including inadequate food and medical care along with prevalent sexual abuse and torture, the Minister’s Delegate then concluded that the Applicant would not be exposed to risks of cruel and unusual treatment within section 97. This finding is inconsistent and constitutes a reviewable error.
Respondent’s Submissions 163 The Respondent submits that significant deference is owed to the Minister’s Delegate’s assessment of risk (Sing, above, at para 39). So long as the Minister’s Delegate took into account the relevant considera- tions and came to a conclusion reasonably supported on the evidence it is not open to the Court to reweigh the evidence, regardless of whether the evidence might also support a different conclusion (Muhammad, above, Muhammad v. Canada (MCI) Cecily Y. Strickland J. 265
at para 28; Placide, above, at para 92; Dunsmuir, above, at para 47; Khosa, above, at para 12). Further, there is no requirement to refer to every piece of evidence (N.L.N.U., above, at para 62), and administrative decision-makers benefit from a presumption that all of the evidence before them is considered unless the contrary is shown (Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.)). The mere fact that specific evidence is not mentioned in the decision does not mean that it was ignored or that the decision is unrea- sonable (N.L.N.U., above, at paras 12-18). 164 The Respondent submits that the decision does not ignore the docu- mentary evidence cited by the Applicant. While the Applicant submits that evidence as to the prevalence of mistreatment in Pakistan was ig- nored, the Minister’s Delegate did acknowledge the presence of human rights abuses but found that they occur mostly in regions that the Appli- cant would not be returning to, and target minority ethnic and religious groups of which he is not a member. The Minister’s Delegate did not find that mistreatment is confined or isolated to particular areas. The Re- spondent also submits that the evidence relied upon by the Applicant does not directly contradict the Minister’s Delegate’s finding, supported by the record, that most of the human rights abuses discussed in the evi- dence occurred outside Punjab, where the Applicant would be returning, and impacted particular groups. Given these findings, it was open to the Minister’s Delegate to conclude that the Applicant had not established the risks alleged on the appropriate standard of proof.
Analysis 165 In my view, the Decision of the Minister’s Delegate is unreasonable because it is based on a selective reading of the documentary evidence and is inconsistent. 166 In her assessment of the risks to the Applicant upon his return to Pa- kistan, the Minister’s Delegate stated that travelling with a fraudulent document to another country is unlawful in Pakistan: Therefore, if it becomes known to the immigration authorities upon return that he travelled on a fraudulent passport, there is a possibility that he could face charges and that he could be presented before a court of law. This would increase the chances that he spends time in detention. [Emphasis added] 266 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
167 The Minister’s Delegate also stated, however, that she “could not deny that the fact that Mr. Muhammad’s name and picture were pub- lished on CBSA’s website can make it hard for him to return to Pakistan unnoticed.” 168 The Minister’s Delegate refers to the UKBA 2012 report which quotes a Request for Information response dated June 2003 describing correspondence with a London-based Barrister who indicates that per- sons returning to Pakistan and who had travelled on false passports may be detained. The report also states that the Federal Investigative Agency (FIA) only interviews those nationals who are wanted by the government or involved in any criminal, unlawful or anti-state activities. Further, if a person is deported by a foreign country for any reason and is formally handed over to the Pakistani authorities, then the FIA authorities would undertake an inquiry and all deportations are inquired into: “if a failed applicant for refugee status is handed over by the country concerned to Pakistani authorities, Pakistani FIA/relevant authorities would question such a person.” 169 The documentary evidence is also replete with media reports of the Applicant’s arrest in Canada as a result of his name being posted on CBSA’s website. These document that his name, age and photograph were posted on the site and that Minister Kenney and CBSA had stated that he was linked to a Muslim organization that committed terrorist at- tacks in Pakistan. 170 Given this, in my view, in these circumstances it cannot reasonably be suggested that the Applicant would be able to return to Pakistan unnoticed. 171 As well, although the Minister’s Delegate conducts a segregated anal- ysis, that is, she considers the risk of detention based on the use of a forged passport discretely from the risk arising from the Applicant being named on the CBSA wanted list, the reality is that the Applicant is one and the same person. His return will not go unnoticed. Thus, even if he were questioned and detained based on the use of a forged passport, it is unlikely that this would be the extent of the authorities’ interest in him. Accordingly, even if the Minister’s Delegate was correct in her finding that if he were charged as a result of his use of a forged passport, he would be brought before a judge within 24 hours and would able to apply for bail, that is unlikely to be the outcome given his known alleged link to a terrorist organization. Muhammad v. Canada (MCI) Cecily Y. Strickland J. 267
172 The Minister’s Delegate then quotes the UKBA 2012 Report at sec- tion 12.11 which refers to the Code of Criminal Procedure (Amendment) Bill, 2011 and grants statutory bail to prisoners undergoing trial and to convicts whose trials and appeals are pending over a prescribed time limit: Under the law prisoners undergoing trial are entitled to statutory bail if charged with any offense not punishable by death and if they have been detained by for one year. In the case of an offense punishable by death, the accused is eligible for statutory bail if the trial has not been concluded in two years. 173 The same report also states that: • judges sometimes denied bail at the request of the police or the community or upon payment of bribes; • in some cases trials did not start until six months after a First In- formation Report [FIR], the legal basis for arrests in Pakistan (al- though the law stipulates that detainees must be brought to trial within 30 days of arrest); • in some cases individuals remained in pretrial detention for peri- ods longer than the maximum sentence for the crime with which they were; • it has been estimated that approximately 55% of the prison popu- lation is awaiting trial; • a source indicates that as many as 65 % (35,215) of the prison inmates in Punjab were yet to be convicted and were detained awaiting trial; • human rights problems included instances of arbitrary detention and lengthy pre-trial detention; • it was reported in March 2011 that at the end of 2010 the prison system was operating at 194% capacity, with more than two-thirds of all detainees in “pre-trial” detention detained for months or years before facing trial; • it was reported that in practice detainees have almost no access to effective judicial remedies. They are rarely, if ever, granted access to their families or a lawyer and frequently remain unaware of the charges, if any, against them, or the grounds for their detention. 174 The USSD 2011 report states: 268 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
• In pre-trial detention police routinely did not seek a magistrate’s approval for investigative detention and often held detainees with- out charge until a court challenged the detention. 175 Thus, while the Code of Criminal Procedure (Amendment) Bill, 2011 does indicate that bail may be available, it would appear that this is true only after charges have been laid and the person has remained in deten- tion for one year and if the charge is not punishable by death. Further, the documentary evidence indicates that bail is not a certainty and that pre- trial detention may be lengthy. 176 The Minister’s Delegate states that a review of the country condition documentation concerning the conditions of detention in Pakistan reveal, “... difficult conditions” with over-populated prisons, few doctors for medical examination of detainees and reported acts of mistreatment in- cluding beating, prolonged isolation or denial of food and sleep. How- ever, despite being exposed to those difficult conditions, “to affirm that Mr. Muhammad will likely be tortured or exposed to cruel and unusual treatment is quite speculative as there is insufficient evidence to support that Mr. Muhammad would personally be at any more risks of those treatments.” She also states that the documentation showed that these sit- uations have occurred in specific cases and are mostly identified to occur in the province of Balochistan, KP and FATA. 177 The documentary evidence is clear that torture is widespread, sanc- tioned by the authorities and that prison conditions are, at best, “difficult”. 178 The UKBA 2012 report refers to the USSD 2011 report which states the following: • The most serious human rights problems were extrajudicial kill- ings, torture, and disappearances committed by security forces, as well as militant, terrorist and extremist groups, which affected thousands of citizens in nearly all areas on the country...; • Other human rights problems included poor prison conditions, in- stances of arbitrary detention, lengthy pre-trial detention...; • Lack of government accountability remained a pervasive problem. Abuses often went unpunished, fostering a culture of impunity; • The NGO SHARP [non-governmental organization — Society for Human Rights and Prisoner’s Aid] reported that, as of December 15 [2011], police tortured persons in more than 8000 cases, com- pared with findings of 4,069 cases in 2010. Human rights organi- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 269
zations reported that methods of torture included beating with ba- tons and whips, burning with cigarettes, whipping soles of feet, prolonged isolation, electric shock, denial of food or sleep, hang- ing upside down, and forced spreading of the legs with bar fetters. Torture occasionally resulted in death or serious injury. Observers noted the underreporting of torture throughout the country....The government rarely took action against those responsible; • Some deaths of individuals accused of crimes allegedly resulted from extreme physical abuse while in custody. As of December [2011] the nongovernmental organization (NGO) Society for Human Rights and Prisoners’ Aid (SHARP) reported 61 civilian deaths after encounters with police and 89 deaths in jails, a de- crease from the previous year; • Prison conditions were often extremely poor and failed to meet international standards. Police sometimes tortured and mistreated those in custody and at times committed extrajudicial killings. Overcrowding was common... Human rights groups that surveyed prison conditions found sexual abuse, torture, and prolonged de- tention prevalent... inadequate food and medical care in prisons led to chronic health problems and malnutrition for those unable to supplement their diets with help from family or friends; 179 The UKBA 2012 report also references the AHRC 2011, stating that: • ...there has been no serious effort by the government to make tor- ture a crime in the country. Rather the state provides impunity to the perpetrators who are mostly either policemen or members of the armed forces...; • ... torture in custody is a serious problem affecting the rule of law in Pakistan. It is used as the most common means by which to obtain confessional statements and also for extracting bribes. Tor- ture in custody has become endemic and on many occasions the police and members of the armed forced have demonstrated tor- ture in open place to create fear in the general public; • Due to the absence of a functioning criminal justice framework and weak prosecution, torture in custody and extrajudicial execu- tions have increased rapidly in comparison with previous years. Every police station has its own private torture center beside their lock ups. Every cantonment area of the armed forces runs at least one torture centre and the Inter-Services Intelligence (ISI) offices have their “safe houses”; 270 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
• “torture cells”, or detention centers run by the military where peo- ple who were arrested and disappeared are kept incommunicado and tortured for several months to extract confessions; 180 The UKBA 2012 report also referenced an Amnesty International re- port, stating that: • Amnesty International noted in its report published 30 August 2011 that “Since Pakistan became a key ally in the US-led “war on terror” in late 2001, hundreds of people accused of links to terrorist activity have been arbitrarily detained and held in secret facilities...” 181 The AHRC 2012 report states that: • Torture remains endemic, widespread and is typically accompa- nied by impunity in Pakistan. Extreme forms of torture continue to be documented in the country, including, inter alia: beatings with fists, sticks and guns on different parts of the body, including the soles of the feet, face, and sexual organs; death threats and mock executions; strangulation and asphyxiation; prolonged shackling in painful positions; use of chili-water in the eyes, throat and nose; exposure to extreme hot and cold temperatures; mutilation, includ- ing of sexual organs; and sexual violence, including rape. Torture is used by the military and intelligence agencies in the contexts of counter-terrorism and armed conflict, but is also wide spread in routine investigations by the police; • Mr. Abdul Qudoos Ahmad, a well respected school teacher, was tortured to death while in police custody in Chenab Nagar, Punjab, during which he was forced to confess to a murder; 182 The USSD 2011 report added that: • On September 9, the newspaper the Nation reported that a pris- oner died after police torture in Chiniot, Punjab. 183 As demonstrated by the above, a review of the documentation does not support the finding of the Minister’s Delegate that instances of tor- ture in prisons were isolated and were mostly identified as occurring in the areas of “Balochistan, KP and FATA”. While specific case studies were referenced, and while many instances of torture were reported in the provinces identified by the Minister’s Delegate, the majority of the documentary evidence shows that torture while in detention is widespread. Muhammad v. Canada (MCI) Cecily Y. Strickland J. 271
184 While acknowledging that the Applicant will not return to Pakistan unnoticed, the Minister’s Delegate finds that it is highly unlikely that he would be at a greater risk because of an alleged link to a terrorist organi- zation. The reasoning for this conclusion being that because the terrorist organization’s name was not made public, the Pakistani authorities will not be able to link him to a specific organization. Based on that assess- ment, she also found that there was insufficient evidence to suggest that once he was legally admitted to Pakistan he would be at risk on this ba- sis. Further, that a review of the country documentation showed that in most cases the arrested persons were linked to a specific terrorist act, but that as the Applicant has been in Canada since 1996, he could not be linked to a specific organization or act. 185 The Minister’s Delegate therefore concluded, on a balance of probabilities, that it was more likely than not that the Applicant would be released quickly from any detention based on suspected links to a terror- ist organization. 186 In my view, this finding is also unreasonable for the reasons set out above and because the documentary evidence also indicates that alleged affiliation with terrorist organizations has resulted in detention. For ex- ample, the UKBA 2012 report which states that: ... Human rights and international organizations reported that an un- known number of individuals allegedly affiliated with terrorist orga- nizations were held indefinitely in preventive detention, tortured, and abused. In many cases these prisoners were held incommunicado and were not allowed prompt access to a lawyer of their choice; family members often were not allowed prompt access to detainees. 187 The UKBA, Operational Guidance Note dated January 2013 states: As well as terrorist related atrocities there have been allegations that security forces routinely violate basic human rights in the course of counterterrorism operations. Suspects are frequently detained without charge or are convicted without a fair trial; 188 It also cannot reasonably be inferred that just because the name of the terrorist organization was not publicly released, together with the Appli- cant’s name and photograph, that the Pakistani authorities would not be able to link him to a specific organization. No doubt they would conduct their own inquiries in this regard. More significantly, it is not the linking of the Applicant to a specific terrorist organization that puts him at risk. The CBSA has publicly stated that the Applicant is linked to a terrorist organization. The failure to link him to a specific organization or specific 272 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
terrorist act would not preclude his detention upon return nor does it mit- igate a risk of torture while in detention. 189 Based on the majority of the documentary evidence, the Minister’s Delegate’s finding that the risk faced by the Applicant is general and not personal is also unreasonable. In these circumstances, where the Appli- cant has been publicly linked to a terrorist organization, his name and photograph have been publicized on the CBSA wanted list, and the Min- ister’s Delegate has acknowledged that he will not return unnoticed to Pakistan, in my view the risk is clearly personalized. Recently, in Correa v. Canada (Minister of Citizenship and Immigration), 2014 FC 252 (F.C.), Justice Russell addressed the issue of when, pursuant to section 97(1)(b)(ii) of the IRPA, a risk is faced personally by an applicant and is “not faced generally by other individuals” in or from the applicant’s country of former habitual residence. Justice Russell stated: [74] Because the “personal risk” stage of the test is so often not dis- tinguished from the “non-generalized risk” stage of the test, it is worth specifically identifying what each step requires. Justice Zinn observed in Guerrero, above, that: [26] Parsing this provision, it is evident that if a claimant is to be found to be a person in need of protection, then it must be found that: a. The claimant is in Canada; b. The claimant would be personally subjected to a risk to their life or to cruel and unusual treatment or punishment if returned to their country of nationality; c. The claimant would face that personal risk in every part of their country; and d. The personal risk the claimant faces “is not faced generally by other individuals in or from that country.” [75] All four of these elements must be found if the person is to meet the statutory definition of a person in need of protection; it is only such persons who are permitted to remain in Canada. 190 In my view, based on the record before her, the Minister’s Delegate unreasonably found that the Applicant’s risk is general and is not personal. 191 In sum, the Decision is unreasonable because the record does not sup- port the Minister’s Delegate’s finding that the Applicant will only be ad- Muhammad v. Canada (MCI) Cecily Y. Strickland J. 273
ministratively detained and questioned on arrival and then quickly re- leased and requested to appear at a later date for further questioning. Further, because the Minister’s Delegate found that, while the Applicant will be detained and will face difficult detention conditions, she also found that it was speculative that he would be at a risk of torture because such risks were mostly identified to occur in other areas of Pakistan. That finding is not supported by the record, which indicates that torture is prevalent and widespread in Pakistan. Beyond that, the Minister’s Dele- gate’s conclusion that the Applicant would not be at risk of such treat- ment is inconsistent with her finding that he will likely be detained and that detention conditions are difficult, including mistreatment. I would also note that the fact that a detention may, or may not, be brief does not remove the risk of torture, it merely impacts how long one may be sub- jected to it. Finally, the Minister’s Delegate’s finding that the risk to the Applicant is not personal is not supported by the record. 192 In my view this Minister’s Delegate repeats some of the same errors noted by Justice Boivin in the first restricted PPRA decision in Muham- mad, above: [61] The Minister’s Delegate recognized a risk of questioning and possible detention upon arrival in Pakistan. She was in possession of the initial PRRA, which had concluded to the presence of risk and extremely difficult conditions for detained persons. Given the use of insufficient documentation to justify her conclusions which were contrary to the initial PRRA assessment, and contrary to the bulk of country conditions evidence, the Court finds that the Minister’s Dele- gate’s treatment of the evidence was unreasonable. Furthermore, the Minister’s Delegate’s statement that ill treatment was “not ruled out” raises a doubt with regards to the reasonableness of her assessment. While she is not required to show that ill treatment is “ruled out” in order to dismiss a PRRA, the test being whether it is more likely than not that the applicant would experience ill treatment (Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR 239), the Minister’s Delegate fails to adequately justify, on the basis of the evidence, why she concludes that the applicant will likely not be at risk. The Court’s intervention is therefore warranted. 193 While it is true that an administrative decision-maker need not refer to every piece of evidence relied upon in the decision making process, in this situation, being aware of the PRRA assessment and knowing that the prior first restricted PRRA decision of another Minister’s delegate had been found to be unreasonable for the reasons set out above, it was par- ticularly incumbent upon the Minister’s Delegate to clearly identify the 274 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
documentation upon which she was relying to justify her finding. She did not do so. Rather, she made many general references to the evidence before her and made unsupportable inferences in her reasoning.
VI. Conclusion 194 As this is the second failed effort by a Minister’s delegate to refuse the restricted PRRA, it leads to the question of whether there is, in fact, sufficient evidence to support a finding that the Applicant is not at risk. However, that is not the question before this Court. 195 Therefore, this matter will be remitted to a third Minister’s Delegate for a redetermination which shall also take into consideration the prior findings of this Court in the decision of Justice Boivin and in this decision.
Judgment THIS COURT’S JUDGMENT is that the application for judicial re- view is granted. The Minister’s Delegate’s decision dated May 17, 2013, is set aside and the matter is remitted back to a different Minister’s dele- gate for redetermination. No question of general importance for certifica- tion has been proposed and none arises. Application granted. Singh v. Canada (MCI) 275
[Indexed as: Singh v. Canada (Minister of Citizenship and Immigration)] Govind Singh, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2277-13 2014 FC 377 Sandra J. Simpson J. Heard: April 1, 2014 Judgment: April 23, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Foreign national was citizen of Pakistan who had been excluded for espionage under s. 34(1)(a)(f) of Immigration and Refugee Protection Act — Foreign national brought application for judicial review, con- tending that from December 1998 to July 1999, Pakistan did not have demo- cratic government as that term is understood in Canada — Application granted — Board placed too much emphasis on elections and Constitution and failed to give appropriate weight to anti-democratic events which were serious, ongoing and not being addressed or corrected by government — Minority voting rights, and minority access to important positions in government were restricted to Muslims — Significant numbers of women were subjected to violence, abuse, rape, trafficking, and other forms of degradation by their spouses and members of society at large — Prohibitions against slavery were not enforced by govern- ment — Military had considerable influence over executive decision-making — Board was incorrect when it concluded that Canadians would recognize as dem- ocratic government that tolerated honour killings, slavery, extra judicial killings by police and discrimination against religious minorities. Cases considered by Sandra J. Simpson J.: Qu v. Canada (Minister of Citizenship & Immigration) (2001), 2001 FCA 399, 284 N.R. 201, 2001 CarswellNat 2977, 2001 CarswellNat 3593, 18 Imm. L.R. (3d) 288, 217 F.T.R. 198 (note), [2002] 3 F.C. 3, [2001] F.C.J. No. 1945 (Fed. C.A.) — considered Reference re Secession of Quebec (1998), 228 N.R. 203, 1998 CarswellNat 1300, 161 D.L.R. (4th) 385, 1998 CarswellNat 1299, 55 C.R.R. (2d) 1, [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61 (S.C.C.) — considered 276 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Statutes considered: Constitution of the Islamic Republic of Pakistan, 1973 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34 — considered s. 34(1)(a) — considered s. 34(1)(f) — considered
APPLICATION by foreign national for judicial review of decision excluding him under s. 34(1)(a)(f) of Immigration and Refugee Protection Act.
Ms Erin Roth, for Applicant Mr. David Tyndale, for Respondent
Sandra J. Simpson J.:
1 This application for judicial review concerns a decision made by the Immigration and Refugee Board [the Board] dated March 6, 2013 [the Decision] in which it excluded Govind Singh [the Principal Applicant] for espionage under sub-paragraph 34(1)(a)(f) of the Immigration Refu- gee Protection Act, S.C. 2001, c. 27. Section 34 has been amended but at the relevant time it provided as follows: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subver- sion against a democratic government, institution or pro- cess as they are understood in Canada; [...] (f) being a member of an organization that there are rea- sonable 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 s´ecurit´e les faits suivants: a) etreˆ l’auteur d’actes d’espionnage ou se livrer a` la sub- version contre toute institution d´emocratique, au sens o`u cette expression s’entend au Canada; [...] f) etreˆ membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a et´´ e ou sera l’auteur d’un acte vis´e aux alin´eas a), b) ou c). Singh v. Canada (MCI) Sandra J. Simpson J. 277
I. The Issues 2 The application of this section gives rise to two issues: 1. Was the Board correct when it concluded that in the period from December 1998 to July 1999 [the Relevant Time], Pakistan had a democratic government as that term is understood in Canada? 2. Was it reasonable of the Board to rely on the Applicant’s Personal Information Form [PIF] in which he admitted engaging in espionage?
II. The Decision 3 The Board said the following about democracy in Pakistan during the Relevant Period: [41] At the time in question, Pakistan was an Islamic Republic with a democratic political system. Formal democracy had returned to Paki- stan in 1988 with the lifting of martial law. Prior to Mr. Singh’s post- ing to Islamabad, the last elections held in Pakistan had occurred in February 1997. Outside observers declared the elections to be free and fair. An elected civilian government under Prime Minister Nawaz Sharif came to power with two-thirds of the Parliamentary majority. (A popularly elected Parliament selects the Prime Minister by majority.) [42] The Various levels of government included a National Assem- bly, a Senate and provincial assemblies. There was also independent judiciary, Pakistan had a Constitution that provided for a number of freedoms. Pakistan faced ongoing concerns in areas such as political corruption, human rights abuses, limits on religious freedom and re- strictions on one’s right to exercise his political freedom. [43] Nevertheless, the Constitution provided for an independent judi- ciary, and although it suffered from a lack of resources, it was able to exercise its independence. The civil judicial system provided for an open trial, the presumption of innocence, cross-examination, appeals and bail. The Constitution also provided for freedom of the press, academic freedom, freedom of assembly, freedom of movement and freedom of religion, all of which were respected in practice. [my emphasis] [44] Internal security rested primarily with the police. Human rights abuses often took the form of police abuse, arbitrary arrest and deten- tion and extrajudicial killings. The government, a target of corruption allegations itself, was criticized for doing little to curb abuse. Al- though the Constitution and the Penal Code forbad the use of torture 278 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
and inhuman treatment, police accused of such conduct were rarely effectively prosecuted or punished. [45] Nevertheless, human rights groups were free to operate without government restrictions. Human rights organizations and NGOs were active in bringing to light cases of abuse by authorities. [46] [...] I accept that for a government to be considered truly demo- cratic, it must allow the electorate freedom of choice and to respect that choice in order to be considered reflective of the will of the peo- ple. I also agree that respect for the rule of law is a necessary compo- nent of a democratic government. Democratic governments cannot be aove the law. In keeping with this requirement, an independent judiciary is also a necessary component. With such basic democratic standards in place, other freedoms that we have come to expect, such as freedom of religion, of the press, of association, etc. will eventu- ally flow. 4 The Board then concluded as follows: [47] When a democratically-elected government does not absolutely and unequivocally attain these ideals, it does not mean necessarily that it falls short of being considered a democratic government as it is understood in Canada. Such was the case with Pakistan. [48] Although Pakistan had its problems, and there was a great deal of room for improvement, and although President Sharif’s govern- ment did not survive past October 1999, it does not negate the fact that, until then, the government in Pakistan had been democratically elected. I am satisfied that, overall and at the time in question, the government of Pakistan constituted a democratic government as it is understood in Canada. 5 In my view the Decision shows that the Board initially undertook the correct analysis. It considered the fact that Prime Minister Sharif was elected to lead a majority government in a vote which the International Community described as “free and fair”. The Board also noted that Paki- stan’s constitution provides for the basic freedoms Canadians associate with democracy. 6 Further, the Board did not limit its inquiry to the election and the Constitution. It correctly noted that there were problems with the imple- mentation of democratic principles in Pakistan. Nonetheless, it concluded that Pakistan had a democracy in the Relevant Period as that term is un- derstood in Canada. Singh v. Canada (MCI) Sandra J. Simpson J. 279
A. Issue I 7 In my view, the Decision is not correct because the Board placed too much emphasis on the elections and the Constitution and failed to give appropriate weight to the anti-democratic events which were serious, ongoing and not being addressed or corrected by the government. The problems included the following: 1. Minority voting rights, and minority access to important positions in government were restricted. The U.S. Department of State re- port for Pakistan, dated February 23, 2000 [the DOS Report] says at page 40 with reference to the year 1999: [...] The Government distinguishes between Muslims and non- Muslims with regard to political rights. In national and local elections, Muslims cast their votes for Muslim candidates by geographic locality, while non-Muslims can cast their votes only for at-large non-Muslim candidates. Legal provisions for minority reserved seats do not extend to the Senate and the Federal Cabinet, which currently are composed entirely of Muslims. Furthermore, according to the Constitution, the President and the Prime Minister must be Muslim. The Prime Minister, federal ministers, and minsters of state, as well as elected members of the Senate and National Assembly (in- cluding non-Muslims) must take a religious oath to “strive to preserve the Islamic ideology, which is the basis for the crea- tion of Pakistan” (see Section 3). And at page 45, it states: Because of this system, local parliamentary representatives have little incentive to promote their minority constituents’ interests. 2. The rule of law was not observed by the government or the police. The DOS Report noted that: [...] Significant numbers of women were subjected to violence, abuse, rape, trafficking, and other forms of degradation by their spouses and members of society at large. The Govern- ment failed to take action in a high profile “honor killing” case and such killings continued throughout the country. [...] In several high-profile arrests of Sharif Government critics, the police or intelligence services entered homes and arrested 280 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
individuals without warrants or due process and held them for periods of days or weeks. In May, Intelligence Bureau offi- cials arrested opposition leader and journalist Hussain Haq- qani without a warrant and held him incommunicado until May 7 without filing charges (see Section 1.c.). On May 8, approximately 30 policemen broke into Friday Times editor Najam Sethi’s home, beat him, tied up his wife, destroyed property, and took Sethi away without a warrant. According to press reports, Sethi was interrogated by the intelligence services as a suspected “espionage agent.” Sethi was held in- communicado for several days and denied access to an attor- ney (see Section 2.a). [...] Police committed extrajudicial killings. The extrajudicial kill- ing of criminal suspects, often in the form of deaths in police custody or staged encounters in which police shoot and kill the suspects, is common...The Human Rights Commission of Pakistan [HRCP] estimates that there were 161 extrajudicial killings in the first 4 months of the year. 3. The prohibitions against slavery were not enforced by the govern- ment. The DOS Report says: [...] The Constitution and the law prohibits forced labor, including forced labor by children; however, the Government does not enforce these prohibitions effectively. [...] Illegal bonded labor is widespread. It is common in the brick, glass, and fishing industries and is found among agricultural and construction workers in rural areas. A recent study by lo- cal unions suggests that over 200,000 families work in debt slavery in the brick kiln industry. There is no evidence that bonded labor is used in the production of export items such as sporting goods and surgical equipment. However, bonded la- bor reportedly is used in the production of carpets for export under the peshgi system, by which a worker is advanced money and raw materials for a carpet he promises to com- plete. Conservative estimates put the number of bonded workers at several million. 4. The DOS Report also indicates that the military had considerable influence over executive decision-making. Singh v. Canada (MCI) Sandra J. Simpson J. 281
5. Finally, the Government prohibited Ahmadis from holding confer- ences or gatherings. They are regarded as a non-Muslim minority under the Constitution. Under Pakistan’s criminal law they are banned from calling themselves Muslims and are frequently sen- tenced to three-year prison terms for violations. 8 In Qu v. Canada (Minister of Citizenship & Immigration), 2001 FCA 399 (Fed. C.A.) at paragraph 44, the Federal Court of Appeal quoted the following passage from the Supreme Court of Canada’s decision in Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.): Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy ac- commodates cultural and group identities: Reference re Provincial Electoral Boundaries, at democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, articulated some of the val- ues inherent in the notion of democracy (at p. 136): The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect of cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. 9 In view of the facts and the law described above, it is my conclusion that the Board was incorrect when it concluded that Canadians would recognize as democratic a government that tolerated honour killings, slavery, extra judicial killings by police and discrimination against relig- ious minorities.
B. Issue II 10 In view of the conclusion above, it is not necessary to decide whether the Applicant was, in fact, engaged in espionage.
Conclusion 11 The application will be allowed. 282 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Certification 12 No question was posed for certifcation
Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is granted. 2. The Decision is set aside. 3. The matter is to be reconsidered by another member of the Board in light of this decision. Application granted. Yang v. Canada (Minister of Public Safety) 283
[Indexed as: Yang v. Canada (Minister of Public Safety and Emergency Preparedness)] Zi Yang, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-3769-13 2014 FC 383 Sean Harrington J. Heard: April 3, 2014 Judgment: April 24, 2014 Immigration and citizenship –––– Exclusion and removal — Loss of sta- tus — Visitors –––– Applicant was lawfully in Canada by virtue of work permit and study permit — Applicant applied for extension of work permit as it was expiring — It was suggested to applicant that she could leave Canada and apply for work permit extension at port of entry — Applicant left Canada and presen- ted herself to U.S. immigration — Applicant then turned around and presented herself to Canadian authorities — Officers who examined applicant formed view that she had worked in Canada illegally after original work permit expired — Minister’s delegate was satisfied that applicant was person described in s. 41(a) and s. 20(1)(b) of Immigration and Refugee Protection Act and s. 8 of Immigra- tion and Refugee Protection Regulations and exclusion order was issued — Ap- plicant brought application for judicial review — Application granted — Exclu- sion order was quashed — If applicant had not left Canada she would have maintained status as foreign student — It was said that applicant contravened Act by working after expiration of work permit but applicant explained that she continued to volunteer — On basis that applicant was not paid, it was necessary to do analysis to ascertain whether applicant’s activity was in direct competition with Canadians — No analysis was done and decision that applicant violated s. 41 of Act was unreasonable — Applicant held study permit — Great deal of evi- dence would have to be led with respect to practice of flagpoling before it could be said that applicant was in violation of s. 20 of Act — Officers mischaracter- ized situation, as applicant was at border to apply for work permit and not to enter Canada without work permit. Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 20 — considered s. 20(1)(b) — considered 284 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
s. 41 — considered s. 41(a) — considered s. 44(1) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 2 “work” — considered s. 8 — considered s. 200(3)(e) — considered s. 200(3)(e)(i) — considered s. 228(1)(c)(iii) — considered
APPLICATION for judicial review of decision by Minister’s delegate was issu- ing exclusion order.
Gordon Maynard, for Applicant Helen Park, for Respondent
Sean Harrington J.:
1 Ms. Yang, a Chinese national, was lawfully in Canada in virtue of both a work permit and a study permit. As the work permit was expiring, she applied in writing for an extension. Her uncontradicted evidence is that she was told by somebody at Citizenship and Immigration Canada that it took some time for decisions to be rendered on written applica- tions. It was suggested that she could leave Canada and apply for a work permit extension at the port of entry. 2 This is exactly what she did. She left Canada at Douglas, B.C., and presented herself to U.S. immigration at Blaine, Washington. She then turned around, or to use the term stated in the U.S. paperwork, “flagpoled”, and presented herself to the Canadian authorities. The of- ficers who examined her formed the view that she had worked in Canada illegally after her original work permit had expired. A report was pre- pared for the Minister’s consideration. The Minister’s Delegate issued a removal order. Ms. Yang was only allowed back in Canada in order to purchase an airline ticket to China. When she reported back for removal, she was handcuffed, chained and held in custody until she was put on the plane. This is the judicial review of the Minister’s Delegate’s decision. Yang v. Canada (Minister of Public Safety) Sean Harrington J. 285
I. Issues 3 This case raises two issues: a. Was the Minister’s Delegate, an officer of the Canadian Border Service Agency (CBSA), authorized in law to issue the removal order; and b. Was the decision reasonable?
II. Facts 4 Ms. Yang had been in Canada on and off since January 2007. She returned in August 2012 and was lawfully admitted into Canada with authority to work, and to study. She worked with Canada Rockies Inter- national Investment Group Ltd., located in Dease Lake, B.C., a family business whose principal owners were her uncle and cousin. 5 Prior to the expiry of her work permit, she applied to Vegreville for an extension. She was able to continue her employment pursuant to im- plied status provisions while her application was being processed. The application was refused as the company had not obtained a Labour Mar- ket Opinion (LMO) to support the application. The refusal was commu- nicated to Ms. Yang on or about 6 December 2012. 6 Thereafter, the company obtained a favourable LMO from Service Canada. Ms. Yang applied to Vegreville for a work permit and restora- tion of status, supported by the LMO. In the meantime, according to her, she had stopped working, in the sense that she was not being paid. 7 It was on 21 May 2013 that Ms. Yang left Canada in body, if not in spirit, and presented herself to the U.S. authorities. They gave her a form called “Notice of Refusal of Admission/Parole into the United States”. This form was addressed to the Department of Manpower and Immigra- tion, Douglas, B.C. Within a column which bears the title “Reasons for Excludability or Parole”, the word “Flagpole” was typed in. There were two other boxes in the form. One is to indicate whether the alien was refused admission into the United States. The other was whether the alien was refused admission and parole in the United States. Both boxes re- mained blank. 8 “Flagpole” obviously means something to both the U.S. and Canadian authorities, although whatever understanding there is, was not set out in the record. Counsel for Ms. Yang says it is well-known that individuals in Canada seeking extension of work or study permits simply walk across the border and come back in. 286 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
9 Ms. Yang’s examination at the Canadian port of entry at Douglas in Surrey, B.C. was long and arduous. She was interviewed by at least three Border Service Officers. They examined the content of her cell phone and after making various telephone calls concluded that she had been working in Canada illegally after her work permit had expired. 10 One of the officers prepared a report pursuant to s. 44(1) of the Immi- gration and Refugee Protection Act [IRPA]. That section provides that an officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts and transmit it to the Minister. 11 The officer cited s. 41(a) and s. 20(1)(b) of IRPA, as well as s. 8 of the Immigration and Refugee Protection Regulations. Section 41(a) pro- vides that a foreign national is inadmissible through “an act or omission which contravenes, directly or indirectly, a provision of this Act...” Sec- tion 20(1)(b) provides that in order to become a temporary resident (which was Ms. Yang’s situation), a foreign national must, among other things, “hold the visa or other document required under the regula- tions....”. Section 8 of the Regulations provides that “a foreign national may not enter Canada to work without first obtaining a work permit”. 12 The facts written up in the report indicated that Ms. Yang, who is neither a Canadian citizen nor permanent resident: Sought entry at port of Douglas in Surrey, B.C., on May 21st 2013 to work; Subject has engaged in unauthorized work in Canada and a period of six months has not elapsed since the termination of the unauthorized work pursuant to R200(3e). 13 This report was immediately presented to the Minister’s Delegate at the port of entry. She issued an exclusion order in which she stated that she was satisfied that Ms. Yang was a person described in s. 41(a) and s. 20(1)(b) of IRPA and Regulation 8. 14 Her Chinese passport was seized and she was ordered to report back to CBSA for her removal, which she did, ticket in hand. However, she was considered a flight risk and detained until she was put on a plane.
III. Analysis 15 If Ms. Yang had not left Canada, she would have maintained her sta- tus as a foreign student. She may not have been issued a new work per- mit in accordance with Regulation 200(3)(e)(i) on the grounds that she had engaged in unauthorized work in Canada and a period of six months Yang v. Canada (Minister of Public Safety) Sean Harrington J. 287
had not yet elapsed since the cessation of that work. The question is whether there is a different sanction because she stepped over the border. Regulation 228(1)(c)(iii) permits a Minister’s Delegate at the border to issue an exclusion order if a foreign national is inadmissible under s. 41 of IRPA for failing to establish that “they hold the visa or other docu- ment as required under s. 20 of the Act...” 16 It is necessary to carry out a separate analysis of the three provisions cited: s. 41(a) and s. 20(1)(b) of IRPA, and Regulation 8. 17 Ms. Yang’s action which was said to have contravened the Act was to work after the expiration of her work permit. Ms. Yang had explained that after the rejection of her extension, she continued to assist the com- pany as a volunteer in order to gain experience. “Work” is defined in s. 2 of the Regulations as an activity for remuneration “or that is in direct competition with the activities of Canadian citizens or permanent re- sidents in the Canadian labour market”. On the basis that she was not paid, it was necessary to do an analysis to ascertain whether Ms. Yang’s activity was in direct competition with Canadians. The Minister’s Dele- gate was aware that Ms. Yang held a LMO under the Temporary Foreign Worker Program. The job description was as bookkeeper. The language requirements, both oral and written, were English and Mandarin, as the owner of the company did not speak English. The employee needed to be in continuous contact with suppliers in China. 18 As no such analysis was done, the decision that she had violated s. 41 of the Act is unreasonable. 19 As for s. 20 of IRPA, it was necessary that Ms. Yang held the re- quired visa or other document. She held a study permit. Counsel for the Minister makes much of the fact that the permit did not allow her to leave Canada and return. However, that was not the reason she was writ- ten up. Furthermore, a great deal of evidence would have to be led with respect to the practice of “flagpoling” before it could be said that Ms. Yang was in violation of s. 20. 20 Regulation 8 provides that “A foreign national may not enter Canada to work without first obtaining a work permit.” The officers completely mischaracterized the situation. She was at the border in order to apply for a work permit, not to enter Canada to work without a work permit. 21 For these reasons the exclusion order is set aside. In these circum- stances, it is not necessary to determine whether the Minister’s Delegate at the border had authorization, or whether the s. 44(1) report had to be 288 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
referred to the Immigration Division of the Refugee and Immigration Board of Canada.
IV. Remedy 22 As more than six months have elapsed as per Regulation 200(3)(e), the appropriate remedy is to simply quash the decision.
V. Certified Question 23 At the close of hearing, I invited both parties to submit a serious question of general importance which would support an appeal to the Federal Court of Appeal. Both have taken the position that the case does not raise such a question. However, Ms. Yang’s counsel did go on to propose a question as to the authority of the CBSA officers at the port of entry. I find this case to be very fact specific and so I am not prepared to certify a question.
Order FOR REASONS GIVEN; THIS COURT’S JUDGMENT IS that: 1. The application for judicial review of the exclusion order issued on 21 May 2013 is granted. 2. The exclusion order is quashed. 3. There is no serious question of general importance to certify. Application granted. Kanagendran v. Canada (MCI) 289
[Indexed as: Kanagendran v. Canada (Minister of Citizenship and Immigration)] Manickavasagar Kanagendran, Applicant and The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-7522-12 2014 FC 384, 2014 CF 384 Russel W. Zinn J. Heard: April 9, 2014 Judgment: April 28, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Organized crime –––– Applicant was citizen of Sri Lanka and was member of Tamil National Alliance (TNA) — Applicant joined TNA in 2002, and served as TNA-appointed Member of Parliament from 2004 to 2007 — Members of TNA, including applicant, occasionally attended meetings and lunches organized by Liberation Tigers of Tamil Eelam (LTTE) — LTTE mem- bers also attended rallies and meetings held by TNA — Applicant had met with LTTE leaders several times and knew that LTTE used violent means to achieve their goals, and did not dispute that LTTE committed acts of terrorism and crimes against humanity — Applicant came to Canada in 2009, and filed claim for refugee protection claiming fear for his life due to rise in murders of Tamil activists in Sri Lanka — Immigration Division (ID) found that, by virtue of his membership with TNA, applicant was in fact member of LTTE — ID found ap- plicant inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protec- tion Act — Applicant brought application for judicial review — Application dis- missed — Decision of ID finding that applicant was inadmissible under s. 34(1)(f) of Act was not set aside — Decision was reasonable — There was doc- umentary evidence that TNA was subservient to LTTE and TNA explicitly served as proxy of LTTE — There was sufficient evidence to support ID’s con- clusion that LTTE was sufficiently connected with TNA such that membership in TNA was tantamount to membership in LTTE. Cases considered by Russel W. Zinn J.: Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2013), 2013 SCC 40, 2013 CarswellNat 2463, 2013 CarswellNat 2464, 361 D.L.R. (4th) 1, (sub nom. Ezokola v. Canada (Minister of Citizenship and Immigra- 290 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
tion)) 447 N.R. 254, 18 Imm. L.R. (4th) 175, [2013] 2 S.C.R. 678, [2013] S.C.J. No. 40, [2013] A.C.S. No. 40 (S.C.C.) — considered Gebreab v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 CarswellNat 5085, 2010 CAF 274, 2010 FCA 274, 2010 Car- swellNat 4040, 93 Imm. L.R. (3d) 28, 409 N.R. 196, [2010] F.C.J. No. 1312 (F.C.A.) — considered Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 CarswellNat 2272, 2010 CF 198, 2010 FC 198, 2010 Car- swellNat 410 (F.C.) — referred to Joseph v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 1101, 2013 CarswellNat 3889, 2013 CarswellNat 4280, 2013 CF 1101, [2013] F.C.J. No. 1171 (F.C.) — considered Nassereddine v. Canada (Minister of Citizenship and Immigration) (2014), 2014 CarswellNat 102, 2014 FC 85, 2014 CF 85, 2014 CarswellNat 1302, 22 Imm. L.R. (4th) 297, [2014] F.C.J. No. 79 (F.C.) — considered Poshteh v. Canada (Minister of Citizenship & Immigration) (2005), 252 D.L.R. (4th) 316, 2005 CarswellNat 2047, [2005] 3 F.C.R. 487, 2005 FCA 85, 2005 CarswellNat 564, 46 Imm. L.R. (3d) 1, 29 Admin. L.R. (4th) 21, 2005 CAF 85, 331 N.R. 129, 129 C.R.R. (2d) 18, [2005] F.C.J. No. 381 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34(1)(f) — considered s. 35(1)(a) — considered s. 98 — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1E — considered Article 1F — considered
APPLICATION for judicial review of decision by Immigration Division finding applicant inadmissible to Canada.
Barbara Jackman, for Applicant David Cranton, for Respondent
Russel W. Zinn J.:
1 The Immigration Division of the Immigration and Refugee Board of Canada [ID] found the Applicant inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] Kanagendran v. Canada (MCI) Russel W. Zinn J. 291
for being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism, and also inadmissible under paragraph 35(1)(a) of IRPA for being complicit in the commission of crimes against humanity. 2 The Minister concedes that the decision of the judicial review should be granted with respect to the ID’s finding that the Applicant is inadmis- sible under paragraph 35(1)(a) of IRPA due to the failure to determine whether the Applicant made a voluntary, significant and knowing contri- bution to any crime or criminal purpose as is now required following the decision of the Supreme Court in Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 (S.C.C.), [Ezokola]. 3 Therefore, the only issue is whether the ID’s decision is reasonable with respect to whether the Applicant was a member of an organization for which there are reasonable grounds to believe, engaged in acts of terrorism. The outcome turns on whether or not it was reasonable for the ID to find that membership in the Tamil National Alliance [TNA], a po- litical party, was tantamount to being a member of the Liberation Tigers of Tamil Eelam [LTTE]. 4 The Applicant is a citizen of Sri Lanka, born in 1932. He was and admits to having been a member of the TNA. He joined the TNA in 2002 and served as a TNA-appointed Member of Parliament from 2004-2007. Members of the TNA, including himself, occasionally attended meetings and lunches organized by the LTTE. LTTE members also attended rallies and meetings held by the TNA. The Applicant had met with LTTE lead- ers several times both before, and while he was with the TNA. He knew that the LTTE used violent means to achieve their goals, and does not dispute that the LTTE committed acts of terrorism and crimes against humanity. 5 The Applicant says that during his time with the TNA, he was not sure whether the LTTE’s actions could be considered crimes against hu- manity because he had reason to doubt the accuracy of reporting by the Government of Sri Lanka, and he also believed, based on international law, that an oppressed people could legitimately take up arms against their oppressors, although this was not a method he personally supported. 6 The Applicant says that he has a history of advocacy through non- violent means. He joined the Ilankai Tamil Arasuk Kachchi [ITAK], whose leader believed in furtherance of Tamil rights by non-violent, po- litical means. In 1979, he was detained for speaking out against the gov- 292 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
ernment. He was eventually released because the government determined it could not justify charging him based on his ardent belief in non-violent means. 7 In 1980, he joined the Tamil Eelam Liberation Front [TELF] which was an open-operation movement devoted to non-violent political change. In 2000, he became involved with the TNA. In 2002, peace talks began between the LTTE and the Sri Lankan government. 8 The Applicant came to Canada in early August 2009 and filed a claim for refugee protection claiming fear for his life due to the rise in murders of Tamil activists in Sri Lanka. The ID found that, by virtue of his mem- bership with the TNA, the Applicant was in fact a member of the LTTE. 9 The Federal Court and Federal Court of Appeal have consistently held that the concept of “membership” must be interpreted broadly: Poshteh v. Canada (Minister of Citizenship & Immigration), 2005 FCA 85 (F.C.A.) at paras 26-32; Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 198 (F.C.) at para 20. 10 After the release of Ezokola, Justice O’Reilly in Joseph v. Canada (Minister of Citizenship and Immigration), 2013 FC 1101, [2013] F.C.J. No. 1171 (F.C.), stated at paras 14-15 that it was his view that “member- ship” should be read more narrowly in light of Ezokola. However, as the Respondent points out, Justice O’Reilly does not provide any reasons for this finding, and his statement is in obiter. Moreover, Justice Strickland in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, [2014] F.C.J. No. 79 (F.C.) [Nassereddine] found his view to be contrary to prior jurisprudence. I agree with Justice Strickland that Ezokola does not change the test for admissibility pursuant to paragraph 34(1)(f) of IRPA. 11 Ezokola dealt with section 98 of IRPA, which excludes refugee pro- tection for those who fall under Articles 1E and 1F of the Refugee Con- vention. Neither article deals with membership in a terrorist organization: E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken resi- dence as having the rights and obligations which are attached to the possession of the nationality of that country. F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instru- ments drawn up to make provision in respect of such crimes; Kanagendran v. Canada (MCI) Russel W. Zinn J. 293
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and princi- ples of the United Nations. 12 While section 98 of IRPA is concerned with international criminal culpability, paragraph 34(1)(f) of IRPA is concerned with national secur- ity, and in this respect, Parliament has seen fit to make membership in an organization that has engaged in acts of terrorism sufficient to render a person inadmissible to Canada. 13 The Federal Court of Appeal has determined that it is not a require- ment for inadmissibility under s. 34(1)(f) of IRPA that the dates of an individual’s membership in the organization correspond with the dates on which that organization committed acts of terrorism or subversion by force: Gebreab v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FCA 274, [2010] F.C.J. No. 1312 (F.C.A.). The Applicant emphasizes that at the time that he was a member of parlia- ment, the LTTE was engaged in peace talks with the Sri Lankan govern- ment. This is irrelevant because the LTTE at some point was engaged in terrorist activities; it does not matter that the Applicant may not have been a member when those activities were occurring. Regardless, evi- dence in the record indicates that during the elections in 2004 (at the time that the Applicant was a member of the TNA), the LTTE continued to use tactics such as intimidation and murder to forward their goals. 14 Further, it is irrelevant whether or not the Applicant was in any way involved with the LTTE’s activities as paragraph 34(1)(f) of IRPA is not a determination as to complicity. If the ID’s finding that the TNA is ef- fectively the same organization as the LTTE is reasonable, it is sufficient for the purposes of paragraph 34(1)(f) that the Applicant was a member of the TNA. I turn then to the nature of the TNA. 15 The Applicant testified that in his view, the TNA was collaborating with the LTTE, but they were operating in parallel; the TNA was not a proxy for the LTTE. He also testified that at no time in his service as a member of parliament did he ever receive directives from the LTTE, nor did the TNA have any involvement in the activities of the LTTE. 16 He testified that he personally believed in a non-violent struggle, but that the LTTE’s (violent) actions were inevitable. While he supported the same end goal of the liberation of Tamils, he never considered himself a member of the LTTE. He never raised support, either financial or other- 294 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
wise for the LTTE and never endorsed their use of violence to forward their agenda. 17 The Applicant’s own stance may have been a peaceful one; however one must consider, as the ID did, the documentary evidence in the record which indicates that: (i) The LTTE campaigned for the TNA in 2004; (ii) The LTTE worked to sabotage the 2004 elections in order to en- sure that the TNA would secure seats in parliament by intimidat- ing members of opposing parties; (iii) Members of the TNA were themselves involved in the violence and intimidation; (iv) Candidates from the TNA were screened and approved by the LTTE to help the LTTE achieve its own goals, or were active members of the LTTE; (v) Some members of the TNA were of the view that “the LTTE is ours and we are LTTE-ers” (CTR at p 490); (vi) Members of the TNA who were not avid supporters of the LTTE were sidelined and snubbed by LTTE leadership and kept in the dark regarding certain decisions; (vii) The TNA is subservient to the LTTE; and (viii) The TNA “explicitly served as the proxy of the LTTE.” In my view, this constitutes evidence that reasonably grounds the ID’s conclusion that the TNA was subservient to, or equivalent to the LTTE. 18 The Applicant submits that the ID erred: 1. In failing to give context to the TNA’s expressions of support for the LTTE: at the time, the TNA was advocating acceptance of the LTTE as the only legitimate representative of the Tamil people in the context of peace talks with the Sri Lankan government; 2. In not considering whether members of the TNA had any involve- ment in the LTTE activities; 3. By ignoring that claims that the TNA was created by the LTTE originated from opposing parties; 4. In failing to appreciate that references to the LTTE in the TNA’s 2004 Election Manifesto were made in the context of encouraging peace talks between the LTTE and the government, and that the TNA called for the “immediate cessation of the war being cur- rently waged in the northeast”; and Kanagendran v. Canada (MCI) Russel W. Zinn J. 295
5. Failing to consider statements in the TNA’s 2004 Election Mani- festo that specifically identified political solutions to the Tamil na- tional problem. 19 In my view, the Applicant has not identified any specific evidence that contradicts or brings into serious question the ID’s finding that the TNA was intimately related to the LTTE. That the TNA may have sup- ported the LTTE in the context of encouraging peace talks, or had a peaceful political agenda, does not undermine the evidence that the LTTE supported the TNA through intimidation and murder during the 2004 elections. It also does not undermine the evidence that members of the TNA viewed themselves equally as members of the LTTE, that the LTTE vetted candidates of the TNA, and that some members of the TNA (albeit not the Applicant) were themselves engaged in violent acts against opposing parties. 20 While it is true that the evidence relating to the LTTE’s involvement in the creation of the TNA came predominantly from members of oppos- ing parties, there is independent evidence from the “Political Handbook of the World: 2005-2006” by CQ Press (A Division of Congressional Quarterly Inc.), that the TNA “explicitly served as the proxy of the LTTE.” 21 The legitimate goals of an organization may be a factor to be consid- ered in cases under section 98 or 35, where international criminal culpa- bility through complicity is at issue, and the Supreme Court of Canada’s comments in Ezokola are instructive; however, that is not a factor to be considered under section 34. The statutory language is explicit: an appli- cant is inadmissible for being a member of an organization that there are reasonable grounds to believe engages, or has engaged in acts of terror- ism. That there may have been legitimate objectives or agendas is an irrelevant consideration. 22 In this case, there was sufficient evidence to support the ID’s conclu- sion that the LTTE was sufficiently connected with the TNA such that membership in the TNA was tantamount to membership in the LTTE. The decision is therefore reasonable. 23 The Applicant proposed that a question be certified that is the same as or similar to that certified by Justice Strickland in Nassereddine. In that case, the Minister proposed the question. In this case, the Minister op- 296 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th) poses the certification of any question. In my view, it is appropriate to certify the following question: Does Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 SCR 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigra- tion and Refugee Protection Act, SC 2001, c 27?
Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed, in part; 2. The decision of the Immigration Division of the Immigration and Refugee Board of Canada finding that the Applicant is inadmissi- ble under paragraph 35(1)(a) of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 is quashed; 3. The decision of the Immigration Division of the Immigration and Refugee Board of Canada finding that the Applicant is inadmissi- ble under paragraph 34(1)(f) of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 is not set aside as it is found to be reasonable; 4. The following question is certified pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, SC 2001, c 27: Does Ezokola v Canada (Minister of Citizenship and Immi- gration), 2013 SCC 40, [2013] 2 SCR 678, change the ex- isting legal test for assessing membership in terrorist organi- zations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protec- tion Act, SC 2001, c 27? Application dismissed. Norbert v. Canada (MCI) 297
[Indexed as: Norbert v. Canada (Minister of Citizenship and Immigration)] Fina Norbert, Eardley Wilmort Peter, and Odelma Verliner Serbrina Petter, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-12788-12 2014 FC 409 James Russell J. Heard: March 13, 2014 Judgment: May 5, 2014 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of human- itarian and compassionate considerations — Risk of harm –––– Applicant was citizen of St. Lucia — Applicant had been sexually and physically abused all her life by R., who continued to threaten her — Applicant had also been abused by her mother and by man who was father of two children — Applicant alleged that if returned to St. Lucia, there would be unusual and undeserved or disproportionate hardship as she suffered from post-traumatic stress disorder arising from her traumatic childhood, she would be without social and family support she needed in St. Lucia, and son’s albinism would make him target of discrimination and would put him at greater risk of skin and eye cancer — Of- ficer rejected applicants’ application for permanent residence from within Can- ada based on humanitarian and compassionate (H and C) grounds — Officer found that there was insufficient evidence to show that applicants would not be able to re-establish themselves in St. Lucia and that principal applicant could obtain required assistance for stress disorder — Applicants brought application for judicial review — Application granted — Matter was returned to different officer for reconsideration — Officer ignored clear evidence of discrimination that would be suffered by son due to albinism — Officer’s conclusion that prin- cipal applicant could rely on friends and family in St. Lucia for emotional sup- port did not address expert medical evidence of impact on principal applicant of returning to scene of trauma — Officer ignored documentary evidence of lack of mental health facilities in St. Lucia — General hardship analysis contained re- viewable errors. 298 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Cases considered by James Russell J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered Caliskan v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CarswellNat 3913, 2012 FC 1190, 2012 CarswellNat 4502, 2012 CF 1190, 12 Imm. L.R. (4th) 132, 420 F.T.R. 17 (Eng.), [2012] F.C.J. No. 1291, [2012] A.C.F. No. 1291 (F.C.) — referred to Kambo v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 872, 2012 CarswellNat 2401, 2012 CarswellNat 3034, 2012 CF 872, 415 F.T.R. 148 (Eng.), 10 Imm. L.R. (4th) 205, [2012] F.C.J. No. 936, [2012] A.C.F. No. 936 (F.C.) — referred to Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CarswellNat 2568, 2013 CarswellNat 3903, 2013 CF 802, 2013 FC 802 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — considered Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 189, 2009 CarswellNat 1626, 2009 CAF 189, 392 N.R. 163, 2009 Car- swellNat 4008, [2010] 1 F.C.R. 360, [2009] F.C.J. No. 713 (F.C.A.) — re- ferred to Leobrera v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 587, 369 F.T.R. 178 (Eng.), (sub nom. Saporsantos Leobrera v. Canada (Minister of Citizenship & Immigration)) [2011] 4 F.C.R. 290, 2010 Car- swellNat 1515, 2010 CF 587, 2010 CarswellNat 2588, [2010] F.C.J. No. 692 (F.C.) — followed Martinez Hoyos v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CarswellNat 3674, 2013 FC 998, 2013 CF 998, 2013 CarswellNat 4381 (F.C.) — considered Massey v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1382, 2011 CarswellNat 5045, 2011 FC 1382, 2011 CarswellNat 5753 (F.C.) — followed Medina Moya v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CarswellNat 3435, 2012 CF 971, 2012 FC 971, 2012 CarswellNat Norbert v. Canada (MCI) 299
2934, 11 Imm. L.R. (4th) 276, (sub nom. Moya v. Canada (Minister of Citizenship and Immigration)) 416 F.T.R. 247 (Eng.), [2012] F.C.J. No. 1046, [2012] A.C.F. No. 1046 (F.C.) — referred to Naredo v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 291, 192 D.L.R. (4th) 373, 2000 CarswellNat 1607, (sub nom. Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration)) 187 F.T.R. 47, 2000 CarswellNat 5943, [2000] F.C.J. No. 1250 (Fed. T.D.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Noh v. Canada (Minister of Citizenship & Immigration) (2012), 409 F.T.R. 117 (Eng.), 2012 FC 529, 2012 CarswellNat 2106, 2012 CF 529, 2012 Car- swellNat 3860, 11 Imm. L.R. (4th) 98 (F.C.) — referred to Ovcak v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1178, 2012 CarswellNat 3849, 2012 CarswellNat 4302, 2012 CF 1178 (F.C.) — referred to Owusu v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 38, 2004 CarswellNat 248, 2004 CAF 38, 2004 CarswellNat 1117, 318 N.R. 300, (sub nom. Owusu v. Canada) [2004] 2 F.C.R. 635, [2004] F.C.J. No. 158 (F.C.A.) — referred to Ramsawak v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 636, 2009 CarswellNat 5688, 86 Imm. L.R. (3d) 97, 2009 FC 636, 2009 CarswellNat 3534, [2009] F.C.J. No. 1387, [2009] A.C.F. No. 1387 (F.C.) — referred to Shallow v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 749, 410 F.T.R. 314 (Eng.), 2012 CarswellNat 1974, 2012 CarswellNat 3110, 2012 CF 749, [2012] A.C.F. No. 745, [2012] F.C.J. No. 745 (F.C.) — referred to Sinniah v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1285, 2011 FC 1285, 2011 CarswellNat 4688, 2011 CarswellNat 5749, 5 Imm. L.R. (4th) 313, [2011] F.C.J. No. 1568 (F.C.) — considered Swartz v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CFPI 268, 2002 CarswellNat 1751, 2002 FCT 268, 2002 CarswellNat 516, 218 F.T.R. 23, 19 Imm. L.R. (3d) 1, [2002] F.C.J. No. 340 (Fed. T.D.) — re- ferred to 300 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Terigho v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 835, 2006 CarswellNat 1901, 2006 CarswellNat 3402, 2006 CF 835, [2006] F.C.J. No. 1061 (F.C.) — referred to Vuktilaj v. Canada (Minister of Citizenship and Immigration) (2014), 2014 CF 188, 2014 CarswellNat 997, 2014 CarswellNat 386, 2014 FC 188 (F.C.) — considered Yoo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 877, 2009 FC 343, 80 Imm. L.R. (3d) 97, 343 F.T.R. 253 (Eng.), 2009 CarswellNat 6664, 2009 CF 343 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25 — considered s. 25(1) — considered s. 25(1.3) [en. 2010, c. 8, s. 4(1)] — considered s. 96 — considered s. 97 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 2 “dependent child” — considered
APPLICATION for judicial review of decision by officer refusing applicants’ application for permanent residence from within Canada based on humanitarian and compassionate grounds.
Sayran Sulevani, for Applicants Tamrat Gebeyehu, for Respondent
James Russell J.: Introduction 1 This is an application under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or Act] for judicial review of the decision of a Senior Immigration Officer [Officer] dated Novem- ber 22, 2012 [Decision], which refused the Applicants’ application for permanent residence from within Canada based on humanitarian and compassionate [H&C] grounds Norbert v. Canada (MCI) James Russell J. 301
Background 2 The Applicants are Fina Norbert and her two adult children, Odelma and Eardley. They are citizens of St. Lucia. 3 Ms. Norbert has endured a very difficult life in St. Lucia. As a child, she suffered extensive sexual and physical abuse at the hands of a man named Valerious Raymond. Mr. Raymond continued to threaten and abuse her into adulthood. She was also physically abused by her mother as an adolescent. As a young woman and adult, Ms. Norbert was in a relationship with Eardley Peter, the father of her two children, who sexu- ally and physically abused her in a cycle of domestic violence. She left Mr. Peter after twelve years together, but continued to be terrorized by Mr. Raymond. Indeed, the degree of abuse that Ms. Norbert has suffered in St. Lucia - and the Officer did not doubt her story - is truly appalling. Her son, also named Eardley, was born with albinism. 4 In July 21, 2010, Ms. Norbert fled to Canada with her two children. They made refugee claims on August 9, 2010. The Refugee Protection Division of the Immigration and Refugee Board rejected their claims on January 21, 2011, and their application for leave for judicial review was dismissed on May 6, 2011. Their Pre-Removal Risk Assessment [PRRA] application was rejected on October 11, 2011. 5 In November 2011, the Applicants submitted an H&C application, the Decision which is here under review. The Applicants argued that they would face unusual and undeserved or disproportionate hardship if re- turned to St. Lucia because Ms. Norbert would be at risk at the hands of Mr. Raymond and Mr. Peter. Ms. Norbert claims that her friends from St. Lucia have told her that Mr. Raymond has been looking for her and has also threatened to rape her daughter Odelma and even her son Eardley. She also claims that Mr. Peter called her in October 2011 and threatened and intimidated her. Thus, the Applicants claim that there is a very real risk of harm to all of them should they be returned to St. Lucia, espe- cially since law enforcement in domestic violence situations is not effec- tive there. 6 In addition, the Applicants argued that there would be unusual and undeserved or disproportionate hardship because Ms. Norbert suffers from post-traumatic stress disorder arising from her traumatic childhood, and she would be without the social and family support she needs in St. Lucia. Further, Eardley’s albinism would make him a target of discrimi- nation, which can range from taunts to physical violence, and would put him at a greater risk of skin and eye cancer, since the sun is stronger, 302 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
sunscreen is prohibitively expensive, and he would not have access to the same level of medical care in St. Lucia. 7 The Applicants further submitted that they had established them- selves in Canada. Ms. Norbert had developed a support network of friends and community, obtained stable employment, and joined a church community. All three Applicants had also been taking adult education courses and had done very well. 8 While the Decision was still pending, the Applicants were removed from Canada on February 16, 2012. They were in Canada a total of just under 19 months.
Decision Under Review 9 On November 22, 2012, the Officer rejected the Applicants’ H&C application. The Officer acknowledged that in the more than 18 months they had been residing in Canada, the Applicants had made efforts to establish themselves here. Ms. Norbert had joined a church community and had been employed part-time at a nursing home, had good references from her supervisors, and had been taking adult education courses. Odelma had completed adult education courses and had been working part-time at a fast food restaurant. And Eardley had likewise completed adult education courses. The Officer noted that Ms. Norbert indicated she had a sister living in the Hamilton area, Lona Poleon, but there was no letter filed from Ms. Poleon, and no indication whether she is a Canadian citizen or permanent resident. 10 Despite these links to Canada, the Officer held that, while a return to St. Lucia would certainly cause disappointment, there was insufficient evidence to show that the Applicants would not be able to re-establish themselves there. Ms. Norbert had previously worked in St. Lucia as a security guard for eight years, and the children were in their 20s. The Officer thought it reasonable that they would be able to support them- selves in St. Lucia. 11 Regarding Ms. Norbert’s alleged lack of social and family support, the Officer noted that Ms. Norbert had mentioned family members in her narrative, and that she had friends in St. Lucia, five of whom had sent letters in support of her H&C application, suggesting that she would have access to a support network in St. Lucia. The Officer also found the Ap- plicants could support each other emotionally, as they were “very close,” and they could potentially find support in a church community as well. In a similar vein, the Officer held that Ms. Norbert could seek such support Norbert v. Canada (MCI) James Russell J. 303
to help with her stress disorder, or seek the assistance of a doctor there, as she had done in the past. 12 Regarding the risk posed by Mr. Raymond and Mr. Peter, the Officer noted that in light of recent amendments to the IRPA, factors of risk under sections 96 or 97 of the Act, including risk to life or cruel or unu- sual treatment or punishment, should not be taken into consideration in an H&C application. The Applicants had been able to voice such risks and have them considered in their refugee and PRRA applications. 13 Finally, regarding Eardley’s exposure to discrimination and medical risks due to his albinism, the Officer found that the evidence of discrimi- nation came from Ms. Norbert, not from Eardley himself, and that the objective evidence put forward regarding discrimination against albinos was not specific to St. Lucia or the Caribbean region. The Officer also found there was no evidence to suggest that medical care would not be available or that sunscreen was prohibitively expensive. 14 Overall, the Officer found that, while a return to St. Lucia would cause the Applicants some hardship, it would not be disproportionate or unusual or undeserved hardship.
Issues 15 The issues on this review are: a. Did the Officer err in not conducting a “best interests of the child” analysis? b. Did the Officer err in the hardship analysis?
Standard of Review 16 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be in- consistent with new developments in the common law principles of judi- cial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis (Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48). 304 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
17 It is well recognized that an immigration officer’s H&C decision under section 25 of the Act is reviewable on the standard of reasonable- ness (Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.) at para 18; Kambo v. Canada (Minister of Citizenship & Immigration), 2012 FC 872 (F.C.) at para 22; Terigho v. Canada (Minister of Citizenship & Immigration), 2006 FC 835 (F.C.) at para 6). When reviewing an H&C decision, “considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language” (Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para 62). 18 Applying the standard of reasonableness, the Court will be concerned with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dun- smuir, above at para 47). Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Khosa v. Canada (Minister of Citizenship & Immi- gration), 2009 SCC 12 (S.C.C.) at para 59).
Statutory Provisions 19 The following provisions of the Act are applicable in these proceed- ings: Humanitarian and compassionate considerations — request of foreign national 25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable crite- ria 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 [...] Norbert v. Canada (MCI) James Russell J. 305
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. S´ejour pour motif d’ordre humanitaire a` la demande de l’´etranger 25. (1) Sous r´eserve du paragraphe (1.2), le ministre doit, sur de- mande d’un etranger´ se trouvant au Canada qui demande le statut de r´esident permanent et qui soit est interdit de territoire, soit ne se con- forme pas a` la pr´esente loi, et peut, sur demande d’un etranger´ se trouvant hors du Canada qui demande un visa de r´esident permanent, etudier´ le cas de cet etranger;´ il peut lui octroyer le statut de r´esident permanent ou lever tout ou partie des crit`eres et obligations appli- cables, s’il estime que des consid´erations d’ordre humanitaire rela- tives a` l’´etranger le justifient, compte tenu de l’int´erˆet sup´erieur de l’enfant directement touch´e. [...] Non-application de certains facteurs (1.3) Le ministre, dans l’´etude de la demande faite au titre du paragraphe (1) d’un etranger´ se trouvant au Canada, ne tient compte d’aucun des facteurs servant a` etablir´ la qualit´e de r´efugi´e — au sens de la Convention — aux termes de l’article 96 ou de personne a` pro- t´eger au titre du paragraphe 97(1); il tient compte, toutefois, des dif- ficult´es auxquelles l’´etranger fait face.
Argument Issue 1: Did the Officer err in not conducting a “best interests of the child” analysis? Applicants’ submissions 20 The Applicants argue that the Officer erred in not conducting a “best interests of the child” analysis; even children aged 18 and older may still be considered children for the purposes of such an analysis. See Naredo v. Canada (Minister of Citizenship & Immigration) (2000), 192 D.L.R. (4th) 373 (Fed. T.D.) at para 20; Swartz v. Canada (Minister of Citizenship & Immigration), 2002 FCT 268 (Fed. T.D.) at para 14; Yoo v. Canada (Minister of Citizenship & Immigration), 2009 FC 343 (F.C.) at 306 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
para 32; Noh v. Canada (Minister of Citizenship & Immigration), 2012 FC 529 (F.C.) at paras 63-65 [Noh]; and Ramsawak v. Canada (Minister of Citizenship & Immigration), 2009 FC 636 (F.C.) at para 18. The Ap- plicants submit that the Officer should have considered whether such an analysis was required, particularly in the case of Eardley, and that the failure to do so was an error reviewable on the standard of correctness. See Noh, above at para 22. In their Further Memorandum, however, the Applicants concede that the Board’s failure to conduct a best interests analysis may attract the standard of reasonableness, citing Martinez Hoyos v. Canada (Minister of Citizenship and Immigration), 2013 FC 998 (F.C.) at paras 8-24. 21 In their Further Memorandum, the Applicants also note that the defi- nition of “dependant child” in section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 includes a child who “is less than 22 years of age and not a spouse or common-law partner.” They argue that at the time of the H&C application, Eardley was 21-years-old but financially dependant on Ms. Norbert, enrolled full-time in school, and had a serious medical condition (his albinism). Even though he was over 18 years of age, his level of dependency was such that the Officer should have conducted a best interests analysis, and erred in not doing so. 22 On the merits, the Applicants argue in their original Memorandum that, in concluding that the children could work to support the family, the Officer failed to consider whether it would be in their best interests to do so instead of continuing their education. The Officer also failed to con- sider the barriers Eardley would face as an albino man in finding em- ployment in St. Lucia. In these ways, the Applicants submit the Officer did not take into account the best interests of Ms. Norbert’s adult children. 23 Citing Sinniah v. Canada (Minister of Citizenship & Immigration), 2011 FC 1285 (F.C.) and Noh, above, in their Further Memorandum, the Applicants add that the best interests analysis must not be wrapped up in the general hardship analysis. They submit that the Officer’s treatment of the needs of the children amounted to a mere cursory consideration and “lip service.” The Officer found that Eardley might be able to adjust back to life in St. Lucia, but the Applicants argue that the Officer was required to ask what would be in his best interests, not merely whether he would be able to adapt. This application of the wrong legal test is a reviewable error, as it led the Officer to apply the wrong test with a higher threshold than was appropriate. Norbert v. Canada (MCI) James Russell J. 307
24 The Applicants further argue that the Officer was not alert to and did not fully understand Eardley’s best interests. First, the Officer was dis- missive of Eardley’s health risks, not giving them “careful attention.” The Officer also minimized evidence of the discrimination Eardley would face in St. Lucia by ignoring the evidence of Ms. Norbert on that point, and dismissing the objective evidence regarding albinism by say- ing it was not specific to St. Lucia or the Caribbean, even though it pro- vided accounts from Latin American countries which, like St. Lucia, are predominantly black. 25 The Officer also failed to consider a piece of documentary evidence (a 2010 U.S. Department of State Country Condition Report [U.S. DOS Report]) indicating that St. Lucia does not respect human rights and has no remedies for violations. The Applicants acknowledge that an adminis- trative decision-maker need not refer to every piece of evidence, but should address evidence that is central to the decision or which contra- dicts their findings. They argue that the U.S. DOS Report contradicted the Officer’s finding on discrimination, so that failing to reference it was unreasonable. 26 Finally, the Applicants argue that the Officer did not consider how discriminatory barriers could affect Eardley’s access to employment. In- stead, the Officer trivialized the impact that returning to St. Lucia would have on Eardley. They submit that the Officer used a “dismissive and results-driven approach” inconsistent with the values underlying section 25 of the IRPA.
Respondent’s submissions 27 The Respondent notes that in the Applicants’ H&C submissions, they did not request that the Officer consider the best interests of the child. Rather, they focussed on hardship and establishment. It is the responsi- bility of the Applicants to bring all relevant H&C considerations to the attention of the Officer (Owusu v. Canada (Minister of Citizenship & Immigration), 2004 FCA 38 (F.C.A.) at para 9 [Owusu]). Therefore, the Officer committed no error in not conducting a best interests analysis. 28 Citizenship and Immigration Canada’s [CIC] Operation Manual IP-5 [Manual IP-5] states that a best interests analysis is available only to chil- 308 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
dren under 18 years of age (Manual IP-5 at para 5.12). It provides, in relevant part: Children 18 years and over BIOC must be considered when a child is under 18 years of age at the time the application is received. There may, however, be cases in which the situation of older children is relevant and should be taken into consideration in an H&C assessment. If, however, they are not under 18 years of age, it is not a best interests of the child case. 29 The Respondent points out that several Federal Court decisions have affirmed that children over 18 are not entitled to a best interests assess- ment (see e.g. Leobrera v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 587 (F.C.) [Leobrera] at para 63; Medina Moya v. Canada (Minister of Citizenship and Immigration), 2012 FC 971 (F.C.) at paras 17-18; Ovcak v. Canada (Minister of Citizenship and Immigra- tion), 2012 FC 1178 (F.C.) at para 18; Massey v. Canada (Minister of Citizenship & Immigration), 2011 FC 1382 (F.C.) at para 48 [Massey]). 30 In any event, the Respondent argues, the Officer did consider the cir- cumstances of Eardley and found the evidence insufficient.
Issue 2: Did the Officer err in the hardship analysis? Applicant’s submissions 31 The Applicants argue that the Officer erred in ignoring the hardship posed by Mr. Raymond and Mr. Peter. They submit that even in light of recent legislative amendments to the Act, an Officer in an H&C applica- tion must still consider any hardships that directly impact the Applicants, regardless of connection to risk. See Caliskan v. Canada (Minister of Citizenship and Immigration), 2012 FC 1190 (F.C.). The Officer failed to consider the hardship that Ms. Norbert would face in dealing with those men who had sexually and physically abused her, and the terror she would experience in being unable to hide from them on the tiny island of St. Lucia. The Applicants further argue that the Officer’s comments that Ms. Norbert would be able to find support and medical help in St. Lucia indicate that the Officer did not fully appreciate the scope and severity of Ms. Norbert’s past abuse and the hardship she would likely face. 32 In their Further Memorandum, the Applicants argue that by superfi- cially dismissing the risk components from the hardship analysis, the Of- ficer failed to consider the most compelling aspects of Ms. Norbert’s hardship, which would require her to perpetually evade her abusers, lead- ing to an insecure housing and employment situation. They argue that the Norbert v. Canada (MCI) James Russell J. 309
Officer also failed to account for several pieces of evidence that attest to the hardship she would face as a victim of domestic violence in St. Lu- cia, including several reports documenting the lack of effective police protection in such cases. The Officer also ignored evidence of gender- based discrimination. 33 The Applicants also say that the Officer failed to appreciate the scope and severity of Ms. Norbert’s post-traumatic stress disorder, and the psy- chological hardship of having to return to St. Lucia. The Officer did not consider the affidavit of Dr. Ruth Herman, a trauma expert. The Officer’s finding that Ms. Norbert would have emotional support in St. Lucia, as evidenced by the letters from her friends in St. Lucia, was perverse given that those letters implored her to stay in Canada. The Applicants also argue that the Officer’s finding that Ms. Norbert could just resume medi- cal treatment and counselling in St. Lucia was unreasonable because it ignored the U.S. DOS Report, which stated that there is only one mental health facility on the island and “mentally ill persons are not generally provided much care.” The Officer failed to consider whether this reduced level of care, and Ms. Norbert’s being forced to disrupt her then-current treatment regime, would amount to undue hardship. 34 Finally, the Applicants argue that the Officer mischaracterized and ignored evidence of economic hardship. The Officer acknowledged that the job market in St. Lucia is very bad, but dismissed the issue by essen- tially saying that the Applicants might still be able to find work. The Applicants argue that the gendered nature of St. Lucia society, and the fact that they had been away from St. Lucia for almost two years and had depleted their savings, were not considered by the Officer. Failure to at least grapple with these factors was a reviewable error (citing Shallow v. Canada (Minister of Citizenship & Immigration), 2012 FC 749 (F.C.)).
Respondent’s submissions 35 The Respondent provided no written submissions on the issue of whether the Officer committed a reviewable error in dismissing risk fac- tors related to Mr. Raymond and Mr. Peter from the hardship analysis in its written submissions. 36 The Respondent submits that the Officer did not err in not discussing the general country condition documents on violence against women, as the Officer found that Ms. Norbert would not face undue hardship, as she had received assistance in St. Lucia in the past. The Respondent further submits that there is nothing in the record to show that the Applicants 310 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
would be subject to harassment or be unable to secure housing or employment.
Analysis Best Interests of the Child 37 The Officer was not required to undertake a best interests of the child analysis in this case. The Applicants are correct to point out that there is some jurisprudence that suggests that children over the age of 18 may, in certain circumstances, still be considered children for the purposes of an H&C application. However, there is also jurisprudence that says a best interests analysis is simply not available under the IRPA for older chil- dren and, in this regard, it is my view that the reasoning and conclusions in such cases as Leobrera, above, and Massey, above, is to be preferred. In Massey, at para 48, the Court held that: [48] In addition, recent jurisprudence of this Court has held that there is no need to consider the best interests of a person over the age of 18 as a “child directly affected” in an application brought under s 25 of IRPA. In Leobrera v Canada (Minister of Citizenship and Immigra- tion), 2010 FC 587, Justice Michel Shore relied on domestic legisla- tion, international instruments and the jurisprudence of the Federal Court of Appeal and Supreme Court to reach the conclusion that “childhood is a temporary state which is delineated by the age of the person, not by personal characteristics” (at para 72). In addition, in this instance, the Applicants, in their submissions to the Officer, did not even request that a best interests analysis be done for Eardley. They requested that the Officer address hardship. The Appli- cants argue that, nevertheless, the Officer should have considered whether such an analysis was required. I do not think that the jurispru- dence of this Court supports this position. 38 Manual IP-5 at 5.12 makes it clear that a best interests analysis is only compulsory for children under 18 years at the time the application was received. Eardley was 21 years of age at the material time. As 5.12 of the Manual makes clear, there may be situations in which the situation of older children is relevant and should be taken into consideration, but this does not require the Officer to conduct a best interests analysis. In the present case, Eardley’s situation was obviously highly relevant to the Officer’s hardship analysis but the Applicants did not request and did not make a case for a best interests analysis. The onus was upon the Appli- Norbert v. Canada (MCI) James Russell J. 311
cants to bring all relevant H&C considerations to the attention of the Of- ficer. See Owusu, above, at para 9.
Section 25(1.3) 39 The Applicants point out that, relying upon subsection 25(1.3), the Officer ignored the hardship that the Applicants would face from Mr. Raymond and Mr. Peter if they are returned. 40 The Decision makes it clear that, indeed, the Officer did conclude that he/she should not address section 96 persecution and section 97 risk when considering hardship and this meant that he/she left out of account an extremely important and material aspect of the Applicants’ case for hardship. 41 I am of the view that subsection 25(1.3) merely codifies, and does not change, the jurisprudence of this Court that risk factors under sections 96 and 97 remain relevant but have to be analysed from the perspective of hardship. This is the view of, for example, Justice O’Keefe in Vuktilaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 188 (F.C.) at paras 25-38. However, Justice Kane’s ruling to the same effect in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2013 FC 802 (F.C.), is presently before the Federal Court of Appeal so that we do not yet have the Court of Appeal’s guidance on this issue. 42 However, it is my view that I need not wait for a decision from the Federal Court of Appeal on the meaning and scope of subsection 25(1.3). This is because I find that the general hardship analysis in this case con- tains reviewable errors that, in any event, require the matter to be re- turned for reconsideration by a different officer. Such reviewable errors arise even if subsection 25(1.3) allows the Officer to disregard the most compelling aspect of the Applicants’ case which is hardship at the hands of the two principal perpetrators of abuse, i.e. Mr. Raymond and Mr. Peter.
Hardship Analysis 43 I find persuasive the following arguments for reviewable error in the Officer’s hardship analysis: a. The Officer acknowledges the psychological hardship that Ms. Norbert will face if returned to St. Lucia but his/her conclusion that Ms. Norbert should be able to rely upon family and friends for “emotional support” does not address the expert evidence of 312 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Dr. Ruth Herman as to what will happen if Ms. Norbert is returned to the scene of the trauma; b. The evidence does not support the Officer’s apparent view that there are some sources of emotional support available to Ms. Nor- bert in St. Lucia; c. The Officer’s analysis ignores objective evidence of barriers in ac- cessing mental health treatment and what would happen to Ms. Norbert if her therapeutic relationships in Canada are disrupted; d. The Officer ignores the advice of the U.S. DOS Report that there is only one mental health facility in St. Lucia and that mentally ill people are not, generally speaking, provided with much care; e. Even if some care were available to Ms. Norbert in St. Lucia, the Officer failed to consider the hardship that would result from Ms. Norbert severing her therapeutic relationships in Canada; f. The Officer does not reasonably assess Ms. Norbert’s chances of finding employment given the evidence of deteriorating economic conditions for women in St. Lucia; and g. The Officer ignores clear evidence of what Eardley suffered and will suffer in terms of discrimination for his albinism in St. Lucia on the irrelevant grounds that “I do not have any evidence from Eardley himself regarding how he perceived the treatment he re- ceived in St. Lucia.” 44 The errors above are sufficient to warrant reconsideration. 45 Counsel agree that, apart from the subsection 25(1.3) issue, which is not required for my decision, there are no questions for certification. I agree.
Judgment THIS COURT’S JUDGMENT is that: 1. The application is allowed. The Decision is quashed and the mat- ter is returned for reconsideration by a different officer; and 2. There is no question for certification. Application granted. Karunaratna v. Canada (MCI) 313
[Indexed as: Karunaratna v. Canada (Minister of Citizenship and Immigration)] Aluthwala Domingo V.R.K. Karunaratna & R.A.D.S. Sarath Kumara Karunaratne, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6699-13 2014 FC 421, 2014 CF 421 Yves de Montigny J. Heard: April 29, 2014 Judgment: May 5, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Misrepresentation — General principles –––– Applicants were citi- zens of Sri Lanka who had submitted application for temporary resident visa (TRV) in July 2008, which was refused — Applicants then submitted applica- tion for permanent residence (PR) as members of family class in February 2009 in which they indicated that they had never been refused TRV and applicant K indicated that he was pensioner since 2003 — In December 2009, applicants submitted Supplementary Information form in which they indicated that K had been working as assistant manager with engineering firm since March 2009 — Applicants submitted further TRVs in December 2009 and March 2010, which were refused and in 2009 TRV, they indicated that they had applied for Cana- dian visas on two previous occasions — Applicants filed updated Back- ground/Declaration form to their February 2009 PR application in January 2012, and on this form, they did not indicate that they were refused TRVs in past and stated that K was pensioner since 2003, omitting any reference to his engineer- ing employment — Officer issued fairness letter with respect to discrepancies and was not satisfied with response — Application for permanent residence was refused as applicants were found to be inadmissible for misrepresentation pursu- ant to s. 40(1(a) of Immigration and Refugee Protection Act — Applicants ap- plied for judicial review — Application granted — Officer’s finding that appli- cants made material misrepresentations was unreasonable — Officer clearly had access to past refusals on visa applications and applicants had referred to refused July 2008 TRV in 2009 TRV application — This was not case where applicant tried to conceal or misrepresent material fact — Even assuming that failure to mention K’s 2009 employment constituted misrepresentation, for inadmissibility finding to be made pursuant to s. 40 of Act there must not only be misrepresen- tation, but that misrepresentation must also have been material — Nine-month 314 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
employment of K, who was otherwise retired since 2003, could not have in- duced error in assessment of applicant’s application for permanent residence as members of family class. Cases considered by Yves de Montigny J.: Baro v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1299, 2007 CarswellNat 5117, 2007 CF 1299, 2007 CarswellNat 4369, [2007] F.C.J. No. 1667, [2007] A.C.F. No. 1667 (F.C.) — referred to Berlin v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1117, 2011 CarswellNat 3949, 2011 CarswellNat 4672, 2011 FC 1117, 2 Imm. L.R. (4th) 336, 397 F.T.R. 205 (Eng.), [2011] F.C.J. No. 1372, [2011] A.C.F. No. 1372 (F.C.) — referred to Bodine v. Canada (Minister of Citizenship & Immigration) (2008), 331 F.T.R. 200, 2008 CarswellNat 2300, 2008 FC 848, 2008 CarswellNat 6486, 2008 CF 848, [2008] F.C.J. No. 1069 (F.C.) — referred to Ghasemzadeh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 716, 2010 CarswellNat 2941, 2010 FC 716, 2010 CarswellNat 1997, 372 F.T.R. 247 (Eng.), [2012] 1 F.C.R. 116, [2010] F.C.J. No. 875, [2010] A.C.F. No. 875 (F.C.) — referred to Goburdhun v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 971, 2013 CarswellNat 4387, 21 Imm. L.R. (4th) 23, 2013 FC 971, 2013 CarswellNat 4163 (F.C.) — referred to Koo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 2630, 2008 FC 931, 74 Imm. L.R. (3d) 99, [2009] 3 F.C.R. 446, 2008 CarswellNat 5631, 2008 CF 931, [2008] A.C.F. No. 1152, [2008] F.C.J. No. 1152 (F.C.) — referred to Lu v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 625, 2008 CarswellNat 1623, 2008 CF 625, 2008 CarswellNat 2450 (F.C.) — re- ferred to Mahmood v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1103, 2011 FC 433, 2011 CarswellNat 1935, 2011 CF 433, 388 F.T.R. 69 (Eng.) (F.C.) — referred to Merion-Borrego v. Canada (Minister of Public Safety & Emergency Prepared- ness) (2010), 2010 FC 631, 2010 CarswellNat 1731, 2010 CF 631, 2010 CarswellNat 2468, 370 F.T.R. 145 (Eng.) (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, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Karunaratna v. Canada (MCI) Yves de Montigny J. 315
Sinnathamby v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1421, 2011 CarswellNat 5163, 2011 CF 1421, 2011 CarswellNat 5734, 399 F.T.R. 115 (Eng.) (F.C.) — referred to Sohrabi c. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 1896, 2012 CF 501, 2012 CarswellNat 2676, 2012 FC 501 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40 — considered s. 40(1)(a) — referred to
APPLICATION for judicial review of decision refusing applicants’ application for permanent residence.
Max Chaudhary, for Applicants Christopher Ezrin, for Respondent
Yves de Montigny J.:
1 The Applicants seek judicial review of a decision of an Immigration Counsellor (the Officer) dated September 25, 2013, whereby the Appli- cants were found inadmissible for misrepresentation pursuant to para- graph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that follow, this application for judicial re- view is granted.
I. Facts 2 Mr. R.A.D.S. Sarath Kumara Karunaratne and Ms Aluthwala Dom- ingo V.R.K. Karunaratna (the Applicants) are citizens of Sri Lanka. 3 They submitted an application for a temporary resident visa (TRV) in July 2008, which was refused. 4 They then submitted an application for permanent resident (PR) as members of the family class in February 2009 (although the application form was signed on December 18, 2008). In this application, they indi- cated that they have never been refused a TRV. Mr. Karunaratne also indicated that he was a pensioner since 2003. In December 2009, they submitted a Supplementary Information form in which they indicated that Mr. Karunaratne had been working as an assistant manager with Mahinda Construction & Engineering since March 2009. 316 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
5 The Applicants submitted further TRVs in December 2009 and March 2010. Both have been refused. In the 2009 TRV, they indicated that they had applied for Canadian visas on two previous occasions: a visitor visa in July 2008 and a PR visa sponsored by their daughter in January 2009. They also indicated that their July 2008 visa was refused. The March 2010 application is not on file, but as per Mr. Karunaratne’s affidavit, this was also refused. 6 The Applicants filed an updated Background/Declaration form to their February 2009 PR application on January 18, 2012. On this form, they did not indicate that they were refused TRVs in the past and stated that Mr. Karunaratne was a pensioner since 2003, omitting any reference to his employment with Mahinda Construction & Engineering. 7 On June 17, 2013, the Officer sent the Applicants a “fairness letter” allowing them to address these two discrepancies. In the response dated June 25, 2013, the consultant stated that the failure to declare the July 2008 TRV was an oversight and that because of the lengthy processing time and the fact that the consultant was not copied on the request, the sponsor was given the impression that she should update the Schedule A on her own in consultation with her parents. The sponsor therefore cop- ied the same information as on the February 2009 PR application. How- ever, the Officer was not satisfied by that explanation and sent a refusal letter to the Applicants on September 25, 2013.
II. Decision under review 8 By letter dated September 25, 2013, the Applicants were notified that their application for permanent residence as a member of the family class was refused as they were found to be inadmissible pursuant to paragraph 40(1)(a) of the IRPA. The reasons for the refusal are the following: a) The Applicants indicated in their Schedule A application form that they were never refused a visa to Canada or any other country. This is not true as records show that they were refused a visa in July 2008 and December 2009. b) The Applicants indicated in their Schedule A application form that Mr. Karunaratne was a pensioner since 2003 whereas in the De- cember 2009 TRV he indicated that he was an Assistant Manager Karunaratna v. Canada (MCI) Yves de Montigny J. 317
with Mahinda Construction & Engineering from March 2009 to December 2009. 9 The Officer noted as well that the Applicants were given an opportu- nity to respond but that he was not satisfied with the consultant’s re- sponse as it did not answer his concerns.
III. Issue 10 This application raises only one issue, and it is whether or not the Officer’s finding that the Applicants’ omission of Mr. Karunaratne’s re- cent work experience and refused TRV applications represent a material misrepresentation is reasonable.
IV. Analysis 11 It is well established that decisions refusing an application for perma- nent residence on grounds of misrepresentations are reviewable on the reasonableness standard: Mahmood v. Canada (Minister of Citizenship & Immigration), 2011 FC 433 (F.C.), at para 11; Lu v. Canada (Minister of Citizenship & Immigration), 2008 FC 625 (F.C.), at para 12; Sinnathamby v. Canada (Minister of Citizenship & Immigration), 2011 FC 1421 (F.C.), at para 18 [Sinnathamby]; Sohrabi c. Canada (Minister of Citizenship & Immigration), 2012 FC 501 (F.C.), at para 14. Such questions are clearly questions of mixed fact and law within the officer’s specialized expertise. 12 Reasonableness requires the existence of justification, transparency and intelligibility within the decision-making process, and also calls for a decision that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at para 47. 13 There is no doubt that the objective of section 40 is to deter misrepre- sentation and maintain the integrity of the immigration process. In that spirit, it has been repeatedly held that an applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada: Bodine v. Canada (Minister of Citizenship & Immigration), 2008 FC 848 (F.C.), at para 41; Baro v. Canada (Minister of Citizenship & Immigration) [.Baro], 2007 FC 1299 (F.C.), at para 15; Goburdhun v. Canada (Minister of Citizenship and Immigration), 2013 FC 971 (F.C.), at para 30. 318 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
14 That being said, there is ample case law supporting the view that hon- est and reasonable mistakes or misunderstandings can fall outside the scope of section 40 of IRPA: see, for ex, Berlin v. Canada (Minister of Citizenship & Immigration), 2011 FC 1117 (F.C.), at para 17; Koo v. Canada (Minister of Citizenship & Immigration), 2008 FC 931 (F.C.), at paras 22-29; Baro; Merion-Borrego v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 631 (F.C.); Ghasemzadeh v. Canada (Minister of Citizenship & Immigration), 2010 FC 716 (F.C.). 15 Indeed, the CIC Guidelines (ENF 2 — Evaluating Inadmissibility) provide that the misrepresentation provisions must be applied with “good judgment to support the objectives of the Act and ensure fair and just decision-making”: section 10.1. 16 In the case at bar, the Officer clearly had access to the past refusals on visa applications. While the Applicants had failed to disclose the refused July 2008 TRV in their updated Schedule A of their 2012 PR application and in their initial 2009 PR application, they had referred to it in their 2009 TRV application. This clearly suggests that they were not trying to hide this information. Indeed, this information appears in the CAIPS notes (Certified Tribunal Record, p. 6), and the Officer had access to these entries when he sent his fairness letter to the Applicants. As a re- sult, this is clearly not a case where an applicant tried to conceal or mis- represent a material fact. 17 In those circumstances, I do not think the Officer could reasonably ignore or dismiss the explanation provided by the consultant in his re- sponse to the fairness letter. It may well be that the sponsor felt she needed to complete the updated forms requested by the Respondent by herself and expeditiously, as the consultant had not been copied on that request. When looking at the file as a whole, I fail to see how it can be said that the Applicants made a material misrepresentation with respect to their failed attempts to obtain a TRV. 18 As for the omission of any reference to Mr. Karunaratne’s 2009 em- ployment in the updated Background/Declaration form submitted in Jan- uary 2012, I do not think it is of any consequence. I agree with the Re- spondent that this omission cannot be excused by suggesting, as the Applicants did, that the updated Background/Declaration form was cop- ied from the 2008 form. Question 11 on the 2008 form indicated that Mr. Karunaratne had been a “pensioner” from June 2003 to the date the form was signed. Question 8 of the 2012 form lists the same start date, but the answer suggests that he had been a “pensioner” continuously up to Janu- Karunaratna v. Canada (MCI) Yves de Montigny J. 319
ary 2012. It appears, therefore, that the Applicants and/or their sponsor directed their attention to this issue and specifically updated the form to provide a current answer to this particular question. The fact remains that the Officer had access to that information as it was explicitly referred to in their 2009 TRV application. 19 Even assuming that the failure to mention Mr. Karunaratne’s 2009 employment constitutes a misrepresentation, it is not the end of the mat- ter. For an inadmissibility finding to be made pursuant to section 40 of the IRPA, there must not only be a misrepresentation, but that misrepre- sentation must also have been material. In other words, the misrepresen- tation must be such that it induced or could have induced an error in the administration of this Act. The Officer cryptically mentions in the CAIPS notes that Mr. Karunaratne’s employment history is material “be- cause such information is used to examine the activities of an individual in relation to possible admissibility issues. This is especially true consid- ering that this environment has recently emerged from a long standing civil war.” With all due respect, this is far from convincing. 20 First of all, I note that Mr. Karunaratne’s 2009 employment was tem- porary in nature, that it was not for the government or a government re- lated undertaking, and that it started very shortly before the end of the civil war. More importantly, this is not a case where the file is replete with misrepresentations and where the contradictions in the employment record only adds to the overall confusion as to the background and his- tory of the Applicants, as was the case in Sinnathamby, above. I appreci- ate that admissibility issues are always a concern when assessing visa or permanent residence applications. In the case at bar, however, I fail to see how the nine month employment of Mr. Karunaratne, who is other- wise retired since 2003, could have induced an error in the assessment of the Applicants’ application for permanent residence as members of the family class. The Officer certainly did not provide any explanation in that respect, and I am therefore left with no other option than to conclude that it was unreasonable to refuse the permanent residence application and to declare the Applicants inadmissible to Canada for a period of two years for misrepresentation.
V. Conclusion 21 For the foregoing reasons, I conclude that the Officer’s finding that the Applicants made material misrepresentations was unreasonable. As a 320 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th) result, the application for judicial review is granted. The parties did not propose any question for certification, and none will be certified.
Judgment THIS COURT’S JUDGMENT is that this application for judicial re- view is granted. The file shall therefore be sent back for re-determination by a different officer. Application granted. Chawla v. Canada (MCI) 321
[Indexed as: Chawla v. Canada (Minister of Citizenship and Immigration)] Rajesh Chawla, Jyotsna Rajesh Chawla Disha Rajesh Chawla and Dev Rajesh Chawla, Applicants and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1499-13 2014 FC 434, 2014 CF 434 Yves de Montigny J. Heard: April 29, 2014 Judgment: May 7, 2014 Immigration and citizenship –––– Admission — Appeals and judicial re- view — Judicial review — Duty of fairness –––– Applicant was citizen of In- dia who asserted that he had worked in India as cook at specific restaurant (res- taurant) — Applicant commenced application for permanent residence as skilled worker (subject application) — Immigration officer (officer) called restaurant and spoke to man named N, who claimed that he had worked at restaurant for nine years and that applicant had never worked there — Officer refused subject application on ground of misrepresentation — Applicant brought application for judicial review — Application granted; matter sent back for reconsideration — There was breach of procedural fairness — Applicant was not able to participate in meaningful way in decision-making process, nor did he have opportunity to respond to officer’s concerns — Apart from stating that investigation was con- ducted and that concerns as to misrepresentation arose, fairness letter did not provide any other information — Fairness letter did not state what reasons led to investigation of applicant’s employment, how investigation was conducted, or what information gathered led to conclusion that applicant had misrepresented his employment — Had applicant been told that officer had questions about whether he ever worked in restaurant, and that these concerns resulted from phone call to restaurant, he would have been in better position to assuage these concerns — Further, if applicant had been told about extrinsic evidence pro- vided by N, he would have been able to dispute those facts — Minister of Citi- zenship and Immigration’s own guidelines provided that if officers rely on ex- trinsic evidence, they had to give applicants opportunity to respond to such evidence. 322 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Cases considered by Yves de Montigny J.: Abdi v. Canada (Attorney General) (2012), 2012 FC 642, 2012 CF 462, 2012 CarswellNat 5876, 2012 CarswellNat 5877, [2012] F.C.J. No. 945 (F.C.) — considered Amin v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 206, 2013 CarswellNat 941, 2013 FC 206, 2013 CarswellNat 423, [2013] F.C.J. No. 216 (F.C.) — considered Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered Baybazarov v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 665, 2010 CF 665, 2010 CarswellNat 2427, 2010 CarswellNat 2428, [2010] F.C.J. No. 930 (F.C.) — considered Ghasemzadeh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 716, 2010 CarswellNat 2941, 2010 FC 716, 2010 CarswellNat 1997, 372 F.T.R. 247 (Eng.), [2012] 1 F.C.R. 116, [2010] F.C.J. No. 875, [2010] A.C.F. No. 875 (F.C.) — followed Hassani v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1283, 2006 CarswellNat 5123, [2007] 3 F.C.R. 501, 2006 CarswellNat 3387, 2006 FC 1283, 302 F.T.R. 39 (Eng.), [2006] F.C.J. No. 1597 (F.C.) — re- ferred to Hussaini v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CarswellNat 655, 2013 CF 289, 2013 CarswellNat 958, 2013 FC 289, 17 Imm. L.R. (4th) 102 (F.C.) — followed Ismailzada v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CarswellNat 92, 2013 FC 67, 2013 CarswellNat 371, 2013 CF 67, 425 F.T.R. 271 (Eng.) (F.C.) — referred to Karami v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 788, 2009 CarswellNat 2339, 2009 CarswellNat 4768, 2009 CF 788, 349 F.T.R. 96 (Eng.), [2009] F.C.J. No. 912 (F.C.) — followed Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Moiseev v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 177, 2008 FC 88, 323 F.T.R. 164 (Eng.), 2008 CarswellNat 6504, 2008 CF 88, [2008] F.C.J. No. 113 (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, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, Chawla v. Canada (MCI) Yves de Montigny J. 323
329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Qin v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 147, 2013 CarswellNat 1443, 427 F.T.R. 163 (Eng.), 2013 FC 147, 2013 Car- swellNat 306, [2013] F.C.J. No. 167 (F.C.) — considered Zaib v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3102, 2010 CF 769, 90 Imm. L.R. (3d) 133, 2010 CarswellNat 2458, 2010 FC 769 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40(1)(a) — considered s. 72(1) — pursuant to
APPLICATION by citizen of India for judicial review of decision rejecting his application for permanent residence.
Jeremiah Eastman, for Applicants Catherine Vasilaros, for Respondent
Yves de Montigny 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 rendered by Catherine Marx (the Officer) of the Immigration Section of the High Commission of Canada in New Delhi, refusing the application for permanent residence of the Applicants for misrepresenta- tion under paragraph 40(1)(a) of the IRPA. 2 Based on the analysis set out below, this application for judicial re- view is granted.
I. Facts 3 Rajesh Chawla (the principal Applicant), a citizen of India, applied in March 2010 to come to Canada as a skilled worker and asserted that he had worked since 2003 as a cook at Sheetal Picnic Mini Dhaba restaurant in Mumbai (the restaurant), an establishment owned by Rajesh Mehra. 4 In view of the fact that the principal Applicant had no training as a cook and the pay stub that he submitted did not match his income tax 324 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
statement, inquiries were made to verify his employment. A phone call was placed to the restaurant using the phone number provided by the Applicants’ consultant. A man named Mr. Naresh, who claimed to have been working in the restaurant for nine years, answered the phone and informed the Officer that no one by the name of Rajesh Chawla had ever worked there. According to the Respondent, Mr. Naresh also explained that the restaurant had changed location about three years ago, that the name of the proprietor was Rajesh Mehra and that he was not there but would come in the evening, that there were four other cooks working there but no one by the name of Rajesh Chawla, and that the eatery of- fered only vegetarian food. 5 The principal Applicant was then put on notice of the adverse infor- mation and provided with the opportunity to respond. The “fairness let- ter” sent to him did not provide the details of the interview with Mr. Naresh, but merely stated: “Our investigation staff conducted a verifica- tion on this restaurant in January 2012: Based on the information gath- ered during the investigation it was reported to us that you have never worked at this restaurant”. 6 The principal Applicant responded to that letter on March 14, 2012. In his response, he indicated that he had been on leave for two and a half months at the time of the investigation, and that there had been a total change of staff during his absence. He also provided another letter from Mr. Mehra, in which he re-confirmed that the principal Applicant had been working for him since 2003. He also submitted receipts bearing his signature to support his contention that he had worked for the restaurant. 7 On December 1, 2012, the Applicants’ application for permanent resi- dence was refused.
II. Decision under review 8 In her letter to the principal Applicant, the Officer essentially men- tioned that the application for permanent residence was rejected because he was inadmissible for misrepresentation under paragraph 40(1)(a) of the IRPA, having misrepresented his work experience at the restaurant. 9 In the Computer Assisted Immigration Processing System (CAIPS) notes, it was indicated that a phone call was made to the restaurant and that a Mr. Naresh informed the Officer of the following: (1) He is working with this eatery for about 9 years now Chawla v. Canada (MCI) Yves de Montigny J. 325
(2) This is a small eatery and was earlier located in a shop in Gokul Galaxy, Thakur Complex, Kandivali (east) but relocated to Vasant Smruti, Thakur Complex, Kandivali (E) about 3 years ago (3) The name of the proprietor is Mr. Rajesh Mehra and he is not in the eatery and will come in the evening (4) There are 4 other cooks/‘boys’ working in this eatery but NO- BODY by the name of RAJESH CHAWLA (the Principal Appli- cant) is or was working with them in the kitchen as a cook (5) The eatery offers only vegetarian food and no-non-vegetarian is served here. 10 The CAIPS notes also mention that “the information provided by Mr Naresh is consistent with the information provided by the em- ployer/consultant’s fax and that found on web directories”. The notes also indicate that the principal Applicant’s signature on the receipts pro- vided does not match the one on his application. As a result, the Officer decided to put more weight on Mr. Naresh’s allegations since there was no reason for him not to tell the truth.
III. Issues 11 This application for judicial review raises two questions: a) Did the visa officer breach the principles of fairness as a result of her failure to give more details in the fairness letter with respect to the information collected during the further inquiry, thereby preventing the principal Applicant from having an opportunity to respond to that information? b) Is the Officer’s decision reasonable?
IV. Analysis 12 It is well established that the standard of review for a procedural fair- ness issue is correctness: Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 43; Ghasemzadeh v. Canada (Minister of Citizenship & Immigration), 2010 FC 716 (F.C.) at para 16; Karami v. Canada (Minister of Citizenship & Immigration), 2009 FC 788 (F.C.) at para 18. 13 As for the second question, it must be reviewed under the standard of reasonableness. We are indeed facing a situation of mixed fact and law and the discretionary power of the Officer to assess the evidence before her. As a result, the Court will not intervene unless the decision does not 326 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
fall “within a range of possible, acceptable outcomes which are defensi- ble in respect of the facts and law”: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47. 14 It is well established that procedural fairness requires that applicants for permanent residence be provided a meaningful opportunity to re- spond to perceived material inconsistencies or credibility concerns with respect to their files: Qin v. Canada (Minister of Citizenship and Immi- gration), 2013 FC 147 (F.C.) at para 38; Abdi v. Canada (Attorney Gen- eral), 2012 FC 642 (F.C.) at para 21; Zaib v. Canada (Minister of Citizenship & Immigration), 2010 FC 769 (F.C.) at para 17; Baybazarov v. Canada (Minister of Citizenship & Immigration), 2010 FC 665 (F.C.) at para 17; Hussaini v. Canada (Minister of Citizenship and Immigra- tion), 2013 FC 289 (F.C.) at para 5 [Hussaini]). This entails that an of- ficer’s reliance on extrinsic evidence without allowing an applicant the opportunity to know and reply to that evidence amounts to procedural unfairness: Amin v. Canada (Minister of Citizenship and Immigration), 2013 FC 206 (F.C.). 15 Indeed, the Respondent’s own guidelines provide as follows concern- ing extrinsic evidence: The applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the ap- plicant prior to the decision being made. For example, if an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence. Overseas Processing Manual, Chapter OP-1: Procedures, s. 8 “Pro- cedural fairness” 16 In the case at bar, the Applicants were provided very little informa- tion as to the Officer’s concerns. Apart from stating that an investigation was conducted and that, following this investigation, concerns as to mis- representation arose, the fairness letter does not provide any other infor- mation. It is not stated what reasons led the Officer to conduct an investi- gation, how the investigation was conducted, or what information gathered during the investigation led to the conclusion that the principal Applicant had misrepresented his employment. 17 Counsel for the Respondent submitted that the Applicants were pro- vided with sufficient information to participate in a meaningful manner in the decision-making process and to fully and fairly present their case. I disagree. Had the principal Applicant been told by the Officer not only Chawla v. Canada (MCI) Yves de Montigny J. 327
that she had some questions as to whether he ever worked in the restau- rant, but also that these concerns were the result of information gathered from a phone call placed to the restaurant, he would have been in a better position to assuage these concerns. 18 Of equal significance for the principal Applicant were the various pieces of information provided by Mr. Naresh over the phone (i.e. that the restaurant had relocated three years ago, that the name of the proprie- tor is Mr. Rajesh Mehra, that there are four other cooks working in this eatery, and that the eatery offers only vegetarian food). If the principal Applicant had been told about this extrinsic evidence, he would have been able to dispute those facts, thereby undermining the credibility of Mr. Naresh. Indeed, the further affidavit filed by the Applicants for the purpose of this application for judicial review asserts that Mr. Naresh provided the wrong number of employees, the wrong date when the res- taurant moved location and incorrectly identified the restaurant as vege- tarian. It is not for this Court to determine who is telling the truth and whether or not Mr. Naresh provided accurate information. The Officer may well have decided to prefer the information provided by Mr. Naresh over the claims made by the Applicants even after having considered the Applicants’ response to that information. However, this is pure specula- tion and there is no way to know how the permanent residence applica- tion would have been decided had the Applicants been provided with all the extrinsic evidence collected by the Officer. 19 For all of the foregoing reasons, I am of the view that the Applicants were not able to participate in a meaningful way to the decision-making process, nor did they have an opportunity to respond to the Officer’s con- cerns since they were kept in the dark about much of the information upon which the Officer made her decision. This case is similar to previ- ous decisions of this Court, including Moiseev v. Canada (Minister of Citizenship & Immigration), 2008 FC 88 (F.C.) and Hussaini, above. I find, therefore, that there was a breach of procedural fairness and that the file should be sent back to a different officer. 20 In light of this finding, there is no need to answer the second ques- tion. While the decision may well have been reasonable had the Appli- cants been given the opportunity to fully make their case, this is not what happened here. As a result, the Court refrains from making any determi- nation in this respect. 21 There is one further argument made by the Applicants that needs to be addressed. Counsel for the Applicants submitted that the Officer 328 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
should have interviewed the principal Applicant regarding the credibility concerns after his telephone conversation with Mr. Naresh. There is no right to an interview in such circumstances, and the case law cited by the Applicants in support of their proposition goes no further than indicating that such a duty may arise where the credibility, accuracy or genuine nature of the information submitted by an applicant is the basis of a visa officer’s concern: see Ismailzada v. Canada (Minister of Citizenship and Immigration), 2013 FC 67 (F.C.) at para 20, citing Hassani v. Canada (Minister of Citizenship & Immigration), 2006 FC 1283 (F.C.) at para 24. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways, in different situations. As long as an applicant is provided with an opportunity to respond and present his or her submissions, natural justice will be respected: Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para 33.
V. Conclusion 22 This application for judicial review is allowed. Neither party pro- posed a serious question of general importance for certification purposes, and none is certified.
Judgment THIS COURT’S JUDGMENT is that this application for judicial re- view is allowed, the decision of the officer is set aside and the matter is referred to a different officer for re-determination. Application granted; matter sent back for reconsideration. de Ocampo v. Canada (MCI) 329
[Indexed as: de Ocampo v. Canada (Minister of Citizenship and Immigration)] Editha Morillo de Ocampo, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1136-13 2014 FC 447 Yves de Montigny J. Heard: May 1, 2014 Judgment: May 9, 2014 Immigration and citizenship –––– Admission — Immigrants — Live-in caregivers –––– Applicant was citizen of Philippines who entered into employ- ment contract with her sister and brother-in-law in Canada (employers) to work as live-in caregiver for their two young children — Employers received positive labour market opinion from Service Canada and applicant applied for temporary work permit under live-in caregiver program — Employers completed supple- mentary information form at request of Canadian High Commission and pro- vided details as requested about their living accommodations and financial abil- ity to fulfill terms of employment contract — Applicant attended interview at High Commission and answered various questions about application — Visa of- ficer refused temporary work permit on ground that job offer was not bona fide — Applicant brought application for judicial review of visa officer’s deci- sion — Application granted — Officer breached duty of procedural fairness by basing decision solely on issue which was not raised with either applicant or employers — Procedural fairness required at minimum that applicant be given adequate notice of issue of bona fides of job offer and be afforded opportunity to make written submissions on it — Once all requirements of employment con- tract under live-in caregiver program are met, application cannot be dismissed on ground that employment offer was not genuine, especially when applicant and employers have been given to understand that only concerns were in relation to property ownership and living accommodations, and issue of bona fides of job offer has not been raised. Immigration and citizenship –––– Admission — Appeals and judicial re- view — Judicial review — Duty of fairness –––– Applicant was citizen of Phil- ippines who entered into employment contract with her sister and brother-in-law in Canada (employers) to work as live-in caregiver for their two young chil- dren — Employers received positive labour market opinion from Service Can- ada and applicant applied for temporary work permit under live-in caregiver 330 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
program — Employers completed supplementary information form at request of Canadian High Commission and provided details as requested about their living accommodations and financial ability to fulfill terms of employment contract — Applicant attended interview at High Commission and answered various ques- tions about application — Visa officer refused temporary work permit on ground that job offer was not bona fide — Applicant brought application for ju- dicial review of visa officer’s decision — Application granted — Officer breached duty of procedural fairness by basing decision solely on issue which was not raised with either applicant or employers — Procedural fairness re- quired at minimum that applicant be given adequate notice of issue of bona fides of job offer and be afforded opportunity to make written submissions on it — Once all requirements of employment contract under live-in caregiver program are met, application cannot be dismissed on ground that employment offer was not genuine, especially when applicant and employers have been given to under- stand that only concerns were in relation to property ownership and living ac- commodations, and issue of bona fides of job offer has not been raised. Cases considered by Yves de Montigny J.: Bondoc v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 842, 2008 CarswellNat 4247, 2008 CarswellNat 2327, 2008 FC 842, [2008] F.C.J. No. 1063 (F.C.) — considered 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 Li v. Canada (Minister of Citizenship & Immigration) (2008), 76 Imm. L.R. (3d) 265, 337 F.T.R. 100 (Eng.), 2008 FC 1284, 2008 CarswellNat 4261, 2008 CarswellNat 5159, 2008 CF 1284, [2008] F.C.J. No. 1625 (F.C.) — referred to Mavi v. Canada (Attorney General) (2011), 2011 CarswellOnt 4429, 2011 Cars- wellOnt 4430, 2011 SCC 30, 332 D.L.R. (4th) 577, 417 N.R. 126, 97 Imm. L.R. (3d) 173, (sub nom. Canada (Attorney General) v. Mavi) [2011] 2 S.C.R. 504, 19 Admin. L.R. (5th) 1, 279 O.A.C. 63, 108 O.R. (3d) 240, [2011] S.C.J. No. 30 (S.C.C.) — referred to Mudalige Don v. Canada (Minister of Citizenship and Immigration) (2014), 20 Imm. L.R. (4th) 249, 369 D.L.R. (4th) 356, 2014 CarswellNat 14, 2014 FCA 4 (F.C.A.) — referred to PSAC v. Canada (Attorney General) (2013), 2013 CarswellNat 3288, 64 Admin. L.R. (5th) 1, 2013 FC 918, 2013 CF 918, 2013 CarswellNat 4045 (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, de Ocampo v. Canada (MCI) Yves de Montigny J. 331
2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — referred to Soor v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1344, 2006 CarswellNat 3828, 58 Imm. L.R. (3d) 62, 2006 CarswellNat 5925, 2006 CF 1344, [2006] F.C.J. No. 1726, [2006] A.C.F. No. 1726 (F.C.) — considered
APPLICATION for judicial review of decision of visa officer that applicant did not meet requirements for work permit under live-in caregiver program.
Ali Amini, for Applicant Manuel Mendelzon, for Respondent
Yves de Montigny J.:
1 This is an application for judicial review of the January 2, 2013 deci- sion (the Decision) of a visa officer (the Officer) at the Canadian High Commission in Singapore finding that the Applicant did not meet the requirements for a work permit as a live-in-caregiver under the Live-in Caregiver Program (LCP). 2 For the reasons that follow, I conclude that the Respondent breached the Applicant’s right to procedural fairness. Accordingly, I find that this application for judicial review ought to be granted.
I. Facts 3 The Applicant, Editha Morillo de Ocampo, is a citizen of the Philip- pines and a trained caregiver. The Applicant’s sister and brother-in-law (Amy and Gene Paul Pineda) live in Canada. They have two children, aged 7 and 9 at the time of the application, and they both work full-time. 4 In July 2011, Mr. and Mrs. Pineda (the Employers) entered into an employment contract with the Applicant for caregiver services. They ap- plied to Service Canada for a Labour Market Opinion (LMO) and re- ceived a positive LMO confirmation on September 22, 2011. They sent a copy of the confirmation to the Applicant. The Applicant then applied for a temporary work permit in Canada under the LCP on or around March 20, 2012. 5 On April 16, 2012, the High Commission sent a letter to the Employ- ers (the fairness letter) requesting that they fill out a “Supplementary In- formation Form for Employer” (the Supplementary Information Form), provide details on their accommodations, and provide information re- 332 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
garding their ability to fulfill the terms of the employment contract. On May 4, 2012, the Employers sent the requested information to the High Commission. 6 On October 24, 2012, the High Commission e-mailed the Applicant informing her that she was required to attend an interview on November 5, 2012, which she did.
II. The impugned decision 7 On January 2, 2013, the Officer refused the Applicant a temporary work permit under the LCP. The Officer concluded that the job offer was not bona fide. The relevant part of the Officer’s reasons, as recorded in notes entered on January 2, 2013, is as follows: HOF interviewed on 05 Nov 2012. Notes entered today. Work Expe- rience: Came to [Singapore] in Sep 2010 to work as do[me]stic helper. Takes care of [Singapore employer’s] 5-yr-old child. Job Of- fer: Cdn [employer] is HOF’s sister. Cdn [employer] has 2 children now aged & 7 [sic]. HOF said that her sister is offering her the job to help her out (so that she can support HOF’s child). HOF’s working hrs: 8AM to 5PM or 7AM to 4PM (Mon to Fri) Children’s school hrs: HOF does not know. When asked HOF who is currently taking care of the child, she does not know. Cdn [employer] has not em- ployed another LCG since the last left in Feb 2010. Cdn [employer] has put her children in childcare centre. Accommodation: 3-bedroom with Cdn [employer], spouse & 2 children. My concern with this ap- plication is the bona fide of the job offer. I am not satisfied that this job offer from Cdn [employer] is bona fide. Most of HOF’s working hours are spent as housekeeper rather than a caregiver, given her work schedule and the children’s school hours. The children do not appear to be inconvenienced nor was care not provided for them. I have concluded that the job offer has been put into effect in order for HOF to go to [Canada], that job offer is not bona fide. Case refused.
III. Issue 8 The only issue to be determined on this judicial review is whether the Officer breached procedural fairness.
IV. Analysis 9 It is well established that the appropriate standard of review on issues pertaining to natural justice and procedural fairness is the correctness standard: see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 43; Sketchley v. Canada (Attorney Gen- de Ocampo v. Canada (MCI) Yves de Montigny J. 333
eral), 2005 FCA 404 (F.C.A.) at paras 53-54; Mudalige Don v. Canada (Minister of Citizenship and Immigration), 2014 FCA 4 (F.C.A.) at para 36. 10 The Applicant argues that the Officer breached procedural fairness because the Officer based the Decision solely on an issue that it did not raise with the Applicant or the Employers, namely, the bona fides of the job offer. I agree with that submission. 11 First of all, I note that there was a spot for the Employers in the Sup- plementary Information Form to explain why they needed a caregiver now, but the form also instructed the Employers only to fill that out if they have never previously sponsored a caregiver. As they had, the Em- ployers left that section blank, as per the instructions. At the hearing, counsel for the Respondent acknowledged that the form could be inter- preted to mean that a rationale for the need of a caregiver was only re- quired if the Employers had never hired a caregiver before. Such an in- terpretation is all the more reasonable in light of the fact that the Applicant and the Employers could reasonably assume that Service Can- ada had already assessed that need when reviewing the application for the LMO. According to Citizenship and Immigration Canada’s (CIC’s) operational manual, one of the functions, and indeed responsibilities, vested on Service Canada is to review the application for the LMO and determine whether the employer in fact needs a caregiver: see CIC man- ual entitled “Overseas Processing 14: Processing Applicants for the Live- in Caregiver Program”, section 7, “ESDC/Service Canada roles and responsibilities”. 12 Moreover, the High Commission specifically warned the Employer in its fairness letter that despite the existence of an employment contract, CIC had to be satisfied that the Employers were able to fulfill the re- quirements of that contract. To that end, the High Commission asked the Employers to submit the Supplementary Information Form, proof of pro- perty ownership, official floor plan, and proof of their financial ability to fulfill the employment contract. Nowhere did it mention the bona fides of the job offer as a concern. 13 The Officer could also have sought an explanation from the Employ- ers if it had doubts about the bona fides of the job offer. The Employers’ covering letter had indicated that “[s]hould [the High Commission] re- quire anything else, please feel free to contact us” and provided email and phone contact information. The Respondent replied that the High Commission interviewed the Applicant and directly questioned her on 334 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
various issues about her application. Yet, there is no evidence that this issue was raised squarely with the Applicant in the interview. In fact, the Applicant deposes that she “was not asked anything about whether or not my Employer ‘demonstrated a need for a caregiver’”. In any event, that question ought to have been put to the Employers and not to the Appli- cant, as they were obviously in the best position to answer any preoccu- pation the Officer may have had with respect to the genuineness of the job offer. 14 Procedural fairness requires, at a minimum, that an applicant be given adequate notice of the issue and be afforded an opportunity to make writ- ten submissions on it: see, e.g., Mavi v. Canada (Attorney General), 2011 SCC 30 (S.C.C.) at para 79; PSAC v. Canada (Attorney General), 2013 FC 918 (F.C.) at paras 57-60. This principle applies with equal force in the immigration context: Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284 (F.C.) at paras 37-38. 15 Counsel for the Respondent argued that the bona fides of a job offer is always a relevant consideration, for which the onus of proof is on the Applicant. Following that thesis, the Supplementary Information Form did not relieve the Applicant of that onus or create a legitimate expecta- tion that the High Commission would not make further inquiries. How- ever, this is not supported by the cases cited by the Respondent, nor by the applicable CIC manual. 16 The cases cited by the Respondent do not in fact support their sub- missions. In Soor v. Canada (Minister of Citizenship & Immigration), 2006 FC 1344 (F.C.), the applicant’s LCP application was also denied on the basis of the bona fides of the job offer. However, in that case, the officer had given the applicant notice that the bona fides of the offer was at issue (at para 7), and the Court was satisfied that the officer had given the applicant a fair opportunity to address that concern (at para 15). In Bondoc v. Canada (Minister of Citizenship & Immigration), 2008 FC 842 (F.C.), the Court dealt with the issue of whether the visa officer’s decision (finding that the employment offer was not genuine) was rea- sonable on the merits; it did not deal with the issue of procedural fairness. 17 As for the CIC manual, section 5.7 sets out the employment contract requirements. Employers must establish that they have sufficient income to provide the wages and benefits for the live-in caregiver based upon provincial wage rates. The position must be full-time and the employer must be residing in Canada. The employer has to provide suitable accom- de Ocampo v. Canada (MCI) Yves de Montigny J. 335
modation for the live-in caregiver and should include privacy such as a private room with a lock. The live-in caregiver must reside at the em- ployer’s residence to qualify for the program. Of course, these require- ments are meant to ensure that the job offer is bona fides, and I agree with the Respondent that it is an implicit prerequisite. Once all of the requirements are met, however, I fail to see how an application can be dismissed on the ground that the employment offer was not genuine, es- pecially when the Employer and the Applicant have been given to under- stand that the only concerns were in relation to the property ownership and the configuration of that property. 18 For all of the foregoing reasons, I am of the view that the Officer acted unfairly and breached the Applicant’s right to procedural fairness. The application for judicial review is therefore granted, the Officer’s de- termination of the Applicant’s work permit application is set aside, and the file shall be remitted to a different visa officer for re-determination in accordance with these reasons.
Judgment THIS COURT’S JUDGMENT is that this application for judicial re- view is granted, the Officer’s determination of the Applicant’s work per- mit application is set aside, and the file shall be remitted to a different visa officer for re-determination in accordance with these reasons. No question is certified. Application granted. 336 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
[Indexed as: Kukuckova v. Canada (Minister of Citizenship and Immigration)] Milan Cipak, Kveta Kukuckova, Nicole Helena Cipak and Jakub Ladislav Cipak, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-12723-12 2014 FC 453, 2014 CF 453 Yvan Roy J. Heard: March 26, 2014 Judgment: May 12, 2014 Immigration and citizenship –––– Refugee protection — Practice and proce- dure in refugee claims — Personal information forms –––– Applicants claimed refugee status — Applicants prepared personal information form (PIF) with assistance of counsel — Narrative was translated to English by applicants’ former counsel — Applicants tried to explain why PIF contained omissions, in- consistencies, and contradictions — Refugee Protection Division (RPD) sug- gested waiver of solicitor-client privilege — RPD ordered former counsel to dis- close whatever information was necessary to answer specific allegations — Former counsel refused to comply with order — RPD summoned former coun- sel to appear — RPD dismissing applicants’ motion, brought by new counsel, raising apprehension of bias — Applicants brought application for judicial re- view — Application granted — There was reasonable apprehension of bias — Well-informed person, acting reasonably and viewing matter realistically and practically, would question RPD’s insistence in getting to bottom of issue — Suggestion that RPD sought to address credibility concerns would be more plau- sible if RPD did not exert pressure on applicants to waive solicitor-client privi- lege, leaving impression that claim hung in balance — Whatever was evidence, perception of well-informed person would be that, on that sole basis, case had been decided against applicants. Cases considered by Yvan Roy J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — followed Kukuckova v. Canada (MCI) Yvan Roy J. 337
Ballantyne v. Nasikapow (2000), [2001] 3 C.N.L.R. 47, 197 F.T.R. 184, 2000 CarswellNat 2817, 2000 CarswellNat 6312, [2000] F.C.J. No. 1896 (Fed. T.D.) — referred to Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115, 1976 CarswellNat 434, 1976 CarswellNat 434F, [1976] S.C.J. No. 118, [1976] A.C.S. No. 118 (S.C.C.) — followed Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 134 N.R. 241, [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, 4 Admin. L.R. (2d) 121, 95 Nfld. & P.E.I.R. 271, 301 A.P.R. 271, 1992 CarswellNfld 179, 1992 CarswellNfld 170, EYB 1992-67349, [1992] S.C.J. No. 21 (S.C.C.) — referred to R. v. London Rent Assessment Panel Committee (1968), [1969] 1 Q.B. 577, (sub nom. Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon) [1968] 3 All E.R. 304 (Eng. C.A.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72 — pursuant to s. 96 — considered s. 97 — considered
APPLICATION for judicial review of decision by Board dismissing applicants’ motion raising apprehension of bias.
Howard C. Gilbert, for Applicants Prathima Prashad, for Respondent
Yvan Roy J.:
1 This is an application for judicial review of a decision of the Refugee Protection Division (RPD) released on November 20, 2012. The applica- tion is made pursuant to section 72 of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 [IRPA]. 2 The dispositive issue in this case is whether or not there exists a rea- sonable apprehension of bias on the part of the Panel. The respondent has argued that the evidence is overwhelming that state protection is ade- quate and the protection under sections 96 and 97 of the IRPA should not be granted. However, before one reaches the actual merits of the case, it 338 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
must be determined if the process followed meets the requirement of pro- cedural fairness. If the process was defective, the matter will have to be sent back to a different panel for a new determination. I have come to the conclusion that, in the peculiar circumstances of this case, there is a rea- sonable apprehension of bias.
I. Facts 3 Milan Cipak is a citizen of the Slovak Republic. His spouse, Kveta Kukuckova, is a citizen of the Czech Republic. They met in the United States and their children were born there. 4 In September 2004, they moved back to the Slovak Republic. They claim that they experienced discrimination and physical violence because they are an inter-ethnic couple. They also alleged being the victims of extortion, as the owners and operators of a grocery store. 5 They sought the protection of sections 96 and 97 of the IRPA on Oc- tober 9, 2007. Mr Cipak received a Canadian visa in April 2007 and he arrived in Canada on August 2, 2007. Mrs Kukuckova received her Ca- nadian visa in August and arrived in Canada, with the couple’s children on September 21, 2007. 6 Given the conclusion I have reached about the procedural fairness is- sue, it would not be appropriate to comment on the evidence in this case other than to set the context in which the apprehension of bias issue arose.
II. Reasonable apprehension of bias 7 The whole matter turns on the Personal Information Form (PIF) that was prepared with the assistance of the applicants’ original counsel. The applicants would have been advised to limit their narrative; they would be able to supplement it at a later date they were told. The inconsisten- cies or contradictions between the testimonies and the PIF were ex- plained by the inadequacy of the translation and to some extent, the ad- vice that was given to the applicants. 8 Because of their lack of proficiency in English, their narrative had to be translated. The translation was originally presented as having been done by a third party, a relative of the claimants. It seems that this person was in fact less than capable to provide a translation. It emerged that the translation would have been made by the applicants’ former counsel who is fluent in Slovak. The applicants were thus trying to explain why their PIF contained omissions, inconsistencies, contradictions. In other words, Kukuckova v. Canada (MCI) Yvan Roy J. 339
they tried to address credibility issues through an explanation involving their counsel acting as an interpreter, but with the certificate guarantee- ing the quality of the translation signed by a third party. 9 The panel chose to delve into the issue. Over an issue like credibility, the panel spent months seeking to get to the bottom of the issue. 10 New counsel was retained by the applicants in June 2009. Hearings were scheduled and postponed four times before this panel was finally seized of the case on June 4, 2010. On that day, credibility was identified as an issue. There were hearings on August 17, 2010, December 20, 2010, March 21, 2011, and April 16, 2012. 11 It came to light that the former counsel was counsel to the relative, who was presented as the interpreter in this case, in his own refugee pro- ceedings in Canada. The panel inquired of the applicants why a com- plaint had not been made to the Law Society against counsel. It appears that the panel showed a significant interest in having the former counsel testify at the hearing in order to clarify the translation issue. 12 The suggestion made by counsel for the applicants to call before the RPD the person presented as being the translator was rejected by letter dated September 17, 2010. Instead, counsel was invited to write to the former counsel to provide an opportunity to respond, having set out the allegations that had transpired. The former counsel responded on October 19, 2010 that he is prevented from commenting on the allegations by the Rules of Professional Conduct to which he is subjected. 13 In a letter dated October 28, 2010, the panel asserted that due to the fact that the manner in which the PIF had been completed had already been discussed, the solicitor-client privilege did not apply anymore. Ac- cordingly, the former counsel was not prohibited from providing evidence. 14 In the alternative, the RPD suggested that the applicants may consider waiving the privilege. That incitation was made again at the hearing of March 21, 2011. Counsel for the applicants had indicated in his letter of November 18, 2010 to the RPD the reluctance of his clients, the appli- cants, to waive the privilege, but felt under pressure to do so in view of the insistence of the panel. 15 Indeed, the RPD had not left the matter standing. In a letter dated December 1, 2010, the panel ordered former counsel “to disclose whatever information is necessary to answer the specific allegations”. The deadline was extended and former counsel responded on June 26, 340 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
2011 by refusing to comply with the order; authorities were offered by former counsel in support of the refusal to comply. 16 The matter escalated some more. On November 16, 2011, the RPD summoned former counsel to appear before it on January 26, 2012. Counsel was summoned: (1) to give evidence relevant to the claim, and (2) to bring with you any document that you have under your control. 17 The January 26, 2014 hearing was adjourned to April 16, 2012. It is at that point that counsel for the applicants raised the apprehension of bias issue. The RPD rejected the motion on August 16, 2012.
III. The RPD decision 18 The reasons for dismissing the reasonable apprehension of bias argu- ment were delivered on November 20, 2012, together with the reasons for dismissing the rest of the claim under sections 96 and 97 of the IRPA. 19 The RPD reasoned that a serious allegation had been made concern- ing “a member in good standing of a regulated profession”, with signifi- cant impacts on the lawyer, the profession and society. Because of the credibility concerns about the applicants that would be left inadequately addressed, the panel was seeking an explanation. 20 In the view of the panel, “[a]llowing an opportunity for explanation cannot be seen as bias. I was simply giving the claimants an opportunity to establish their allegations.” 21 As for the method chosen, in the end, to compel the attendance of former counsel, the RPD wrote at paragraph 24: The Board may compel any witness, particularly when they would otherwise be unwilling. I summonsed [sic] former counsel as a method to compel him to provide his respond [sic]. In that response former counsel could have either confirmed or denied any of the alle- gations. As such, this cannot be seen as bias... 22 Finally, the RPD seems to dismiss the impression the claimants may have that they would not be believed without the evidence of their former counsel by noting that “former counsel was open to providing his re- sponse which would have supported or opposed the claimants’ account.” (para 25). Kukuckova v. Canada (MCI) Yvan Roy J. 341
IV. Analysis 23 It is not disputed that the standard of review for alleged infringements of the duty of fairness is correctness (Sketchley v. Canada (Attorney Gen- eral), 2005 FCA 404, [2006] 3 F.C.R. 392 (F.C.A.) [Sketchley]). No def- erence is owed the decision-maker. As the Court of Appeal put it at para- graph 54 of Sketchley, “If the duty of fairness is breached in the process of decision making, the decision in question must be set aside.” 24 In this case, the issue is not so much whether the decision-maker was biased against the applicants, but rather whether there is an appearance that there was a lack of impartiality. The inquiry does not focus on the subjective state of mind of the decision-maker; it focuses on the exis- tence of a reasonable apprehension of bias, of an appearance of unfair- ness. The value that needs to be protected is the public confidence in the integrity of the decision-making process. Lord Denning MR stated in R. v. London Rent Assessment Panel Committee (1968), [1969] 1 Q.B. 577 (Eng. C.A.): The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The Judge was biased.” (Page 599) 25 In those circumstances, it will not matter that the decision-maker is convinced that he is not biased against one party or another (Ballantyne v. Nasikapow (2000), 197 F.T.R. 184 (Fed. T.D.)). 26 In Canada, the test for determining reasonable apprehension of bias was stated in Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.): [T]he apprehension of bias must be a reasonable one, held by reason- able and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, view- ing the matter realistically and practically — and having thought the matter through — conclude’. ... I can see no real difference between the expressions found in the de- cided cases, be they ‘reasonable apprehension of bias’, ‘reasonable suspicion of bias’, or ‘real likelihood of bias’. The grounds for this apprehension must, however, be substantial and I entirely agree with 342 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
the Federal Court of Appeal which refused to accept the suggestion that the test be related to the ‘very sensitive or scrupulous conscience’. (Pages 394-395) 27 It has been said that the duty of fairness will vary with the different circumstances that present themselves. Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) [Baker] stands for the proposition that the duty of procedural fairness is flexible and variable. Similarly, Baker finds that procedural fairness implies an ab- sence of a reasonable apprehension of bias. 28 Several factors must be weighed in making a determination as to the context of a duty of fairness in a particular case. The list, although not exhaustive, is illustrative of issues that must be considered: 1) the nature of the decision and the process followed in making it; 2) the statutory scheme; 3) the importance of the decision to the persons affected; 4) the legitimate expectations of the persons affected; 5) the choices of procedure made by the decision-maker. 29 Although the standards for reasonable apprehension of bias may vary (Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (S.C.C.)), it seems to me that the nature of the decision (refugee status or person in need of protection) and the importance of the decision to the persons af- fected militate in favour of a rather strict application of the test. The per- son who fears for her safety if returned to her country of nationality has a lot at stake. 30 Furthermore the decisions are obviously individualized, as opposed to general. They require a careful examination of the very personal circum- stances of the applicant. The nature of the decision is such that it is based on facts, including an assessment of the credibility of witnesses. On the old spectrum that was used in administrative law context, from judicial decisions to political ones, we are clearly situated much closer to the ju- dicial end of the spectrum. As in Baker, these kinds of decisions, which are critical to the well being of applicants, require a recognition of diver- sity and an openness to differences between people. 31 In the case at bar, the RPD insisted in getting to the bottom of an incident which, in the grand scheme of things, did not require that kind of attention. In my view, a well-informed member of the community Kukuckova v. Canada (MCI) Yvan Roy J. 343
would ask herself why such an issue was followed to that extent. Indeed, the RPD suggested that the solicitor-client privilege, one of the most sa- cred privileges in our law, be waived. It even summoned counsel to ap- pear before the RPD in spite of what appeared to be a well-placed reluc- tance on the part of counsel, especially after his former clients, the applicants, declined to waive the privilege as “strongly suggested” by the RPD. 32 That insistence on the part of the RPD must be contrasted with the issue’s importance. The RPD wanted to test the credibility of the appli- cants with regards to discrepancies between the translated PIF and testi- monies. Obviously, this is just one element that could have been used to assess credibility; indeed there may have been room to draw some nega- tive inferences, if appropriate, from the whole episode. 33 The well-informed person, acting reasonably and viewing the matter realistically and practically, would question such insistence: what was the decision-maker trying to achieve? There may be a perception of bias in that the decision-maker is pursuing aggressively what is presented as a credibility issue, beyond what this incident was worth. I am concerned that such behaviour creates a perception that there was some bias, in the nature of something resembling a vendetta, against the applicants or their chosen counsel. As I have already pointed out, the issue is not whether there was such bias in this case, but rather whether there is that percep- tion leading to a reasonable apprehension of bias. 34 The suggestion that the RPD sought to address credibility concerns would be more plausible if the RPD had not exerted the kind of pressure over many months on the applicants to waive the solicitor-client privi- lege, thereby leaving the impression that their claim hung in the balance. Whatever was the evidence, the perception of a well-informed person would be that, on that sole basis, the case had been decided against the applicants. 35 As a result, the Court concludes that a reasonable apprehension of bias exists in this case. The application for judicial review is therefore granted. The matter will have to be sent back to a different panel for re- determination. There is no question for certification. 344 IMMIGRATION LAW REPORTER 25 Imm. L.R. (4th)
Judgment THIS COURT’S JUDGMENT is that the application for judicial re- view is granted and the matter sent back to a different panel for re-deter- mination. There is no question for certification. Application granted.