IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 17 (Cited 17 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 17 (Cited 17 Imm. L.R. (4th))

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ISSN 0835-3808 ISBN 978-0-7798-4661-0 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/contact United States of America v. Adam 173

[Indexed as: United States of America v. Adam] The Attorney General of Canada on behalf of The United States of America, Respondent and Acram Adam, Appellant Acram Adam, Applicant and The Minister of Justice, Respondent British Columbia Court of Appeal Docket: Vancouver CA040047 2013 BCCA 207 Hinkson J.A., In Chambers Heard: April 9, 2013 Judgment: May 3, 2013 Criminal law –––– Extradition proceedings — Extradition from Canada — Remedies following disposition — Appeals — Of committal by accused –––– Appointment of counsel — Accused was citizen of Sudan, came to Canada as Convention refugee, and was permanent resident of Canada — Attorney General was authorized to seek order for committal of accused to be prosecuted in United States of America (USA) for allegedly conspiring to traffic in MDMA — Accused’s application for judicial stay of extradition proceedings was dismissed and committal order was granted — Accused was ordered to surrender to USA — Accused was denied Legal Aid for non-financial reasons — Accused appealed committal decision and brought application for judicial review of surrender order — Accused brought application for appointment of counsel in both of those proceedings — Application dismissed — Accused did not satisfy merits threshold for appointment of counsel to assist in his appeal of committal order — None of accused’s grounds of appeal had merit — Accused failed to show that interests of justice warranted appointment of counsel under s. 684 of Criminal Code — Justice who made committal order did not make legal error in concluding that accused’s status in Canada was matter for consideration at next stage of extradition process, that accused was person sought by USA, and that Record of Case presented circumstantial evidence from which guilt could be inferred. Criminal law –––– Extradition proceedings — Extradition from Canada — Remedies following disposition — Judicial review –––– Appointment of counsel — Accused was citizen of Sudan, came to Canada as Convention refugee, and was permanent resident of Canada — Minister of Justice issued Authority to Proceed (ATP) that authorized Attorney General to seek order for committal of accused to be prosecuted in United States of America (USA) for allegedly conspiring to traffic in MDMA — Accused’s application for judicial stay of extradi- 174 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

tion proceedings was dismissed and committal order was granted — Accused was ordered to surrender to USA — Accused was denied Legal Aid for non- financial reasons — Accused appealed committal decision and brought application for judicial review of surrender order — Accused brought application for appointment of counsel in both of those proceedings — Application dismissed — Accused did not have arguable case for judicial review of surrender order, thus he did not satisfy merits threshold for appointment of counsel to assist him in judicial review — Erroneous information in Record of Case did not have impact on decision to issue ATP — Minister did not unreasonably decline to refer accused to Canadian authority for prosecution as accused was not charged in Canada — USA was aware of accused’s Sudanese citizenship and had provided assurance that accused could return to Canada after criminal proceedings ended. Criminal law –––– Extradition proceedings — Extradition from Canada — Miscellaneous –––– Appointment of counsel — Accused was citizen of Sudan, came to Canada as Convention refugee, and was permanent resident of Can- ada — Minister of Justice issued Authority to Proceed (ATP) that authorized At- torney General to seek order for committal of accused to be prosecuted in United States of America (USA) for allegedly conspiring to traffic in MDMA — Accused’s application for judicial stay of extradition proceedings was dismissed and committal order was granted — Accused was ordered to surrender to USA — Accused was denied Legal Aid for non-financial reasons — Accused appealed committal decision and brought application for judicial review of surrender order — Accused brought application for appointment of counsel in both of those proceedings — Application dismissed — Accused did not satisfy merits threshold for appointment of counsel to assist in his appeal and judicial review — None of accused’s grounds of appeal had merit and accused failed to show that interests of justice warranted appointment of counsel under s. 684 of Criminal Code — Accused did not present evidence of lack of financial means and he had sufficient intelligence to state his grounds for appeal. Criminal law –––– Trial procedure — Rights of accused — Right to retain counsel — Duty of court to ensure representation –––– In extradition proceedings — Accused was citizen of Sudan, came to Canada as Convention refugee, and was permanent resident of Canada — Minister of Justice issued Authority to Proceed (ATP) that authorized Attorney General to seek order for committal of accused to be prosecuted in United States of America (USA) for allegedly conspiring to traffic in MDMA — Accused’s application for judicial stay of extradition proceedings was dismissed and committal order was granted — Accused was ordered to surrender to USA — Accused was denied Legal Aid for non- financial reasons — Accused appealed committal decision and brought application for judicial review of surrender order — Accused brought application for appointment of counsel in both of those proceedings — Application dis- United States of America v. Adam 175

missed — Accused did not satisfy merits threshold for appointment of counsel to assist in his appeal and judicial review — None of accused’s grounds of appeal had merit and accused failed to show that interests of justice warranted appointment of counsel under s. 684 of Criminal Code — Accused did not present evidence of lack of financial means and he had sufficient intelligence to state his grounds for appeal. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal after admission — Miscellaneous –––– Extradition proceedings — Appointment of counsel. Cases considered by Hinkson J.A., In Chambers: Canada (Minister of Justice) v. Fischbacher (2009), 198 C.R.R. (2d) 168, 69 C.R. (6th) 21, [2009] 3 S.C.R. 170, 255 O.A.C. 288, 2009 SCC 46, 2009 CarswellOnt 6153, 2009 CarswellOnt 6154, (sub nom. Fischbacher v. Canada (Minister of Justice)) 248 C.C.C. (3d) 419, 394 N.R. 139, 312 D.L.R. (4th) 1, [2009] S.C.J. No. 46, [2009] A.C.S. No. 46 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to R. v. Bernardo (1997), 105 O.A.C. 244, 121 C.C.C. (3d) 123, 1997 CarswellOnt 4956, 12 C.R. (5th) 310, [1997] O.J. No. 5091 (Ont. C.A.) — considered R. v. Butler (2006), 2006 CarswellBC 2632, 2006 BCCA 476, 231 B.C.A.C. 303, 381 W.A.C. 303, [2006] B.C.J. No. 2806 (B.C. C.A. [In Chambers]) — followed R. v. Schiel (2012), 2012 CarswellBC 97, [2012] G.S.T.C. 10, 2012 BCCA 1, 314 B.C.A.C. 236, 534 W.A.C. 236, 2012 G.T.C. 1015 (Eng.), [2012] B.C.J. No. 2 (B.C. C.A. [In Chambers]) — referred to United States v. Adam (2012), 2012 CarswellBC 1952, 2012 BCSC 969, 8 Imm. L.R. (4th) 336, [2012] B.C.J. No. 1361 (B.C. S.C.) — referred to United States v. Beltran (2011), 2011 ONCA 775, 2011 CarswellOnt 14643, (sub nom. United States of America v. Beltran) 286 O.A.C. 173, [2011] O.J. No. 5557 (Ont. C.A. [In Chambers]) — referred to United States v. Dhillon (2009), 2009 CarswellOnt 1392, 2009 ONCA 247, (sub nom. United States of America v. Singh) 248 O.A.C. 391 (Ont. C.A.) — considered 176 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

United States v. Lake (2008), 72 Admin. L.R. (4th) 30, (sub nom. Lake v. Canada (Minister of Justice)) 236 O.A.C. 371, (sub nom. Lake v. Canada (Minister of Justice)) 171 C.R.R. (2d) 280, 2008 SCC 23, 2008 CarswellOnt 2574, 2008 CarswellOnt 2575, (sub nom. Lake v. Canada (Minister of Jus- tice)) 373 N.R. 339, 56 C.R. (6th) 336, 230 C.C.C. (3d) 449, (sub nom. United States of America v. Lake) 292 D.L.R. (4th) 193, (sub nom. Lake v. Canada (Minister of Justice)) [2008] 1 S.C.R. 761, [2008] S.C.J. No. 23 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — considered s. 12 — referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 5 — referred to Sched. III — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 465 — referred to s. 684 — considered s. 684(1) — considered Extradition Act, S.C. 1999, c. 18 s. 15 — referred to s. 29(1)(a) — considered s. 40 — referred to s. 44(1)(a) — referred to s. 52 — considered s. 57 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Treaties considered: Canada-United States Extradition Treaty, 1971, C.T.S. 1976/3; 57 U.N.T.S. 1041; T.I.A.S. No. 8237 Generally — referred to

APPLICATION by accused permanent resident for appointment of counsel in his appeal of committal decision and application for judicial review of surrender order in extradition proceedings.

Karen Bastow, for Appellant Diba B. Majzub, for Respondents United States of America v. Adam Hinkson J.A. 177

Hinkson J.A., In Chambers: Introduction 1 On October 7, 2010, the Honourable Rob Nicholson, the Minister of Justice of Canada, acting through his delegate, issued an Authority to Proceed (“ATP”) pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18. The ATP authorized the Attorney General of Canada to seek an order for the committal of the applicant to be prosecuted in the United States (the “Requesting State”) for his alleged conduct corresponding to the Ca- nadian criminal offence of conspiracy to traffic in a Schedule III sub- stance, Methyllenedioxmethamphetamine (“MDMA”) contrary to s. 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and s. 465 of the Criminal Code, R.S.C. 1985, c. C-46. 2 The applicant contended that the extradition proceedings should be judicially stayed, and in the alternative, opposed his committal for surrender. On July 3, 2012, his applications were dismissed by a Justice of the Supreme Court of British Columbia, who instead granted an order committing him into custody for extradition to the Requesting State. Her reasons for judgment are indexed at 2012 BCSC 969 (B.C. S.C.). 3 On July 3, 2012, the applicant was granted judicial interim release by Mr. Justice Chiasson, in chambers, pending a decision by the Minister of Justice on whether he would authorize a Surrender Order. 4 On January 31, 2013, the Minister of Justice ordered the applicant’s surrender to the Requesting State. 5 The applicant has filed an appeal from the committal decision and an application for judicial review of the Order for Surrender, and now applies for orders for the appointment of counsel for both his appeal and his application for judicial review pursuant to s. 684 of the Criminal Code. If an order for counsel is granted, the applicant seeks an order for judicial interim release on the same terms as the order granted by Chiasson J.A. on July 3, 2013, pending the hearing of his appeal and application for judicial review.

Background 6 The applicant was born in the Sudan and came to Canada at the age of six as a Convention refugee. He is a permanent resident of Canada but is not a Canadian citizen. He contended before the Supreme Court justice, as he does on this application, that because he is not a Canadian citizen, if he is committed for extradition to the Requesting State, con- 178 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

victed of the charges, and sentenced to more than five years’ imprisonment, as he likely would be, he would lose his permanent resident status in Canada without recourse to the protections of the Immigration and Refugee Protection Act and in violation of Canada’s international com- mitments. He contends that this would be an abuse of process and a violation of his rights under ss. 7 and 12 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. Without permanent resident status, and with no status in the U.S., he contends that he would then be at high risk of deportation to the Sudan, which has been in a state of civil war since 1956 and is plagued by war, atrocities, and genocide. 7 The applicant proposes that the resolution of this stated difficulty is a stay of the extradition proceedings to allow him to plead guilty to the corresponding offence in Canada, so as to serve a sentence in Canada and maintain his permanent resident status here.

Discussion 8 Section 684(1) of the Criminal Code provides: 684.(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. 9 Section 52 of the Extradition Act establishes that s. 684 of the Crimi- nal Code applies to the extradition process. 10 A single justice of this Court has jurisdiction to order counsel for a committal appeal in an extradition proceeding and for a judicial review preceding where, as here, an appeal and a judicial review are joined: United States v. Beltran, 2011 ONCA 775 (Ont. C.A. [In Chambers]). 11 The appointment of counsel under s. 684 is subject to a two-part test: the appointment of counsel must be in the interests of justice; and the accused must have insufficient means to obtain legal assistance. 12 The first part of the s. 684 test requires that I consider whether it appears desirable in the interests of justice that Mr. Adam should have legal assistance. United States of America v. Adam Hinkson J.A. 179

13 In R. v. Bernardo (1997), 105 O.A.C. 244, 121 C.C.C. (3d) 123 (Ont. C.A.) at para. 20, Mr. Justice Doherty observed that: The “interests of justice” referred to in s. 684(1) must take cogni- zance of the broad access to appellate review contemplated by s. 675 and the wide remedial powers of the court of appeal set out in s. 686. Justice demands that an accused who appeals under s. 675 be afforded a meaningful opportunity to establish the merits of the grounds of appeal advanced by that appellant. That same interest also insists that the court be able to fully and properly exercise its broad jurisdiction at the conclusion of the appeal. Anything less is inconsistent with the statutory scheme created by Part XXI of the Criminal Code. 14 In R. v. Butler, 2006 BCCA 476 (B.C. C.A. [In Chambers]) at paras. 8 — 9, Madam Justice Rowles set out the factors to be considered when determining whether counsel ought to be appointed pursuant to s. 684 of the Criminal Code: [8] There are a number of case authorities in this province which set out factors to be considered when an application is brought under s. 684(1), including R. v. Gill (1984), 57 B.C.L.R. 141, [1984] B.C.J. No. 1729 (C.A.), (Lambert J.A., in Chambers); R. v. Baig (1990), 58 C.C.C. (3d) 156, 10 W.C.B. (2d) 476 (B.C.C.A.) (Hinds J.A., in Chambers); and R. v. Ellard, [2006] B.C.J. No. 2158, 2006 BCCA 374 (Donald J.A., in Chambers). The factors include: the appellant’s financial ability to retain counsel; the availability of legal aid; the seriousness of the offence and the penalty imposed; the complexity of the appeal; the level of education of the appellant; the appellant’s knowledge of language, both written and spoken; the competence or ability of the appellant to present the appeal effectively without legal assistance; and whether the appeal is one where the assistance of counsel is necessary in order to marshal the evidence and present argument. [9] The factors referred to in the cases have as their focus two related concerns: the first is whether an accused will be able to effectively present his or her appeal without the help of a lawyer; and the second is whether the court will be able to properly decide the appeal without the assistance of counsel. Almost invariably, those concerns coincide. 15 The manner in which the applicant proposes to advance his appeal and his application for judicial review is complicated, but that does not necessarily mean that his case is complex. While he would doubtless be assisted by the appointment of counsel, the real questions are whether he 180 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

will be able to effectively present his appeal without the help of a lawyer, and whether the court will be able to properly decide the appeal without the assistance of counsel. 16 The applicant applied to the Legal Services Society for legal aid, but was refused for non-financial reasons. The offences for which his extradition is sought are serious. He has a grade twelve education. There is nothing in his material to suggest that his written or oral language skills are in any way deficient. 17 As the applicant proposes that he be permitted to plead guilty to the corresponding Canadian offence, the evidence relevant to his appeal and his judicial review application is limited in scope. It is set out in the reasons for judgement of the Supreme Court justice and the correspondence between counsel for the applicant and the Minister of Justice, so the assistance of counsel to re-marshal the evidence is not required. 18 In Butler, Madam Justice Rowles confirmed that the threshold requirement on the merits of the appeal is an arguable case, citing with approval the following comments by Mr. Justice Doherty, for the Court, in Bernardo at para. 22: In deciding whether counsel should be appointed, it is appropriate to begin with an inquiry into the merits of the appeal. Appeals which are void of merit will not be helped by the appointment of counsel. The merits inquiry should not, however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal.

a) The Appeal from the Committal Order 19 As his appeal pertains to the jurisdiction of the Court and other questions of law, the standard of review on the appeal will be that of correctness: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at 222. 20 I am not persuaded that the applicant has satisfied the merits threshold for the appointment of counsel to assist in his appeal. He has not identified an arguable appeal, or satisfied the requirement of showing that it is desirable in the interests of justice that he have further legal assistance for his appeal. United States of America v. Adam Hinkson J.A. 181

21 The Supreme Court justice addressed the three issues raised before her by the applicant: 1. whether an order of committal would perpetrate an abuse of process and would violate Mr. Adam’s rights under ss. 7 and 12 of the Charter, because of its consequences for his immigration status in Canada and its potential to result in his deportation to the Sudan; 2. whether the Record of the Case establishes that Mr. Adam is the person named in it, and the person who engaged in the alleged conduct; and 3. whether the admissible evidence is sufficient to justify committal. 22 On his application for the appointment of counsel, the applicant re- news these submissions, and contends as well that the ATP was granted based upon a material misrepresentation of facts, and was thus an abuse of process either by law, or as an inappropriate exercise of discretion by the Minister of Justice. 23 At paras. 18 — 19 of her reasons, the Supreme Court justice observed: [18] However, Mr. Adam’s status in Canada is properly a matter for the Minister’s consideration at the next stage of the extradition process. If this court makes an order for committal, s. 43 of the Extradi- tion Act affords Mr. Adam an opportunity to make submissions to the Minister. Further, the Minister’s decision will be subject to judicial review in the Court of Appeal: s. 57 Extradition Act. [19] For similar reasons, Mr. Adam’s submission that, instead of making a surrender order, Canada should charge him and allow him to plead guilty in Canada, is also properly made to the Minister at the next stage, and not by way of an application at this stage for relief based on an abuse of process. 24 I am unable to identify any legal error in those conclusions. 25 In dealing with the second issue raised by the applicant, the Supreme Court justice summarized the Record of the Case at paras. 4 — 9 of her reasons for judgment as follows: [4] In brief overview, the prosecution would revolve around the evidence of a “cooperating witness”, or “CW” as abbreviated, who is said to have known Mr. Adam for several years and to have facilitated several narcotics transactions with him in 2008. This person was working in conjunction with the U.S. government in May 2008, 182 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

when, the CW is expected to testify, Mr. Adam agreed to deliver to him approximately 180,000 MDMA pills in exchange for 18 kilograms of cocaine. [5] In a monitored and recorded telephone call on May 20, 2008, Mr. Adam is said to have agreed to send a person to San Francisco to help facilitate that transaction. Late in the evening that same day, a person (“HT”) telephoned the CW to say that he and another person had arrived at the airport, and the CW picked them up and took them to a hotel in San Mateo, California. [6] In a meeting the next day with the CW and HT and his compan- ion, two undercover Drug Enforcement Agency (“DEA”) agents produced a sample of one kilogram of cocaine for HT to test. HT is said to have been satisfied with the sample, and then to have demon- strated, with an “X”, how he wanted the other 17 kilograms marked. Mr. Adam is said to have previously told the CW that his cousin would “put an ‘X’ on our stuff so we know where it is when he comes down here”. [7] The CW spoke later that day with Mr. Adam about the “load driver” with whom the CW was to meet that evening to obtain the MDMA pills. [8] Near the end of the evening, and while under surveillance by the DEA, the CW met in a Tower Records parking lot with HT and another person, AM, the latter of whom opened his car trunk and showed the CW two suitcases. The CW examined the contents, understanding them to be MDMA pills, and shortly afterwards directed HT and AM back to HT’s hotel, while, he told them, he went to re- trieve the cocaine. En route to HT’s hotel, HT and AM were pulled over for erratically changing lanes, and the two suitcases were found in the trunk. The suitcases contained approximately 149,000 MDMA or ecstasy pills. [9] Mr. Adam is said to have telephoned the CW during the transaction in the Tower Records parking lot, and also several times in a frantic state after HT’s and AM’s arrest. In a monitored and recorded call on May 23, 2008, the CW and Mr. Adam discussed HT’s arrest. 26 The Supreme Court justice then concluded that the requirements of s. 29(1)(a) of the Extradition Act were satisfied, as the person before her was Mr. Adam, and he was the person sought by the Requesting State and alleged to have engaged in the conduct on which the request of the Requesting State was based. I see no legal error on the part of the judge in arriving at those conclusions. United States of America v. Adam Hinkson J.A. 183

27 With respect to the third issue before her, the Supreme Court justice concluded that the Record of the Case presented a body of circumstantial evidence from which a properly instructed jury could reasonably infer the guilt of the applicant, meeting the requirements of s. 29(1)(a) of the Extradition Act. 28 In my opinion, it was open to the Supreme Court justice to come to that conclusion, and I am not persuaded that she committed any legal error in so doing. 29 Finally, with respect to the applicant’s contention that that the ATP was granted based upon a material misrepresentation of facts, the Su- preme Court justice concluded at paras. 17 — 18 of her reasons that: [17] Mr. Adam notes instead that the Minister initiated these proceedings by issuing the Authority to Proceed on a flawed understanding of a key fact. The Record of the Case describes Mr. Adam as a Canadian citizen. It was not until Cst. Heather Lew arrested Mr. Adam, and Mr. Adam produced a permanent resident’s card, that it came to light that he was not a Canadian citizen. Mr. Adam submits that in issuing the Authority to Proceed the Minister therefore cannot have appreciated or considered the potential consequences, and the likelihood of Mr. Adam’s eventual deportation to the Sudan. [18] However, Mr. Adam’s status in Canada is properly a matter for the Minister’s consideration at the next stage of the extradition process. If this court makes an order for committal, s. 43 of the Extradi- tion Act affords Mr. Adam an opportunity to make submissions to the Minister. Further, the Minister’s decision will be subject to judicial review in the Court of Appeal: s. 57 Extradition Act. 30 I see no error in this analysis. 31 It is therefore my opinion that none of the applicant’s grounds of appeal have merit and that he has failed to show that the interests of justice warrant the appointment of counsel under the first part of the two-part test under s. 684 of the Criminal Code. 32 The Court of Appeal Practice Directive Applications for a Court-Ap- pointed Lawyer under Section 684 of the Criminal Code (Criminal Prac- tice Directive, 19 September 2011) suggests that applicants should generally be able to show that they cannot afford to retain counsel for the appeal and that they applied to the Legal Services Society for legal aid and were refused. 33 The onus is on the applicant to demonstrate insufficient means: R. v. Schiel, 2012 BCCA 1 (B.C. C.A. [In Chambers]) at para. 9 (Chambers). 184 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

The applicant says that he lacks sufficient means to obtain legal counsel to represent him on his appeal or his judicial review. He applied to the Legal Services Society for legal aid, but was refused for non-financial reasons. He swears that he has no savings and does not own a car. He has not disclosed any banking records. 34 I am not prepared to assume, for the purpose of his applications, that the applicant has shown that he has insufficient means to retain counsel. However, given my conclusions with respect to the first part of the s. 684 test, it is unnecessary to address this second part of the test. 35 I dismiss the application pursuant to s. 684 of the Criminal Code, for the appointment of counsel to the applicant for his appeal.

b) Judicial Review of the Surrender Order 36 Section 57 of the Extradition Act provides that the Court of Appeal of the province in which the committal of the person was ordered has exclu- sive original jurisdiction to hear and determine applications for judicial review under the Act, made in respect of the decision of the Minister under s. 40 of the Act. 37 In Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170 (S.C.C.), at 183 — 184, Madam Justice Charron clarified that: Canada’s international obligation to surrender fugitives from justice to other states is a product of numerous treaties concluded with various extradition partners, including the Treaty between Canada and the United States, relevant to the present appeal. The Extradition Act implements Canada’s extradition treaties into domestic law so that, from a domestic standpoint, extradition is entirely “a creature of statute”: McVey (Re), [1992] 3 S.C.R. 475, at p. 508. Accordingly, the Minister’s role and breadth of his discretion can only be understood with reference to the legislative scheme established by the Act. I begin with some brief comments about double criminality, a fundamental principle of the extradition process codified by the Act. 38 The applicant concedes that the standard of review applicable to his application for the judicial review of the Surrender Order is reasonableness, with the exception of his contentions regarding the jurisdiction of the Minister of Justice, which he says are reviewable on a correctness standard. United States of America v. Adam Hinkson J.A. 185

39 As explained by Justices Bastarache and LeBel at pp. 220 — 221 in Dunsmuir: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 40 The decision of the Minister of Justice in granting a Surrender Order is an exercise of discretion and is to be afforded significant deference, so long as the correct legal tests are considered before the discretion is exercised: United States v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761 (S.C.C.), at 779. 41 The Surrender Order of the Minister of Justice was conditional upon the receipt of an assurance from the Requesting State that the applicant would be given the opportunity to return to Canada at the conclusion of the criminal proceedings against him. This assurance has been provided. The Minister of Justice further noted that Citizenship and Immigration Canada had advised him that, as a protected person (having arrived to Canada as a Convention refugee), Mr. Adam would have the right to re- enter Canada following the conclusion of the criminal proceedings. 42 Despite these conditions, the applicant contends that the Surrender Order of January 31, 2013, constitutes a breach of his s. 7 Charter rights, and is unreasonable and unjust. 43 The offences with respect to which the applicant has been ordered committed and surrendered to face trial in the Requesting State are multi- jurisdictional, as the applicant’s participation was in Canada, while the MDMA seized by United States Drug Enforcement Agency (“DEA”) agents in the Requesting State is alleged to have been sent from Canada to the Requesting State. The applicant contends that Canada and the Re- questing State thus share jurisdiction over the offences arising from the events alleged. 186 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

44 The grounds upon which the applicant intends to pursue his application for judicial review of the Surrender Order are first, that the decision breached his s. 7 Charter rights by authorizing the ATP based on erroneous information, or failing to consult again with the extradition partner once the correct information was received. 45 Second, as I understand him, the applicant contends that the decision of the Minister of Justice was not reasonable and that he was incorrect in his finding that he did not have the authority to refer the case to a Cana- dian authority for prosecution. Mr. Adam contends that the Minister of Justice misapprehended the principles of prosecutorial discretion and the scope of his discretion under s. 44(1)(a) of the Extradition Act. 46 Third, the applicant contends that ordering surrender is unjust, oppressive and an abuse of process. This contention is based on the view that: 1) the Canadian International Extradition Treaty with the United States, Can. T.S. 1991 No. 37 (“the Treaty”) provides that the Minister shall decide whether to extradite the person sought or to submit the case to competent domestic authorities for prosecution, and 2) the Minister of Justice failed to ensure that the Requesting State was appraised of the correct facts regarding Mr. Adam’s citizenship once they were known. 47 In answer to the applicant’s first contention on his application for judicial review, the Minister of Justice explained in his response to the applicant’s submissions regarding his potential surrender: Before issuing an ATP, my officials in the International Assistance Group (IAG) must determine that the extradition request complies with the Act and any applicable treaty. Although the Record of the Case incorrectly states that Mr. Adam is a Canadian citizen, I note that counsel in the IAG obtained information, prior to issuing the ATP, from Citizenship and Immigration Canada (CIC) and the Can- ada Border Services Agency (CBSA) indicating that Mr. Adam is a citizen of Sudan, who has Convention refugee and permanent resident status in Canada. In any case, the ATP was issued based on the fulfillment of the conditions set out in the Act and the Treaty. Mr. Adam’s citizenship was not relevant to the decision to initiate extradition proceedings against him, and would not have had any impact on the issuing of the ATP. Mr. Adam’s status as a Convention refugee and a permanent resident of Canada is relevant to my decision on surrender. The impact of United States of America v. Adam Hinkson J.A. 187

surrender on Mr. Adam, given his Convention refugee and permanent resident status, is duly considered below. 48 The applicant has pointed to no error of law underlying the reasoning of the Minister of Justice with respect to the lack of impact that the erroneous information had upon the decision to issue the ATP, and there can be no argument that the conclusion reached with respect thereto is unreasonable. 49 In answer to the applicant’s second contention on his application for judicial review, the Minister of Justice explained in his response to the applicant’s submissions regarding his potential surrender: While you make reference to the Supreme Court of Canada’s decision in United States of America v. Cotroni, supra, I note that Mr. Adam is not a Canadian citizen. As such, section 6(1) of the Charter does not apply to him. The fact that Canada has jurisdiction to prosecute Mr. Adam does not bar me from ordering his surrender to the United States. Neither, in my view, should Mr. Adam’s willingness to plead guilty in Canada determine the jurisdiction in which he will face prosecution (France v. Liang (2007), 227 C.C.C. (3d) 351 (Ont. C.A.)). I have also considered whether preferring extradition to a domestic prosecution would be unjust or oppressive, or contrary to Mr. Adam’s rights under section 7 of the Charter. Section 44(1)(a) of the Act requires me to refuse the surrender of a person sought for extradition if I determine that it would be “unjust or oppressive having regard to all of the relevant circumstances”. This is effectively a codification of my obligation to consider Char- ter requirements and, in particular, to assess whether surrender would breach the principles of fundamental justice under section 7 of the Charter. In other words, I must determine whether Mr. Adam’s surrender to the United States would shock the conscience of Canadians and be simply unacceptable on the bases that you have advanced (United States v. Burns, [2001] 1 S.C.R. 283). 50 In Lake, the Supreme Court of Canada held that it is for prosecutorial authorities, not the Minister of Justice, to decide whether to initiate a prosecution. In his surrender decision, the Minister of Justice noted that the Public Prosecution Service of Canada (“PPSC”) had already exercised its discretion to not initiate a criminal prosecution of the applicant. As the applicant has not alleged bad faith or improper motives, he therefore has no basis upon which to argue that the Minister unreasonably 188 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

declined to interfere with the PPSC’s discretion. I therefore see no merit in this ground for judicial review. 51 Article 17 bis of the Treaty provides: If both contracting Parties have jurisdiction to prosecute the person for the offense for which extradition is sought, the executive authority of the requested State, after consulting with the executive authority of the requesting State, shall decide whether to extradite the person or to submit the case to its competent authorities for the purpose of prosecution. In making its decision, the requested State shall consider all relevant factors, including but not limited to: (i) the place where the act was committed or intended to be committed or the injury occurred or was intended to occur; (ii) the respective interests of the Contracting Parties; (iii) the nationality of the victim or the intended victim; and (iv) the availability and location of the evidence. 52 In United States v. Dhillon, 2009 ONCA 247 (Ont. C.A.) at paras. 5 — 6, the Ontario Court of Appeal found that: The applicant is not a citizen of Canada and accordingly has no con- stitutional right to remain in Canada under s. 6 of the Charter of Rights and Freedoms. He thus has no right to a review in accordance with the factors set out in United States of America v. Cotroni, [1989] 1 S.C.R. 1469. The applicant submits, however, that Article 17 bis of the Treaty of Extradition between Canada and the United States of America, Can. T.S. 1991 No. 37, gives him a comparable right to have the Minister of Justice conduct a review to determine whether he should be prosecuted in Canada rather than the United States. We would not give effect to this submission. We have serious doubts that Article 17 bis confers any rights on the accused... 53 These comments apply equally to the applicant. 54 In answer to the applicant’s third contention on his application for judicial review, the Minister of Justice pointed out in his response to the applicant’s submissions regarding his potential surrender that the PPSC had advised the applicant’s counsel that it would not intervene in the applicant’s extradition proceedings and explained: You point out that under Article 17bis of the Treaty, I have the authority to refer Mr. Adam’s case to the competent prosecutorial authority for prosecution in Canada. However, Mr. Adam has not been charged in Canada. I do not have the authority to direct or attempt to influence the competent investigative authorities to pursue an investi- United States of America v. Adam Hinkson J.A. 189

gation or lay charges against him. Pursuant to section 40 of the Act, my role in the extradition process is essentially political in nature (United States of America v. Kwok, [2001] 1 S.C.R. 532; Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; Sriskandarajah v. United States of America, 2012 SCC 70). In my view, it cannot be said that Mr. Adam’s surrender to the United States would shock the conscience of Canadians and thereby violate the principles of fundamental justice. The investigation into Mr. Adam’s alleged conduct was carried out exclusively by the DEA and all of the evidence, including a cooperating witness and inter- cepted communications, is located in the United States. While Can- ada may have jurisdiction to prosecute Mr. Adam, no investigation has been carried out by Canadian authorities, and no charges have been laid against Mr. Adam in Canada. I am satisfied that, under the circumstances, it would not be unjust or oppressive to extradite Mr. Adam to the United States. 55 I have already addressed the inability of the Minster of Justice to submit the case to competent domestic authorities for prosecution and the fact that the Minister of Justice relied on relevant case authorities in concluding that the Treaty does not confer substantive rights on the applicant. I conclude that the applicant’s third contention respecting his judicial review is without merit. 56 The alleged failure to ensure that the Requesting State was aware of the applicant’s Sudanese citizenship cannot amount to an abuse of process, as it is clear that the United States had been so informed and the surrender order is conditional on the United States providing assurances that the applicant will be able to return to Canada at the conclusion of the United States’ criminal proceedings. 57 In the result, I am unable to see that the applicant has an arguable case for judicial review of the Surrender Order of the Minister of Justice, and thus he has not satisfied the merits threshold for the appointment of counsel to assist him with a judicial review of the Surrender Order: that it is desirable in the interests of justice that he have further legal assistance for his judicial review. As with his appeal, given my conclusions with respect to the first part of the s. 684 test, it is unnecessary to address this second part of the test with respect to his application respecting his judicial review. 58 In the result, I also dismiss the application pursuant to s. 684 of the Criminal Code, for the appointment of counsel for the applicant for his judicial review. 190 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Judicial Interim Release 59 Although the applicant’s material included a notice of application for judicial interim release, as that was only sought if an order for the appointment of counsel was made, no submissions were made, either orally or in the applicant’s written material to support such an order, with the exception of Mr. Adam’s affidavit. Given the disposition of the application for the appointment of counsel and in the absence of submissions on the issue, I will simply adjourn the application for judicial interim release. Application dismissed. R. v. Lu 191

[Indexed as: R. v. Lu] Her Majesty the Queen, Respondent and Sz-Yin Lu, Appellant Ontario Court of Appeal Docket: CA C56894 2013 ONCA 324 K.M. Weiler, E.E. Gillese, Alexandra Hoy JJ.A. Heard: May 09, 2013 Judgment: May 15, 2013 Criminal law –––– Post-trial procedure — Appeal from sentence — Leave to appeal — Miscellaneous –––– Grounds — Accused, female citizen of Taiwan, was passenger in motor vehicle driven by accused’s partner, when pedestrian was struck and killed — Twice accused denied any knowledge of accident to police — Accused pleaded guilty to and was convicted of obstruction of justice — Accused was given suspended sentence, six months’ probation and 75 hours of community service, which had now passed — Partner, now accused’s husband, applied to sponsor accused to become permanent resident of Canada, which was rejected because of partner’s incarceration — Accused remained inadmissible due to criminality after partner was no longer incarcerated — At de novo sentencing hearing, summary appeal court judge confirmed accused’s sentence rather than granting absolute discharge — Accused brought application for leave to appeal — Application for leave to appeal granted — Appeal would raise question of law, which was of significance to administration of justice — Full immigration consequences for accused were considered for first time before summary appeal court judge, so granting leave to appeal here would, in effect, permit first appeal. Criminal law –––– Offences — Misleading justice — Obstructing justice — Sentencing — Adult offenders –––– Impact of collateral immigration consequences — Accused, female citizen of Taiwan, was passenger in motor vehicle driven by accused’s partner, when pedestrian was struck and killed — Twice accused denied any knowledge of accident to police — Accused pleaded guilty to and was convicted of obstruction of justice, and received suspended sentence, six months’ probation and 75 hours of community service — Accused remained inadmissible to become permanent resident of Canada due to criminality after partner was no longer incarcerated — At de novo sentencing hearing, summary appeal court judge confirmed accused’s sentence rather than granting absolute discharge — Judge held that discharge was not available in circumstances, as it would not adequately reflect serious nature of offence and was not in public interest, despite immigration consequences — Accused appealed judgment con- 192 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th) firming sentence — Appeal dismissed — Judge considered mitigating and aggravating factors and considered collateral immigration consequences as part of accused’s personal circumstances — However, it was open for judge to find, in light of seriousness of offence, sentencing objectives, and need for proportionality, that discharge was not fit sentence — It was open to judge to conclude that discharge would be contrary to public interest — Lying to police was very serious offence. Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Accused, female citizen of Taiwan, was passenger in motor vehicle driven by accused’s partner, when pedestrian was struck and killed — Twice accused denied any knowledge of accident to police — Accused pleaded guilty to and was convicted of obstruction of justice, and received suspended sentence — Accused remained inadmissible to become permanent resident of Canada due to criminality after partner was no longer incarcerated — At de novo sentencing hearing, summary appeal court judge confirmed accused’s sentence rather than granting absolute discharge — Judge held that discharge was not available in circumstances, as it would not adequately reflect serious nature of offence and was not in public interest, despite immigration consequences — Accused appealed judgment confirming sentence — Appeal dismissed — Judge considered mitigating and aggravating factors and considered collateral immigration consequences as part of accused’s personal circumstances — However, it was open for judge to find, in light of seriousness of offence, sentencing objectives, and need for proportionality, that discharge was not fit sentence — It was open to judge to conclude that discharge would be contrary to public interest — Lying to police was very serious offence. Cases considered by E.E. Gillese J.A.: R. v. Nasogaluak (2010), [2010] 1 S.C.R. 206, 72 C.R. (6th) 1, [2010] 4 W.W.R. 1, 251 C.C.C. (3d) 293, 474 A.R. 88, 479 W.A.C. 88, 206 C.R.R. 100, 315 D.L.R. (4th) 193, 470 W.A.C. 395 (note), 469 A.R. 395 (note), 19 Alta. L.R. (5th) 1, 2010 SCC 6, 2010 CarswellAlta 268, 2010 CarswellAlta 269, 398 N.R. 107, 90 M.V.R. (5th) 1, [2010] S.C.J. No. 6 (S.C.C.) — referred to R. v. Pham (2013), 293 C.C.C. (3d) 530, (sub nom. R. v. Ly (T.Q.)) 441 N.R. 375, 76 Alta. L.R. (5th) 206, 99 C.R. (6th) 219, 357 D.L.R. (4th) 1, 2013 CarswellAlta 296, 2013 CarswellAlta 297, 2013 SCC 15, [2013] S.C.J. No. 100, EYB 2013-219399 (S.C.C.) — considered R. v. R. (R.) (2008), 2008 ONCA 497, 2008 CarswellOnt 3699, 234 C.C.C. (3d) 463, 90 O.R. (3d) 641 (Eng.), 90 O.R. (3d) 654 (Fr.), 59 C.R. (6th) 258, 238 O.A.C. 242, [2008] O.J. No. 2468 (Ont. C.A.) — considered R. v. Sanchez-Pino (1973), 22 C.R.N.S. 350, 11 C.C.C. (2d) 53, [1973] 2 O.R. 314, 1973 CarswellOnt 26, [1973] O.J. No. 1903 (Ont. C.A.) — referred to R. v. Lu E.E. Gillese J.A. 193

Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 129(a) — referred to s. 839 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 24 — referred to s. 25 — referred to s. 36(2) — considered s. 36(3)(a) — considered

APPLICATION by accused for leave to appeal, and APPEAL by accused from judgment reported at R. v. Lu (2013), 2013 CarswellOnt 4345, [2013] O.J. No. 1704 (Ont. S.C.J.), confirming sentence for obstruction of justice.

Michael A. Crystal, for Appellant Alison Wheeler, for Respondent

E.E. Gillese J.A.:

1 This case involves a young Taiwanese woman who was convicted, in Canada, of a serious offence but who wishes to be admissible to Canada where her Canadian husband lives. It revolves around the recent decision of the Supreme Court of Canada in R. v. Pham, 2013 SCC 15 (S.C.C.), in which the Court explained how collateral immigration consequences are to be taken into account on sentencing.

Overview 2 Sz-Yin Lu is from Taiwan. She is not a Canadian citizen. She came to Canada on a student visa in 2006. She met Vlad Precup, a Canadian citizen, and they began dating early in the winter of 2007. She returned to Taiwan briefly that summer. She came back to Canada in the fall of 2007 after being accepted into the Early Childhood Education program at Al- gonquin College. She testified that she graduated from the program in 2008 and began working at a daycare. 3 Late in the evening of July 13, 2008, Mr. Precup hit a pedestrian with his car. He did not stop his car after the accident. Tragically, the pedestrian died. Ms. Lu was a passenger in her boyfriend’s car at the time of the accident. 194 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

4 Police interviewed Ms. Lu twice about the accident, first on August 11, 2008, and then again on November 26, 2008. Both times, Ms. Lu denied any knowledge of, or involvement in, the accident. 5 On December 15, 2008, Ms. Lu and Mr. Precup voluntarily contacted the police and admitted their involvement in the hit and run. 6 In the summer of 2009, Ms. Lu and Mr. Precup were married. 7 On September 23, 2009, Ms. Lu pleaded guilty to obstruction of a peace officer in the execution of his duties, contrary to s. 129(a) of the Criminal Code of Canada. At the sentencing hearing, Ms. Lu requested a conditional discharge. The Crown sought a suspended sentence with a period of probation and community service. 8 Ms. Lu was given a suspended sentence, six months’ probation, and 75 hours of community service. The six months have now elapsed and she has completed the community service requirement. 9 In December 2009, Mr. Precup applied to sponsor Ms. Lu to become a permanent resident of Canada. 10 In May 2011, Mr. Precup was convicted of dangerous driving causing death and failing to remain at the scene. He was sentenced to two years’ imprisonment. That conviction is currently under appeal with this court. 11 Ms. Lu’s pending application for permanent residency in Canada was rejected in the summer of 2011. The reason that was given was that Mr. Precup’s incarceration made him ineligible to sponsor her. 12 After her application for permanent residency was turned down, Ms. Lu was contacted by the immigration authorities and asked to leave the country voluntarily. She did so and returned to Taiwan in September 2011, where she found work in her field. 13 While in Taiwan, Ms. Lu learned that even though she is married to a Canadian citizen, pursuant to s. 36(2) of the Immigration and Refugee Protection Act (“IRPA”), S.C. 2001, c. 27, because she had been convicted of an offence punishable by indictment to Canada, she was inadmissible on grounds of criminality. 14 Section 36(2) of the IRPA provides: A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Par- liament punishable by way of indictment ... 15 Section 36(3)(a) deems hybrid offences to be indictable for the purpose of this provision. Thus, the rule in s. 36(2) applies to Ms. Lu even R. v. Lu E.E. Gillese J.A. 195

though the Crown had elected to proceed summarily. Since a discharge is not a conviction, the rule would not apply if she were given a conditional discharge rather than a suspended sentence. 16 Consequently, although Mr. Precup has now been released on bail pending appeal, and is no longer incarcerated, Ms. Lu remains inadmissible. 17 Ms. Lu appealed her sentence, seeking to have an absolute discharge substituted for the suspended sentence that she had been given. 18 With the agreement of counsel and in light of the new evidence regarding the consequences of conviction on Ms. Lu’s immigration status, the summary appeal court judge (SCAJ) conducted a de novo sentencing hearing. While the SCAJ was sympathetic to Ms. Lu’s immigration plight, on April 10, 2013, she dismissed Ms. Lu’s sentence appeal. 19 Ms. Lu now seeks leave to appeal to this court. She is facing imminent deportation from Canada and has been allowed to remain here only temporarily, for the purposes of her sentence appeals. 20 If leave to appeal sentence is granted, Ms. Lu will ask that her suspended sentence be replaced with a conditional discharge. 21 For the reasons that follow, I would grant leave but dismiss the sentence appeal.

The Decision Below 22 The SCAJ began by considering the background facts leading to the obstruction offence, including Ms. Lu’s explanations for why she had lied to the police. She then indicated that Ms. Lu’s collateral immigration consequences, as that phrase is used in Pham, had not been given full consideration on sentencing and thus, with the agreement of counsel, she was undertaking a de novo sentencing hearing. 23 The SCAJ summarized testimony given by Ms. Lu at the sentencing hearing. She noted the presumption that Ms. Lu would be refused admission to Canada if the conviction stood. She also noted the defence position that an absolute discharge was appropriate, in light of Ms. Lu’s otherwise good character and all the other circumstances, including the significant immigration consequences flowing from a conviction by way of suspended sentence. She noted the Crown’s position that a discharge was outside the appropriate range of sentence for the offence in question, despite Ms. Lu’s personal circumstances, including the immigration consequences. She also recorded that the Crown had pointed out various 196 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

ameliorating procedures that might be available to Ms. Lu, such as a record suspension or a pardon. 24 The SCAJ then fully and carefully reviewed the numerous mitigating factors in Ms. Lu’s favour, including that she is young and of good character, has no criminal record (apart from this offence), bears no responsibility for her boyfriend’s dangerous driving or the accident, pleaded guilty to the offence, voluntarily disclosed to the police that she had been at the scene of the fatality, and is genuinely remorseful. Like the sentencing judge, the SCAJ found it “highly unlikely” that Ms. Lu would ever again be before the criminal courts, noting that she is a teacher by profes- sion and has been gainfully employed. She concluded her consideration of the mitigating factors by referring to Ms. Lu’s friends, who attested to her “beautiful heart” and “sense of responsibility”. 25 In terms of the aggravating factors, the SCAJ noted that Ms. Lu: lied to police about a fatality, which is a very serious offence; maintained her lies to the police on two separate occasions and over a five-month period; and, did not make the lies impulsively or spontaneously, in the confusion of the moment. The SCAJ stated that Ms. Lu deliberately impeded the progress of proper law enforcement in the community and contributed to the anguish and grief suffered by the deceased’s family. 26 The SCAJ then considered the immigration consequences for Ms. Lu, including her “probable deportation”, and the authorities’ likely refusal to allow her re-entry into Canada. She described these immigration consequences as a “significant” factor to be considered as part of Ms. Lu’s personal circumstances. 27 In determining an appropriate sentence, the SCAJ described the applicable sentencing objectives as follows: Denunciation, deterrence, both general and specific, the providing of reparation for the harm done, and the promoting of a sense of responsibility and an acknowledgment of the harm done to the victims, including the deceased’s family in this case, and to the community including the police[.] 28 After noting that a discharge is available only if it is a sentence that is not contrary to the public interest, the SCAJ concluded that despite the immigration consequences, she would not exercise her discretion and grant a conditional discharge. In her view, a discharge would not adequately reflect the serious nature of the offence or the sentencing objectives of denunciation, deterrence and reparation, nor would it achieve proportionality. R. v. Lu E.E. Gillese J.A. 197

29 The SCAJ then considered Pham. She noted that the facts in Pham are inapplicable to Ms. Lu’s situation, but that the reasoning in paras. 13- 16 of the decision applied. She set out those paragraphs in full and concluded that Ms. Lu’s collateral immigration consequences did not serve as a dominant circumstance. In light of all the other circumstances, they did not “trump” the appropriate sentence which, at a minimum, was a suspended sentence.

The Issues 30 This proceeding raises two issues: 1. Should this court grant leave to appeal sentence? 2. If so, should this court substitute a conditional discharge for the suspended sentence imposed by the SCAJ?

Leave To Appeal Sentence 31 The appellant’s only route of appeal to this court is through s. 839 of the Criminal Code, which requires leave. The test for leave is stringent and limited to questions of law alone: see R. v. R. (R.), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), at paras. 24 and 37. 32 The appellant urged the court to grant leave, noting that this is the first time this court has considered such a case since Pham was decided. 33 Arguably, the appeal would raise a question of law and, without question, it is of potential significance to people beyond those in this specific case - that is, it is of significance to the administration of justice in the province. 34 Moreover, the stringent leave requirements set out in R. (R.) are pred- icated on the situation where an appellant is seeking a second appeal. That is not - strictly speaking - the situation in this case, where the full immigration consequences for the appellant were considered for the first time before the SCAJ. Granting leave to appeal sentence in this case would, in effect, permit the appellant a first appeal. 35 Accordingly, in my view, leave to appeal should be granted and the sentence appeal decided on its merits.

The Appeal 36 Ms. Lu argues that the SCAJ erred in holding that a discharge was not available or was outside the appropriate range of sentence for this offence. She contends that a conditional discharge is consonant with sen- 198 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

tencing principles, and is in Ms. Lu’s best interests and not contrary to the public interest. 37 Before dealing with these submissions, it is important to recall the role of an appellate court when reviewing a sentencing decision. Appel- late courts are to grant sentencing judges considerable deference when reviewing the fitness of a sentence. They are to interfere only where the sentence is demonstrably unfit, or where it reflects an error in principle, the failure to consider a relevant factor or the over-emphasis of a relevant factor. An appellate court cannot interfere with the sentence simply because it would have weighed the relevant factors differently. See R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at para. 46. 38 This deference extends to the sentencing judge’s consideration of the immigration consequences. Where the issue of immigration consequences has been brought to the sentencing judge’s attention and that judge has applied the proper sentencing principles in deciding sentence, deference is owed: see Pham, at para. 23. 39 With that standard of review in mind, I turn to the appellant’s submissions. As I will explain, I do not accept them.

The SCAJ’s Treatment of a Conditional Discharge 40 I see nothing in the reasons of the SCAJ to suggest that she thought a conditional discharge was outside the range or legally unavailable, as the appellant contends. Rather, the SCAJ concluded that a conditional discharge was not a fit sentence in the particular circumstances of this case. In reaching this conclusion, the SCAJ took into consideration all mitigating and aggravating factors and the applicable sentencing principles. 41 Further, the SCAJ had the benefit of Pham and she followed its direction when considering the immigration consequences that would flow from imposing a suspended sentence. 42 As the SCAJ noted, the facts in Pham are very different than in the present case. Nonetheless, a brief overview of those facts is helpful to place in context the Court’s direction on how to take into account collateral immigration consequences on sentencing. 43 In Pham, the sentencing judge imposed a two-year sentence on the accused, who was a non-citizen. Under the IRPA, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. Neither party had raised the issue of R. v. Lu E.E. Gillese J.A. 199

these collateral immigration consequences before the sentencing judge. A majority of the Alberta Court of Appeal dismissed the sentence appeal. 44 On further appeal to the Supreme Court, the Court allowed the appeal and reduced the sentence to two years less a day. It held that as the sentencing judge was not aware of the collateral immigration consequences, the appellate court had the authority to intervene. Further, it found that as a sentence of two years less a day was within the range of otherwise fit sentences, it was an error for the appellant court to have refused the one- day reduction solely on the basis of the appellant’s prior criminal record or because it felt he had abused the hospitality that Canada had afforded him: Pham, at para. 25. 45 Justice Wagner, writing for the Court, explains that the collateral consequences of a sentence are any consequences the sentence has on the particular offender and may be taken into account as part of the offender’s personal circumstances. They are neither aggravating nor mitigating factors. Their relevance flows from the application of the principles of individualization and parity, and may also flow from the sentencing objective of rehabilitation. The weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Therefore, while the collateral immigration consequences may be relevant in tailor- ing the sentence, their significance depends on the individual case: Pham, at paras. 11-13. 46 Justice Wagner further explains that the sentence imposed must be fit having regard to the particular crime and the particular offender. While a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The collateral immigration consequences must not be allowed to dominate the sentencing exercise or skew the process: Pham, at paras. 14-16. 47 The SCAJ in this case followed Pham. She considered the mitigating and aggravating factors and then considered the collateral immigration consequences as part of Ms. Lu’s personal circumstances. She recognized that as a result of the criminal conviction and suspended sentence, Ms. Lu is inadmissible to Canada unless she obtains a record suspension or, possibly, an exemption from inadmissibility on humanitarian and compassionate grounds pursuant to ss. 24 and 25 of the IRPA. However, in light of the seriousness of the offence, the sentencing objectives of 200 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

denunciation, deterrence and reparation, and the need for proportionality, a discharge was not a fit sentence. It was open to her to so conclude.

The SCAJ’s Conclusion that a Discharge was not in the Public Interest 48 The SCAJ correctly observed that a discharge cannot be granted if it would be contrary to the public interest. In determining whether it would be contrary to the public interest, one consideration is whether the sentence will be a deterrent to others who might be minded to commit a like offence: see R. v. Sanchez-Pino, [1973] 2 O.R. 314 (Ont. C.A.), at p. 320. 49 The SCAJ held that a discharge would be contrary to the public interest because it would not give adequate effect to the sentencing objectives of denunciation, deterrence, and reparation. Furthermore, it would not achieve the fundamental principal of proportionality in sentencing, which requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. 50 The SCAJ made a case-specific determination that a discharge would be contrary to the public interest. It was open to her to reach this conclusion and there is no basis for interfering with it. Lying to the police, particularly in the context of an investigation into a fatality, is a very serious offence. I am sympathetic to Ms. Lu’s personal circumstances and her desire to be in Canada with her husband as soon as possible. However, those circumstances were fully considered by the SCAJ, who concluded that, at a minimum, her sentence must be a suspended one.

Conclusion 51 In my view, there is no basis for interfering with the sentence imposed by the SCAJ. Her articulation and application of the relevant legal principles is impeccable. She fully, fairly and thoughtfully considered all of the relevant factors. She had the benefit of Pham and gave appropriate consideration to the collateral immigration consequences of a suspended sentence, rather than a discharge. 52 Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal.

K.M. Weiler J.A.:

I agree. R. v. Lu Alexandra Hoy J.A. 201

Alexandra Hoy J.A.:

I agree. Application granted; appeal dismissed. 202 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

[Indexed as: Jiang v. Manitoba (Minister of Labour and Immigration)] Xuqin Jiang, Applicant and Minister of Labour and Immigration and Minister of Entrepreneurship Training and Trade, Respondents Manitoba Court of Queen’s Bench Docket: Winnipeg Centre C1 11-01-69786 2013 MBQB 107 Keyser J. Judgment: May 2, 2013 Immigration and citizenship –––– Admission — Immigrants — Provincial nominees –––– Judicial review — Alien, citizen of People’s Republic of China, brought application for permanent residence in Canada in economic class, pursuant to s. 12(2) of Immigration and Refugee Protection Act — Alien claimed qualification as provincial nominee in accordance with s. 87 of Immigration and Refugee Protection Regulations, and accordingly application was pre-vetted by agent of respondent Crown in Right of province of Manitoba — “Provincial application” was dismissed, inter alia on basis that alien’s documentation was inconsistent and contained factual errors — Although Regulations did not provide for reconsideration of provincial application, upon request by alien respondent reconsidered provincial application, again determining that alien did not qualify as member of nominee class — Alien brought application for judicial review in nature of certiorari — Application dismissed — Express language of Regula- tions indicated that decision to recommend alien for permanent residence as provincial nominee was policy decision — Accordingly, standard of review was reasonableness and agent for respondent was entitled to high degree of deference on review — Respondent conceded that reasons for reconsideration decision were brief, essentially stating only that findings were identical to original provincial application decision — Brevity of reasons does not automatically constitute breach of procedural fairness or of rules of natural justice warranting relief by way of certiorari — Given deferential standard of review appropriate in present case, it could not be said that reasons were inadequate — Impugned decision was within reasonable range of outcomes in present case and application was accordingly properly dismissed. Administrative law –––– Standard of review — Reasonableness — Reasona- bleness simpliciter –––– Provincial nominee class decisions in immigration matters — Alien, citizen of People’s Republic of China, brought application for permanent residence in Canada in economic class, pursuant to s. 12(2) of Jiang v. Manitoba (Minister of Labour and Immigration) 203

Immigration and Refugee Protection Act — Alien claimed qualification as provincial nominee in accordance with s. 87 of Immigration and Refugee Protection Regulations, and accordingly application was pre-vetted by agent of respondent Crown in Right of province of Manitoba — “Provincial application” was dismissed, inter alia on basis that alien’s documentation was inconsistent and contained factual errors — Although Regulations did not provide for reconsideration of provincial application, upon request by alien respondent reconsidered provincial application, again determining that alien did not qualify as member of nominee class — Alien brought application for judicial review, in nature of certiorari — Application dismissed — Express language of Regulations indicated that decision to recommend alien for permanent residence as provincial nominee was policy decision — Accordingly, standard of review was reasonableness and agent for respondent was entitled to high degree of deference on review — Re- spondent conceded that reasons for reconsideration decision were brief, essentially stating only that findings were identical to original provincial application decision — Brevity of reasons does not automatically constitute breach of procedural fairness or of rules of natural justice warranting relief by way of certiorari — Given deferential standard of review appropriate in present case, it could not be said that reasons were inadequate — Impugned decision was within reasonable range of outcomes in present case and application was accordingly properly dismissed. Cases considered by Keyser 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 Kikeshian v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 658, 2011 CF 658, 2011 CarswellNat 3252, 2011 CarswellNat 2103, 98 Imm. L.R. (3d) 327, 391 F.T.R. 52, [2011] F.C.J. No. 832 (F.C.) — considered Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — distinguished New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered 204 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12(2) — considered s. 12(3) — referred to s. 23(1) — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 87(1) — considered s. 87(2) — referred to

APPLICATION by alien for judicial review of decision of agent for respondent Crown in right of province refusing reconsideration of decision dismissing application for permanent residence in Canada in provincial economic nominee class.

David Matas, for Applicant Denis G. Gu´enette, Devin A. Johnston, for Respondents

Keyser J.:

1 The Applicant, Xuqin Jiang (Jiang) applies to the court for certiorari quashing the decision dated October 26, 2010 that the application of Ji- ang did not meet the requirements of the Manitoba Provincial Nominee Program and for other ancillary orders. For the reasons which follow the application is denied. 2 Filed in this matter were a number of affidavits but the bulk of the material consisted of the Record of Proceedings in four volumes com- prised of Tabs 1 - 66.

Facts 3 Immigration to Manitoba falls under the aegis of the federal Immigra- tion and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). To become a permanent resident of Canada, a foreign national must apply under one of three sections in the IRPA — family class (s. 23(1)), economic class Jiang v. Manitoba (Minister of Labour and Immigration) Keyser J. 205

(s. 12(2)) and refugee class (s. 12(3)). At issue in this application is Ji- ang’s ability to qualify under s. 12(2) as follows: ECONOMIC IMMIGRATION 12(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. 4 Under IRP Regulations there are a number of avenues that a foreign national may pursue to try to achieve permanent resident status as a member of the economic class. One such avenue is the provincial nominee class as set out in s. 87(1) of the IRP Regulations. CLASS 87(1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada. 5 To follow the provincial nominee route a foreign national must be nominated by the province, which issues a certification of nomination (s. 87(2)). The parameters for the nomination process are contained in an agreement between the federal and provincial governments known as The Canada-Manitoba Immigration Agreement (Record, Vol. IV, Tab 64). Manitoba’s program has two different streams — a skilled worker stream and a business stream. This application involves the business stream. 6 A provincial decision to nominate a foreign national does not guarantee that permanent residency will be granted. That final decision rests with the federal government. There is a quota on the number of provincial certificates of nomination that can issue each year, and an unsuccess- ful nominee will still count toward the provincial quota. 7 In the case at bar, Jiang applied to be considered pursuant to the business stream of the Provincial Nominee Program. She was interviewed by Ester Li (Li) on October 8, 2009. In that interview (Record, Vol. I, Tab 22), Jiang disclosed that her daughter was attending school in Edmonton and that her brother had been living in Toronto for the preceding 10 years. No other relatives in Canada were acknowledged by her. 8 Ultimately Jiang’s application was declined on May 26, 2010 on the recommendation of Li on the basis that there was a lack of consistency in her documentation and information and that she did not meet retention expectations (Record, Vol. III, Tab 46). The rejection was spelled out in a letter to Jiang dated May 27, 2010 from Richard Zebinski (Zebinski), a 206 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

senior manager with the provincial Business Immigration and Investment Branch as follows: • In the Manitoba Business Supplementary Form (MBSUP), it is declared that your spouse’s sister is living in Toronto. However, this information was not disclosed in the IMM 5406 Additional Family Information. This form listed all your spouse’s sisters’ present addresses being in China. Further- more, you failed to disclose this information during the Inter- view conducted on October 8, 2009. • Additionally, during the interview, you indicated to the inter- viewing officer that you will be leaving Canada on October 20, 2009. However, your flight itinerary indicates that you and your spouse departed Canada on December 15, 2009. In the Declaration of Intent submitted as part of the application, you declared that you understand that Manitoba only nominates individuals who intend to reside in Manitoba along with their dependent family members, and who intend to establish, purchase or invest in a business in Manitoba and assume an active managerial role in that business. The Program was not convinced that you intend on residing in Manitoba. Specifically, you have strong family ties in other provinces and the Program also noted that your visit to Manitoba only consisted of 8 days, however you had spent much longer time in other provinces in Canada. (Record, Vol. III, Tab 47) 9 There is no appeal from a refusal. There is no provision for a reconsideration of a refusal. Despite that, Jiang retained a representative who asked that her refusal be reconsidered because of misunderstandings (Re- cord, Vol. IV, Tab 49). Zebinski agreed to reconsider her application (Record, Vol. IV, Tab 50). On September 7, 2010 a second interview took place with Kelly Crawford (Crawford). In addition, Jiang’s representative, Randy Boldt (Boldt) wrote to Zebinski on October 15, 2010 (Record, Vol. IV, Tab 57) to provide more information so as to clear up some of the inconsistencies in her first application and document the changes to her situation. This included the fact that her daughter was now a student at the University of Manitoba and explained why she did not disclose her sister-in-law’s residency in Ontario. Boldt also provided boarding passes to demonstrate when Jiang had actually left Canada. 10 By letter dated October 26, 2010 (Record, Vol. IV, Tab 58) Zebinski advised that her application was again refused because she had not clari- Jiang v. Manitoba (Minister of Labour and Immigration) Keyser J. 207

fied the concerns about retention. It is from this second refusal that Jiang seeks certiorari. 11 The grounds for the application were: (a) That the decision was unreasonable because the preliminary refusal was based on matters which were subsequently explained and yet the refusal was maintained for the original reasons; (b) That the decision was unfair because the Respondent provided inadequate reasons; and (c) That the decision was made by a person without authority to make the decision. 12 Despite these three grounds in the amended application, the concern about the manner in which Jiang had been treated had by the time of hearing morphed into seven discrete objections as follows: (a) The duty of fairness in the reconsideration of her application was not fulfilled; (b) There were issues with disclosure; (c) The absence of an appeal was unfair; (d) The reasons given for the refusal were inadequate; (e) The onus was improperly reversed; (f) The decision to refuse was unreasonable; (g) The process of application for nomination engaged rights which were not respected. The third ground in the application was not argued by counsel and so it will not be addressed. 13 I will deal with these concerns in turn.

(a) The duty of fairness in the reconsideration 14 Counsel for Jiang objected to the process followed in the reconsideration since it did not mirror the process used originally and thus she was unaware of what to expect. Counsel stressed that the original process to be followed for nomination included an interview by one officer and then a recommendation and/or review by a team. This process was set out in the Record at Vol. IV, Tab 66, p. 13. Because this multi-layer process was not followed in the reconsideration of Jiang’s application, it was submitted that the duty of fairness to her had been breached. 208 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

15 Counsel for the Respondents acknowledged that the same process as for the original consideration was not followed but that the duty of fairness to Jiang did not require it to be. He firstly stressed that the procedure set out in the Record was based on an agreement rather than a procedure mandated by statute. In any event, there was no finality to the decision in that Jiang had the ability to reapply at any time by submitting a new application. Finally, since there was no provision for a reconsideration to occur, any reconsideration did not have to follow the same steps as the original application. 16 The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) confirmed @ p. 819 that “[T]he duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected.” Some of the factors to be considered include: 1. The nature of the decision being made and the process followed in making it (para. 23). 2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates (para. 24). 3. The importance of the decision to the affected individual (para. 25). 4. The legitimate expectations of the person challenging the decision (para. 26). 5. The choices of procedure made by the agency itself (para. 27). 17 The decision in Jiang’s case was made pursuant to the agreement between the federal government and Manitoba and not pursuant to a statute. The decision is a discretionary one made after consideration of a number of factors but there is never a guarantee of nomination if certain criteria are met. 18 In my view, Jiang was treated fairly. If anything, the Respondents went over and above what was mandated. Jiang was initially refused nomination and requested a reconsideration. Even though the federal- provincial agreement contains no provision for a reconsideration, the Re- spondents agreed to look at her application again without the necessity of her having to reapply. Not only is this more than what the Respondents were required to do, but it conforms with what Jiang herself requested. Through her agent Boldt, Jiang wrote to Zebinski to ask specifically to have her application reconsidered (Record, Vol. IV, Tab 49). Jiang v. Manitoba (Minister of Labour and Immigration) Keyser J. 209

19 The response from Zebinski (Record, Vol. IV, Tab 50) set out that Jiang was to send any further information to Li that she wanted reconsidered in addition to the information that Boldt had already provided. Zebinski told Boldt that she would be re-interviewed and that her file would be reviewed once all the new information had been received and the second interview had taken place. That is what in fact occurred. Not only was there no objection to that procedure, Boldt expressed his thanks on behalf of Jiang for what was proposed (Record, Vol. IV, Tab 51). 20 In all of the circumstances, the duty of fairness was adequately complied with. Jiang never objected to the proposed process for reconsideration. In any event, at any point she could have, and still could, submit a new application.

(b) Disclosure issues 21 Jiang complains about lack of disclosure between the original application and the reconsideration. Contained in the Record are two documents found at Vol. IV in Tabs 55 and 56. Jiang submits that she does not know who authored the notes contained in Tab 55 or who typed Tab 56, or when and for what purpose these documents were compiled. Al- though the Index to the Record states that these are “notes of Kelly Crawford”, this information is not contained on the documents themselves. Further, Jiang argues that Tab 56 looks like it was generated prior to the last decision of Zebinski and should have been disclosed to her prior to the interview so she could have made submissions about the concerns. 22 Counsel for the Respondents indicates that he does not really understand this issue and I am somewhat at a loss to understand it myself. If you consider the Record only and not the Index, you can infer from the context whose notes are involved. I agree with counsel for the Respon- dent that following the correspondence logically shows who was involved in production of these documents. 23 Tab 52 contains a request to Crawford from Boldt for a meeting to be set up September 7th. Tab 53 is a proposal from Crawford for an interview time. At Tab 54 Boldt provides more financial information on Jiang to Crawford. This correspondence is dated September 6, 2010. Tab 55 consists of handwritten notes from an interview that occurred September 7, 2010 with Jiang. The person who interviewed Jiang was Crawford. The notes from their context are obviously those of Crawford. Tab 54 is a letter to Crawford from Boldt that more information will be forthcom- 210 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

ing. Tab 56 contains bolded portions plus responses which appear to be answers given by Jiang to concerns expressed at the interview. It is apparent from all the correspondence between Jiang and the Respondents that everyone appreciated that retention issues were the prime concern and needed to be addressed. Jiang was not taken by surprise as to the nature of the concerns. There is no merit to this ground.

(c) The absence of an appeal 24 As earlier discussed, the Provincial Nominee Program contains two streams for applicants, being the skilled worker program and the business program. There are different processes for application to the streams. The skilled worker program makes provision for an appeal from a refusal. No such right of appeal exists for someone like Jiang applying through the business stream. Her position is that this lack of an appeal breaches the duty of fairness. 25 The Respondents’ position is simple. Because there is an appeal from the skilled stream does not mean that an appeal is mandated in the case of the business applicant. The duty of fairness which is owed to the business applicant does not mean that the same process must be followed as with a skilled worker applicant. 26 I agree with the position of the Respondents. Jiang’s counsel in his brief spends much time outlining the procedure and appeal process set out to be used in determining the suitability of a skilled worker applicant. It is acknowledged that the process is different for the business applicant and that no appeal exists from a refusal. However, the streams themselves are very different and set up to attract different types of immigrants to the province. No authority was provided for the proposition that the process must be identical for the two streams. This is particularly so when there is never finality in the business stream. A business applicant may submit a new application at any time. There is no merit to this ground.

(d) Adequacy of reasons 27 Counsel for Jiang contends that part of the duty of fairness involves a consideration of the adequacy of reasons for a decision. His position is that all of the original reasons for refusal were completely addressed during the follow up interview for reconsideration and therefore, there was no reason left for a refusal to be upheld. He submits that the reasons for refusal are terse and vague. The Record at Vol. IV, Tab 58 contains the Jiang v. Manitoba (Minister of Labour and Immigration) Keyser J. 211

decision to uphold the refusal sent by Zebinski to Jiang on October 26, 2010 to the effect that: The Manitoba Provincial Nominee Program for Business has concluded that the decision outlined in the letter dated May 27, 2010 remains unchanged. The Program does not feel that the additional information provided clarifies the concerns in regards to retention. 28 According to her counsel, Jiang had moved her daughter from Edmonton to university in Manitoba to demonstrate her commitment to the province and had therefore a legitimate expectation that such a move would address at least some of the concerns initially expressed. He submits that the clarification of all earlier concerns should have been sufficient. 29 The Respondents concede that the reasons found in the Record at Vol. IV, Tab 58 on the reconsideration were brief, but that they must be considered in connection with the original reasons that were given for the refusal and not in isolation. It is clear that, when both sets of reasons are considered, the concerns on the issue of retention remained extant. 30 The reconsideration reasons are indeed terse, but they must be looked at in conjunction with the original reasons from May 2010 and whether both adequately explained and communicated the reasons for the retention concerns. The original reasons from May 26, 2010 (Record, Vol. III, Tab 46) reported concerns over documentation and information consistency, and meeting retention expectations. These were specifically referenced in the letter sent May 27, 2010 from Zebinski to Jiang (Record, Vol. III, Tab 47). After additional information and clarification was provided it appeared that she had still not satisfied the Respondents over retention expectations. 31 Jiang had in fact moved her daughter to Manitoba. That was to her credit. She maintained that she did not know she had a sister-in-law in Toronto as the family was not close. The fact remained that she had mentioned her as living in Toronto in her original Manitoba Business Supple- mentary Form (MBSUP) (Record, Vol. II, Tab 29). This was not part of her application nor disclosed in her initial interview with Li. She still had a brother who was a resident of Toronto. And although she had clarified through boarding passes that she left Canada on October 22, 2009 rather than December 15, 2009, she had nonetheless spent over 2/3 of her actual time in Canada outside Manitoba. It is clear that retention expectations were still a concern, even after the reconsideration and that that concern had been transmitted to Jiang. Consequently, in my view, the Respon- 212 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

dents adequately advised Jiang of the reasons for ongoing concerns in the decision to uphold the refusal to nominate her.

(e) The issue of onus 32 Jiang signed a Declaration of Intent to reside in Manitoba (Record, Vol. III, Tab 44) which is a requirement to starting the process for nomination. The position of Jiang is that there is a presumption of truth to that document and yet the first refusal letter sent to her in May 2010 indicated that the Respondents were not convinced Jiang intended to reside in Manitoba. Counsel for Jiang maintains that this effectively changed the onus to Jiang having to prove her intention to stay in Manitoba. 33 Counsel for Jiang cited the case of Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.) as authority for the proposition that when the applicant swears to the truth of certain allegations there is a presumption that the allegations are true. Thus he maintained that weight should have been given to her expressed sworn intention to reside in Manitoba. 34 Counsel for the Respondents submitted that this declaration had no presumptive evidentiary effect, but was simply a pro forma requirement for consideration of an application. Without it, an application would not be reviewed. Along with the necessity of signing this declaration, a business applicant was required to make a deposit of money as an indication of sincerity. The Respondents thus differentiate the situation in Maldo- nado from the case at bar. They further maintain that, even if the declaration set up a rebuttable presumption of truth, the independent evidence available effectively rebutted any such presumption. 35 I agree with the position of the Respondents. The Declaration of In- tent was one of the pre-conditions to initial consideration of Jiang’s application. Without that and a monetary deposit her application would not have been considered at all. It could never have been intended that the mere signing of the Declaration of Intent created a rebuttable presumption to live in Manitoba. If so, there would have been no need for Jiang to provide any evidence of family living elsewhere in Canada as she could have relied solely on the Declaration. Even if a rebuttable presumption had been created, I am satisfied that the material provided by Jiang raised retention concerns that effectively rebutted her sworn Decla- ration of Intent. Jiang v. Manitoba (Minister of Labour and Immigration) Keyser J. 213

(f) Reasonableness of the decision 36 The first issue to resolve is whether the standard of review of the decision should be reasonableness or correctness. I was advised by counsel that this was the first time a superior court in Canada had been asked to review a decision under a provincial nominee program. As was stated in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) @ para. 53: Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated. 37 Counsel for the Respondents submitted that the decision to refuse nomination must be viewed from the standard of reasonableness. This was not specifically disputed by counsel for Jiang who implicitly accepted this standard by maintaining that the refusal itself was not reasonable. I agree that this is the appropriate standard. To nominate a foreign national, Manitoba necessarily is making a policy choice about which candidate is appropriate for the needs of the province, and which is not. This is specifically referenced in the agreement (Record, Vol. IV, Tab 64). Further, the assessment of the qualifications for nomination necessarily involves a factual determination of whether or not the candidate would likely reside in Manitoba. 38 Jiang submitted that the decision to refuse to grant her a certificate of nomination on the face of it was not reasonable. At the time of the reconsideration her daughter had moved to Manitoba to attend university, and her sister-in-law was resident in China. She maintained that she did not knowingly provide false information to the Respondents as she was unaware of her sister-in-law’s apparent residency in Ontario since they were not close. Further, the visits to places outside Manitoba were adequately explained and were also not inconsistent with contacting customers or suppliers. It was never expressed to her that her brother residing in To- ronto could be a cause for concern. She pointed to the Provincial Nomi- nee Program for Business Application Kit (Record, Vol. IV, Tab 66). At p. 14 of that information packet the Respondents tell potential business applicants that having friends or relatives in another province did not automatically cause an application to be refused. She therefore submitted that after provision of the additional information to the Respondents, there remained no legitimate retention concerns. 214 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

39 The Respondents acknowledged that some factors had been resolved to the benefit of Jiang such as her having enrolled her daughter in university in Manitoba. However, despite that there remained concerns over her forthrightness at the initial interview and whether or not she truly planned to locate in Manitoba. The Respondents identified such risk factors for retention as a brother residing in Toronto, a sister-in-law that she must have known was also living in Toronto but failed to disclose, and excessive time spent in other provinces rather than Manitoba. 40 The court in Dunsmuir @ para. 47 said the following: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 41 I come to the conclusion that the decision to deny the nomination was within the realm of reasonable, possible outcomes. Not everyone who meets all of the criteria is guaranteed nomination by the Province because of the quota system. In this case, there still remained legitimate concerns about retention. 42 Jiang had clearly been advised that it was up to her to convince the program of her sincerity to relocate (Record, Vol. IV, Tab 66 at p. 14). There was an inconsistency in the material she provided about her sister- in-law and where she was residing. This raised concerns about her forthrightness and whether she truly was planning to come to Manitoba with a business. In addition, her brother was living in Toronto. Although it did not lead to an automatic refusal, it would cause legitimate concern about the sincerity of her declaration to relocate. 43 Additionally Jiang had spent more time outside Manitoba than within, even when the dates of her departure to China were reconciled. Although Jiang purported to say that much time was spent attempting to contact potential clients and suppliers in central Canada and that she had at- Jiang v. Manitoba (Minister of Labour and Immigration) Keyser J. 215

tended a two-day machinery exhibit in Vancouver, there was no documentary evidence provided to substantiate these claims. 44 Thus when all of the information is considered it is apparent that the decision not to nominate Jiang for a certificate was a decision that could reasonably have been made.

(g) The nature of the decision 45 The last ground of dispute is the nature of the decision. Counsel for Jiang maintains that rights are at stake in this decision since a presumption is created for an applicant that if a nomination certificate is issued by the province then the federal government would issue a permanent resident visa. Jiang relies on Kikeshian v. Canada (Minister of Citizenship & Immigration), 2011 FC 658, [2011] F.C.J. No. 832 (F.C.). In that case a provincial certificate of nomination had been issued but a federal visa officer denied the application for permanent residency on grounds that the applicant was unlikely to reside in the province. Provincial officials had not been advised of the visa officer’s concerns. The court held that the duty to consult had not been complied with, and that an applicant who had already convinced provincial authorities of his suitability would have a reasonable expectation that a contrary federal decision would not be made without proper mandated consultation. Fundamentally therefore, Jiang argues that she loses rights by not having the nomination certificate issued for her. 46 I agree with the Respondents that no rights are conferred. Manitoba cannot issue a permanent resident visa. Manitoba cannot prevent anyone from getting a permanent resident visa. Both of those decisions are in the hands of the federal government. Even if Jiang had met all the criteria to be nominated, she was not guaranteed that she would be given a provincial nominee certificate. And even if she was granted a certificate, the federal government retained a right of refusal if it had concerns although it would have to consult with provincial authorities. No rights were engaged in this process. 47 As a result, for all of the above reasons, the request for certiorari is denied. Costs would normally follow in the cause. If there is a reason why that would not be appropriate, then counsel may set a time to argue that question before me. 48 As an aside, I question the process employed here to ask for preroga- tive relief. At best, if the decision to refuse a certificate was flawed and had been quashed, then Jiang would have been in no better position than 216 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th) she is anyway since she can apply for admission again at any time. That might have been a better use of resources than pursuing this application. Application dismissed. Case Commentary: Jiang v. Manitoba 217

Case Commentary: Jiang v. Manitoba Jim Fitch*

In his 2011 article published at 99 Imm. L.R. (3d) 262, Mario D. Bellis- simo asks if there is to be “any relief” available to a refused applicant for permanent residence in Canada in the provincial nominee program category. After the judgment of Keyser J. of the Manitoba Court of Queen’s Bench in Jiang v. Manitoba (Minister of Labour and Immigration),1 it is likely safe to answer that question “sure — but not much.” Starting at least from Wai v. Canada (Minister of Citizenship & Immigra- tion),2 the relevant jurisprudence holds that decisions of the federal Min- ister with respect to provincial nominees attract a high degree of deference on review, on the post-Dunsmuir3 reasonableness standard. This seems an appropriate application of core administrative law principles in the immigration context, and was a result that was to be expected by practitioners. In Mr. Bellissimo’s article, it is suggested that judicial review would likely lie to the Superior Courts of the provinces for the decisions of provincial delegates declining to advance a provincial nomination. The author notes, however, that “in order for a decision to be amenable to judicial review, an error or abuse of discretion must be advanced; there must be some basis for suggesting that a mistake has occurred or that a principle of natural justice has not been observed.” That observation, again in accordance with core administrative law principles, is to the effect that

*Senior Legal Writer, Carswell, a Thomson Reuters business. 12013 MBQB 107 (Man. Q.B.), reported, above, at p. 202 [Jiang]. 22009 FC 780, 348 F.T.R. 85 (Eng.), 2009 CarswellNat 2481 (F.C.). 3Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 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 (S.C.C.) [Dunsmuir]. 218 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th) the scope of available review in provincial courts would be akin to that in the Federal Court, but at an earlier stage of the process. This appears to have been an accurate prediction, or perhaps an overesti- mation of a rejected provincial nominee candidate’s access to provincial remedies. In Jiang, Keyser J. holds that the standard of review at the “provincial stage” is post-Dunsmuir reasonableness. At paragraph 41, the court uses the now-familiar language “the decision to deny the nomination was within the realm of reasonable, possible outcomes,” again suggesting reasonableness simpliciter. But earlier on in the judgment, Keyser J. quotes from Dunsmuir, noting “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically.” Quaere whether even this passing reference to “policy” is code for pre- Dunsmuir patent unreasonableness, or at minimum a very high degree of deference on review? In any event, in this the first reported judgment of a provincial Superior Court concerning the provincial nominee program, the application was dismissed and a high degree of deference accorded the decision-maker. It is respectfully submitted that a like result can generally be expected in such cases. Jiang v. Canada (Minister of Public Safety) 219

[Indexed as: Jiang v. Canada (Minister of Public Safety and Emergency Preparedness)] Zhou Xuan Jiang, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-6538-12 2013 FC 413 Sandra J. Simpson J. Heard: March 20, 2013 Judgment: April 23, 2013 Immigration and citizenship –––– Admission — Immigrants — Family class — Marriage for immigration purposes — Miscellaneous –––– Misrepre- sentation — Applicant permanent resident was sponsored by first wife to come to Canada but separated from her less than one month after his arrival in Can- ada — Applicant applied to sponsor his second wife, who lived in his country of origin, for permanent residence — Applicant admitted he married first wife to gain admittance to Canada — Exclusion order was issued against applicant — Immigration Appeal Division (IAD) of Immigration and Refugee Board dismissed applicant’s appeal from exclusion order — Applicant brought application for judicial review — Application granted; matter remitted to different panel of IAD — IAD erred in assessment of degree of establishment by failing to give weight to it independently of other factors — IAD double-counted seriousness of misrepresentation by using it to reduce weight attributable to establishment fact and using it again in final weighing — It could not be said error was immaterial. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellaneous. Cases considered by Sandra J. Simpson J.: Brar v. Canada (Minister of Public Safety and Emergency Preparedness) (Octo- ber 2, 2009), Doc. VA8-01572, VA8-01573, VA8-01574, VA8-01575, VA9-01346, [2009] I.A.D.D. No. 2244 (Imm. & Ref. Bd. (App. Div.)) — followed Jiang v. Canada (Minister of Public Safety and Emergency Preparedness) (June 18, 2012), Doc. TB0-05765, [2012] I.A.D.D. No. 1127 (Imm. & Ref. Bd. (App. Div.)) — referred to 220 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Ribic v. Canada (Minister of Employment & Immigration) (1986), 1986 Car- swellNat 1357, [1985] I.A.B.D. No. 4, [1985] I.A.D.D. No. 4 (Imm. App. Bd.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 40(1)(a) — considered s. 44(1) — referred to s. 72(1) — referred to

APPLICATION by permanent resident for judicial review of decision of Immi- gration Appeal Division of Immigration and Refugee Board dismissing his appeal from exclusion order.

Mr. Munyonzwe Hamalengwa, for Applicant Ms Laoura Christodoulides, for Respondent

Sandra J. Simpson J.:

1 Zhou Xuan Jiang [the Applicant] seeks judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the Immigration Appeal Division [the IAD] of the Immigration and Refugee Board [the Board], dated June 18, 2012 [[2012] I.A.D.D. No. 1127 (Imm. & Ref. Bd. (App. Div.))] [the Decision], wherein the IAD dismissed the Applicant’s appeal from an exclusion order issued by the Immigration Division of the Board on April 9, 2010. 2 For the following reasons, the application will be allowed.

Background 3 The Applicant, a 41 year-old male and a citizen of China, arrived in Canada on December 8, 2003 as the sponsored spouse of his first wife. In May 2006, he came to the attention of immigration authorities when he applied to sponsor his second wife for permanent residence in Canada. It was quickly revealed that the Applicant had separated from his first wife less than one month after his arrival in Canada and that he had married his second wife in China in January 2006. His second wife and their two children remain in China where they live with the wife’s parents. 4 Following an interview with Citizenship and Immigration Canada [CIC], a report under section 44(1) of the Act was prepared by the Min- ister’s delegate identifying the Applicant as an individual inadmissible Jiang v. Canada (Minister of Public Safety) Sandra J. Simpson J. 221

by reason of misrepresentation because he married his first wife only for the purpose of acquiring permanent resident status in Canada. Although the Applicant had maintained the genuineness of his first marriage before CIC officers, he admitted at the admissibility hearing that he married his first wife to obtain status in Canada. As a result, the Applicant was found to be a person described in s. 40(1)(a) of the Act and the exclusion order was issued by the Immigration Division. 5 The Applicant appealed the exclusion order to the IAD on humanitarian and compassionate grounds. At the hearing on June 5, 2012 he asked the IAD to take into account his establishment in Canada and the best interests of his two nephews in Canada. The Applicant’s mother also provided oral testimony while other members of the family, together with the Applicant’s employer and a colleague, provided support in writing.

The Decision 6 The IAD acknowledged that the exercise of its discretion in assessing humanitarian and compassionate grounds was guided by the factors set out in Ribic v. Canada (Minister of Employment & Immigration) (1986), [1985] I.A.D.D. No. 4 (Imm. App. Bd.) and supplemented by Brar v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] I.A.D.D. No. 2244 (Imm. & Ref. Bd. (App. Div.)). 7 The IAD assessed the impact of the relevant factors as follows: 1A. The seriousness of the misrepresentation - Very Negative 1B. The Applicant’s remorsefulness - Very Negative 2. The degree of establishment in Canada - Minimally Posi- tive 3. Family and support in the community - Considerably Positive 4. The best interests of the nephews - Neutral 5. Hardship - Minimally Posi- tive

Analysis 8 The Applicant raised a number of arguments to attack the IAD’s treatment of the evidence and its weighing of the relevant factors. How- ever, in my view, there is only one error in the Decision. I am of the view that the IAD erred in the methodology it employed in its review of the factors. The proper approach is to consider all the relevant evidence in 222 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

relation to each factor, indicate whether that assessment leads to positive or negative impact on the decision to be made and then conclude by weighing the factors against one another to reach an overall result. 9 In this case, the IAD erred in its assessment of the second factor, the degree of establishment, by failing to give weight to this factor independently of the other factors. This error occurs at paragraph 27 of the Deci- sion where the IAD says: Considering the appellant’s assets and long-term employment, I am satisfied that the appellant is established in Canada however, the positive weight that I attribute to this factor is diminished by the fact that but-for the misrepresentation, the appellant would not have been able to establish himself in Canada. As such, I attribute only minimal positive weight to this factor. 10 The IAD erred in that it weighed the misrepresentation against the degree of establishment when considering the degree of establishment and then it considered the misrepresentation again, at paragraph 37 of the Decision, where it concluded as follows: It is never an easy decision splitting up a family but the appellant has nobody to blame but himself. I have carefully weighed all of the factors in this case but I have found that the seriousness of the misrepresentation, together with my finding of lack of remorse with respect to the appellant’s behaviour, in my view, outweighs all of the other factors. Granting a stay of removal in these circumstances would serve no purpose. 11 The problem with this approach is that the IAD essentially double- counted the seriousness of the misrepresentation by using it to reduce the weight attributable to the establishment factor and then using it again in the final weighing. 12 I cannot say that this error is immaterial because if the IAD had assessed degree of establishment independently of the misrepresentation, the final tally might well have included two “considerable positives” and two “very negatives” as opposed to the result described above. It is therefore possible that the Decision might have been different if the IAD had not erred in its methodology. 13 For all these reasons the Application will be allowed.

Order THIS COURT ORDERS that Jiang v. Canada (Minister of Public Safety) Sandra J. Simpson J. 223

The Decision is hereby set aside and this matter is sent back for reconsideration by a differently constituted panel of the IAD in accordance with these reasons. Application granted. 224 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

[Indexed as: Caraan v. Canada (Minister of Public Safety and Emergency Preparedness)] Ryann Edward Caraan, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-8565-12 2013 FC 360 André F.J. Scott J. Heard: March 8, 2013 Judgment: April 10, 2013 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Applicant, citizen of Philippines, had obtained permanent residence status in Canada (“permanent resident”) — Permanent resident was convicted of offences relating to forged documents, theft, possession of property obtained by crime — Immigration Department determined that permanent resident was inadmissible to Canada due to serious criminality and issued deportation order — As result of permanent resident’s appeal, deportation was stayed for 24 months because of humanitarian and compassionate consideration — Permanent resident was then convicted of pre-stay charge of uttering forged document — Immigration Appeal Division granted representative of Minister of Public Safety’s application to cancel stay order because of conviction and held that appeal from removal order was terminated — Permanent resident brought application for judicial review — Application dismissed — There was neither abuse of process nor breach of procedural fairness by Minister — Permanent resident knew that post-stay conviction of pre-stay charge would cancel stay pursuant to s. 68(4) of Immigration and Refugee Protection Act — Fail- ure by Minister to advise permanent resident to resolve outstanding charge before entering into stay order was not abuse of process or breach of procedural fairness. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal after admission — Deportation –––– Stay order cancelled due to new conviction — Applicant, citizen of Philippines, had obtained permanent residence status in Canada (“permanent resident”) — Permanent resident was convicted of offences relating to forged documents, theft, possession of property obtained by crime — Immigration Department determined that permanent resident was inadmissible to Canada due to serious criminality and issued deportation order — As result of permanent resident’s appeal, deportation was stayed for 24 months because of humanitarian and compassionate considera- Caraan v. Canada (Minister of Public Safety) 225 tion — Permanent resident was then convicted of pre-stay charge of uttering forged document — Immigration Appeal Division granted representative of Minister of Public Safety’s application to cancel stay order because of conviction and held that appeal from removal order was terminated — Permanent resident brought application for judicial review — Application dismissed — There was neither abuse of process nor breach of procedural fairness by Minister — Permanent resident knew that post-stay conviction of pre-stay charge would cancel stay pursuant to s. 68(4) of Immigration and Refugee Protection Act — Fail- ure by Minister to advise permanent resident to resolve outstanding charge before entering into stay order was not abuse of process or breach of procedural fairness. Cases considered by André F.J. Scott J.: Agri v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 349, 2007 CarswellNat 755, 2007 CF 349, 2007 CarswellNat 6625 (F.C.) — considered Blake v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CarswellNat 2816, [2009] 1 F.C.R. 179, 2008 CF 572, 2008 Car- swellNat 1324, 2008 FC 572, 72 Imm. L.R. (3d) 301, (sub nom. Thompson Blake v. Canada (Minister of Public Safety & Emergency Preparedness)) 328 F.T.R. 200 (Eng.) (F.C.) — referred to Boni c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2006), 2006 CarswellNat 3493, 2006 FCA 68, 57 Imm. L.R. (3d) 4, 61 Admin. L.R. (4th) 21, 2006 CarswellNat 414, 2006 CAF 68, (sub nom. Boni v. Canada (Minister of Citizenship & Immigration)) 357 N.R. 326, [2006] F.C.J. No. 275 (F.C.A.) — referred to Canada (Minister of Citizenship & Immigration) v. Malarski (2006), 294 F.T.R. 319, 2006 CarswellNat 6305, 2006 CF 1007, 2006 FC 1007, 2006 Car- swellNat 2612 (F.C.) — distinguished Canada (Ministre de la Citoyenneté & de l’Immigration) c. Bui (2012), (sub nom. Canada (Minister of Citizenship and Immigration) v. Van Bui) 409 F.T.R. 42 (Eng.), 2012 CarswellNat 1161, 2012 CF 457, 2012 CarswellNat 2646, 2012 FC 457 (F.C.) — considered Caraan v. Canada (Minister of Citizenship and Immigration) (July 13, 2012), Doc. VA8-05226; 4398-8766, [2012] I.A.D.D. No. 1580, [2012] D.S.A.I. No. 1580 (Imm. & Ref. Bd. (App. Div.)) — referred to Lawal v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 861, 2008 CF 861, 2008 CarswellNat 3181, 2008 CarswellNat 2378, 173 C.R.R. (2d) 309, [2008] F.C.J. No. 1082 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. 226 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Ngyuen v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3910, 2005 CF 1001, 2005 CarswellNat 2008, 2005 FC 1001, [2005] F.C.J. No. 1244, [2005] A.C.F. No. 1244 (F.C.) — considered R. v. Power (1994), 2 M.V.R. (3d) 161, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, 117 Nfld. & P.E.I.R. 269, 365 A.P.R. 269, 165 N.R. 241, 29 C.R. (4th) 1, 1994 CarswellNfld 9, 1994 CarswellNfld 278, EYB 1994-80059, [1994] S.C.J. No. 29 (S.C.C.) — considered Smith v. Canada (Chief of Defence Staff) (2010), (sub nom. Smith v. Canadian Armed Forces (Chief, Defence Staff)) 363 F.T.R. 186 (Eng.), 2010 Car- swellNat 636, 2010 FC 321, [2010] F.C.J. No. 371 (F.C.) — referred to Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 368 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — considered s. 36(1) — considered s. 36(1)(a) — referred to s. 44(1) — considered s. 64 — considered s. 64(2) — referred to s. 68 — considered s. 68(2) — considered s. 68(4) — considered s. 197 — considered

APPLICATION by permanent resident for judicial review of decision of Immi- gration Appeal Division of Immigration Refugee Board, finding that stay order was cancelled and that permanent resident’s appeal from removal order was terminated.

Gordon H. Maynard, for Applicant Helen Park, for Respondent Caraan v. Canada (Minister of Public Safety) Scott J. 227

Andr´e F.J. Scott J.: I. Introduction 1 This is an application for judicial review of a decision rendered by the Immigration Appeal Division [IAD] of the Immigration Refugee Board dated July 13, 2012 [Caraan v. Canada (Minister of Citizenship and Im- migration) (July 13, 2012), Doc. VA8-05226; 4398-8766 (Imm. & Ref. Bd. (App. Div.))], finding that the Stay Order granted by the IAD on April 23, 2009 (the “Stay Order”) to Mr. Ryann Edward Caraan (the “Applicant”) was cancelled and that the Applicant’s appeal from his removal order was terminated, by operation of the law, pursuant to subsection 68(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. 2 For the reasons that follow this application is dismissed.

II. The facts 3 The Applicant is a citizen of the Philippines. He obtained permanent residence in Canada on May 29, 2003. 4 On September 1, 2006, the Applicant was convicted of several offences relating to forged documents, theft under, possession of property obtained by crime and failure to attend court which took place in incidents in June, July and August 2006. The Applicant received a suspended sentence for these convictions with various terms and conditions. 5 On May 1, 2007, the Applicant was charged with uttering a forged document contrary to section 368 of the Criminal Code, RSC 1985, c C- 46 [Criminal Code]. This offence related to an allegation that on Septem- ber 8, 2006, the Applicant forged a cheque in the amount of $946.86. On October 8, 2008, a warrant for the Applicant’s arrest was issued by a Justice of the Peace. 6 On November 23, 2006, the Applicant was arrested and charged with breach of probation and theft under. He was subsequently convicted of theft and the breach of probation charge was stayed. 7 On April 1, 2008, a Canada Border Services Agency [CBSA] enforcement Officer prepared a report pursuant to subsection 44(1) of the IRPA for inadmissibility based on serious criminality under paragraph 36(1)(a) of the IRPA for one of the convictions dated September 6, 2006 of uttering a forged document contrary to section 368 of the Criminal Code. The Officer recommended that the Applicant be issued a warning and that the matter not be referred to an admissibility hearing. 228 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

8 On May 13, 2008, a Minister’s delegate reviewed the subsection 44(1) report and determined that the allegation of serious criminality be referred to the Immigration Division [ID] for an admissibility hearing. The Minister’s delegate noted that the Applicant had 14 convictions as well as an outstanding criminal charge. Due to the number of charges for which the Applicant received a 2 year suspended sentence, the Minister’s delegate did not concur with the recommendation of a warning letter. 9 On November 7, 2008, an admissibility hearing was held before the ID. The ID determined that the Applicant was inadmissible to Canada due to serious criminality and issued a Deportation order (the “Deporta- tion order”). The Applicant was present and represented by an unpaid family friend (who is neither a lawyer or authorized legal consultant). During the hearing, the Applicant confirmed that he received the Min- ister’s disclosure for the admissibility hearing and raised a concern regarding the Minister’s delegate’s refusal to accept the Officer’s recommendation in the subsection 44(1) report. 10 The Applicant appealed the Deportation order to the IAD. On January 29, 2009, the Minister’s representative submitted a disclosure package of information to the Applicant, his representative and to the IAD which included the subsection 44(1) report and the Minister’s delegate’s referral and reasons for referral to an admissibility hearing. 11 On April 23, 2009, counsel for the Minister and the Applicant made joint recommendations to the IAD to stay the deportation for a period of 24 months and signed a Summary of Agreement pursuant to an Alterna- tive Dispute Resolution [ADR]) process (the “Summary”). In the Sum- mary, the Minister’s representative acknowledged that there were sufficient humanitarian and compassionate considerations [H&C] to warrant special relief. The Summary also noted that the Applicant had the support of his family and had taken positive and meaningful measures to rehabilitate himself and become established in Canada. On the basis of the Agreement, the IAD ordered the stay of the Deportation order, and specified that it would reconsider the case in the first week of April 2011 or at such other date it determined. 12 In late 2010, the Applicant visited the Winnipeg Police Safety Build- ing for a “Background Check” necessary for his school and employment search. He was there advised that a warrant for his arrest was outstanding since 2008, respecting a charge brought in May 2007 “Uttering” offence which he allegedly committed on September 8, 2006. Caraan v. Canada (Minister of Public Safety) Scott J. 229

13 On December 2, 2010, the Applicant, who was represented by legal counsel, pleaded guilty to the charge brought in May 2007 and received a sentence of one day’s incarceration, 18 months probation and restitution. 14 On November 3, 2011, the Minister’s representative made an application to the IAD to cancel the Stay Order pursuant to subsection 68(4) of the IRPA because the Applicant had been convicted of an offence on De- cember 2, 2010, for uttering a forged document contrary to section 368 of the Criminal Code.

III. Impugned decision 15 On July 13, 2012, the IAD cancelled the stay of the Deportation order and the appeal was terminated by operation of the law under subsection 68(4) of the IRPA. In its Reasons, the IAD noted that the conditions for the automatic application of subsection 68(4) were met, namely: 1) the Applicant was convicted of a crime referred to in subsection 36(1) of the IRPA and; 2) the conviction was entered during the period of the stay of the Deportation order. 16 Citing the decisions in Canada (Minister of Citizenship & Immigration) v. Malarski, 2006 FC 1007 (F.C.) [Malarski] and Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Bui, 2012 FC 457 (F.C.) [Bui], the IAD noted that “subsection 68(4) applied to cancel a stay and terminate an appeal even where the acts giving rise to the convictions occurred prior to the stay being issued” (IAD Reasons, para 9). 17 The IAD noted that, unlike in Malarski, above, there was no condition included in the IAD’s stay excluding the application of subsection 68(4) for charges based on acts occurring before it. The IAD remarked that this was “not surprising given that there was not awareness of the outstanding charge at the time of the [initial IAD] appeal” (IAD Reasons, para 10).

IV. Legislation 18 Section 68 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] provides as follows: Immigration and Refugee Protection Act, SC 2001, c 27 Removal order stayed 68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and com- 230 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

passionate considerations warrant special relief in light of all the circumstances of the case. Effect (2) Where the Immigration Appeal Division stays the removal order (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary; (b) all conditions imposed by the Immigration Division are cancelled; (c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and (d) it may cancel the stay, on application or on its own initiative. Reconsideration (3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division. Termination and cancellation (4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated. Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27 Sursis 68. (1) Il est sursis a` la mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché— des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales. Effet (2) La section impose les conditions prévues par règlement et celles qu’elle estime indiquées, celles imposées par la Section de l’immigration etant´ alors annulées; les conditions non réglementaires peuvent etreˆ modifiées ou levées; le sursis est révocable d’office ou sur demande. Suivi (3) Par la suite, l’appel peut, sur demande ou d’office, etreˆ repris et il en est disposé au titre de la présente section. Caraan v. Canada (Minister of Public Safety) Scott J. 231

Classement et annulation (4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité ou criminalité est révoqué de plein droit si le résident permanent ou l’étranger est reconnu coupable d’une autre infraction mentionnée au paragraphe 36(1), l’appel etant´ dès lors classé.

V. Issues and standard of review A. Issues 1. Did the IAD err in not finding the application of subsection 68(4) of the IRPA constituted an abuse of process and/or a breach of the duty of fairness in the circumstances? 2. Did the IAD err in not finding an implied condition in the Stay Order excluding the application of subsection 68(4) of the IRPA to the conviction arising from the offence committed on September 8, 2006? 3. Did the IAD err in its application of the case law on the interpretation of subsection 68(4) of the IRPA?

B. Standard of review 19 No deference is due on the first issue. The Court must verify whether the requirements of procedural fairness have been followed (see Lawal v. Canada (Minister of Citizenship & Immigration), 2008 FC 861 (F.C.) at para 15). Regarding the Applicant’s allegation that the Minister’s application to cancel the Stay Order pursuant to subsection 68(4) constitutes an abuse of process, the appropriate standard of review is correctness (see Blake v. Canada (Minister of Public Safety & Emergency Prepared- ness), 2008 FC 572, [2009] 1 F.C.R. 179 (F.C.); and Smith v. Canada (Chief of Defence Staff), 2010 FC 321, [2010] F.C.J. No. 371 (F.C.)). 20 Whether the IAD erred in not finding an implied condition in the Stay Order is a question related to its appreciation of the facts and subject to review on the standard of reasonableness (see New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) (CanLII), [2008] 1 S.C.R. 190 (S.C.C.) at para 53 [Dunsmuir]). 21 The IAD’s application of the case law on subsection 68(4) to the facts of this case is a question of mixed fact and law and should be reviewed on a standard of reasonableness (Dunsmuir, cited above, at para 53). 232 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

VI. Parties’ submissions A. Applicant’s submissions 22 The Applicant submits that if the Minister intended that a future conviction would trigger the application of subsection 68(4) and terminate the ADR Stay Order, then accordingly he had a duty to clearly disclose this underlying intention to the Applicant. He additionally claims that the Board Member, in the course of the joint recommendation for the Stay Order, also had a duty to inform the Applicant accordingly. The Appli- cant finally asserts that the failure to do so constitutes an abuse of process and a breach of the duty of fairness to which he is entitled. 23 The Applicant also states that the following factors support his allegation of an abuse of process and/or a breach of the duty of fairness by the Minister: 1) the context of the ADR stay; 2) the Applicant’s effective lack of legal representation; 3) the ambiguity of subsection 68(4); and 4) the fact that had he known the Minister’s intention, he could have fore- gone the Stay Order at the time and resolved the outstanding charge before proceeding further with his appeal. 24 The Applicant submits that the context of the ADR stay led him to believe that in order to remain in Canada, his only obligation was to re- frain from committing any further criminal offences. The Minister signed the Stay Order because it was satisfied that: 1) the Applicant provided credible information on his criminal past and on his efforts at rehabilitation; 2) the Applicant had made important changes in his personal life including disassociating with previous associates; 3) the Applicant had taken positive and meaningful measures towards establishing himself in Canada such as finding employment and gaining the support of his family; and 4) there existed sufficient H&C considerations to warrant the Stay Order. 25 The Applicant argues that the Minister committed an abuse of process by supporting the stay on grounds that the Applicant had improved his life but then reversing that decision and asking to have it cancelled for acts committed prior to those improvements. 26 The Applicant posits that even though the Summary Agreement he signed clearly indicated that his stay would be cancelled by operation of law under subsection 68(4) if he was convicted of another offence referred to subsection 36(1) of the IRPA, the duty of fairness required the Minister to inform him on the implications of these provisions of the IRPA to his case. The Applicant was not represented by legal counsel Caraan v. Canada (Minister of Public Safety) Scott J. 233

and could not have reasonably been expected to understand that a conviction for the offence he committed on September 8, 2006 would automatically cancel his stay and terminate his appeal. The Applicant insists that this is all the more true in light of the current debate over the correct interpretation of the phrase “convicted of another offence” in subsection 68(4); a question that was complex enough to have been certified by Jus- tice Martineau in Bui, above. 27 The Applicant also claims that had he fully grasped the meaning of subsection 68(4), he would have asked for an adjournment of his appeal and dealt with his outstanding charge first. He alleges to have effectively lost his chance to an appeal (cf subsection 64(2) of the IRPA) due to the Minister’s breach of the duty of fairness. 28 If the Minister did not want, for a conviction on the Applicant’s outstanding charge, to cancel the stay through subsection 68(4), then the Applicant contends that he must have intended an implied exception be included in the terms of the ADR Stay Order. The implied exception would be similar to the explicit one that was included by the Minister in Malarski. In that case, the Minister included an express term in the Stay Order which specified that the condition that Malarski “not commit any criminal offences” would not be broken by a conviction on certain outstanding charges. The Court held that the express exception was sufficient to prevent the operation of subsection 68(4) from cancelling the stay. 29 The Applicant submits that “the underlying rationale in Malarski was that the Minister’s intentions in consenting to stay orders should be bind- ing and not subsequently reversed by strict operation of law” (Appli- cant’s Memorandum, para 17). He also contends that the same “rationale is applicable to the facts of this case and that the Minister’s conduct in the ADR proceedings is consistent with there being no intention that a subsequent conviction for the September 8, 2006 offence altering the Minister’s consent to the stay order” (Applicant’s Memorandum, para 17). 30 According to the Applicant, the IAD’s failure to recognize this implied exclusion in the stay constitutes both an error of law and fact. The error can be partially attributed to the IAD’s incorrect appreciation of the facts when it stated that the Minister did not know about the Applicant’s outstanding charge at the time. 31 Alternatively, the Applicant submits that the Minister’s ADR disclosure of the outstanding charge together with its recommendation to re- 234 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

solve the matter by means of a stay order created a legitimate and reasonable expectation for the Applicant “that his subsequent conviction for an “old” offence had no bearing on his Stay Order or appeal from deportation” (Applicant’s Memorandum, para 17). 32 The Applicant’s final argument addresses the IAD’s determination that Federal Court case law bound it to hold the Applicant’s conviction for the outstanding offence activated subsection 68(4) and cancelled his Stay Order. The Applicant claims that this finding by the IAD constitutes an error in law. The IAD incorrectly held that the decision in Malarski, above, stands for the principle that subsection 68(4) finds application when there is a post-stay conviction for a pre-stay charge. 33 As for the IAD’s reliance on Bui, above, the Applicant concedes that Justice Martineau did determine that subsection 68(4) was triggered when there is a post-stay conviction for a pre-stay charge but notes that a question was certified. 34 The Applicant also argues that another court might reasonably disagree with several of the key reasons offered in Bui, above, to justify its interpretation and find, inter alia, that: 1) contrary to the reason provided at paragraph 46 of Bui, subsection 68(4) does serve a practical purpose even when limited to offences committed after the stay, namely, “the mandatory cancellation of a stay and termination of appeal when a person under stay subsequently commits a subsection 36(1) offence, rather than leaving it [to] the discretion of the Appeal Division in reconsideration, as is the case when the person commits a non-subsection 36(1) offence” (Applicant’s Memorandum, para 20(iii)); and 2) “where a strict interpretation of the literal language in ss. 68(4) leads to a consequence that serves no legitimate criminal purpose and no legitimate immigration enforcement purpose of ensuring safety and security of the residents in Canada [...] an alternate interpretation of the language [of the subsection is preferable]” (Ap- plicant’s Memorandum, para 20(iii)). 35 It was finally submitted by the Applicant that the facts in Bui, above, were distinct from those in the case at hand on several important facts, namely: 1) there is no indication that Mr. Bui was not represented by legal counsel; 2) the Stay Order was not issued by the IAD in circumstances of a Minister’s recommendation in ADR but after hearing, Mr. Bui’s testimony in the Appeal proceedings; and 3) the Minister in Bui, Caraan v. Canada (Minister of Public Safety) Scott J. 235

above, did not have knowledge of the outstanding offence and charges at the time of the Stay Order.

B. Respondent’s submissions 36 The Respondent submits that there was no abuse of process or breach of procedural fairness in the case at hand because the Applicant was made aware of the outstanding criminal charge against him in both the admissibility hearing and the IAD appeal. The Summary Agreement executed by the Applicant clearly indicates at paragraph 5 that his stay will be cancelled and appeal terminated pursuant to subsection 68(4) if he is convicted of another offence referred to in subsection 36(1). 37 The Respondent insists that the Applicant’s failure to deal with his outstanding criminal charge before the IAD’s ADR proceedings cannot be imputed on the Minister and that this was his responsibility. The Ap- plicant’s excuse that he was represented by a family friend and could, therefore, not have known that his post-stay conviction for a pre-stay charge would cancel the stay is invalid. The Respondent maintains the case law is clear that a party must suffer the consequences of his counsel. 38 On the implied exclusion condition, the Respondent notes that the IAD considered the argument and found that there were no conditions (implied or express) in the Stay Order. Regardless of whether or not there were any exclusion conditions, the Respondent maintains that the Minister is not permitted to exclude the application of subsection 68(4) through conditions in a stay order. The Respondent argues that the situation in Malarski, above, is distinguishable from the case at bar in that Malarski involved the application of section 197 of the IRPA. Section 197 provides that “if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act”. The Applicant submits that under the IRPA, a breach of a condition of a stay order does not trigger subsection 68(4) but may lead to the application of subsection 68(2). The only event that activates subsection 68(4) is a post- stay conviction under subsection 36(1).

VII. Analysis A. Abuse of process/breach of the duty of procedural fairness 39 The Applicant submits that if the Minister intended that a post-stay conviction on the prestay charge would trigger subsection 68(4) and cancel the ADR Stay Order then this constitutes an abuse of process on its 236 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

part and/or a breach of the duty of fairness. More specifically, it was an abuse of process and breach of procedural fairness for the Minister to have encouraged the Applicant to enter into the Stay Order without first resolving a known outstanding charge. 40 The case law is clear that establishing an abuse of process “requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice” (R. v. Power, [1994] 1 S.C.R. 601 (S.C.C.) at para 17 [Power]). More specifically, there must be “conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed” (Power, above, at para 17). Establishing an abuse of process in this case, therefore, requires overwhelming evidence that the Minister had improper motives or was acting in bad faith. The Court does not find that the Ap- plicant adduced sufficient evidence to establish an abuse of process by the Minister. The Applicant offers but circumstantial evidence that the Minister intended to mislead the Applicant into entering into the stay knowing that it would be cancelled by operation of law if the Applicant was convicted of his pre-stay charge. 41 While the Minister may have known that subsection 68(4) would be triggered if the Applicant was subsequently convicted of his outstanding charge, the Applicant was clearly made aware of this fact at paragraph 5 of the Summary Agreement. Neither the Minister nor the ADR Member were the Applicant’s legal counsel and they had no obligation to explain the law to him. The Court also notes that the wording of paragraph 5 was unambiguous. 42 The jurisprudence of this Court is clear that the duty of procedural fairness does not increase when a party is self-represented. In Agri v. Canada (Minister of Citizenship & Immigration), 2007 FC 349 (F.C.) at para 13, Justice Harrington explained that “one has no right to expect, by not retaining counsel, that the Board will act both as a decision-maker and as advocate for the applicant”. In Ngyuen v. Canada (Minister of Citizenship & Immigration), 2005 FC 1001, [2005] F.C.J. No. 1244 (F.C.) at para 17, Justice Teitelbaum reasoned: It is not the obligation of the Board to act as the attorney for a claimant who refuses to retain counsel. It is not the obligation of the Board to tell the claimant that he may ask for an adjournment of the hearing and it is not the obligation of the Board to “teach” the Applicant the law on a particular matter involving his or her claim. Caraan v. Canada (Minister of Public Safety) Scott J. 237

43 The Court also underlines the fact that at the time of the ADR proceedings, the Applicant was presumed innocent of his outstanding charge. There is no evidence on file to establish that the Minister recommended the stay assuming the Applicant was guilty or that he would be pleading guilty. Furthermore, when the Applicant subsequently pleaded guilty on his outstanding charge, he was represented by counsel. Given of all of the above, the Court concludes that there was neither an abuse of process nor a breach of procedural fairness.

B. Implied condition 44 The Court also finds that there is no evidence that either the Minister or the ADR Member intended to include an implied condition excluding the activation of subsection 68(4) for a post-stay conviction of the outstanding charge. As the Court reviewed the wording of the Summary Agreement executed by the Applicant, there is no possible interpretation or inference leading to the existence of an implied condition excluding the application of subsection 68(4). Paragraph 5 of the Summary Agree- ment is quite clear on a potential application of subsection 68(4).

C. Did the IAD err in applying the decisions in Malarski and Bui above? 45 The IAD did not err in either relying on or applying the decisions in Malarski and Bui, above. The Applicant submits that, contrary to what the IAD found, the Court in Malarski did not hold that post-stay convictions for pre-stay charges triggered subsection 68(4) of the IRPA. The Court disagrees. At paragraph 18 of Malarski, above, Justice Simpson found that the Respondent’s post-stay conviction for his pre-stay charges did not trigger subsection 68(4) because there was an explicit exclusion in the stay order preventing just that: The Cancellation refers only to the Conviction and, in view of the Exception, the Conviction did not breach the Second Condition of the Stay. Accordingly, subsection 68(4) of the IRPA did not, in fact, cancel the Stay by operation of law based on a breach of the Stay. For this reason, the Cancellation is of no force and effect. 46 The IAD correctly concluded that Malarski, above, supported the principle that, but for an explicit exclusionary term in the stay order, post-stay convictions for pre-stay charges trigger the operation of subsection 68(4). 238 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

47 The Court finds that subsection 68(4) of the IRPA was enacted to remove the discretionary power normally held by the IAD to grant a stay of a removal order when a person who has already benefited from a positive decision of the IAD commits another serious offence, as defined in subsection 36(1) of the IRPA, thereby demonstrating that he is not reha- bilitated. It automatically cancels their stay and their appeal is terminated. 48 Contrary to the Applicant’s claim, there are decisions of the Federal Court supporting the triggering of subsection 68(4) in the event of a post- stay conviction for a pre-stay charge namely Bui and Malarski, above. The IAD was justified in relying on those decisions in arriving at its conclusions. 49 The Applicant’s other argument that the IAD erred in failing to distin- guish the facts in Bui from the case at hand is correct but not determinative for the following reason. While it is true that the IAD member failed to appreciate that, in contrast to the situation in Bui, the Minister in the present case was aware of the specific charge pending against the Appli- cant before the ADR proceedings, it was nonetheless justified in relying on the interpretation of subsection 68(4) reaffirmed by that decision. The facts distinguishing Bui from the case at bar are relevant to the Appli- cant’s abuse of process and procedural fairness arguments. Given the Court’s findings on the abuse of process and breach of procedural fairness claims, the IAD’s error is not fatal. 50 The words of the statute are clear and they must be assigned their ordinary meaning. The word convicted as used in subsection 68(4) of the IRPA means a finding of guilt or a conviction. Parliament was well aware of the presumption of innocence- hence the use of the words “and they are convicted of another offence” (see Sullivan in Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at 7). 51 The Court rejects the Applicant’s argument that subsection 68(4) should not be interpreted as cancelling the stay of the Applicant’s removal order for a post-stay conviction of a pre-stay charge on the basis that the interpretation of subsection 68(4) in Bui, above, leads to an ab- surd conclusion in that different persons would be receiving different treatment for inadequate reasons (see Sullivan in Driedger on the Con- struction of Statutes, 4th ed., Toronto: Butterworths, 2002, pages 235- 257). The interpretation outlined by Justice Martineau in Bui, above, is correct and this Court finds no valid reason to depart from it. If persons are treated differently, it is not due to the interpretation of subsection Caraan v. Canada (Minister of Public Safety) Scott J. 239

68(4) as limiting the jurisdiction of the IAD but rather, as in the case at bar, because of the Applicant’s failure to properly deal with his outstanding charges. 52 Counsel for the Applicant has underlined before the Court the injus- tice that would result from a dismissal of this application. The Court es- pouses the following paragraphs from Bui, cited above, inasmuch as they are applicable to the present case. [53] If the rule of law is of primordial importance, justice also requires that the respondent be treated with fairness by the Minister. On this point, the respondent is not without any recourse today. Thus, he may continue to remain in Canada if a temporary resident permit is issued to him by an immigration officer in accordance with section 24 of the IRPA. We are talking about, of course, discretionary power, the exercise of which is governed by departmental policy, IP1, Tem- porary Resident Permits (CIC). Even though the officer is not bound by this, we can nevertheless expect the officer to take the Minister’s directives into account. [54] However, a temporary resident permit may be issued to a person who is inadmissible on grounds of criminality who is the subject of a removal order when, for example, the need to remain in Canada is compelling and sufficient to outweigh the risk. Without opining on the issue, at first glance, it seems that, in the respondent’s case, the risk to Canadians or to the Canadian society is minimal, especially since the offence for which the respondent was convicted, i.e. that which resulted in the closure of his appeal file, was committed before the IAD issued a stay based on humanitarian and compassionate grounds. The respondent was therefore very engaged in the rehabilitation process when he was convicted a second time for the same type of non-violent offence as the first time, with the result that it cannot be assumed in advance that a temporary resident permit application would automatically be refused here. To the contrary, the officer cannot act in a perverse or capricious manner, and must be able to provide reasons for his or her decision to refuse or grant a temporary resident permit, which is reviewable by the Court in principle. 53 The Applicant also has the option of making a section 25 claim for H&C considerations. 240 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

VIII. Certification 54 When canvassed on the possibility of certifying a question of general importance, the parties jointly suggested that the following question be certified: Does subsection 68(4) of the IRPA apply only to convictions, during a stay of removal order, for offences committed after the beginning of the stay? 55 The Court believes the question is better phrased as follows: During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay? 56 This question is quite similar to the question certified by Justice Mar- tineau in Bui, above. Unfortunately, that case failed to proceed before the Federal Court of Appeal. 57 In order for a question to be certified, it must be a serious question of general importance that is dispositive of an appeal (see Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.) at para 11). A serious question of general importance is one that transcends the particular factual context in which it arose and the answer to which it leads should be of general application (see Boni c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FCA 68 (F.C.A.) at para 10). 58 In this case, the requirements are met and the Court will, therefore, certify a question.

Judgment THIS COURT’S JUDGMENT is that the application is dismissed. The following question of general importance is certified: During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay? Application dismissed. Habtenkiel v. Canada (MCI) 241

[Indexed as: Habtenkiel v. Canada (Minister of Citizenship and Immigration)] Raheal Habtenkiel, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4225-12 2013 FC 397 E. Heneghan J. Heard: November 8, 2012 Judgment: April 18, 2013 Immigration and citizenship –––– Admission — Immigrants — Family class — Members of family class — Non-accompanying family members –––– Applicant was citizen of Eritrea — Applicant’s father was landed in Canada as permanent resident on January 28, 2009 — When applying for permanent residence, father did not declare applicant as unaccompanying family member — Father’s application to sponsor applicant for permanent residence was dismissed on grounds he did not meet sponsorship requirements because applicant was not member of family class by virtue of s. 117(9)(d) of Immigra- tion and Refugee Protection Regulations — Applicant’s subsequent application for permanent residence based on family class, or in alternative on humanitarian and compassionate grounds, was dismissed — Compassionate grounds, as explained by father, was fact applicant had been born out of wedlock and father had not wanted to acknowledge her — Applicant brought application for judicial review — Application dismissed — Court did not have jurisdiction to hear application — Applicant was excluded as member of family class because, pursuant to s. 117(9)(d) of Regulations, she was non-accompanying family member and was not examined when her sponsor became permanent resident — Right of appeal lay with sponsor and not with applicant whose application for permanent residence was denied — Legislative scheme enacted required father, as sponsor, to appeal sponsorship application to Immigration Appeal Division (IAD) before applicant could seek judicial review — IAD could only consider humanitarian and compassionate factors if applicant qualified as member of family class. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Jurisdiction –––– Applicant was citizen of Eri- trea — Applicant’s father was landed in Canada as permanent resident on Janu- ary 28, 2009 — When applying for permanent residence, father did not declare applicant as unaccompanying family member — Father’s application to sponsor applicant for permanent residence was dismissed on grounds he did not meet 242 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th) sponsorship requirements because applicant was not member of family class by virtue of s. 117(9)(d) of Immigration and Refugee Protection Regulations — Applicant’s subsequent application for permanent residence based on family class, or in alternative on humanitarian and compassionate grounds, was dismissed — Compassionate grounds, as explained by father, was fact applicant had been born out of wedlock and father had not wanted to acknowledge her — Applicant brought application for judicial review — Application dismissed — Court did not have jurisdiction to hear application — Applicant was excluded as member of family class because, pursuant to s. 117(9)(d) of Regulations, she was non-accompanying family member and was not examined when her sponsor became permanent resident — Right of appeal lay with sponsor and not with applicant whose application for permanent residence was denied — Legislative scheme enacted required father, as sponsor, to appeal sponsorship application to Immigration Appeal Division (IAD) before applicant could seek judicial review — IAD could only consider humanitarian and compassionate factors if applicant qualified as member of family class. Cases considered by E. Heneghan J.: Huot c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 97 Imm. L.R. (3d) 36, 2011 FC 180, 2011 CF 180, 2011 CarswellNat 507, 2011 CarswellNat 508, [2011] F.C.J. No. 242 (F.C.) — followed 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.) — referred to Kobita v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 4952, 2012 CF 1479, 2012 FC 1479, 2012 CarswellNat 5403 (F.C.) — followed Phung v. Canada (Minister of Citizenship & Immigration) (2012), 44 Admin. L.R. (5th) 1, 2012 CarswellNat 1558, 2012 FC 585, 2012 CarswellNat 4456, 2012 CF 585, 408 F.T.R. 311 (Eng.), [2012] A.C.F. No. 599, [2012] F.C.J. No. 599 (F.C.) — followed Somodi v. Canada (Minister of Citizenship & Immigration) (2008), 337 F.T.R. 265 (Eng.), 2008 FC 1356, 2008 CarswellNat 4690, [2009] 4 F.C.R. 91, 2008 CF 1356, 2008 CarswellNat 5165, 78 Imm. L.R. (3d) 73 (F.C.) — considered Somodi v. Canada (Minister of Citizenship & Immigration) (2009), 82 Imm. L.R. (3d) 159, [2010] 4 F.C.R. 26, 2009 FCA 288, 2009 CarswellNat 3062, 311 D.L.R. (4th) 335, 2009 CAF 288, 2009 CarswellNat 5060, 395 N.R. 270 (F.C.A.) — considered Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Habtenkiel v. Canada (MCI) E. Heneghan J. 243

Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(d) — considered s. 12(1) — considered s. 62 — considered ss. 62-71 — referred to s. 63 — considered s. 63(1) — considered s. 65 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to Pt. 7, Div. 1 — referred to s. 2 “dependent child” — considered s. 116 — considered ss. 116-137 — referred to s. 117(1)(b) — considered s. 117(9) — considered s. 117(9)(d) — considered

APPLICATION for judicial review of visa officer’s dismissal of application for permanent residence.

Bashir A. Khan, for Applicant Alexander Menticoglou, for Respondent

E. Heneghan J.:

1 Ms. Raheal Habtenkiel (the “Applicant”) seeks judicial review of the decision of a Visa Officer (the “Officer”). In that decision, dated March 7, 2012, the Officer denied the Applicant’s application for permanent residence as a member of the family class, as defined in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) and the Immi- gration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). 244 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

2 The Applicant is a citizen of Eritrea. She is the daughter of Issak Ger- ensea Habtenkiel who was landed in Canada as a permanent resident on January 28, 2009. When applying for permanent residence, her father did not declare the Applicant as an unaccompanying family member. 3 By application received on or about January 18, 2011, the Applicant’s father applied to sponsor the Applicant’s application for permanent residence. By letter dated January 26, 2011, the Applicant’s father was informed that he did not meet the requirements for sponsorship because the Applicant did not appear to be a member of the family class by virtue of paragraph 117(9)(d) of the Regulations. 4 The Applicant’s application for permanent residence was forwarded to the visa post for consideration, and was received on February 25, 2011. On the application form, the Applicant indicated that she was applying under the “other” category, in which she wrote “humanitarian”. The humanitarian and compassionate grounds were set out in a narrative provided by her father. 5 The father had not included the Applicant in his application for permanent residence because she had been born out of wedlock and the father’s current wife was unhappy about acknowledging the Applicant. As well, the Applicant had grown up with little contact with her father. The Applicant’s application for permanent residence, on humanitarian and compassionate grounds, was supported by her father’s wife who expressed regret for her earlier opposition to including the Applicant in the family’s permanent residence application. 6 In addition to the letters from her father and his wife the Applicant submitted a letter from her father’s brother, a letter from the spiritual leader of the church her father attends in Winnipeg, copies of emails with her half-siblings, a letter from her school in Khartoum, and a document from her mother purporting to give guardianship to her father. The Ap- plicant was interviewed in Khartoum by a visa officer. The officer’s interview notes are dated February 22, 2012. 7 By a letter dated March 7, 2012, the Officer determined that the Ap- plicant was not a member of the family class because she had not been declared by her father as his daughter and she was not examined when his application for permanent residence was examined. The Officer then considered the Applicant’s request to have her application approved on humanitarian and compassionate grounds. The Officer determined that there were no “extenuating circumstances” relating to the sponsor’s fail- Habtenkiel v. Canada (MCI) E. Heneghan J. 245

ure to declare the relationship with the Applicant when the sponsor, that is her father, obtained permanent residence in Canada. 8 The Officer noted that the Applicant was nearly 17 years old and had never lived with her father. The Officer noted the lack of evidence that the father had “ever” shown “serious interest” in the Applicant, and the absence of evidence from the Applicant of emotional ties with her father. 9 The Applicant argues that the Officer committed a reviewable error by failing to consider the evidence submitted and by failing, specifically, to deal with her best interests as a child. Although the Act does not de- fine “child”, the Applicant pleads that since she was less than 17 years of age, she was not an adult and her interests should be considered as those of a child where best interests will be served by reunification with her family, in line with the stated objectives of the Act set out in paragraph 3(1)(d). 10 The Minister of Citizenship and Immigration (the “Respondent”) for his part, argues that the Officer’s decision meets the applicable standard of review, that is, reasonableness, and that there is no basis for finding that the Officer ignored or misunderstood the evidence submitted by the Applicant. 11 The first matter to be addressed is this Court’s jurisdiction to entertain this application for judicial review. 12 The Respondent objected to jurisdiction in his initial memorandum of argument, pointing out that the Applicant had failed to exhaust her right of appeal to the Immigration Appeal Division (“IAD”) pursuant to section 63 of the Act. The Respondent withdrew this objection in the face of reply submissions from the Applicant, arguing that since she was not a member of the family class, the IAD had no jurisdiction to hear a challenge to the Officer’s negative decision. Relying on the recent decisions in Phung v. Canada (Minister of Citizenship & Immigration) (2012), 408 F.T.R. 311 (Eng.) (F.C.) and Huot c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 97 Imm. L.R. (3d) 36 (F.C.), the Applicant submitted that her only recourse for relief, relative to the Officer’s decision, is by way of an application for judicial review to this Court. The Respondent accepted these arguments. 13 The decisions in Phung, supra, and Huot, supra, appear to contradict the decision of the Federal Court of Appeal in Somodi v. Canada 246 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

(Minister of Citizenship & Immigration) (2009), [2010] 4 F.C.R. 26 (F.C.A.) where that Court said the following at paragraphs 21 to 24: 21 In the IRPA, Parliament has established a comprehensive, self- contained process with specific rules to deal with the admission of foreign nationals as members of the family class. The right of appeal given to the sponsor to challenge the visa officer’s decision on his or her behalf to the benefit of the foreign national, as well as the statute bar against judicial review until any right of appeal has been exhausted, are distinguishing features of this new process. They make the earlier jurisprudence relied upon by the appellant obsolete. 22 Parliament has prescribed a route through which the family sponsorship applications must be processed, culminating, after an appeal, with a possibility for the sponsor to seek relief in the Federal Court. Parliament’s intent to enact a comprehensive set of rules in the IRPA governing family class sponsorship applications is [page33] evi- denced both by paragraph 72(2)(a) and subsection 75(2) [as am. by S.C. 2002, c. 8, s. 194]. 23 The broad prohibition in paragraph 72(2)(a) to resort to judicial review until “any” right of appeal has been exhausted is now provided for in the enabling statute as opposed to the more limited statutory bar provided by section 18.5 of the Federal Courts Act. 24 Moreover, subsection 75(2) of the IRPA clearly states that in the event of an inconsistency between Division 8-Judicial Review of the IRPA and any provision of the Federal Courts Act, Division 8 prevails to the extent of the inconsistency. In other words, the statutory bar in paragraph 72(2)(a) prevails over section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act granting the right to apply for judicial review [emphasis in original]. 14 The “family class” is described in subsection 12(1) of the Act as follows: 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Cana- dian citizen or permanent resident. 12. (1) La sélection des etrangers´ de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, a` titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou a` titre d’autre membre de la famille prévu par règlement. Habtenkiel v. Canada (MCI) E. Heneghan J. 247

15 Division 1 of Part 7 of the Regulations is specifically focused on the family class, consisting of sections 116 to 137 of the Regulations inclusively. Section 116 and paragraph 117(1)(b) of the Regulations are relevant and provide as follows: 116. For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division. 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is [...] (b) a dependent child of the sponsor; 116. Pour l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement familial est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues a` la présente section. 117. (1) Appartiennent a` la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les etrangers´ suivants: [...] b) ses enfants a` charge; 16 “Dependent child” is defined in section 2 of the Regulations as follows: 2. The definitions in this section apply in these Regulations. “dependent child”, in respect of a parent, means a child who (a) has one of the following relationships with the parent, namely, (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or (ii) is the adopted child of the parent; and (b) is in one of the following situations of dependency, namely, (i) is less than 22 years of age and not a spouse or common-law partner, (ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since be- 248 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

coming a spouse or common-law partner, as the case may be, has been a student (A) continuously enrolled in and attending a post- secondary institution that is accredited by the relevant government authority, and (B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or (iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition. 2. Les définitions qui suivent s’appliquent au présent règlement. « enfant a` charge » L’enfant qui: a) d’une part, par rapport a` l’un ou l’autre de ses parents: (i) soit en est l’enfant biologique et n’a pas et´´ e adopté par une personne autre que son epoux´ ou conjoint de fait, (ii) soit en est l’enfant adoptif; b) d’autre part, remplit l’une des conditions suivantes: (i) il est ag´ˆ e de moins de vingt-deux ans et n’est pas un epoux´ ou conjoint de fait, (ii) il est un etudiant´ ag´ˆ e qui n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre de ses parents a` compter du moment o — il a atteint l’âge de vingt-deux ans ou est devenu, avant cet age,ˆ un epoux´ ou conjoint de fait et qui, a` la fois: (A) n’a pas cessé d’être inscrit a` un etablissement´ d’enseignement postsecondaire accrédité par les autorités gouvernementales compétentes et de fréquenter celui-ci, (B) y suit activement a` temps plein des cours de formation générale, théorique ou professionnelle, (iii) il est ag´ˆ e de vingt-deux ans ou plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre de ses parents a` compter du moment o — il a atteint l’âge de vingt-deux ans et ne peut subvenir a` ses besoins du fait de son etat´ physique ou mental. Habtenkiel v. Canada (MCI) E. Heneghan J. 249

17 The Applicant is under the age of 22 and is the biological child of the sponsor, her father Issak Gerensea Habtenkiel. There was evidence before the Officer that she received financial support from her father. 18 The Applicant, however, is excluded as a member of the family class because she was a non-accompanying family member and was not examined when her sponsor became a permanent resident. This result flows from paragraph 117(9)(d) of the Regulations which provides as follows: 117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if [...] (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. 117(9) Ne sont pas considérées comme appartenant a` la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes: [...] d) sous réserve du paragraphe (10), dans le cas o — le répondant est devenu résident permanent a` la suite d’une demande a` cet effet, l’étranger qui, a` l’époque o — cette demande a et´´ e faite, etait´ un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle. 19 The Applicant submits that because she is not a member of the family class, the IAD cannot exercise its humanitarian and compassionate jurisdiction in disposing of any appeal since that jurisdiction is excluded by the operation of section 65 of the Act which provides as follows: 65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Ap- peal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations. 65. Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent etreˆ pris en considération que s’il a et´´ e statué que l’étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire. 20 The unavailability of access to the humanitarian and compassionate jurisdiction of the IAD is not per se a reason for an affected person to 250 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

side-step the IAD. According to section 62, the IAD is the authorized authority to hear appeals “under this Division”. Section 62 is found in Division 7 of Part 1 of the Act. Part 1, consisting of 10 Divisions, is entitled “Immigration to Canada”. Division 7 is entitled “Right of Ap- peal” and consists of sections 62 to 71, inclusively. 21 Section 63 sets out the types of decisions for which a right of appeal is available. Subsection 63(1) is relevant to this application and provides as follows: 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. 63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. 22 In the trial decision in Somodi, supra, the trial judge reviewed the sections of the Act. He noted that the right of appeal, in the case of a sponsorship, lay with the sponsor and not with the individual whose application for permanent residence was denied. He concluded that “any challenge to an immigration officer’s decision must proceed by an appeal by the sponsor who is the Canadian citizen or permanent resident”; see the decision in Somodi v. Canada (Minister of Citizenship & Immigra- tion) (2008), [2009] 4 F.C.R. 91 (F.C.) at para. 34. The decision of the trial judge was affirmed on appeal. 23 I acknowledge the decisions of my colleagues in Huot, supra, and Phung, supra, and most recently in Kobita v. Canada (Minister of Citizenship and Immigration), 2012 FC 1479 (F.C.). These decisions held that an applicant who is unable to raise humanitarian and compassionate considerations before the IAD because she is not a member of the family class can pursue those humanitarian and compassionate submissions in an application for judicial review that is brought pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. 24 I decline to follow this approach. As noted above, the Federal Court of Appeal in Somodi, supra, affirmed that Parliament has prescribed the route through which family sponsorship applications must be processed. The legislative scheme enacted by Parliament requires that the Appli- cant’s sponsor appeal the negative decision to the IAD before the Appli- cant can seek judicial review. This procedure is dictated by the legislation, which only allows the IAD to consider humanitarian and Habtenkiel v. Canada (MCI) E. Heneghan J. 251

compassionate factors pursuant to section 65 of the Act when a person is a member of the family class. 25 For greater clarity, a person who is excluded from the family class pursuant to subsection 117(9) of the Regulations cannot get the benefit of the IAD’s discretion to grant relief on the basis of humanitarian and compassionate grounds. There is no issue here that the Applicant is excluded from membership in the family class pursuant to paragraph 117(9)(d) of the Regulations. I acknowledge that this procedural outcome may not be efficient; however, it is for Parliament, and not for this Court, to remedy this situation. 26 In the event that I am wrong and this Court has jurisdiction to hear the application for judicial review, I will consider the application on its merits. The jurisprudence is settled that the standard of review for a humanitarian and compassionate decision is reasonableness (Kisana v. Canada (Minister of Citizenship & Immigration) (2009), 392 N.R. 163 (F.C.A.) at para. 18). 27 In my view, the Officer’s decision to refuse the Applicant’s permanent residence application on humanitarian and compassionate grounds was reasonable. The Officer considered the Applicant’s personal circumstances, including the lack of contact and emotional ties between her and her father. I am satisfied that the failure to use the words “best interests of the child” does not mean that those interests were ignored. The Officer reasonably assessed the evidence that was presented. 28 In the result, the application for judicial review is dismissed. 29 Counsel for the Applicant proposed a question for certification, that is, the question proposed by Counsel in Phung, supra. 30 In my view, this question meets the standard for certification, that is, a serious question of general importance which would be dispositive of an appeal; see the decision in Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365 (F.C.A.) at para 11. I have re-stated the question in terms of that proposed but not certified in Phung, supra. Accordingly, the following question will be certified: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of 252 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. The following question is certified: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? Application dismissed. Russo v. Canada (Minister of Public Safety) 253

[Indexed as: Russo v. Canada (Minister of Public Safety and Emergency Preparedness)] Alfonso Russo, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-2983-12 2013 FC 405 E. Heneghan J. Heard: November 15, 2012 Judgment: April 22, 2013 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Procedural fairness — Applicant was an Italian citizen who immigrated to Canada in 1967 as permanent resident — Applicant had history of mental health issues and was diagnosed as Bipolar Type II — In July 2007, applicant was convicted of assault with weapon, behaviour apparently related to his mental illness — Applicant failed to appear for interview in December 2007, and in July 2008 was ordered deported when he was found inadmissible pursuant to Immigration and Refugee Protection Act — In May 2009, arrest warrant for removal was issued — Refugee Protection Board, Immigration Appeal Divi- sion (IAD) appointed designated representative to assist applicant in his proceedings before it and issued two-year conditional stay of deportation order conditional in part on applicant’s supervision by bail program — Applicant failed to appear for interviews before IAD and bail program withdrew its supervision — IAD canceled stay of removal order and applicant was subsequently arrested and detained — Applicant’s application for deferral of his removal was dismissed — Applicant brought application for judicial review of decision by officer — Application granted — Extrinsic evidence relied on by office was not generally available to public — Undisclosed information included letter from bail program and correspondence regarding applicant’s potential treatment upon deportation to Italy — Officer’s failure to disclose some extrinsic evidence was breach of procedural fairness — Missing information as to applicant’s potential treatment in Italy was material and relevant, and officer made reviewable error in finding suitable health care was available without providing supporting evidence — Officer also failed to appreciate personal circumstances of applicant, namely his illness — Officer did not appreciate evidence regarding applicant’s medical condition since he did not notice letter from applicant’s doctor was dated and was sufficiently timely to assess applicant’s current medical condi- 254 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

tion — Officer also reached unreasonable conclusions when he assumed applicant’s humanitarian and compassionate grounds submissions had been considered by IAD. Cases considered by E. Heneghan J.: Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 596, 2009 FCA 81, 387 N.R. 278, 79 Imm. L.R. (3d) 157, [2010] 2 F.C.R. 311, 2009 CAF 81, 2009 CarswellNat 5135, 309 D.L.R. (4th) 411, [2009] F.C.J. No. 314 (F.C.A.) — considered Jiminez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 5088, 2010 CF 1078, 2010 FC 1078, 2010 CarswellNat 4210 (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 Level (Litigation Guardian of) v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 227, 71 Imm. L.R. (3d) 52, (sub nom. Level v. Canada (Minister of Public Safety & Emergency Prepared- ness)) 324 F.T.R. 71 (Eng.), 2008 CarswellNat 423, 2008 CF 227, 2008 Car- swellNat 6534, [2008] F.C.J. No. 297 (F.C.) — considered Li v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 498, 2006 CarswellNat 1040, 2006 CF 498, 54 Imm. L.R. (3d) 189, 2006 Car- swellNat 3339, [2006] F.C.J. No. 634 (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, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Okbai v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 229, 2012 CarswellNat 404, 2012 CF 229, 2012 CarswellNat 1564, 405 F.T.R. 315 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36(1)(a) — referred to s. 48 — considered Russo v. Canada (Minister of Public Safety) E. Heneghan J. 255

s. 167(2) — referred to

APPLICATION for judicial review of decision of Canada Border Services Agency wherein officer refused applicant’s request for deferral of his removal from Canada.

Ms Erin Bobkin, Ms Alyssa Manning, for Applicant Ms Asha Gafar, for Respondent

E. Heneghan J.: Introduction 1 Mr. Alfonso Russo (the “Applicant”) seeks judicial review of the decision of S. Behrue (the “Officer”) of the Canada Border Services Agency (the “CBSA”). In that decision dated March 29, 2012, the Of- ficer refused the Applicant’s request for deferral of his removal from Canada that was scheduled for March 30, 2012. Upon motion, the removal was stayed by Order of Justice Shore on March 29, 2012.

Background 2 The Applicant came to Canada in 1967 as a permanent resident, along with his family. He was ten years old at the time. He has resided in Can- ada since 1967. The Applicant has a history of mental health issues. He was diagnosed as Bipolar Type II in December 2011 and has been prescribed anti-depressant and anti-psychotic medication to deal with that illness. 3 In July 2007, the Applicant was convicted of assault with a weapon. Allegedly, the charge arose from an incident in a store when the Appli- cant waved a fondue fork at a store clerk. It appears that this behaviour was related to his mental illness. Justice Shore referred to this event in his Order granting a stay of removal. 4 The Applicant failed to appear for an interview in December 2007. On July 25, 2008, the Applicant was found inadmissible pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) and was ordered deported. 5 An arrest warrant for removal was issued on May 19, 2009. In June 2009, the Refugee Protection Board, Immigration Appeal Division (the “IAD”), appointed a designated representative, pursuant to section 167(2) of the Act to assist the Applicant in his proceedings before it. In August 2009, the IAD issued a two-year conditional stay of the deporta- 256 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

tion order. One condition of the stay was that the Applicant was to be supervised by the Toronto Bail Program. The Applicant failed to appear for oral interviews before the IAD in January 2010 and April 2010. 6 By letter dated April 21, 2010, that Program withdrew its supervision because the Applicant had stopped taking his medication and was in- creasingly uncooperative. The CBSA requested a review of the conditions of the stay of the deportation order on September 22, 2010. 7 The Applicant failed to appear at a hearing before the IAD scheduled for October 24, 2011. On October 24, 2011, the IAD cancelled the stay of the removal order and dismissed the Applicant’s appeal. On Novem- ber 17, 2011, he was arrested and detained. He applied for a Pre-Re- moval Risk Assessment on January 9, 2012. A negative decision was rendered in this regard on February 13, 2012. 8 The Applicant submitted a request for deferral of his removal on March 26, 2012, which was refused on March 29, 2012. 9 In refusing to defer the Applicant’s removal, the Officer noted that the Applicant had applied for permanent residence in Canada on humanitarian and compassionate (“H&C”) grounds only four days before his scheduled removal. He found that given the processing time for such applications, no decision was imminent. He also said that some of the Ap- plicant’s actions seemed to indicate a wanton, deliberate, and calculated disregard for the immigration process. 10 The Officer considered the Applicant’s mental health. He had before him a letter from a general practitioner. The Officer afforded this letter little weight on the grounds that it was undated, and as such, it was not clear if it reflected the Applicant’s current condition. I note, however, that this letter is in fact dated and the date is March 26, 2012. 11 As well, the Officer noted that the removals officer had inquired with the Migration Integrity Assistant (“MIA”) in Rome who reported that if the Applicant had a medical condition and no family or support in Italy, he would be admitted to the nearest hospital, and then to a long-term care facility. The CBSA provided the Applicant with information about a shelter near the airport in Rome and arranged an escort to Italy and a week’s worth of medication.

Submissions 12 The Applicant argues that the Officer improperly relied on extrinsic evidence which was not disclosed to him, thereby giving rise to a breach Russo v. Canada (Minister of Public Safety) E. Heneghan J. 257

of procedural fairness. This evidence consisted of the opinion from the MIA in Rome; a letter from a Mr. Sharp with the Toronto Bail Program suggesting that the Applicant does not comply with his bail conditions and that one of his brothers in Canada wants him returned to Italy; an undisclosed note in the Certified Tribunal Record (“CTR”) that suggests the Applicant would be given asthma medicine to take to Italy rather than medication for his psychiatric conditions; and finally, information from the Italian consulate in Italy that suggests a lack of available facilities in Italy to provide care for the Applicant. 13 The Applicant argues that the CTR is incomplete because although the Officer refers to correspondence dated March 16, 2012, with the MIA in Rome, the CTR does not include any correspondence on that date or containing the direct quotation relied on by the Officer. The Officer relied on this correspondence to conclude that medical care would be available to the Applicant. 14 The Applicant submits that the omission of material evidence from a CTR is sufficient ground to overturn a decision, relying on the decision in Li v. Canada (Minister of Citizenship & Immigration) (2006), 54 Imm. L.R. (3d) 189 (F.C.). He argues that the missing information is important because other documents in the CTR contradict the Officer’s finding as to the availability of care. The Officer concluded that he “would” be placed in a long-term care facility while the MIA correspondence says that he “may” be placed in such a facility. 15 The Applicant further argues that the Officer ignored relevant evidence, that is, evidence about his mental health condition. He also submits that the Officer made unreasonable conclusions in light of the evidence, in particular in finding that the IAD had considered H&C factors and in finding that the Applicant was aware of the nature of his immigration proceedings. 16 Finally, the Applicant also submits that the Officer’s reasons are inadequate and fail to meet the standard of justification, transparency, and intelligibility as discussed in New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at para. 47 and Okbai v. Canada (Minister of Citizenship & Immigration) (2012), 405 F.T.R. 315 (F.C.) at paras. 23-24. 17 The Minister of Citizenship and Immigration (the “Respondent”) submits that the Officer committed no breach of procedural fairness and that the decision to refuse deferral of removal is reasonable, having regard to the limited discretion granted by section 48 of the Act. While the Officer 258 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

may consider compelling or special personal circumstances, he is not authorized to consider H&C factors in deciding whether to defer removal and an outstanding H&C application is no bar to removal.

Discussion and Disposition 18 The first matter to be addressed is the applicable standard of review. For questions of procedural fairness, the standard is correctness; see the decision in Khosa v. Canada (Minister of Citizenship & Immigration), [2009] 1 S.C.R. 339 (S.C.C.) at para. 43. The standard of review for a decision refusing to defer removal is reasonableness; see the decision in Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), [2010] 2 F.C.R. 311 (F.C.A.) at para. 25. 19 The Applicant raises two issues of procedural fairness, that is, reliance by the Officer on extrinsic evidence without giving him an opportunity to respond and the omission of material from the CTR. 20 As a general rule, evidence that is otherwise publicly available is not considered “extrinsic” evidence. In this regard I refer to the decisions in Jiminez v. Canada (Minister of Citizenship & Immigration), 2010 FC 1078 (F.C.) at para. 19 and Level (Litigation Guardian of) v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 324 F.T.R. 71 (Eng.) (F.C.). However, the extrinsic evidence at issue here is not generally available to the public. Some of the documents relied on by the Officer concerned only the Applicant, for example the letter from the Toronto Bail Program and the correspondence from the MIA in Italy. In my opinion the failure to disclose this extrinsic evidence was a breach of procedural fairness. 21 The absence of documents from the CTR is also problematic. I agree with the Applicant that the missing information is material and highly relevant. The Officer made a clear finding that adequate health care would be available for the Applicant in Italy, yet the document upon which he purportedly relied is not in the record. The Applicant is suffer- ing from a severe mental illness. It is not sufficient for the Officer to make a statement about the availability of health services for a severe mental illness without being able to show the evidence he relied upon, and the record is silent in that regard. This is a reviewable error against the standard addressed in Li, supra, para. 15. 22 The Officer, in my opinion, failed to appreciate the personal circumstances of the Applicant, the critical factor of his illness that led to the criminal charge against him and the loss of the stay of deportation by the Russo v. Canada (Minister of Public Safety) E. Heneghan J. 259

IAD. The only recourse available to the Applicant to stay in Canada is his pending H&C application which is based upon his personal circumstances, including the length of time he has been in Canada. 23 The Officer was provided with a copy of the Applicant’s H&C application, as part of the documentation submitted in support of the deferral request. In his decision upon the deferral request, the Officer noted that the H&C submissions advanced by Counsel closely paralleled those considered by the IAD. The Officer commented specifically that the IAD had considered the Applicant’s mental health. The Officer noted that this seemed to be the prevailing H&C factor. 24 The Officer failed to appreciate the evidence before him. He had a letter from the Applicant’s doctor that was dated March 26, 2012. The Officer dismissed this letter out of hand, saying that “I note that this letter is undated and therefore I am unable to assess if it is a current reflec- tion of Mr. Russo’s current medical condition.” 25 The letter is dated March 26, 2012. It says that the Applicant suffers from major depressive disorder with psychotic features and that he does not have the coping skills to live in a country he has not been in for many decades. The deferral request is also dated March 26, 2012. It is hard to imagine what more the Officer may have wanted in terms of timeliness. 26 In my view, the Officer erred by assuming that the Applicant’s H&C submissions had been considered by the IAD. Those submissions were not presented to the IAD whose most recent involvement with the Appli- cant dealt only with the termination of the stay of deportation. That stay had been granted by the IAD in August 2009. The Officer’s conclusions relative to the H&C considerations relevant to the Applicant were not reasonable. 27 It is not necessary for me to fully address the last argument raised by the Applicant, that is, the argument concerning the sufficiency of the Of- ficer’s reasons. In light of my observations above, I have concluded that the Officer’s decision does not meet the standard of reasonableness as discussed in Dunsmuir, supra. 28 In the result, this application for judicial review is allowed, the Of- ficer’s decision is set aside and the matter is remitted to another officer for determination. There is no question for certification arising. 260 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Judgment This application for judicial review is allowed, the Officer’s decision is set aside and the matter is remitted to another officer for determination. There is no question for certification arising. Application granted. Sathasivam v. Canada (Attorney General) 261

[Indexed as: Sathasivam v. Canada (Attorney General)] Puwanendran Sathasivam, Sakunthalathevy Ehamparam, Nishanth Puvanendran, Applicants and Attorney General of Canada, Respondent Federal Court Docket: T-1369-12 2013 FC 419 Roger T. Hughes J. Heard: April 23, 2013 Judgment: April 23, 2013 Immigration and citizenship –––– Citizenship — Miscellaneous –––– Appli- cants were family — Applicant parents were in possession of valid passports — Parents applied for and received passport on urgent basis for applicant minor son — Within weeks of receipt of passport, person pretending to be son attempted to enter Canada using son’s passport — Passport had not been reported by applicants as lost or stolen — Director determined that passport issued to son would be revoked and passport services, save for urgent, compelling and compassionate reasons, would be refused to applicants for period of five years — Applicants brought application for judicial review — Application dismissed — Decision was reasonable given fact that parents applied for son’s passport on urgent basis, provided no good explanation as to urgency, and given that only few weeks later, passport turned up in hands of imposter trying to enter Canada, and given that parents did not report passport lost or stolen — There was no requirement that hearing be held — Applicants were given at least two opportunities to respond to concerns of Passport Canada. Cases considered by Roger T. Hughes J.: Hrushka v. Canada (Minister of Foreign Affairs) (2009), 340 F.T.R. 81 (Eng.), 2009 FC 69, 2009 CarswellNat 222, 2009 CF 69, 2009 CarswellNat 6717 (F.C.) — considered Kamel c. Canada (Procureur g´en´eral) (2008), 2008 FC 338, 73 Imm. L.R. (3d) 77, (sub nom. Kamel v. Canada (Attorney General)) 176 C.R.R. (2d) 228, 2008 CF 338, 2008 CarswellNat 893, (sub nom. Kamel v. Canada (Attorney General)) 324 F.T.R. 250 (Eng.), (sub nom. Kamel v. Canada (Attorney General)) 294 D.L.R. (4th) 708, (sub nom. Kamel v. Canada (Attorney Gen- eral)) [2009] 1 F.C.R. 59, 2008 CarswellNat 1912, 86 Admin. L.R. (4th) 1 (F.C.) — referred to 262 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Okhionkpanmwonyi v. Canada (Attorney General) (2011), 2011 CF 1129, 2011 CarswellNat 3961, 2011 CarswellNat 4810, 2011 FC 1129 (F.C.) — considered Slaeman v. Canada (Attorney General) (2012), 2012 FC 641, 2012 CarswellNat 2226, 2012 CF 641, 2012 CarswellNat 3719, 11 Imm. L.R. (4th) 253 (F.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Interpretation Act, R.S.C. 1985, c. I-21 Generally — referred to s. 12 — considered Regulations considered: Other than Statutory Authority, R.S.C. 1985, c. Z-03 Canadian Passport Order, SI/81-86 Generally — referred to s. 3(c) — referred to s. 7 — considered s. 10(2)(c) — considered s. 10.2 [en. SI/2009-56] — considered

APPLICATION for judicial review of decision by Director revoking passport.

Joseph Osuji, for Applicants Michael Huynh, for Respondent

Roger T. Hughes J.:

1 The Applicants seek judicial review of a decision of the Director, In- vestigations Division, Security Bureau of Passport Canada dated June 12, 2012; wherein it was determined that the passport issued to Nishanth Pavanendran would be revoked and passport services, save for urgent, compelling and compassionate reasons, would be refused to the Appli- cants for a period of five years; that is, until October 16, 2016. 2 For the reasons that follow, I have determined that the application will be dismissed with costs. 3 The Applicants are a family; Puwanendran Sathasivam, is the father/husband; Sakunthalathevy Ehamparam, is the mother/wife; and Sathasivam v. Canada (Attorney General) Roger T. Hughes J. 263

Nishanth Puvanendran, is the son who at the material time was about eleven (11) years old. 4 It appears that the husband and wife were, in the fall of 2011, in possession of valid Canadian passports. They applied for a passport for their son on an urgent basis. The son received this passport on September 21, 2011. 5 Within a few weeks, a person pretending to be the son attempted to enter Canada using the son’s passport. This person said that the passport had been handed over at the airport in Canada to a “white man” and has not been seen since. That passport had not been reported by the Appli- cants as lost or stolen. In an affidavit submitted by the mother to Passport Canada, she attested that the son’s passport had been placed in a “pigeon whole” in the father’s vehicle from where it “may” have been lost or stolen, or taken. 6 There is no evidence that the son ever used the passport, or why the parents requested that the passport be issued on an urgent basis. 7 In January 2012, the father and mother on separate days applied to have their passport renewed. At that time, there was no report made by them that the son’s passport had been lost or stolen. On January 30, 2012, Passport Canada wrote to the mother raising their concern as to possible misuse of the son’s passport and requesting submissions and a statement under oath addressing those concerns. In part, the letter said: Our investigation thus far has revealed the following: On September 21, 2011, you and your husband appeared at Passport Canada’s Scarborough office and submitted a passport application in the name of your son, Nishanth Puvanendran. Your signature appears in the Applicant section on this passport application form. Ad- ditional fees were paid to ensure that the passport would be produced quickly. Based on this application,, passport QB849626 was issued in the name of your son on September 27, 2011, and the passport was picked up at the Scarborough office on September 29, 2011. By signing as the applicant on the application form in the name of your son, you are responsible for the care and control of the passport. Passport Canada has received information from the Canada Border Services Agency (CBSA), indicating that on October 16, 2011, an imposter entered Canada illegally at the Pearson International Airport in Toronto, having arrived on Air Canada flight 879 from Zurich. According to flight records, this individual used Canadian passport QB849626, issued in the name of your son, to board the flight. The 264 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

CBSA also reports that the ticket used by the imposter was purchased on October 11, 2011, from a travel agency in Scarborough. CBSA officials also confirmed that they have no record of any other travel for passport QB849626. Passport QB849626 has not been reported lost or stolen to Passport Canada to date. CBSA officials also report that the document was not recovered from the imposter upon his arrival. Reviewing this file, the Division notes that: • you and your husband paid additional fees to have a passport in your son’s name produced quickly, • eleven days after receiving the passport, tickets were purchased in your son’s name that were later used by an imposter • the imposter travelled to Canada using passport QB849626 less than three weeks after it was issued, • the passport has not been declared lost or stolen, and • the only record of passport QB849626 being used was by an imposter. Given this information, the Division finds on a balance of probabilities test that you allowed passport QB849626, issued in the name of your son, to be used by another individual. 8 The Applicants responded by a letter from their solicitor, accompa- nied by affidavits of the father and mother. 9 On April 23, 2012, Passport Canada wrote to the Applicants’ solicitor acknowledging receipt of the submissions, and stating that the submissions did not present any new information such as would require further investigation. That letter indicated that a decision to refuse passport services for a five-year period would come soon. No further submissions were made on behalf of the Applicants. 10 On June 12, 2012, Passport Canada sent a further letter to the Appli- cants’ solicitor. This is the decision at issue. In part that letter states: After a thorough review of all the information gathered throughout the investigation and your submissions it has been determined that there is sufficient information to support a conclusion that Mr. Sathasivam allowed another person to use passport QB849626 issued in the name of his son Nishanth Puvanendran. • Your client and his wife presented themselves at a Passport Canada office in Scarborough on September 21, 2011 and submitted a passport application in the name of their son Nishanth Puvanendran with a request for urgent service. Sathasivam v. Canada (Attorney General) Roger T. Hughes J. 265

Your client signed as the coapplicant on his son’s passport application and as such, is responsible for safeguarding the document. • On October 16, 2011, less than three weeks after the passport was issued, an imposter entered Canada illegally using Ca- nadian Passport QB849626 issued in the name of your client’s son. The passport was not reported lost or stolen at that time. • Your client explains that the passport in question was kept in his car and had gotten lost unbeknownst to him. I find it highly unlikely that a passport issued upon submission of an urgent request for passport service, would go missing without your client’s knowledge. • Your client has not been able to provide a reasonable and plausible explanation as to how a passport issued in his son’s name on September 27, 2011, was used by another individual on October 16, 2011, to travel from Zurich to Toronto, on a ticket purchased from a travel agency in Scaraborough, Ontario. Given the aforementioned, it is important to note that criminal proceedings are separate from any action taken by Passport Canada. As previously mentioned, Passport Canada does not seek long term sanctions against children in these cases. Therefore, the decision is to revoke passport QB849626 issued in the name of your client’s son Nishanth Puvanendran, under section 10(2)(c) of the Canadian Pass- port Order, SI/81-86, as amended (the Order), and to impose a period of refusal of passport services on your client until October 16, 2016, pursuant to section 10.2 of the Order. The duration of refusal of passport services, which is usually five years, has been computed to correspond with the date passport QB849626 was misused, which was October 16, 2011. This reflects the seriousness with which we regard passport abuse, misuse or misinformation in the context of entitlement to passport services. 11 The Applicants seek to have that decision set aside and returned for redetermination. 12 The issues raised for determination by this Court are: 1. What is the standard of review? 2. Does Passport Canada have the power to revoke the passport of the child in these circumstances? 266 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

3. Does Passport Canada have the power to refuse passport services to the parents for a limited period of time in these circumstances? 4. Was the decision reasonable? 5. Was Passport Canada wrong in not holding a hearing nor disclosing the identity of the imposter to the Applicants?

1. What is the Standard of Review? 13 The question as to whether or not Passport Canada has the authority to impose a particular sanction is to be reviewed on the standard of correctness (Hrushka v. Canada (Minister of Foreign Affairs), 2009 FC 69 (F.C.) at para 13). If it did have such authority, then the exercise of that authority is to be reviewed on the standard of reasonableness (Kamel c. Canada (Procureur g´en´eral), 2008 FC 338 (F.C.), at paras 58 — 59).

2. Does Passport Canada Have the Power to Revoke the Passport of the Child in These Circumstances? 14 This issue is to be determined on the standard of correctness. 15 The affidavit of Hubbard, as filed by the Respondent, including the cross-examination conducted in writing by the Applicants’ solicitor, sets out some of the history respecting passports issued to children. Critical to the issuance of Canadian passports is the Canadian Passport Order, a federal Regulation respecting the issuance of passports. The Order as it was published in the Canada Gazette in 1981, P.C. 1981-1472, 4 June 1981, section 7 provided that where a child had not attained sixteen years of age, that child’s name could be entered in the passport of one of the child’s custodial parents or legal guardian. No separate passport would be issued to the child. That was the circumstance in Hrushka, supra. 16 In December 2001, an Order was published in the Canada Gazette amending the Canadian Passport Order, P.C. 2001-2277. That amend- ment changed the provisions of section 7 of the Order such that an “applicant” who was a custodial parent of a child under sixteen years of age could apply to have a passport issued to the child. The passport, once issued, was to be delivered to the parent, who was requested to review it to ensure that the information is correct; and, if not, to notify Passport Canada. 17 The Canadian Passport Order was further amended in 2004, and again in 2009 and 2012. The Order as it was in place during the relevant period in 2012, provided that Passport Canada could revoke a passport in circumstances, inter alia, where the person permits another person to use Sathasivam v. Canada (Attorney General) Roger T. Hughes J. 267

a passport, and includes the power not only to revoke, but also to impose a period of refusal of passport services. I repeat sections 10(2)(c) and 10.2 of the Order: 10. (2) In addition, Passport Canada may revoke the passport of a person who ..... (c) permits another person to use the passport; ..... 10.2 The authority to make a decision to refuse to issue or to revoke a passport under this Order, except for the grounds set out in paragraph 9(g), includes the authority to impose a period of refusal of passport services. 10. (2) Il peut en outre révoquer le passeport de la personne qui: ..... c) permet a` une autre personne de se servir du passeport; ..... 10.2 Le pouvoir de prendre la décision de refuser la délivrance d’un passeport ou d’en révoquer un en vertu du présent décret, pour tout motif autre que celui prévu a` l’alinéa 9g), comprend le pouvoir d’imposer une période de refus de services de passeport. 18 The Order, therefore, is quite clear; Passport Canada may revoke “the passport of a person” that permits another person to use the passport. Thus, on the basis of correctness, Passport Canada has the authority to revoke the passport of a child. The question as to whether, in the circumstances of this case, it did so properly, is to be determined on a standard of reasonableness. This will be considered in dealing with the fourth issue.

3. Does Passport Canada Have the Power to Refuse Passport Services to the Parents for a Limited Period of Time in These Circumstances? 19 Subsection 10.2 of the Order as set out above gives Passport Canada the power: • to refuse to issue a passport • to revoke a passport • to impose a period of refusal of passport services. 20 The first two powers are specific to “a passport” or an application for “a passport”. The third is more broadly stated; it is a refusal of “passport 268 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

services”. Subsection 10.2 does not specifically state to whom passport services are to be refused. 21 The Interpretation Act, RSC 1985, c. I-21, is of assistance. Section 12 provides that enactments are to be deemed to be remedial and to be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. The Canadian Passport Order, as previously discussed, originally provided that the name of a child under sixteen years of age could be inserted into the passport of one of the child’s parents. The Order was amended so that a parent would have to apply for a separate passport for the child. The passport was that of the child, but the applicant was one or both of the parents. 22 Therefore, the proper interpretation of the Order, as amended, is that “passport services” are those provided to the applicant parent or parents in the case of a child that is under sixteen years of age. If those parents are seen to be abusing the passport system in the misuse of the child’s passport, it would be a correct to interpretation of the provisions of the Order that Passport Canada has the power to withhold passport services rendered to the parents. 23 A passport remains the property of Her Majesty in Right of Canada (Order, subsection 3(c)). As stated in Okhionkpanmwonyi v. Canada (Attorney General), 2011 FC 1129 (F.C.), at paragraph 6, that while the Canadian Charter of Rights and Freedoms affords a right to enter and leave Canada - a right which is facilitated by a passport - misuse of a passport such as the facilitation of its misuse by imposters to seek entry into Canada, is not to be tolerated. 24 A correct interpretation of subsection 10.2 of the Order is that Pass- port Canada may refuse passport services for a period of time to a person, such as a parent, who has applied for a passport for a child; which passport has been misused.

4. Was the Decision Reasonable? 25 I have determined that a correct interpretation of the relevant provision of the Canadian Passport Order is that Passport Canada can revoke the passport issued to the child and can refuse passport services, for a period of time, to the parents who applied for that passport. Was the decision to do so in this case reasonable? 26 Having reviewed the record, I am satisfied that the decision at issue was reasonable, given the fact that the parents applied for the child’s passport on an urgent basis; and when subsequently asked, provided no Sathasivam v. Canada (Attorney General) Roger T. Hughes J. 269

good explanation as to the urgency; and, given that only a few weeks later, the passport turned up in the hands of an imposter trying to enter Canada; and, given that the parents did not report the passport lost or stolen, and only subsequently opined that it “may” have been lost or stolen from a “pigeon whole” in the father’s vehicle; I conclude that it was reasonable for Passport Canada to determine that the child’s passport should be revoked; and that, for a period of five years, passport services should be denied to the parents. Even then, the parents were told that if circumstances such as compassionate circumstances arose, they may apply for temporary services.

5. Was Passport Canada Wrong in Not Holding a Hearing Nor Disclosing the Identity of the Imposter to the Applicants? 27 The Applicants were given at least two opportunities to respond to the concerns of Passport Canada. Their responses were unsatisfactory. There is no requirement in the Order nor in any other pertinent legislation or regulation that a hearing be held. The Applicants, in any event, made no request for a hearing. 28 The identity of the imposter is irrelevant to the issues raised. There was no need to disclose that identity. I repeat what Justice Gleason of this Court wrote in Slaeman v. Canada (Attorney General), 2012 FC 641 (F.C.) at paragraph 37: 37 Kamel did not decide that Passport Canada must disclose every matter it inquires into or even that it must disclose every document that it provides to the decision-maker. Rather, it held that Passport Canada must disclose to both the decision-maker and the individual under investigation all the information it gathered that is relevant to the determination to be made. Arguably, the above-cited passages from Kamel may go slightly further and provide that any information given to the decision-maker must also be provided to the applicant, even if it is immaterial. However, the need to disclose immaterial information was not squarely addressed in Kamel as the case concerned a highly relevant and prejudicial report that was provided to the Minister - but not to Mr. Kamel - which played a central role in the Minster’s decision to permanently suspend passport services for Mr. Kamel. In my view, Justice No¨el’s comments regarding what must be disclosed by Passport Canada should be read bearing these facts in mind, and, accordingly, do not stand for the proposition that it is a breach of natural justice for Passport Canada to fail to disclose irrelevant documents that it might send to the adjudicator. While it might be a more prudent practice for Passport Canada to provide 270 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

identical disclosure to the adjudicator and the individuals under investigation (and thereby ensure it would be immune from challenges of this nature), in my view, there is no breach of natural justice where, as here, buried in the file forwarded to the adjudicator there are a few irrelevant facts that were not disclosed to the individuals under investigation.

Conclusion 29 Therefore, the application for judicial review will be dismissed, with costs, which I fix at $2,000.00.

Judgment FOR THE REASONS PROVIDED: THIS COURT ADJUDGES that: 1. The application is dismissed; and 2. The Respondent is entitled to costs in the sum of $2,000.00. Application dismissed. Villagrana v. Canada (MCI) 271

[Indexed as: Villagrana v. Canada (Minister of Citizenship and Immigration)] Gabriela Gonzalez Villagrana, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7619-12 2013 FC 415 Sandra J. Simpson J. Heard: March 13, 19, 2013 Judgment: April 23, 2013 Immigration and citizenship –––– Refugee protection — Removal — Proce- dure –––– Deferral — Applicant refugee claimant fled country of origin because of domestic abuse while pregnant — Applicant gave birth to child in Canada, who had medical condition requiring ongoing treatment — Applicant’s refugee claim and pre-removal risk assessment applications were dismissed — Appli- cant made application for permanent residence on humanitarian and compassionate (“H&C”) grounds, which was outstanding — Canada Border Services Agency officer denied applicant’s request for deferral of removal — Applicant brought application for judicial review of officer’s decision — Application granted — Matter was remitted to removal officer who was directed to defer removal pending decision on H&C application — Case had exceptional circumstances — It was unreasonable to remove single mother of special needs Cana- dian child with outstanding H&C application when child’s long term needs had never been assessed — Applicant had been working toward submitting H&C application before she was removal ready, but had been unable to do so because of negligence of counsel. Statutes considered: Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 74(d) — referred to

APPLICATION by refugee for judicial review of decision of Canada Border Services Agency officer, denying her request to defer her removal.

Ms Aurina Chatterji, for Applicant Ms Sharon Stewart Guthrie, for Respondent 272 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Sandra J. Simpson J.:

1 The Applicant seeks judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of a Canada Border Services Agency [CBSA] Officer [the Of- ficer], dated July 30, 2012, wherein the Officer denied the Applicant’s request to defer her removal from Canada which was scheduled to take place on August 1, 2012 [the Decision]. 2 For the reasons which follow, the application will be allowed with a direction that removal be deferred pending a decision on the Applicant’s application for permanent residence on humanitarian and compassionate grounds [the H&C Application].

Background 3 The Applicant is a 25 year-old woman who fled Mexico, her country of citizenship, because she feared her former partner. She arrived in Can- ada while pregnant and gave birth to her daughter Paloma on March 21, 2008. Paloma was diagnosed at birth with a congenital condition known as Pierre-Robin Sequence Syndrome [PRSS] and was born with a cleft palate. PRSS involves facial abnormalities which cause other developmental malformations, affecting speech, hearing, and breathing. PRSS has required Paloma to undergo medical treatments since birth. In Sep- tember 2009, Paloma had surgery for her cleft palate. She has also been receiving speech therapy and has had a number of other procedures to address the myriad of problems associated with the underlying condition. 4 The Applicant’s claim, based on domestic abuse in Mexico, was refused in June 2009 on the grounds of state protection. Two subsequent pre-removal risk assessment [PRRA] applications were also dismissed. However, none of these proceedings addressed Paloma’s circumstances and, to date, no assessment of her long-term best interests has been undertaken by Canadian immigration authorities. 5 The Applicant’s removal from Canada was initiated after the refusal of her first PRRA application in May 2010, however, removal arrange- ments were suspended to allow Paloma to attend medical appointments. 6 Removal of the Applicant became a priority again after the refusal of the second PRRA application in June 2012. In response, the Applicant requested more time to allow Paloma to attend an appointment for a nasendoscopy. This diagnostic surgical procedure was scheduled for Oc- tober 2012. A letter from Dr. Zuker of Sick Children’s Hospital in To- Villagrana v. Canada (MCI) Sandra J. Simpson J. 273

ronto, dated June 14, 2012, attested to this appointment and indicated that Paloma would be assessed in August 2013 to determine her further surgical needs. The letter also made it clear that Paloma’s medical condition is ongoing and that she will need to be followed by an interdiscipli- nary team throughout her developmental years. Nevertheless, the Appli- cant was told on July 17, 2012 to report for removal on August 1, 2012. Her counsel submitted the request to defer removal the following day. 7 The request to defer was based on three grounds. The first two grounds, the Applicant’s pending judicial review of the negative PRRA decision and the nasendoscopy became moot in October 2012 when the application for leave to judicially review the PRRA decision was dismissed and Paloma had the procedure. However, the third ground is an outstanding H&C Application, filed on June 15 2012, and based largely on Paloma’s long-term health needs.

The H&C Application 8 An H&C application filed when an individual is deemed removal ready is generally viewed as an untimely application which is brought to try to frustrate removal from Canada. The Applicant’s H&C Application appears to fit that description. However, the evidence before the Officer, which he addressed in the Decision, indicated that the Applicant had been working towards submitting her H&C Application well before June 2012 but had not been able to do so because of her former counsel’s negligence. The pertinent evidence included receipts which showed that the Applicant had paid $1,500 to her former counsel in June 2010 for an application for judicial review of the first negative PRRA decision. The Applicant could not reach her counsel and did not learn until September 2011 that the application was never filed. Communications between the Applicant and her former counsel indicate that it was agreed in Septem- ber 2011 that the money for which the Applicant had never received any services would be used towards an H&C application as well as a new PRRA application. However, her counsel failed her again because the H&C application was never filed and the money, which was a combina- tion of the Applicant’s own savings and donations from a church group, was never returned to her. Without this money, the Applicant could not pay the $500.00 filing fee which must accompany an H&C application. The Applicant’s current counsel filed an official complaint against former counsel to the Law Society of Upper Canada in March 2012 but the matter remains under investigation. Is it reasonable to assume that, but 274 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

for her lawyer’s negligence, the H&C Application would have been filed in September 2011.

The Decision 9 The Officer’s reasons for refusing the request to defer acknowledge that Paloma has not had her best interests fully assessed, but note correctly that a CBSA officer does not have the jurisdiction to defer removal because of long-term medical conditions. With respect to the pending H&C Application, the Officer considered that the application was not submitted until the Applicant was deemed removal ready and noted that there is no statutory stay of removal in relation to an outstanding H&C application. The Officer referenced the circumstances which led to the late filing of the H&C Application and stated that he was sympathetic to the Applicant’s situation, but then noted that Citizenship and Immigra- tion Canada’s [CIC] processing times for H&C applications ran any- where from 30 to 42 months. The Officer also took into account medical opinions provided by CIC medical officers to address Paloma’s readiness to fly and the availability of treatment for PRSS in Mexico. The first medical opinion stated the treatment in Mexico was “likely available” while the second indicated that medical services for her nose and throat disorder were “listed as available in Mexico”.

Analysis 10 In my view, this case falls squarely under the heading “exceptional circumstances”. Counsel for both parties acknowledged that there are no cases dealing with a situation involving: • A five year-old Canadian child; • Evidence of a need for ongoing treatment during her developmental years; • A young single mother who is removal ready; • An outstanding H&C application; and • No assessment of the child’s long term needs. 11 In my view it is unreasonable to remove the single mother of a special needs Canadian child with an outstanding H&C application when the child’s long term needs have never been assessed. Accordingly, the Deci- sion will be set aside and the matter is referred back to a removal officer who will be directed to defer removal until the H&C Application had been decided. Villagrana v. Canada (MCI) Sandra J. Simpson J. 275

12 I note in closing that it is open to CIC to expedite the H&C Applica- tion once it has given the Applicant a reasonable opportunity to make further submissions. 13 The Respondent has asked me to amend the style of cause to remove the Minister of Citizenship and Immigration as a responding party because responsibility for the CBSA was transferred to the Minister of Pub- lic Safety and Emergency Preparedness by the Department of Public Safety and Emergency Preparedness Act, SC 2005, c 10. I accept that the proper respondent is in fact the Minister of Public Safety and Emergency Preparedness and will order that the Minister of Citizenship and Immi- gration be removed from the style of cause. 14 No question was posed for certification pursuant to section 74(d) of the Act.

Order THIS COURT ORDERS that 1. The application for judicial review of the Decision is allowed. 2. The request to defer the Applicant’s removal is sent back to a CBSA officer who is hereby directed to defer her removal until a decision is made on the H&C Application. 3. The Minister of Citizenship and Immigration is hereby deleted from the style of cause. Application granted. 276 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

[Indexed as: Navarrette Andrade v. Canada (Minister of Citizenship and Immigration)] Ana Maria Navarrete Andrade, Cesar Erley Hoyos Gaitan, Samuel Hoyos Navarrete, Isabella Hoyos Navarrete, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6187-12 2013 FC 436 Donald J. Rennie J. Heard: March 28, 2013 Judgment: April 26, 2013 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Applicants were Colombian citizens who fled after 3 phone calls from Colombian militant group threatening their lives unless they contributed to “war tax” of $54,000 (US) — Applicants denied refugee status after Immigra- tion and Refugee Board (IRB) found applicant father’s claim that he met with and attempted negotiation with militant group implausible — Applicants denied refugee status since IRB found they did not rebut presumption of state protection — Application for judicial review to set aside IRB decision that applicants were not Convention refugees — Application for judicial review granted — Im- plausibility finding made without regard to evidence and local context — IRB’s review of documentary evidence regarding Colombia had minimal relevance to issue of state protection — Requirement to analyze evidence referenced and to consider how evidence related to state protection — Insufficient to summarize evidence and conclude that state protection was adequate. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibil- ity –––– Applicants were Colombian citizens who fled after 3 phone calls from Colombian militant group threatening their lives unless they contributed to “war tax” of $54,000 (US) — Applicants denied refugee status after Immigration and Refugee Board (IRB) found that applicant father’s claim that he met with and attempted negotiation with militant group implausible — Applicants denied refugee status after IRB found they did not rebut presumption of state protection — Application for judicial review to set aside IRB decision that applicants were not Convention refugees — Application for judicial review granted — Implausibil- ity finding made without regard to evidence and local context — IRB’s review of documentary evidence regarding Colombia had minimal relevance to issue of Navarrette Andrade v. Canada (MCI) Donald J. Rennie J. 277

state protection — Requirement to analyze evidence referenced and to consider how evidence related to state protection — Insufficient to summarize evidence and conclude that state protection was adequate. Cases considered by Donald J. Rennie J.: Gonzalez v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 918, 1999 CarswellNat 4997, [1999] F.C.J. No. 805 (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, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Sow v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 646, 2011 CarswellNat 2086, 2011 CF 646, 2011 CarswellNat 3206, [2011] A.C.F. No. 824, [2011] F.C.J. No. 824 (F.C.) — referred to Valtchev v. Canada (Minister of Citizenship & Immigration) (2001), 2001 Car- swellNat 1534, 2001 FCT 776, 208 F.T.R. 267, 2001 CFPI 776, 2001 Car- swellNat 5929, [2001] A.C.F. No. 1131, [2001] F.C.J. No. 1131 (Fed. T.D.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — referred to

APPLICATION for judicial review to set aside Immigration and Refugee Board’s decision that applicants were not Convention refugees.

Ms Pamila Bhardwaj, for Applicants Ms Teresa Ramnarine, for Respondent

Donald J. Rennie J.:

1 The applicants seek to set aside a decision by the Refugee Protection Division of the Immigration and Refugee Board of Canada (the Board) that the applicants are not Convention refugees or persons in need of pro- 278 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

tection. The Board’s findings in respect of both credibility and state protection cannot be sustained and the application is therefore granted.

The Allegations 2 Mr. Hoyos Gaitan and his family are citizens of Colombia where he worked as the national marketing director for a vinyl manufacturing company. 3 He claims that on June 2, 2011, the Colombian Revolutionary Armed Forces (FARC) telephoned him on his company phone and demanded a “war tax” contribution of 100 million pesos (about $54,000 US). On June 7, 2011, the FARC called again demanding that he pay and warning that he should not call the police because they knew where his wife, Ms. Navarrete Andrade, and children were. Terrified, the couple did not call the police. On June 11, 2011, the FARC called for the third time. He was told to have half of the money ready for the next week. 4 The couple called Ms. Navarrete Andrade’s sister in Canada, who had previously been accepted as a refugee. She recommended that they flee. However, the applicants did not want to leave Colombia because they had stable jobs and their children were very young. Instead, they used alternate routes to get to their office and Mr. Hoyos Gaitan decided to sell their car to raise money. 5 On June 20, 2011, Mr. Hoyos Gaitan travelled to a promotional event in the city of Yopal, in a FARC-infested region. That night the FARC telephoned him at the hotel and told him to meet the next day. He complied and was met by four armed men who drove him to a second location. There, he pleaded that he did not have much money. They did not accept this and gave him until July 1, 2011 to bring 30 million pesos (about $16,000 US) to the hotel in Yopal. 6 Upon returning home, he and his wife decided to flee. On June 26, 2011, they went to Ms. Navarrete Andrade’s brother’s house to hide. On July 6, 2011, the family flew to New York, and then travelled to Buffalo. They made an appointment to be processed as refugee claimants at the Fort Erie border crossing. 7 Ms. Navarrete Andrade’s father received two phone calls from individuals looking for the applicants. The first was on July 5, 2011 and was from an unidentified caller. The second was on July 8, 2011 from a person identifying himself as a FARC member. Navarrette Andrade v. Canada (MCI) Donald J. Rennie J. 279

8 The applicants say that they fear returning to Colombia because they have been declared military targets by the FARC for their failure to col- laborate, and the authorities are unable to protect individuals in their circumstances.

Decision Under Review 9 The Board found that the applicants were neither Convention refugees nor persons in need of protection based on both a negative credibility finding and the availability of state protection. 10 With regards to credibility, the Board found that the applicant’s claims were implausible, for the following reasons: a. The Board did not accept that Mr. Hoyos Gaitan would have met with the FARC in Yopal, knowing the risk that they would kidnap him and demand a ransom from his family. Mr. Hoyos Gaitan had testified that he had experience negotiating as part of his job and had faith that he could reason with them as to the amount of money they were demanding. The Board did not accept this explanation. b. The Board found it implausible that the FARC would not have detained Mr. Hoyos Gaitan and demanded a ransom. c. The applicants did not belong to any of the groups considered by the United Nations High Commissioner for Refugees (UNHCR) to be at particular risk. d. The applicants did not make a police report. e. The Board considered it unbelievable that the applicants fled the country so quickly as a result of the alleged threats. 11 Next, the Board found that the applicants had not rebutted the presumption of state protection. It reviewed the standard for state protection and discussed the current status of the FARC. In the circumstances, the Board considered it unreasonable that the applicants did not approach the police.

Issue 12 The issue for this judicial review is whether the Board reasonably found that the applicants lacked credibility and had failed to rebut the presumption of state protection: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), para 47. 280 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Discussion Credibility 13 It is open to the Board to make adverse credibility findings based on the implausibility of an applicant’s story, in light of the evidence in the record and the Board’s understanding of human behaviour: Gonzalez v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 805 (Fed. T.D.), para 27. 14 However, such findings should be made only in clear cases, when the allegations are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the story could not have happened as alleged: Valtchev v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1131 (Fed. T.D.), para 7. 15 The Board found it implausible that Mr. Hoyos Gaitan would voluntarily meet with the FARC and did not accept his explanation that he was a skilled negotiator due to his job. The Board did not reference the rest of Mr. Hoyos Gaitan’s explanation, which was that if he did not meet with the FARC they could have found him and killed him on his way back to Bogota, as he would be traveling past the meeting place. 16 In my view, this implausibility finding was made without regard to the evidence, specifically Mr. Hoyos Gaitan’s explanation that if he did not accept the FARC’s demand for a meeting, they could have found him. Additionally, the Board did not consider that, while Mr. Hoyos Gaitan’s behaviour may seem reckless from a Canadian perspective, it may not be so unusual in Columbia. The Board must have regard to the local context in assessing the plausibility of testimony. 17 The Board also speculated, without referencing any documentary evidence, that the FARC would have detained Mr. Hoyos Gaitan to demand a ransom, if the meeting had taken place. The Board may not, in the absence of evidence, make assumptions about how the FARC would respond. 18 It is also difficult to understand why the Board found it implausible that the applicants would leave Columbia so quickly after being threatened. Often, delay in leaving the country is taken to indicate lack of a subjective fear. Here, the applicants’ prompt action has counted against them, a classic “catch-22”. A negative inference is drawn if the applicants wait after being threatened, and also if they leave too soon. It raises the question as what is the “right” time to leave. There is, of course, no answer to this question, as each case must be assessed on its own merits Navarrette Andrade v. Canada (MCI) Donald J. Rennie J. 281

and decisions to flee assessed in the context of the surrounding circumstances. 19 The Board also considered the applicants’ story implausible because they do not belong to groups listed by the UNHCR as being at particular risk, such as judges, activists and government authorities. However, the Board ignored evidence that professionals may also be at heightened risk. As a director of a manufacturing company, with a substantial salary, Mr. Hoyos Gaitan fits within this category. 20 I have concluded that the Board’s negative credibility finding was unreasonable.

State Protection 21 The Board’s decision could still be upheld if its state protection finding is reasonable. 22 Refugee claimants must overcome the presumption that their country of citizenship is able to offer them protection: Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.). Generally speaking, refugee claimants must first seek protection from their home country, unless they provide clear and convincing evidence that state protection would not reasonably have been forthcoming. 23 This presumption is particularly strong in the case of democracies. That said, there is a wide spectrum of democratic nations, and so the Board must look further than the mere existence of elections, which are less important for the issue of state protection, but focus on the strength of the institutions relevant to state protection, such as the professionalism of the police force and the independence of the judiciary and defence bar: Sow v. Canada (Minister of Citizenship & Immigration), 2011 FC 646 (F.C.). 24 As the applicants did not seek state protection in Columbia, the question is whether state protection might reasonably be forthcoming, having regard to the applicant’s particular circumstances. 25 The Board noted that civilian authorities generally have control over the security forces in Columbia, but acknowledged that criminality, cor- ruption and human rights abuses are still problems. The Board stated that the government had made efforts to address these problems and noted various institutions in place to combat kidnapping and extortion. How- ever, the Board does not comment on how effective these efforts have been. The Board simply stated its conclusion that “there is adequate state 282 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

protection in Colombia for victims of crime” without referencing any basis for this in the evidence. 26 The Board conducted a lengthy review of the documentary evidence regarding Columbia, but this review had little relevance to the issue of state protection. For example, the Board mentions that the Columbian government has strengthened its relationship with the human rights community and that extrajudicial executions had declined. While positive, these developments do not indicate the adequacy of state protection from the FARC. 27 The Board also noted that some FARC members have been demobil- ized and that some hostages have been freed. The Board quoted a statis- tic from 2009 that murders committed by illegal groups had decreased by 2.2% and that the number of kidnappings for extortion has also been reduced by 23%. Not only is this information somewhat dated, it shows that murder, kidnapping and extortion remain serious problems. 28 The Board must actually analyse the evidence it references and consider how that evidence relates to the issue of state protection. It is insufficient to merely summarize large volumes of evidence and then state a conclusion that state protection is adequate. The evidence and the conclusion must be connected with a line of reasoning that is transparent and intelligible.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the Immigration Refugee Board for reconsideration before a different member of the Board’s Ref- ugee Protection Division. There is no question for certification. Application for judicial review granted. Ramirez-Osorio v. Canada (MCI) 283

[Indexed as: Ramirez-Osorio v. Canada (Minister of Citizenship and Immigration)] Ramirez-Osorio, Alexander and Silva-Camargo, Paola Andrea, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7418-12 2013 FC 461 Michel M.J. Shore J. Heard: February 25, 2013 Judgment: May 3, 2013 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Well-founded fear — Objec- tive basis –––– Applicant refugee claimants were spouses and citizens of Colom- bia — Principal claimant was police officer and was threatened with death by Fuerzas Armadas Revolucionarias de Colombia (FARC) — Claimants fled to Chile but later left when told that FARC had infiltrated that country, losing their permanent resident status — Claimants came to Canada, claiming fear of persecution and lack of state protection in predominately Catholic Chile because of their Protestant beliefs — Refugee Protection Division (RPD) inferred that claimants were excluded from refugee protection on basis of s. 98 of Immigra- tion and Refugee Protection Act and Article 1E of Convention Relating to the Status of Refugees, 1951 because they had permanent resident status in Chile — RPD considered that alleged FARC presence in Chile was insufficient reason for voluntary loss of permanent residence — RPD found that claimants did not establish risk in Colombia because threats never materialized — Claimants brought application for judicial review of denial of refugee claim — Application granted; matter remitted to different panel — It was unreasonable to find that principal claimant was not objectively at risk because FARC’s death threats never materialized, as he repeatedly relocated in response to threats — RPD could not, in absence of negative general credibility finding, reasonably determine that principal claimant lacked subjective fear. Cases considered by Michel M.J. Shore J.: Avila Rodriguez v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CF 1291, 14 Imm. L.R. (4th) 89, 2012 FC 1291, 2012 CarswellNat 4283, 2012 CarswellNat 5477 (F.C.) — referred to 284 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Belle v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 3781, 2012 FC 1181, 2012 CF 1181, 2012 CarswellNat 4277 (F.C.) — referred to Camargo v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 3915, 2003 FC 1434, 2003 CF 1434, 2003 CarswellNat 6817, [2003] F.C.J. No. 1830 (F.C.) — referred to Farfan c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 2011 FC 123, 2011 CarswellNat 1028, 2011 CarswellNat 249, 2011 CF 123 (F.C.) — followed Hassanzadeh v. Canada (Minister of Citizenship & Immigration) (2003), 244 F.T.R. 154, 2003 CarswellNat 3994, 2003 FC 1494, 2003 CF 1494, 2003 CarswellNat 4469, [2003] F.C.J. No. 1886 (F.C.) — considered Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236, 1991 CarswellNat 96, [1991] F.C.J. No. 228 (Fed. C.A.) — considered Kunkel v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 5549, 2009 CAF 347, 2009 FCA 347, 2009 CarswellNat 4607, 398 N.R. 271, 88 Imm. L.R. (3d) 1, [2009] F.C.J. No. 1700 (F.C.A.) — followed Molano Fonnoll v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 5879, 2011 CF 1461, 2011 FC 1461, 2011 CarswellNat 5583, 3 Imm. L.R. (4th) 112 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Shanmugarajah v. Canada (Minister of Employment & Immigration) (1992), 1992 CarswellNat 822, [1992] F.C.J. No. 583 (Fed. C.A.) — considered Sukhu v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 835, 2008 FC 427, 2008 CarswellNat 3103, 2008 CF 427, [2008] F.C.J. No. 515 (F.C.) — considered Zaied c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2012), 2012 CarswellNat 3375, 2012 FC 771, 2012 CarswellNat 2395, 2012 CF 771 (F.C.) — distinguished Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — considered Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 285

Zeng v. Canada (Minister of Citizenship & Immigration) (2010), 402 N.R. 154, 2010 FCA 118, 2010 CarswellNat 1295, [2011] 4 F.C.R. 3, 2010 Car- swellNat 2439, 2010 CAF 118, [2010] F.C.J. No. 632 (F.C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 74(d) — referred to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — referred to s. 97(1) — considered s. 98 — considered s. 112(2)(b.1) [en. 2010, c. 8, s. 15(3)] — considered s. 113(c) — 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 Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 241(1) — considered

APPLICATION by refugee claimants for judicial review of denial of refugee claim.

Jean-Fran¸cois Bertrand, for Applicants Normand Lemyre, for Respondent

Michel M.J. Shore J.: I. Introduction 1 The Applicants seek judicial review of a decision of the Refugee Pro- tection Division [RPD] of the Immigration and Refugee Board, wherein it was determined that they are not Convention refugees or persons in need of protection under section 96 and subsection 97(1) of the Immigra- tion and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicants argue that section 98 of the IRPA and Article 1E of the Convention Re- lating to the Status of Refugees, 189 UNTS 150 [Convention] do not apply. 286 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

II. Judicial Procedure 2 This is an application under subsection 72(1) of the IRPA for judicial review of the decision of the RPD, dated July 5, 2012. 3 The Respondent has requested that the Court, in rendering judgment, certify that three serious questions of general importance are involved and that the Court states these questions under paragraph 74(d) of the IRPA.

III. Background 4 The principal Applicant, Mr. Alexander Ramirez-Osorio, and his spouse, Ms. Paola Andrea Silva-Camargo, were born in Colombia in 1975 and 1977, respectively. 5 From June 1997 to January 2001, the principal Applicant was a police officer in Colombia fighting organized crime and terrorism. In late 1997, the Fuerzas Armadas Revolucionarias de Colombia [FARC] threatened him with death for these activities. 6 After death threats in October 2000, the principal Applicant relocated to the United States. He applied for asylum but his claim failed. 7 In December 2006, the principal Applicant was arrested attempting to enter Canada. 8 In February 2007, the principal Applicant was deported to Colombia, where his spouse joined him. They initially resided in Bogota and, after April 2007, in Pereira. 9 In the spring of 2007, FARC found the principal Applicant when he ran in a municipal election for a Christian political party and renewed its death threats. 10 The principal Applicant and his spouse relocated to Bogota and, since the death threats persisted, they fled to Chile in December 2007. 11 The Applicants obtained permanent residence in Chile but fled in Au- gust 2010 when a FARC deserter told him FARC had infiltrated Chile. 12 The principal Applicant claims a fear of persecution and lack of state protection in Chile, which is predominately Catholic, because of his Prot- estant beliefs. 13 On August 3, 2010, the Applicants entered Canada. Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 287

IV. Decision under Review 14 The RPD determined that there were serious reasons for considering that the Applicants were recognized by the competent authorities of Chile as having the rights and obligations attached to the possession of Chilean nationality. From this, the RPD inferred that the Applicants were excluded from refugee protection on the basis of section 98 of the IRPA and Article 1E of the Convention. 15 Citing the Federal Court of Appeal in Zeng v. Canada (Minister of Citizenship & Immigration), 2010 FCA 118, [2011] 4 F.C.R. 3 (F.C.A.) [Zeng test], the RPD stated that section 1E of the Convention applies if a claimant, considering all relevant factors at the hearing date, has status substantially similar to that of the nationals in a third country in which that claimant has taken up residence. If a claimant previously had, but lost, status or had access to it but failed to acquire it, section 1E will apply depending on a balancing of a non-exhaustive list of factors, including whether the claimant could return to the third country, reasons for the loss of status (voluntary or involuntary), risk in the claimant’s home country, Canada’s international obligations, and other relevant facts. 16 The RPD accepted, without contradicting evidence, that the Appli- cants lost Chilean permanent residence on August 4, 2011, one year after fleeing. 17 In applying the Zeng test, the RPD concluded that the applicable factors weighed in favour of applying section 1E of the Convention. 18 The RPD considered the alleged FARC presence in Chile an insufficient reason for voluntary loss of the Applicants’ permanent residence. The RPD found that notwithstanding an affidavit from an ex-FARC member stating that individuals tied to various actors in the armed con- flict in Colombia entered Chile creating insecurity issues for Colombian refugees. On this affidavit, the RPD commented that it did not establish that FARC actually targets individuals in Chile and that it did indicate that Chile is actively monitoring FARC members who have fled Colum- bia. The RPD also noted evidence that Chile is actively collaborating with the Colombian government in its search for FARC members, that it closely monitored former FARC members who were not extradited, and that the Chilean president strongly condemned a deputy in the Chilean government who was linked with FARC. 19 Given the state protection available to the Applicants in Chile and the peaceful and open life they led there, the RPD also considered their fear 288 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

of FARC’s alleged presence in Chile as speculative. The RPD noted that the country condition evidence showed that Chile generally investigated and punished wrongdoers and that the Applicants led a peaceful and relatively public life there. 20 The RPD found no evidence to support the Applicants’ allegation that they would not receive state protection in Chile because they are Protestant. 21 The RPD also found that that the principal Applicant did not credibly establish that he was at risk in Colombia. The RPD noted that the principal Applicant presented evidence that he worked as a police officer, written testimonies attesting to his risk, and country condition evidence on the FARC. Nonetheless, the RPD found that the principal Applicant’s return to Colombia while residing in Chile twice in October 2008 and July 2009 to visit sick family members was inconsistent with subjective fear and did not correspond to that of a person whose life was in danger. The RPD also did not accept that the principal Applicant had established that he was at risk in Colombia since the threats against him never materialized. Since the principal Applicant’s spouse’s risk was premised on her relationship to him, the RPD reasoned that she too could not credibly establish that she was at risk in Colombia.

V. Issue 22 Was the RPD’s application of the Zeng test reasonable?

VI. Relevant Legislative Provisions 23 The following legislative provisions of the IRPA are relevant: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 289

have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: 290 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquel- les est reconnu par règlement le besoin de protection. 24 The following provisions of the Convention are relevant: 1E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. 1E. Cette Convention ne sera pas applicable a` une personne con- sidérée par les autorités compétentes du pays dans lequel cette personne a etabli´ sa résidence comme ayant les droits et les obligations attachés a` la possession de la nationalité de ce pays.

VII. Position of the Parties 25 The Applicants submit that the RPD’s analysis of their objective and subjective fear was unreasonable. First, the Applicants argue that a lack of subjective fear is not determinative of an applicant’s status as a person in need of protection under section 97 of the IRPA. Second, the RPD was unreasonable to infer a lack of subjective fear from temporary re-availment on two occasions to visit sick family members and from the fact that FARC’s death threats never materialized. Third, according to the Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 291

principal Applicant, it was unreasonable to find that he was not at risk because FARC’s threats against him in Colombia never materialized. 26 The Respondent argues that the RPD reasonably found that the principal Applicant and his spouse were not at risk in Chile because: (i) they encountered no personal problems in Chile; (ii) they lived openly in Chile, working in a Protestant church (an occupation requiring frequent contact with the public); (iii) the third party affidavit they submitted did not state that FARC targets individuals in Chile; (iv) the country condition evidence did not show that FARC targets individuals in Chile; and (v) they did not rebut the presumption of state protection in Chile. 27 According to the Respondent, the application of section 1E of the Convention calls for a risk analysis that is distinct from that under section 96 and 97 of the IRPA. In the Respondent’s view, the third prong of the Zeng test required the RPD to balance the principal Applicant’s risk against his voluntary surrender of Chilean status; the RPD reasonably balanced these factors and this Court may not intervene. Equating the risk analysis required under the Zeng test would render this balancing process superfluous and would be contrary to the purpose of Article 1E. 28 Citing Zaied c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2012 FC 771 (F.C.) and Farfan c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2011 FC 123 (F.C.) the Respondent argues that a lack of subjective fear is fatal to a claim for refugee protection. It was reasonable to reject the principal Applicant’s explanation that FARC’s threats could materialize at any time because his reavailment suggests a lack of subjective fear. The RPD could also rely on his lack of subjective fear because the country condition evidence did not show that he was at risk. 29 According to the Respondent, the RPD also assessed the principal Applicant’s objective risk reasonably. In particular, the RPD could reasonably infer an absence of risk from the failure of the FARC threats to materialize. The Respondent further notes that the Applicant’s United States immigration history supplements the RPD’s analysis. 30 Finally, the Respondent argues that the decision was reasonable because the Applicants did not bring evidence to the RPD establishing that they could not reacquire permanent residence status in Chile, if they were to reapply. The Respondent states that there is country condition evidence on the record that permanent residence status in Chile can be even- tually regained. 292 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

31 The Respondent proposes three questions for certification (Respon- dent’s Proposed Questions for Certification [Proposed Questions]). It is the Respondent’s view that there is a “glaring need” to revisit and refine the Zeng test. The proposed questions should be certified under Kunkel v. Canada (Minister of Citizenship & Immigration), 2009 FCA 347 (F.C.A.) because they raise issues of general importance, which tran- scend the particular context of the case in which they arose and which could be dispositive of an appeal. 32 The first question addresses the required elements of a risk assessment conducted according to the third prong of the Zeng test in applying Article 1E of the Convention: In context of the application of Article 1E of the Refugee Conven- tion, when a decision-maker has to consider the risk a refugee protection claimant would face in his or her country of nationality, as prescribed by the third step of the test set out in the decision of the Federal Court of Appeal in Minister of Citizenship and Immigration v Zeng, 2010 FCA 118 (at para. 28), is this decision-maker required to conduct an analysis of that claimant’s subjective fear and objective risk in his or her country of nationality in accordance with sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as would be the case in an inclusion analysis? (Proposed Ques- tions at p 2) 33 According to the Respondent, requiring the RPD to conduct an exhaustive inclusion analysis under section 96 and subsection 97(1) of the IRPA would be premature and superfluous in the Article 1E context. From subparagraph 112(2)(b.1) and paragraph 113(c) of the IRPA, the Respondent infers that Parliament intended for the inclusion analysis of a claimant excluded under Article 1E to occur at the Pre-Removal Risk Assessment [PRRA] stage. The Respondent argues that subsection 241(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] (which permits the Minister to determine the country to which a foreign national should be removed) supports this inference. A PRRA decision-maker is better-equipped than the RPD (which may not determine where a claimant is sent on removal) to conduct an inclusion analysis in the Article 1E context in respect of the country to which the Minister has decided to remove a claimant. The Respondent contends that the Zeng test has not settled the extent of the risk assessment the RPD is required to make under Article 1E. Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 293

34 The second question asks if a lack of subjective fear is sufficient to find a negative risk determination under the third prong of the Zeng test: When a decision-maker assesses the risk the refugee protection claimant would face in his or her country of nationality, as prescribed by the Federal Court of Appeal in Minister of Citizenship and Immi- gration v Zeng, 2010 FCA 118, at paragraph 28, is a finding by this decision-maker that such a claimant has not established having a subjective fear of persecution, risks and threats in his country of nationality sufficient to found a negative risk determination in this context? (Proposed Questions at p 2) 35 The Respondent submits that a negative determination on subjective fear alone can be decisive in applying Article 1E because the RPD is not required to conduct a full inclusion analysis. 36 The third question asks if Article 1E requires claimants who lose permanent residence status in a third country to demonstrate that they could not reacquire permanent residence status in that same third country: In the context of the application of Article 1E of the Refugee Con- vention, when the Minister has established prima facie evidence that the refugee protection claimant had permanent residency status in a third country when he or she applied for refugee protection in Can- ada and that this claimant has caused this status to expire by the time of the hearing of his or her refugee protection claim, should Article 1 E of the Convention be applied to that claimant, if he or she fails to demonstrate that there is evidence on the record to show that he or she could not reacquire permanent resident status in that same third country? (Proposed Questions at pp 5 and 6). 37 Citing Hassanzadeh v. Canada (Minister of Citizenship & Immigra- tion), 2003 FC 1494, 244 F.T.R. 154 (F.C.), the Respondent argues that claimants who voluntarily lose their permanent residence status in a third country have the burden of demonstrating why they cannot reapply and obtain a new permanent residence visa. 38 In his reply, the principal Applicant argues that the Court must consider whether he honestly believed it was necessary to claim refugee protection in Canada and whether Article 1E excludes asylum shoppers at the risk of endangering their lives. He argues that the affidavit from the ex-FARC member establishes that his belief that he was at risk in Chile was not objectively unsubstantiated and that state protection in the largely-Catholic country would not be reasonably forthcoming to him. 39 The principal Applicant also replies that the risk factor under the third prong of the Zeng test is the predominate factor. Whether a loss of status 294 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

in a third country is voluntary or involuntary is a factor under the Zeng test that must be modulated by the risk analysis. The principal Applicant also contends that the RPD cannot determine that he was not at risk from his lack of subjective fear alone.

VIII. Analysis 40 Whether the facts give rise to an exclusion under section 98 of the IRPA and Article 1E of the Convention is a question of mixed fact and law reviewable on the standard of reasonableness; this applies to the RPD’s risk and subjective fear analysis (Molano Fonnoll v. Canada (Minister of Citizenship & Immigration), 2011 FC 1461 (F.C.)). 41 Where reasonableness applies, the Court may only intervene if the RPD’s reasons are not “justified, transparent or intelligible”. To meet the standard, decisions must also fall in the “range of possible, acceptable outcomes... defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47). 42 The leading case on the application of section 98 of the IRPA and Article 1E of the Convention is the Federal Court of Appeal’s decision in Zeng, above, where Justice Carolyn Layden-Stevenson stated: [28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts. [Emphasis added]. [29] It will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances. 43 This Court must determine if the RPD could reasonably find that they were not at risk in Colombia because (i) the principal Applicant was not objectively at risk as FARC’s death threats never materialized; and (ii) Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 295

his temporary re-availment to Colombia on two occasions was inconsistent with a subjective fear of persecution. 44 In these circumstances, it was unreasonable to find that the principal Applicant was not objectively at risk because FARC’s death threats never materialized. The RPD is required to conduct an individualized assessment of a claimant’s particularized risk (Belle v. Canada (Minister of Citizenship and Immigration), 2012 FC 1181 (F.C.) at para 20). An individualized assessment required the RPD to consider the circumstances surrounding FARC’s threats; most notably, that the principal Applicant relocated to Bogota, the United States, Bogota again, and finally, Chile, in response to each of FARC’s death threats (Certified Tribunal Record at pp 100, 103 and 107). 45 Quite simply, the RPD’s objective risk analysis does not engage with the evidence the principal Applicant presented. Since the RPD did not express a negative credibility finding in “clear and unmistakable terms” (Hilo v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 228 (Fed. C.A.) at para 6), this Court presumes it believed that FARC threatened to kill the principal Applicant and he continually relocated in response. Perhaps one could reasonably find that a claimant who never relocated in response to threats that never came to fruition had no objective risk. If, however, the RPD accepted that a claimant repeatedly relocated to prevent threats from materializing, this inference is outside the range of acceptable, possible outcomes. 46 The RPD could not, in the absence of a negative general credibility finding, reasonably determine that the principal Applicant lacks subjective fear. This Court is bound by the Federal Court of Appeal’s decision in Shanmugarajah v. Canada (Minister of Employment & Immigration), [1992] F.C.J. No. 583 (Fed. C.A.) that “it is almost always foolhardy for a Board in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear” [emphasis added] (reference is also made to Camargo v. Canada (Minister of Citizenship & Immigration), 2003 FC 1434 (F.C.) and Avila Rodriguez v. Canada (Minister of Citizenship and Immigra- tion), 2012 FC 1291 (F.C.)). 47 In Sukhu v. Canada (Minister of Citizenship & Immigration), 2008 FC 427 (F.C.), Justice Yves de Montigny described with clarity the cog- 296 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

nitive dissonance that arises if the RPD accepts testimony on risk but finds that a claimant lacks subjective fear: [27] If the Board member wanted to impugn the credibility of the applicants, he had to say so explicitly and to provide an explanation. In the absence of such a finding, it is difficult to understand why the Board member came to the conclusion that the applicants’ fears were not subjectively well founded. If he accepts that the female applicant has been twice sexually assaulted, how could she not have a subjective fear to return to the location of her aggressors, in a country where the authorities are unwilling and/or incapable to protect her?... 48 If the RPD believed that the principal Applicant was threatened with death by the FARC, it is indeed “difficult to understand” how it could conclude that he was not afraid of them (Sukhu, above, at para 27). 49 The Respondent cites Zaied and Farfan, above, for the proposition that an absence of subjective fear is fatal to a claim. These are distinguishable because they both involve credibility problems (Zaied at para 9; Farfan at para 14). 50 The Respondent is correct that the Court should not interfere with how the RPD balanced the relevant factors. Zeng, above, states that “[i]t will be for the RPD to weigh the factors and arrive at a determination as to whether the exclusion will apply in the particular circumstances” (at para 29). The Court, however, does not find the RPD decision unreasonable because of the weight that the RPD assigned to the risk factor. It finds the decision unreasonable because the RPD’s analysis of that particular factor falls outside of the range of possible, acceptable outcomes. This does not amount to re-weighing the factors. 51 The Court declines to certify the questions proposed by the Respon- dent. The proposed questions do not meet the test in Kunkel, above. Kun- kel holds that a proposed question will only meet the threshold if it is a serious question of general importance that would be dispositive of an appeal and that transcends the particular context in which it arose. 52 The first question on whether the Zeng test requires a full inclusion analysis does not meet the threshold in Kunkel because it would not be dispositive of an appeal. The determinative question of this Application is whether the RPD could find that the Applicant lacked subjective fear in the absence of a general negative credibility finding. Answering this question does not require the Court to consider if the risk analysis in the Zeng test mandates a full inclusion analysis in accordance with sections 96 and 97 of the IRPA. As the Federal Court of Appeal stated in Zazai v. Ramirez-Osorio v. Canada (MCI) Michel M.J. Shore J. 297

Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.): “[t]he corollary of the fact that a question must be dispositive of the appeal is that it must be a question which has been raised and dealt with in the decision below” (at para 12) [emphasis added]. Since this Court does not find that it was necessary to address the first question to dispose of the Application, it is not to be certified under paragraph 74(d). 53 The second question concerning whether a lack of subjective fear is sufficient to find a negative risk determination under the Zeng test is not certifiable because it too is not dispositive. The question at issue in this Application was not whether a lack of subjective fear is sufficient to find a negative risk determination under the Zeng test but rather whether the RPD could, in the absence of a negative general credibility finding, reasonably determine that the principal Applicant lacks subjective fear. The Federal Court of Appeal settled this question in Shanmugarajah, above. 54 The third question concerning an applicant’s burden under the Zeng test to demonstrate why they cannot reapply and obtain a new permanent residence visa is not certifiable. Like the first and second questions, the third question would not be dispositive of an appeal. The question of whether a claimant could return to the third country is one of the non- dispositive factors in third prong of the Zeng test that the RPD must weigh.

IX. Conclusion 55 For all of the above reasons, the Applicant’s application for judicial review is granted and the matter is returned for determination anew (de novo) before a differently constituted panel.

Judgment THIS COURT ORDERS that the Applicants’ application for judicial review be granted and the matter be returned for determination anew (de novo) before a differently constituted panel. No question of general im- portation for certification. Application granted. 298 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

[Indexed as: Zhou v. Canada (Minister of Citizenship and Immigration)] Chengze Zhou, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6269-12 2013 FC 465 Andr´e F.J. Scott J. Heard: March 07, 2013 Judgment: May 3, 2013 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer — Procedural fairness –––– Applicant was citizen of China — Appli- cant’s application for temporary resident visa, for stated purpose of business exploration in Canada, was dismissed — Visa officer was not convinced applicant was genuine visitor or that he would leave Canada at end of authorized stay — Applicant brought application for judicial review — Application dismissed — Officer was under no obligation to alert applicant of any concerns regarding unsatisfactory nature of evidence provided in application — Officer’s concerns regarding evidence arose from requirements of Immigration and Refugee Protec- tion Regulations and she was not required to inform applicant of concerns. Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Documentation and corroborative evidence — Consideration of evidence –––– Applicant was citizen of China — Applicant’s application for temporary resident visa, for stated purpose of business exploration in Canada, was dismissed — Visa officer was not convinced applicant would leave Canada at end of authorized stay — Applicant brought application for judicial review — Application dismissed — Officer was presumed to have reviewed all evidence and was not required to refer to every document submitted — Officer assessed documents related to applicant’s previous travel, income, financial assets and personal establishment — Officer considered all of evidence provided and gave clear and intelligible reasons for refusing visa — Officer’s duty to provide reasons when evaluating temporary resident visa application was minimal — Officer refused application primarily because applicant failed to provide appropriate documentation — While officer’s assessment of applicant’s travel experience was unfair, officer did not err in finding documents submitted were inadequate — As most of documents submitted were photocopies, applicant failed to provide original documents as required. Zhou v. Canada (MCI) 299

Cases considered by Andr´e F.J. Scott J.: C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Wong (2009), 2009 CF 1085, 2009 CarswellNat 5834, 84 Imm. L.R. (3d) 89, 2009 CarswellNat 3411, 2009 FC 1085, [2009] F.C.J. No. 1339 (F.C.) — referred to Cha v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 751, 2006 FCA 126, 2006 CarswellNat 3036, 267 D.L.R. (4th) 324, 349 N.R. 233, 42 Admin. L.R. (4th) 204, 2006 CAF 126, [2007] 1 F.C.R. 409, 53 Imm. L.R. (3d) 1, [2006] F.C.J. No. 491 (F.C.A.) — referred to Doret c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), (sub nom. Doret v. Canada (Minister of Citizenship and Immigration)) 359 F.T.R. 129 (Eng.), 2009 CarswellNat 1185, 2009 CF 447, 2009 FC 447, 2009 CarswellNat 5310 (F.C.) — 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 Hassan v. Canada (Minister of Employment & Immigration) (1992), 147 N.R. 317, 1992 CarswellNat 562, [1992] F.C.J. No. 946 (Fed. C.A.) — considered 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.) — referred to Jin v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 1129, 2008 CarswellNat 5020, 2008 FC 1129, 2008 CarswellNat 3671, 75 Imm. L.R. (3d) 92 (F.C.) — referred to Lam v. Canada (Minister of Citizenship & Immigration) (1998), 1998 Car- swellNat 1699, 152 F.T.R. 316, [1998] F.C.J. No. 1239 (Fed. T.D.) — referred to Lawal v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 861, 2008 CF 861, 2008 CarswellNat 3181, 2008 CarswellNat 2378, 173 C.R.R. (2d) 309, [2008] F.C.J. No. 1082 (F.C.) — referred to Liu v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1025, 2006 CarswellNat 4376, 2006 FC 1025, 2006 CarswellNat 2622, [2006] F.C.J. No. 1289 (F.C.) — considered 300 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

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 (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered Nadarasa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 4827, 2009 CF 1112, 2009 CarswellNat 3458, 2009 FC 1112, [2009] A.C.F. No. 1350, [2009] F.C.J. No. 1350 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Ngalamulume c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 CarswellNat 5529, 2009 FC 1268, 2009 CF 1268, 2009 Car- swellNat 4271, (sub nom. Ngalamulume v. Canada (Minister of Citizenship & Immigration)) 362 F.T.R. 42 (Eng.), [2009] F.C.J. No. 1593, [2009] A.C.F. No. 1593 (F.C.) — referred to Ogunfowora v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 471, 2007 FC 471, 2007 CarswellNat 1022, 63 Imm. L.R. (3d) 157, 2007 CarswellNat 3368, [2007] F.C.J. No. 637 (F.C.) — referred to Silva v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 2989, 2007 CF 733, 2007 FC 733, 2007 CarswellNat 1988, 63 Imm. L.R. (3d) 176, [2007] F.C.J. No. 981 (F.C.) — considered Singh v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 621, 2009 CarswellNat 1820, 82 Imm. L.R. (3d) 205, 2009 CF 621, 2009 Car- swellNat 5881, [2009] F.C.J. No. 798 (F.C.) — referred to Zhang v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 6134, 2006 CarswellNat 3831, 2006 FC 1381, 59 Imm. L.R. (3d) 165, 2006 CF 1381, 303 F.T.R. 272 (Eng.), [2006] F.C.J. No. 1734 (F.C.) — referred to Zhou v. Canada (MCI) Andr´e F.J. Scott J. 301

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 11(1) — considered s. 20(1)(b) — considered s. 22(1) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 179 — considered s. 179(b) — pursuant to s. 179(d) — referred to

APPLICATION for judicial review of visa officer’s dismissal of applicant’s application for temporary resident visa.

Leonides F. Tungohan, for Applicant Mark E.W. East, for Respondent

Andr´e F.J. Scott J.: I. Introduction 1 This is an application by Mr. Chengze Zhou (the Applicant) for judicial review of a decision rendered by immigration officer Jaylene Hamil- ton (the Officer) on May 23, 2012, wherein the Officer, pursuant to paragraph 179(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], refused the Applicant’s application for a temporary resident visa (the Application) on the basis that she was not satisfied he would leave Canada at the end of his authorized stay. 2 For the following reasons, this application for judicial review is dismissed.

II. Facts 3 The Applicant is a 56-year-old citizen of the People’s Republic of China (PRC). On or about May 17, 2012, the Applicant applied for a temporary resident visa for the stated purpose of business exploration in Canada. 4 On or about May 23, 2012, the Officer considered the Application and the supporting documents submitted by the Applicant. The Officer entered the reasons for her refusal in the Global Case Management Sys- 302 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

tem (GCMS) and determined that the Applicant was not a genuine visitor who would leave at the end of his authorized stay. 5 The Officer’s reasons for refusing the Applicant’s Application, as entered in the GCMS, read as follows: Applicant seeks entry for exploratory visit to Canada. Applicant has limited previous travel. Applicant has submitted limited evidence in support of his ability to invest in Canada (largely in form of unverifiable photocopied documents and poor quality computer generated print outs). Applicant has submitted limited evidence of personal establishment in PRC. Bank docs show mostly large recent lump sum deposits which appear incommensurate with stated income, evidence of funds history are [sic] computer generated print outs with no verifiable security features. Other docs in support of establishment are largely in the form of photocopies with no verifiable security features. I am not satisfied that the applicant is a genuine visitor to Can- ada who will depart Canada at the end of the period for authorized stay. 6 The Officer advised the Applicant that his Application was refused by letter dated May 23, 2012.

III. Legislation 7 Subsections 11(1), 20(1) and 22(1) of the Immigration and Refugee Protection Act, SC 2001, c 2, and section 179 of the IRPR provide as follows: Immigration and Refugee Protection Act, SC 2001, c 27 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, ... (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. 22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has Zhou v. Canada (MCI) Andr´e F.J. Scott J. 303

met the obligations set out in paragraph 20(1)(b) and is not inadmissible. Immigration and Refugee Protection Regulations, SOR/2002-227 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; (b) will leave Canada by the end of the period authorized for their stay under Division 2; (c) holds a passport or other document that they may use to enter the country that issued it or another country; (d) meets the requirements applicable to that class; (e) is not inadmissible; and (f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act. Loi sur l’immigration et la protection des réfugiés, LC 2001, c 27 11. (1) L’étranger doit, préalablement a` son entrée au Canada, demander a` l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, a` la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme a` la présente loi. 20. (1) L’étranger non visé a` l’article 19 qui cherche a` entrer au Can- ada ou a` y séjourner est tenu de prouver: [...] b) pour devenir un résident temporaire, qu’il détient les visa ou autres documents requis par règlement et aura quitté le Canada a` la fin de la période de séjour autorisée. 22. (1) Devient résident temporaire l’étranger dont l’agent constate qu’il a demandé ce statut, s’est déchargé des obligations prévues a` l’alinéa 20(1)b) et n’est pas interdit de territoire. Règlement sur l’immigration et la protection des réfugiés, DORS/2002-227 179. L’agent délivre un visa de résident temporaire a` l’étranger si, a` l’issue d’un contrôle, les el´´ ements suivants sont etablis:´ 304 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des etudiants;´ b) il quittera le Canada a` la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays; d) il se conforme aux exigences applicables a` cette catégorie; e) il n’est pas interdit de territoire; f) s’il est tenu de se soumettre a` une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3).

IV. Issues and standard of review A. Issues 1. Did the Officer err in refusing the Applicant’s Applicat ion? 2. Did the Officer breach the duty of procedural fairness in failing to notify the Applicant of her concerns regarding his Application?

B. Standard of review 8 The standard of review for a visa officer’s refusal to issue a temporary resident visa because the officer does not believe an applicant would leave Canada after his or her authorized period of stay is reasonableness (see Doret c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2009 FC 447 (F.C.) at para 19). Visa officers are recognized as having expertise in assessing applications for temporary resident visas, and the Court must, therefore, show deference to their decisions on judicial review (see Ngalamulume c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2009 FC 1268 (F.C.) at para 16). 9 The question of whether the Officer should have notified the Appli- cant of her concerns regarding the adequacy or credibility of the documents he provided raises natural justice or procedural fairness issues. Where such issues arise, no deference is due and the Court must verify whether the requirements of procedural fairness have been followed (see Lawal v. Canada (Minister of Citizenship & Immigration), 2008 FC 861 (F.C.) at para 15; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.) at para 100, [2003] 1 S.C.R. 539 (S.C.C.); Jin v. Canada Zhou v. Canada (MCI) André F.J. Scott J. 305

(Minister of Citizenship & Immigration), 2008 FC 1129 (F.C.), at para 13). That said, the level of procedural fairness owed by the Officer in this case was minimal (see Cha v. Canada (Minister of Citizenship & Immi- gration), 2006 FCA 126 (F.C.A.) at para 23, (2006), [2007] 1 F.C.R. 409 (F.C.A.); Zhang v. Canada (Minister of Citizenship & Immigration), 2006 FC 1381 (F.C.) at para 37).

V. Parties’ submissions A. Applicant’s submissions 10 The Applicant alleges that the Officer committed a reviewable error by failing to consider all of the evidence before her and provide adequate reasons for not issuing the visa. The Applicant notes that the fact that it was necessary for the Officer to elaborate on her reasons for refusing the visa in an affidavit is indicative of their inadequacy (see for example Ogunfowora v. Canada (Minister of Citizenship & Immigration), 2007 FC 471 (F.C.), and Canada (Minister of Citizenship & Immigration) v. Wong, 2009 FC 1085 (F.C.)). 11 The Applicant further submits that the Officer’s decision is unreasonable in light of the nature and volume of the documents filed with his visa application. The documents in question included the following: notarized copies of the business licences for Ziyun Real Estate Develop- ments Co., Ltd. (Ziyun) and Huayang Capital Investments Co., Ltd. (Huayang); the articles of association for both of the above-mentioned companies along with the balance sheet for Ziyun, which indicates, among other things, that the value of the Applicant’s share of the equity in Ziyun is at least CAD$7.31 million; a survey posted on the government of Liaoning province’s website indicating that Ziyun is the number two real estate development firm in Anshan City; and a notarized copy of the Applicant’s property certificate. 12 The Officer’s conclusion that the amounts deposited as a lump sum in his bank account were incommensurate with his stated income ignores the fact, it is argued, that the Applicant’s stated wage does not reflect his asset level as a high net worth business owner. Furthermore, the Of- ficer’s conclusion that the Applicant had limited travel experience was unfair, given that his passport was issued in January 2010 and he had travelled to Korea and Japan in August 2011 and made a six-country trip to Europe (with stops in Italy and Geneva) in January 2012. 13 In addition, the Applicant argues that he received invitations from “credible officers” in British Columbia who had themselves conducted a 306 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

due diligence investigation regarding his capacity to invest in Canada and that “on this score alone, the Visa Officer should have given the Applicant the opportunity to pursue his submission that the purpose of the visit is business exploration” (Applicant’s Memorandum of Argu- ment, para 34). 14 Finally, the Applicant maintains that the Officer breached the duty of procedural fairness in failing to alert him of her concerns regarding his visa application. The Officer’s conclusion was based on a negative credibility finding with respect to the evidence he had adduced and in such instances officers are required to provide an applicant an opportunity to respond (see Hassani v. Canada (Minister of Citizenship & Immigra- tion), 2006 FC 1283 (F.C.) at para 24 [Hassani]). In addition, the Officer made reference to extrinsic and unknown evidence when she noted that the Applicant’s documents did not bear the security features that often appear on original documents in China (e.g. serial numbers, ultraviolet security features, watermarks, etc.). She was therefore under an obligation to alert the Applicant to this concern (see Nadarasa v. Canada (Minister of Citizenship & Immigration), 2009 FC 1112 (F.C.) at para 26 [Nadarasa]).

B. Respondent’s submissions 15 The Respondent submits that the Officer’s decision was reasonable and that the allegation that the Officer failed to provide sufficient reasons for her decision is without merit. The Respondent maintains that the GCMS Notes are intelligible and sufficiently explain why the Appli- cant’s visa was refused. The Officer clearly indicated that the documentary evidence submitted was inadequate because it was mostly in the form of “unverifiable photocopied documents and poor quality computer generated print outs”. As for the Applicant’s claim regarding the Of- ficer’s affidavit, the Respondent maintains that the affidavit does not go beyond the content of the GCMS Notes or the certified record. The affidavit simply highlights the fact that the publicly available document checklist indicates that original bank statements were required, and provides slight elaboration on what the Officer meant by “verifiable security features”. 16 Regarding the Applicant’s claim that the Officer failed to analyze all of the evidence adduced, the Respondent submits that visa officers are presumed to have considered all of the evidence before them and that there is nothing to suggest the Officer failed to do so in this case. Zhou v. Canada (MCI) Andr´e F.J. Scott J. 307

17 As for the Applicant’s claim that the Officer was required to alert him to her concerns with the evidence he had submitted, the Respondent cites this Court’s decision in Liu v. Canada (Minister of Citizenship & Immi- gration), 2006 FC 1025 (F.C.) at para 16 [Liu], where it is stated that [A]n applicant’s failure to provide adequate, sufficient or credible proof with respect to his visa application does not trigger a duty to inform the applicant in order for him to submit further proof to address the finding of the officer with respect to the inadequacy, defi- ciency or lack of credibility.... 18 Finally, the Respondent maintains that the GCMS Notes only refer to the documents provided by the Applicant and that the document checklist stating the requirement for original documents was completed and submitted by the Applicant. The Applicant’s claim that the Officer relied on external evidence in drawing her conclusions is consequently unfounded.

VI. Analysis 1. Did the Officer err in refusing the Applicant’s Application? 19 The Applicant alleges that the Officer committed a reviewable error by failing to consider all of the evidence before her and provide adequate reasons for not issuing the visa. The Respondent insists that the Officer considered all of the evidence and provided clear and intelligible reasons for refusing issuance of the visa. 20 The Court agrees with the Respondent for the following reasons. Firstly, the Officer is presumed to have reviewed all of the evidence (Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.)) and is not required to make reference to every document submitted (Hassan v. Canada (Minister of Employment & Immigration) (1992), 147 N.R. 317, [1992] F.C.J. No. 946 (Fed. C.A.)). Upon reading the Officer’s GCMS Notes, the Court finds that she clearly considered all the evidence adduced by the Applicant. The Of- ficer acknowledged that the Applicant had received invitations in accordance with the Checklist for Personal or Professional Affairs (Attending an Academic Conference, Exploratory Visits, Legal Matters) (the Check- list) (see GCMS Notes 6 and 7). The Officer also assessed documents related to the Applicant’s previous travel, his income, his financial assets and his personal establishment in the PRC, and indicated that the documents failed to convince her that he could invest in Canada and would return to the PRC, thereby justifying her refusal. 308 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

21 As the Respondent correctly submitted, an officer’s duty to provide reasons when evaluating a temporary resident visa application is minimal (see Singh v. Canada (Minister of Citizenship & Immigration), 2009 FC 621 (F.C.) at para 9). An administrative tribunal’s reasons are sufficient if they “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para 16, [2011] 3 S.C.R. 708 (S.C.C.)). In this case, the reasons clearly indicate that the Officer refused the application primarily because the Applicant failed to provide appropriate documentation. 22 The Applicant’s most important argument is that the Officer’s conclusion is unreasonable in light of the nature and volume of the documents filed with his visa application. The documents in question included the following: notarized copies of the business licences for Ziyun and Huayang; the articles of association for both of the above-mentioned companies along with the balance sheet for Ziyun, which indicates, among other things, that the value of the Applicant’s share of the equity in Ziyun is at least CAD$7.31 million; a survey posted on the government of Liaoning province’s website indicating that Ziyun is the number two real estate development firm in Anshan City; and a notarized copy of the Applicant’s property certificate. 23 During the hearing, counsel for the Applicant claimed that the Officer had failed to consider all the documentation submitted because with the rejection letter he only received part of all the documentation he had presented. The Court has reviewed the certified tribunal record and must reject that argument as it is clear from the GCMS Notes that all the documentation was reviewed. It is also clear that the Officer did consider the application as one relating to an exploratory visit even though it was initially submitted as relating to company-to-company business. 24 The Applicant submits that the Officer’s conclusion that the amounts deposited as a lump sum in his bank account are incommensurate with his stated income ignores the fact that the Applicant’s stated wage does not reflect his asset level as a high net worth business owner. Further- more, the Officer’s conclusion that the Applicant had limited travel experience was unfair given that his passport was issued in January 2010 and he had travelled to Korea and Japan in August 2011 and made a six- country trip to Europe (with stops in Italy and Geneva) in January 2012. Zhou v. Canada (MCI) Andr´e F.J. Scott J. 309

25 Finally, the Applicant argues that he received invitations from “credible officers” in British Columbia who had themselves conducted a due diligence investigation regarding his capacity to invest in Canada and that “on this score alone, the Visa Officer should have given the Appli- cant the opportunity to pursue his submission that the purpose of the visit is business exploration” (Applicant’s Memorandum of Argument, para 34). 26 While the Court acknowledges that the Officer’s assessment of the Applicant’s travel experience was unfair, the Officer’s principal justification for refusing the application was the inadequacy of the documents submitted in support of the application. According to the Checklist, the Applicant was required to submit “original bank documents showing financial history over several months” and evidence of assets in China such as an “original property certificate”. The Officer found the documents submitted by the Applicant inadequate because they were “largely in form of unverifiable photocopied documents and poor quality computer generated print outs”. Given the Applicant’s failure to fulfill the Checklist requirement to provide original documents attesting his ability to invest in Canada, the Court finds that the Officer’s decision refusing to issue a temporary resident visa fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47, [2008] 1 S.C.R. 190 (S.C.C.)).

2. Did the Officer breach the duty of procedural fairness in failing to notify the Applicant of her concerns regarding his Application? 27 Was the Officer required to alert the Applicant to the inadequacy of the documents he submitted? 28 The case law of this Court is clear in establishing that an officer is under no obligation to alert an applicant to his or her concerns regarding an application because of the unsatisfactory nature of the evidence provided. The “onus is on the Applicant to provide all relevant supporting documentation and sufficient credible evidence in support of his application” (Silva v. Canada (Minister of Citizenship & Immigration), 2007 FC 733 (F.C.) at para 20; see also Lam v. Canada (Minister of Citizenship & Immigration) (1998), 152 F.T.R. 316 (Fed. T.D.); Liu, at para 16). Fur- thermore, an officer need not notify an applicant of his or her concern where it “arises directly from the requirements of the legislation or related regulations” (Hassani, at para 24). In this case, the Officer’s con- 310 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

cerns regarding the Applicant’s funds and assets arose directly from the requirements of the IRPR (see paragraphs 179(b) and (d)). 29 While it is true that a duty to notify does arise “where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer’s concern” (Hassani, at para 24), the Officer in this case was not questioning the credibility of the documents so much as their failure to meet the Check- list requirement that satisfactory evidence be provided. Had the Appli- cant filed original bank statements and had the Officer questioned their authenticity, then the duty of fairness would have required the Officer to alert the Applicant to her concerns. 30 The Applicant lastly alleges that the Officer introduced an extrinsic and unknown requirement when she made reference to the security features that often appear on original documents in China (e.g. serial numbers, ultraviolet security features, watermarks, etc.). The Applicant argues that in such instances an officer must afford an applicant an opportunity to respond or to provide documents with such features (see Nadarasa, at para 26). The Court disagrees. The Officer made reference to the security features simply to explain why original documents are required. 31 In sum, this application will be denied because the Court finds that the Officer properly considered the evidence presented by the Applicant and provided adequate reasons for its rejection.

Judgment THIS COURT’S JUDGMENT is that 1. The application is dismissed; and 2. There is no question of general interest to certify. Application dismissed. Okomaniuk v. Canada (MCI) 311

[Indexed as: Okomaniuk v. Canada (Minister of Citizenship and Immigration)] Alla Okomaniuk Volodymyr Okomaniuk Dana Okomaniuk, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-2321-12 2013 FC 473 Richard G. Mosley J. Heard: March 28, 2013 Judgment: May 6, 2013 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Security — Spies and subversives –––– Security service em- ployee — Applicants were citizens of Ukraine who applied for permanent residence — Male applicant V had worked for Ukrainian Security Service (SBU) in counter-terrorism role, later as officer of defence for Department of State Guard, and as security guard for State Border Service — Visa officer found that there were reasonable grounds to believe that SBU was organization that had engaged in activities described at s. 34(1)(a) of Immigration and Refugee Protection Act during period of V’s membership in organization — Accordingly, visa officer found that there were reasonable grounds to believe that V was inadmissible under s. 34(1)(f) of Act — Applicants brought application for judicial review — Application granted; matter remitted to different visa officer — Visa officer relied on memorandum by Canada Border Security Agency (CBSA) to conclude that SBU was organization described in s. 34(1)(f) of Act without conducting any independent analysis of that issue — Officer did not engage in any independent analysis regarding SBU, but relied almost entirely on CBSA report with disclosing it to applicants — Reasons provided by visa officer were deficient due to lack of evidence of independent assessment. Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Duty of fairness –––– Applicants were citizens of Ukraine who applied for permanent residence — Male applicant V had worked for Ukrainian Security Service (SBU) in counter-terrorism role, later as officer of defence for Department of State Guard, and as security guard for State Border Service — Visa officer found that there were reasonable grounds to believe that SBU was organization that had engaged in activities described at s. 34(1)(a) of Immigration and Refugee Protection Act during period of V’s membership in organization — Accordingly, visa officer found that there were reasonable 312 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

grounds to believe that V was inadmissible under s. 34(1)(f) of Act — Appli- cants brought application for judicial review — Application granted; matter remitted to different visa officer — Visa officer relied on memorandum by Canada Border Security Agency (CBSA) without disclosing it to applicants — There was breach of procedural fairness as applicants were not given fair opportunity to correct or contradict content of CBSA memorandum. Cases considered by Richard G. Mosley J.: Adu v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 565, 2005 CarswellNat 1047, 2005 CF 565, 2005 CarswellNat 3483, [2005] F.C.J. No. 693 (F.C.) — considered Alemu v. Canada (Minister of Citizenship & Immigration) (2004), 257 F.T.R. 52 (Eng.), 2004 FC 997, 2004 CarswellNat 2330, 38 Imm. L.R. (3d) 250, 2004 CF 997, 2004 CarswellNat 4992, [2004] F.C.J. No. 1210 (F.C.) — considered Dasent v. Canada (Minister of Citizenship & Immigration) (1994), 1994 Car- swellNat 1449, 1994 CarswellNat 1449F, [1995] 1 F.C. 720, 87 F.T.R. 282, [1994] F.C.J. No. 1902 (Fed. T.D.) — considered Jalil v. Canada (Minister of Citizenship & Immigration) (2006), 52 Imm. L.R. (3d) 256, [2006] 4 F.C.R. 471, 2006 CarswellNat 445, 2006 FC 246, 2006 CF 246, 2006 CarswellNat 2548, [2006] F.C.J. No. 320 (F.C.) — referred to Johnson v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 2, 2008 CarswellNat 11, 2008 CF 2, 2008 CarswellNat 1327, [2008] F.C.J. No. 10 (F.C.) — distinguished Mekonen v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1133, 2007 CarswellNat 3655, 66 Imm. L.R. (3d) 222, [2007] F.C.J. No. 1469 (F.C.) — considered 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 (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to Nadarasa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 4827, 2009 CF 1112, 2009 CarswellNat 3458, 2009 FC 1112, [2009] A.C.F. No. 1350, [2009] F.C.J. No. 1350 (F.C.) — considered Okomaniuk v. Canada (MCI) Richard G. Mosley J. 313

Ogunfowora v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 471, 2007 FC 471, 2007 CarswellNat 1022, 63 Imm. L.R. (3d) 157, 2007 CarswellNat 3368, [2007] F.C.J. No. 637 (F.C.) — referred to Peer v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3628, 2010 CF 752, 91 Imm. L.R. (3d) 17, 2010 FC 752, 2010 CarswellNat 2396, 372 F.T.R. 28 (Eng.), (sub nom. Peer v. Canada (Citizenship and Immigration)) [2012] 1 F.C.R. 271, [2010] A.C.F. No. 916, [2010] F.C.J. No. 916 (F.C.) — distinguished Pusat v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 428, 2011 CarswellNat 1099, 2011 CarswellNat 1958, 2011 CF 428, 99 Imm. L.R. (3d) 34, 388 F.T.R. 49 (Eng.) (F.C.) — distinguished Thamotharem v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 2817, 64 Imm. L.R. (3d) 226, 60 Admin. L.R. (4th) 247, [2008] 1 F.C.R. 385, 2007 CarswellNat 1391, 2007 FCA 198, 2007 CAF 198, 366 N.R. 301, [2007] F.C.J. No. 734 (F.C.A.) — considered Ugbazghi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 1651, 2008 FC 694, 2008 CarswellNat 2672, 73 Imm. L.R. (3d) 27, [2009] 1 F.C.R. 454, 2008 CF 694 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 34 — considered s. 34(1) — considered s. 34(1)(a) — considered s. 34(1)(f) — considered s. 42 — considered s. 72(1) — pursuant to s. 87 — considered

APPLICATION by permanent resident applicants for judicial review of decision refusing their application for permanent residence.

Lorne Waldman, for Applicants Greg George, Alex Ham, for Respondent

Richard G. Mosley J.:

1 Alla and Volodymyr Okomaniuk and their daughter Dana, citizens of Ukraine, applied for permanent residence in Canada in December 2006. Their application was refused by letter dated February 9, 2011 on the ground that Volodymyr was inadmissible as a former member of the Ukrainian Security Service. This is their application for judicial review 314 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

of that decision under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. 2 For the reasons that follow, the application is granted.

Background: 3 Mr. Okomaniuk worked for the Ukrainian Security Service (SBU) from 1995 to 1998 in a counter-terrorism role, in particular to risks from religious extremists. During this time he was given six months of com- pulsory training at the Academy of the Security Service of Ukraine but not the 5-year training customary for career SBU officers. He then worked for the Department of the State Guard as an “officer of defence” from 1998 to 2000. 4 His wife Alla Okomaniuk trained as a teacher and then entered government service in 1997. From 2000 to 2004 she was posted as First Sec- retary at the Ukrainian Embassy in Ottawa. She left the government in 2004 and since 2007 the couple have managed a restaurant in the town of Khmelnytskyi, Ukraine. 5 Mr. Okomaniuk says that during his wife’s posting to the Ottawa Em- bassy, he was employed by the State Border Service as a security guard at the Embassy. He was subordinate to a senior guard and, through that guard, to a security officer who was an SBU member. Mr. Okomaniuk says that he reported up to the SBU officer only concerning protection of the Embassy’s physical premises, damage to property or vehicles, and emergencies. 6 Ms. Okomaniuk received sufficient points to qualify for permanent residence in the skilled worker class. 7 The Computer Assisted Immigration Processing System (CAIPS) notes in the court record indicate that in August 2009; a “simplified processing docs request” was sent to the applicants, who provided documentation on their education, work, and travel histories, as well as photo- graphs. In October 2009 it was assessed that Ms. Okomaniuk qualified on the points chart even though her work in Canada at the embassy did not count towards adaptability points. 8 However, it was deemed necessary to clarify whether Mr. Okomaniuk had worked for the security service, or the state protection service of the Ministry of the Interior. The applicants sent more documentation, which was received in October 2009. In April 2010, an interview was scheduled for May 19, 2010 and duly took place. Okomaniuk v. Canada (MCI) Richard G. Mosley J. 315

9 In June, August, October, and December 2010, the applicants inquired about the status of their case and were advised that it was still under consideration. The Canada Border Security Agency (CBSA) provided a recommendation to the Immigration Officer in December 2011. This was reviewed and an interview was scheduled “for procedural fairness purpose”. 10 The notes record that the interview was conducted in Ukrainian on February 7, 2011 with an interpreter present. Mr. Okomaniuk was asked to confirm that he was a member of the Ukrainian Security Service (SBU) from 1995 to 1998. He confirmed it. He explained the chain of command for his security guard work in Canada. 11 Sections 34(1)(a) and (f) of IRPA were then explained to the applicants. It was indicated that although Mr. Okomaniuk did not fall under s 34(1)(a), there were reasonable grounds to believe that he did fall under 34(1)(f).

Decision Under Review: 12 The CAIPS notes for February 7, 2011 indicate that all the information available, including the recommendation provided by CBSA dated 22 December 2011, had been reviewed. It is noted that: “Based on the information provided by the CBSA I have reasonable grounds to believe that the SBU is an organization that has engaged in activities described at 34(1)(a) of IRPA during the period of Mr. Okomaniuk’s membership in the organization.” Since he had admitted his membership, “I therefore have reasonable grounds to believe that Mr. [sic] is inadmissible”. 13 The refusal letter dated February 9, 2011 cites “reasonable grounds to believe” that Mr. Okomaniuk is inadmissible under section 34(1)(f) but does not mention the CBSA report.

Issues: 14 The issues which arise in this matter are as follows: a. Were the visa officer’s reasons deficient with respect to the finding that the applicants were inadmissible to Canada pursuant to section 34(1)(f) because they did not evidence an assessment of the SBU activities in question? 316 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

b. Did the visa officer breach principles of procedural fairness by not disclosing the CBSA report on which the conclusion about the SBU was based? 15 Prior to the hearing of this matter, the respondent brought an application for the protection of certain information in the certified tribunal record under s 87 of the IRPA. A closed hearing was held to determine whether the redacted information should be disclosed. 16 Having read the information that the Minister sought to protect from disclosure and upon receiving evidence and submissions from the respondent in the closed session, I was satisfied that the redacted information was not relevant to any of the issues before the Court. An Order issued granting the Minister’s application for nondisclosure subject to any representations received from the applicants at the open hearing. 17 At the open hearing, counsel for the applicants advised that he had nothing to submit with respect to the redacted material and did not think that it would affect the outcome. I agreed with that submission.

Applicable Legislation: 18 The relevant provisions of the Act are 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 subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. 42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if Okomaniuk v. Canada (MCI) Richard G. Mosley J. 317

(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or (b) they are an accompanying family member of an inadmissible person. 87. The Minister may, during a judicial review, apply for the non- disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications. 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants: a)etre ˆ l’auteur d’actes d’espionnage ou se livrer a` la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; b)etre ˆ l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; c) se livrer au terrorisme; d) constituer un danger pour la sécurité du Canada; e)etre ˆ l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; f)etre ˆ membre d’une organisation dont il y a des motifs raison- nables de croire qu’elle est, a et´´ e ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable a` l’intérêt national. 42. Emportent, sauf pour le résident permanent ou une personne pro- tégée, interdiction de territoire pour inadmissibilité familiale les faits suivants: a) l’interdiction de territoire frappant tout membre de sa famille qui l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas; b) accompagner, pour un membre de sa famille, un interdit de territoire. 87. Le ministre peut, dans le cadre d’un contrôle judiciaire, demander l’interdiction de la divulgation de renseignements et autres el´´ ements de preuve. L’article 83 s’applique a` l’instance, avec les adaptations nécessaires, sauf quant a` l’obligation de nommer un avocat spécial et de fournir un résumé. 318 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Analysis: Standard of Review 19 The admissibility decision under 34(1) was within the discretion of the officer and would normally be reviewable on a standard of reasonableness: Ugbazghi v. Canada (Minister of Citizenship & Immi- gration), 2008 FC 694 (F.C.) at para 36. However, the applicants allege that the officer fettered his or her discretion and did not assess the CBSA memorandum. They contend that the officer merely applied the CBSA memorandum without question and therefore did not exercise his or her discretion. 20 The standard of review with respect to the fettering of discretion is correctness, as stated by the Federal Court of Appeal in Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198 (F.C.A.) at paragraph 33. 21 The second issue relating to the non-disclosure of the CBSA report concerns procedural fairness and is also subject to review without deference.

Were the visa officer’s reasons deficient because they did not evidence an assessment of the SBU activities in question? 22 The applicants contend that the visa officer relied on the CBSA memorandum to conclude that the SBU is an organization described in s 34(1)(f) without conducting any independent analysis of that issue. Rea- sons must be detailed enough for the applicants to sufficiently know why the application was denied: Ogunfowora v. Canada (Minister of Citizenship & Immigration), 2007 FC 471 (F.C.) at para 60. Here there were no “reasoned reasons” as discussed in Adu v. Canada (Minister of Citizenship & Immigration), 2005 FC 565 (F.C.) at paras 10-11. A finding of inadmissibility is particularly significant to an applicant and cau- tion must be exercised to ensure that it is properly made. The requirement for reasons in such circumstances was stressed in Alemu v. Canada (Minister of Citizenship & Immigration), 2004 FC 997 (F.C.) at paras 24, 27 and 36. See also Jalil v. Canada (Minister of Citizenship & Immigra- tion), 2006 FC 246 (F.C.) at paras 25-29. 23 In this case, the only ground of inadmissibility was membership in the SBU, and the characterization of the SBU was, therefore, of the ut- most importance. The officer did not engage in any independent analysis regarding the SBU, merely citing “information provided by the CBSA”. Okomaniuk v. Canada (MCI) Richard G. Mosley J. 319

24 The applicants rely on Peer v. Canada (Minister of Citizenship & Im- migration), 2010 FC 752 (F.C.) [Peer] at para 28: I agree with the submissions of the applicant that “there is nothing in the reasons or the evidence to justify any finding that the organization [of which the applicant was a member] engaged in espionage or subversion at all.” The officer provides no basis at all for her conclusion that the CMI and/or the ISI are organizations falling within the description provided in subsection 34(1) of the Act. The only support for this conclusion was to be found in the reports that were not properly before the officer. If this were the only basis on which the applicant was found inadmissible, this application would be allowed; however, the officer also found that the applicant himself had engaged in espionage within the meaning of subsection 34(1)(a) of the Act. [Underlining added] 25 Here, unlike in the Peer case, it is not in question that the report was properly before the officer. But nor is there any alternate basis of personal involvement alleged that would justify inadmissibility. It is also impossible to tell from the CAIPS notes whether the officer turned his or her mind to the nature of the SBU or what he or she understood “espionage” to mean. 26 The respondent contends that the visa officer’s linkage of the 34(1)(f) finding to 34(1)(a). was sufficient clarity for the applicants and for this Court, and a sufficient basis for meaningful judicial review: N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.). In this instance, neither the allegation of membership in the SBU nor the allegation that the SBU was involved in espionage were denied by the applicants. 27 I think that it is clear from the CAIPS notes that the officer relied almost entirely upon the CBSA report. That in itself was not surprising as the officer would not necessarily have access to any better source of information about the nature of the organization in question. But there is also no indication in the notes that the officer considered disclosing the report to the applicants, redacted as necessary, and giving them an opportunity to respond to the information it contained. 28 I find that the reasons provided were deficient due to the lack of evidence of an independent assessment by the officer. 320 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Did the visa officer breach principles of procedural fairness by not disclosing the CBSA report? 29 In Pusat v. Canada (Minister of Citizenship & Immigration), 2011 FC 428 (F.C.) [Pusat] at paras 28-30, this Court held that judicial review ought to be allowed on the basis of non-disclosure of a CBSA memorandum: 28 The CBSA memorandum considered by the Officer in this instance was similar to that discussed by Justice Eleanor Dawson, as she then was, in Mekonen v. Canada (Minister of Citizenship and Immigration), 2007 FC 1133, 66 Imm. L.R. (3d) 222. That case also dealt with the issue of disclosure in the context of a paragraph 34 (1) (f) determination. Citing factors applied by the Federal Court of Ap- peal in Haghighi v. Canada (Minister of Citizenship and Immigra- tion), [2000] 4 F.C. 407 (C.A.) (QL), and Canada (Minister of Citi- zenship and Immigration) v. Bhagwandass, 2001 FCA 49, Justice Dawson found that the circumstances of that case required the officer to provide the applicant with the CBSA memorandum and other open-source documents to allow him to make submissions that were responsive to the material. This was necessary, she held at paragraph 26 of her reasons, in order for Mr. Mekonen to have a meaningful opportunity to present relevant evidence and submissions and to have his evidence and submissions fully and fairly considered by the officer. 29 At paragraph 19, Justice Dawson found that the CBSA memo in question in that case: [W]as an instrument of advocacy designed, in the words of the Federal Court of Appeal in Bhagwandass [Canada (Minister of Citizenship and Immigration) v. Bhagwandass, “to have such a degree of influence on the decision maker that advance disclosure is required ‘to ‘level the playing field’”. 30 The CBSA memorandum in the present case contains a recommendation in almost identical terms to that in Mekonen and states that the information being forwarded to the officer “provides sufficient conclusive evidence to support a determination of inadmissibility pursuant to paragraph 34 (1) (f) IRPA”. As in Bhagwandass and Mekonen, disclosure was required to level the playing field. See also: Rana v. Canada (Minister of Citizenship and Immigration), 2010 FC 696, a case decided by Justice Sean Harrington in which the failure to disclose a similar report in analogous circumstances was found to have denied the applicant procedural fairness. 30 The respondent contends that the applicants were advised at the procedural fairness interview of the concern that Mr. Okomaniuk had been a Okomaniuk v. Canada (MCI) Richard G. Mosley J. 321

member of the Ukraine security services while working at the Ukrainian embassy in Canada and that the SBU was an organization that conducted espionage. The conclusion of the CBSA memorandum was presented to the applicants for comment and they were given an opportunity to respond at that time. 31 The respondent contends that this was sufficient to meet the requirements of procedural fairness because it is unclear what evidence the applicants were prevented from adducing to rebut the content of the report. Nor is it clear, the respondent argues, what assistance advance disclosure could have given the applicants. 32 In my view, the memorandum in the present instance did amount to “an instrument of advocacy” as discussed in Pusat, above, and Mekonen v. Canada (Minister of Citizenship & Immigration) [2007 CarswellNat 3655 (F.C.)], which the former cites. This is not a case such as Johnson v. Canada (Minister of Citizenship & Immigration), 2008 FC 2 (F.C.) where the inadmissibility concerns arose from the provisions of the IRPA itself. In Johnson, the applicant was inadmissible by reason of a criminal conviction. It was not necessary for the officer to disclose the fact that he was aware of Johnson’s conviction when the interview was conducted. The fact of the conviction was known to Johnson and his admissibility stemmed directly from the occurrence of that fact. Here, it was necessary for the officer to determine the nature of the SBU and its activities and Mr. Okomaniuk’s membership in the organization before the admissibility finding could be made. 33 While it may not have been necessary to disclose the actual memorandum, particularly as it contained information that it would prove necessary to redact, the content or gist of the concern about the nature of the SBU and Mr. Okomaniuk’s involvement with it should have been con- veyed to the applicants prior to the interview: Nadarasa v. Canada (Minister of Citizenship & Immigration), 2009 FC 1112 (F.C.) at paragraph 25 citing the following quote from Justice Rothstein (then from this Court) in Dasent v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 720 (Fed. T.D.), at para 23: The relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements. The source of the information is not of itself a differentiating matter as long as it is not known to the applicant. The question is whether the applicant had the opportunity of dealing with the evidence. This is what the longestab- lished authorities indicate the rules of procedural fairness require. In 322 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

the well known words of Lord Loreburn L.C. in Board of Education v. Rice, [1911] A.C. 179 (H.L.) at page 182: They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. See also: Muliadi v. Canada (Minister of Employment and Immigra- tion), [1986] 2 F.C. 205 (F.C.A.); Chen v. Canada (Minister of Citi- zenship and Immigration), 2007 FC 41; Knizeva v. Canada (Minister of Citizenship and Immigration), 2006 FC 268. 34 In this instance, the applicants were not given a fair opportunity to correct or contradict the content of the CBSA memorandum. It is clear from the information filed by the applicants on this application that they could have presented such information had they been given the chance to do so. It was not sufficient for the officer to inquire, at the end of the interview, whether they had anything to add at that time. 35 In the result, I am satisfied that there has been a breach of procedural fairness and the matter should be remitted for a fresh determination by another officer. In the circumstances, the applicants must be allowed to present the information they would have submitted had they been given the opportunity by the visa officer in the first instance. 36 No serious questions of general importance were proposed for certification.

Judgment THIS COURT’S JUDGMENT is that the application is granted and the matter is remitted for redetermination by a different visa officer in accordance with these reasons. No questions are certified. Application granted. De Coito v. Canada (MCI) 323

[Indexed as: De Coito v. Canada (Minister of Citizenship and Immigration)] Jasmattie de Coito, Applicant and The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, Respondents Federal Court Docket: IMM-1594-12 2013 FC 482 Mary J.L. Gleason J. Heard: December 6, 2012 Judgment: May 7, 2013* Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Post-determination options — Humanitarian and compassionate review — Unusual, undeserved, or disproportionate hardship –––– Claimant was citizen of Guyana of Indian ethnicity — Claimant suffered brutal attack in Guyana in which her husband was murdered and she, her daughter and niece were gang-raped — Both claimant’s application for refugee status and pre-removal risk assessment were dismissed — Claimant’s application for humanitarian and compassionate consideration was dismissed — Claim- ant brought application for judicial review — Application granted — Officer committed reviewable error by copying reasons from unrelated file and relying on facts as applicable to claimant’s situation — Facts copied into claimant’s file were used to justify rejecting claimant’s allegation she would suffer unusual, undeserved or disproportionate hardship if she were returned to Guyana — Of- ficer’s failure to accurately appreciate and analyze claimant’s situation rendered decision unreasonable — Officer’s decision also fell outside range of possible outcomes — Officer’s decision was difficult to reconcile with purpose of humanitarian and compassionate provisions in Immigration and Refugee Protec- tion Act — Claimant had suffered significant trauma in Guyana, had not lived in Guyana for ten years and had few remaining connections — Matter remitted for reconsideration.

*A corrigendum issued by the court on August 28, 2013 has been incorporated herein. 324 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Cases considered by Mary J.L. Gleason J.: Abraham v. Canada (Attorney General) (2012), (sub nom. Canada (Attorney General) v. Abraham) 2012 D.T.C. 5160 (Eng.), 440 N.R. 201, 2012 FCA 266, 2012 CarswellNat 4018, [2013] 1 C.T.C. 69, 2012 CarswellNat 5638, 2012 CAF 266 (F.C.A.) — 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 Diabate v. Canada (Minister of Citizenship and Immigration) (2013), 2013 FC 129, 2013 CarswellNat 673, 2013 CarswellNat 212, 2013 CF 129 (F.C.) — referred to Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, (sub nom. Doré v. Barreau du Québec) 255 C.R.R. (2d) 289, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12 (S.C.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.) — referred to Maple Lodge Farms Ltd. v. Canada (1982), [1982] 2 S.C.R. 2, 1982 Car- swellNat 484, 1982 CarswellNat 484F, 44 N.R. 354, 137 D.L.R. (3d) 558, [1982] S.C.J. No. 57 (S.C.C.) — referred to 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 (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered De Coito v. Canada (MCI) Mary J.L. Gleason J. 325

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — 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 Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 25 — considered s. 74 — considered

APPLICATION by claimant for judicial review of officer’s decision dismissing application for consideration on humanitarian and compassionate grounds.

Robin L. Seligan, for Applicant Margherita Braccio, for Respondents

Mary J.L. Gleason J.:

1 The applicant, Ms. De Coito, is 59 years-old and a citizen of Guyana of Indian ethnicity. She has lived in Canada with members of her family for over a decade. She left Guyana as a result of a brutal attack on her, her husband, daughter and niece. Thugs broke into their home, assaulted the applicant’s husband and gang-raped Ms. De Coito, her daughter and niece. The applicant’s husband died as a result of the attack. Tragically, this was the second instance of a similar attack; several years earlier, the applicant’s first husband was also attacked and killed in Guyana. 2 Ms. De Coito applied for refugee status in Canada based on her past experience and the risk to the Indo-Guyanese in Guyana, and her claim was denied. She also sought and was granted a pre-removal risk assessment, which was likewise denied. She made an application for humanitarian and compassionate [H&C] consideration under section 25 of the Im- migration and Refugee Protection Act, SC 2001, c 27 [the IRPA or the 326 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

Act], which was denied on January 13, 2012 by a Senior Immigration Officer of Citizenship and Immigration Canada. The H&C decision is the subject of the present application for judicial review. Ms. De Coito argues that in rendering a negative decision in her application, the Officer committed several reviewable errors, namely that: 1. The Officer failed to give adequate consideration to the best interests of Ms. De Coito’s step-grandson, with whom she is very close; 2. The Officer ignored critical pieces of submitted evidence, including a CD of news clips from Guyana, describing the attack on Ms. De Coito and her family and supplementary submissions from her counsel, containing additional information regarding the alleged hardship her step-grandson would experience if the applicant is removed; and 3. The Officer’s treatment of the hardship that the applicant would be likely to suffer if returned to Guyana is unreasonable because the Officer’s reasons show she copied from another file and assumed facts that were wholly foreign to Ms. De Coito’s situation and because the result reached is unreasonable. 3 I need only address the final point as in my view the Officer’s treatment of the issue of hardship in this case is unreasonable and demands intervention by this Court. 4 In coming to this conclusion, I recognize that the reasonableness standard of review applies to the Officer’s decision and that, in the context of a discretionary decision like the present, the reasonableness standard mandates that considerable deference be given to the decision so that I cannot substitute my views for those of the Officer (Kisana v. Canada (Minister of Citizenship & Immigration), 2009 FCA 189 (F.C.A.) at paras 18, 20). To borrow the words of Justice Binnie, writing for the majority in Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) [Khosa] at para 62, whether I agree with the Officer’s decision is “beside the point” because Parlia- ment entrusted the Officer to make the decision. Put another way, the range of permissible outcomes for a discretionary decision is large (see Abraham v. Canada (Attorney General), 2012 FCA 266 (F.C.A.) at para 42; Diabate v. Canada (Minister of Citizenship and Immigration), 2013 FC 129 (F.C.) at para 24). De Coito v. Canada (MCI) Mary J.L. Gleason J. 327

5 That said, discretionary decisions are not immune from review if the results reached are unreasonable nor is the range of permissible outcomes without bounds. The Supreme Court of Canada’s recent jurisprudence elucidating the content of the reasonableness standard makes clear that a reviewing court must examine both the reasoning process and the outcome reached in evaluating whether an administrative tribunal’s decision is reasonable. As noted by the majority in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47, [2008] 1 S.C.R. 190 (S.C.C.), “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.” Similarly, in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para 14, Justice Abella, writing for the Court held that, “[T]he reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” Justice Abella recently confirmed in Dor´e c. Qu´ebec (Tribunal des professions), 2012 SCC 12 (S.C.C.) that the requirement of a reviewing court to assess both reasons and outcome applies to discretionary decisions. 6 The instances where review is warranted due to the unreasonable nature of the result reached by a tribunal in making a discretionary decision will be few and far between because it is not for the reviewing court to reweigh the factors considered by the tribunal, provided the factors it considered are the relevant ones (Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 (S.C.C.) at para 37, [2002] 1 S.C.R. 3 (S.C.C.)). Where, however, the tribunal fails to consider the relevant factors or considers irrelevant ones in coming to its decision, the case law has long recognised that such failure will provide the basis for intervention (see e.g. Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558 (S.C.C.)). 7 In addition, if a tribunal merely lists a key relevant consideration but then ignores that factor so as to effectively denude it of content, review may be warranted. This, in fact, is what occurred in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.) where the Supreme Court set aside an H&C decision, in part because the officer who made the decision so diminished the 328 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

interests of the affected children that he in effect ignored them. Writing for the majority in that case, Justice L’Heureux-Dub´e wrote at para 66: The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon “compassionate or humanitarian considerations” (emphasis added). These words and their meaning must be central in determining whether an individual H & C decision was a reasonable exercise of the power conferred by Parlia- ment. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider an H & C request when an application is made [...] Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations. 8 Here, the Officer’s decision is unreasonable because she cut and pasted from reasons in another matter and used those reasons to justify rejecting Ms. De Coito’s claim that she would suffer unusual, undeserved or disproportionate hardship if she were returned to Guyana. The Officer wrote as follows: [...] I find that should the applicant need to re-establish herself in Guyana, it would be reasonable to assume that she would have the support and assistance of their other son and the principal applicant’s siblings, and be able to apply their restaurant entrepreneur skills and/or their Canadian work experience to assist them in obtaining employment. Thus, I find that should he return to Trinidad, the elements assessed here would not contribute to a hardship that is unusual and undeserved or disproportionate. 9 Ms. De Coito is a woman, is not from Trinidad, has never worked in a restaurant and does not have a son in Guyana. Thus, nothing in the preceding paragraph applies to her situation. The respondents argue that these are merely clerical errors as the Officer elsewhere accurately set out the facts pertaining to Ms. Ms. De Coito’s claim. The respondents therefore assert that the errors made by the Board do not warrant intervention. 10 I disagree. Contrary to the respondents’ position, these factual errors are at the very heart of the Officer’s reasoning in this case. The failure to accurately appreciate and analyze the applicant’s situation renders the Officer’s decision unreasonable. De Coito v. Canada (MCI) Mary J.L. Gleason J. 329

11 While the latter conclusion is determinative of this application, I would also note that the conclusion reached by the Officer appears to fall outside the range of reasonable outcomes. The purpose of H&C discretion is discussed in the respondents’ Inland Processing Manual 5: Immi- grant Applications in Canada made on Humanitarian or Compassionate Grounds, which provides (at s 2): The purpose of H&C discretion is to allow flexibility to approve deserving cases not covered by the legislation. This discretionary tool is intended to uphold Canada’s humanitarian tradition. Use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act. 12 This purpose has likewise been recognized by Justice L’Heureux- Dub´e in Baker where she noted at para 15: Applications for permanent residence must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of the Act. One of the exceptions to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations. In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration officers [...] In addition, while in law, the H & C decision is one that provides for an exemption from regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canada but does not have status can stay in the country or will be required to leave a place where he or she has become established. It is an important decision that affects in a fundamental manner the future of individuals’ lives. In addition, it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections. 13 The result reached in this case is difficult to reconcile with the purpose of the H&C provisions in the Act and the notion that consideration needed to be given to Canada’s humanitarian tradition. If the applicant is not deserving of this exceptional treatment, it is hard to see who would be. As counsel for the applicant noted, if Ms. De Coito is not granted H&C consideration, she will not likely be able to return to Canada except, perhaps, on a temporary basis and thus will be required to live in Guyana, where she has no real roots and experienced significant trauma. It is difficult to imagine someone more deserving of compassionate con- 330 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

sideration than a 59 year-old grandmother who lost two husbands in brutal murders, experienced gang-rape and witnessed her daughter and niece being gang-raped, and would be forced to return to the country these events occurred, where she has not lived for over 10 years and has few remaining connections. This would appear to be exactly the sort of case Parliament had in mind when it provided the Minister of Citizenship and Immigration discretion to waive compliance with the IRPA. 14 For these reasons, the Officer’s decision will be set aside and the matter remitted to the respondents for reconsideration in accordance with this decision. No question of general importance under section 74 of the IRPA was proposed and none arise in this case.

Judgment THIS COURT’S JUDGMENT is that: 1. This application for judicial review of the Officer’s decision is granted and the Officer’s decision of January 13, 2012 is set aside; 2. The applicant’s H&C claim is remitted to the respondent, Minister of Citizenship and Immigration, for re-determination by a different officer; 3. No question of general importance is certified; and 4. There is no order as to costs. Application granted. Henguva v. Canada (MCI) 331

[Indexed as: Henguva v. Canada (Minister of Citizenship and Immigration)] Ngeseuako Henguva, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7403-12 2013 FC 483 Danièle Tremblay-Lamer J. Heard: May 2, 2013 Judgment: May 8, 2013 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Membership in particular social group — Forced or arranged marriage –––– Claimant was 23-year-old citizen of Namibia — Following death of her grandfather, claimant was pressured to marry significantly older cousin — Police refused to interfere with traditional approach to marriage — Claimant’s application for Convention refugee status was dismissed on grounds her fear of being ostracized by family did not amount to persecution, that internal flight alternative existed and that adequate state protection existed — Claimant brought application for judicial review — Applica- tion granted — Board’s failure to address whether direct harm of forced marriage amounted to persecution — Board failed to assess, or even acknowledge, that claimant’s primary fear was that she would be forced to marry her cousin — Claimant’s fear of ostracism was side issue flowing from her primary fear of forced marriage — Pressure by claimant’s family to marry cousin amounted to being forced into marriage. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Protection of members of particular groups — Gen- der –––– Claimant was 23-year-old citizen of Namibia — Following death of her grandfather, claimant was pressured to marry significantly older cousin — Po- lice refused to interfere with traditional approach to marriage — Claimant’s application for Convention refugee status was dismissed on grounds her fear of being ostracized by family did not amount to persecution, that internal flight alternative existed and that adequate state protection existed — Claimant brought application for judicial review — Application granted — Board’s assessment of state protection did not consider adequacy of state protection available to claimant to protect her from forced marriage — Board failed to analyze whether remedies available to victims of domestic violence were available to 332 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th) victims of forced marriage — Whether or not claimant did or would be able to seek protection from non-governmental groups was irrelevant to analysis of state protection — Police force was presumed to be main institution mandated to protect citizens and other governmental or private institutions were presumed not to have means nor mandate to assume that responsibility. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Claimant was 23-year-old citizen of Namibia — Follow- ing death of her grandfather, claimant was pressured to marry significantly older cousin — Police refused to interfere with traditional approach to marriage — Claimant’s application for Convention refugee status was dismissed on grounds her fear of being ostracized by family did not amount to persecution, that internal flight alternative existed and that adequate state protection existed — Claim- ant brought application for judicial review — Application granted — Board misconstrued test for internal flight alternative — Issue of state protection was distinct from issue of internal flight alternative — Board erred by intermingling issues of state protection and internal flight alternative in applying test for latter — Board also incorrectly held claimant to higher standard by requiring she show that family would be able to find her if she executed internal flight alternative. Cases considered by Danièle Tremblay-Lamer J.: Dominguez Hernandez c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2007), 2007 CarswellNat 4969, 2007 CF 1211, 2007 Car- swellNat 4318, 2007 FC 1211, [2007] F.C.J. No. 1563 (F.C.) — referred to Katinszki v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1326, 2012 CarswellNat 4507, 2012 CarswellNat 5028, 2012 CF 1326, [2012] F.C.J. No. 1444 (F.C.) — referred to Kemenczei v. Canada (Minister of Citizenship and Immigration) (2012), 2012 CarswellNat 4549, 2012 FC 1349, 2012 CarswellNat 5569, 2012 CF 1349, [2012] A.C.F. No. 1457, [2012] F.C.J. No. 1457 (F.C.) — referred to Meza Varela v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 4927, 2011 FC 1364, 2011 CF 1364, 2011 CarswellNat 5374 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Henguva v. Canada (MCI) Danièle Tremblay-Lamer J. 333

Onyenwe v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 604, 2011 CarswellNat 2071, 2011 CF 604, 2011 CarswellNat 3127, [2011] F.C.J. No. 807 (F.C.) — referred to Perez Burgos c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 CarswellNat 4515, 2006 CF 1537, 2006 FC 1537, 64 Imm. L.R. (3d) 300, 2006 CarswellNat 6019, [2006] F.C.J. No. 1924 (F.C.) — referred to Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706, 140 N.R. 138, 1991 CarswellNat 162, 1991 CarswellNat 162F, [1991] F.C.J. No. 1256 (Fed. C.A.) — followed Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 160, 1993 CarswellNat 1351, 22 Imm. L.R. (2d) 241, 109 D.L.R. (4th) 682, [1994] 1 F.C. 589, 163 N.R. 232, [1993] F.C.J. No. 1172, [1993] A.C.F. No. 1172 (Fed. C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to

APPLICATION by claimant for judicial review of board’s decision denying Convention refugee status.

Cheryl Robinson, for Applicant David Cranton, for Respondent

Dani`ele Tremblay-Lamer J.:

1 This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the Refugee Protection Division of the Immigration and Refugee Board [the Board] dated July 4, 2012 wherein the Board determined that the applicant is not a Convention refugee or person in need of protection.

Facts 2 The applicant is a 23 year-old citizen of Namibia. She alleges the following facts in support of her claim: • After the applicant’s grandfather passed away in November 2010, her eldest uncle became the new head of the family and he pressured her to marry her cousin. The applicant refused. She believed this cousin to be 50 or perhaps even 70 years old; 334 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

• This cousin began to visit the applicant constantly and ask her to marry him. On one visit, he asked if he could sleep with her. This made the applicant afraid, particularly because her cousin would often touch her inappropriately; • The applicant went to the police in December 2010, but they told her they could not do anything to help her because they could not interfere with the traditional way; • Because the applicant’s family continued to pressure her to marry her cousin, she decided to come to Canada; and • The applicant’s uncles have told the applicant’s mother that if the applicant does not marry her cousin as soon as she returns to Namibia, both she and her mother will lose the financial support of the family.

Decision of the Board 3 The Board based its negative decision on the following findings: • Parts of the applicant’s testimony were not credible; • The applicant’s fear of being ostracized by her family and not being financially supported by her uncle if she continued to refuse to marry her cousin was not sufficiently serious to amount to persecution. The Board noted that as a 22-year-old adult it would be reasonable to assume that the applicant could find a job and live independently in Namibia if necessary; • The applicant met both prongs of the test for an internal flight alternative [IFA], as on a balance of probabilities i) it was unlikely that her uncle and cousin would be able to locate her in Walvis Bay, which has a population of 42,015 and ii) it was not objectively unreasonable for the Board to expect the claimant to seek refuge in Walvis Bay; and • Having considered the country conditions in Namibia and all the circumstances of the case, based on a balance of probabilities, adequate state protection would be available to the applicant if she were to return to Namibia.

Issues 1. Did the Board make an unreasonable finding regarding the lack of persecution faced by the applicant? 2. Did the Board misconstrue the legal test for an IFA? Henguva v. Canada (MCI) Dani`ele Tremblay-Lamer J. 335

3. Did the Board make an unreasonable determination regarding the availability of state protection?

Standard of Review 4 The findings of the Board regarding the lack of persecution faced by the applicant and the availability of state protection are questions of mixed fact and law and are reviewable on the reasonableness standard (Kemenczei v. Canada (Minister of Citizenship and Immigration), 2012 FC 1349 (F.C.) at paras 21-22). A reasonable conclusion is one that “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at para 47). 5 The issue of the legal test for the availability of an IFA is a question of law and is reviewed on the correctness standard (Onyenwe v. Canada (Minister of Citizenship & Immigration), 2011 FC 604 (F.C.) at para 9).

Arguments and Analysis 1. Did the Board make an unreasonable finding regarding the lack of persecution faced by the applicant? 6 The applicant argues that the Board unreasonably found that the treatment faced by the applicant did not amount to persecution. The Board failed to acknowledge that the forced marriage feared by the applicant was itself the harm that needed to be assessed, rather than the applicant’s fear that she would be ostracized by her family. Moreover, the Board failed to take into account the cultural environment, her traditional family and the impact upon the applicant should she be ostracized from her family and community. 7 According to the respondent, the evidence was not that the applicant would be forced into an unwanted marriage. Rather, she said in her personal information form narrative that she would be pressured by her family to marry her cousin and ostracized if she refused to do so. Thus, it was reasonable for the Board to find that the harm did not rise to the level of persecution. 8 The Board’s analysis of whether the applicant’s fear could be considered persecution consisted of only the following two paragraphs: 20 There is general jurisprudence that to be considered persecution, the mistreatment suffered or anticipated must be serious and in order to determine whether particular mistreatment could qualify as “serious” it is necessary to examine how a claimant maybe [sic] harmed 336 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

and to what extent the subsistence, employment, expression or exercise of that interest may be compromised. This approach has been approved in the courts, which equates the notion of a serious compro- mise of interest with a key denial of “a core human right”. 21 It would appear from the claimant’s testimony that if she refuses to follow her Uncle and marry her Cousin that she will “be ostracized and not supported by the Uncle.” However, the claimant is twenty- two years old, an adult and it would be reasonable to assume that she could if necessary find a job and live independently in Namibia. The Board finds that this treatment is not serious enough to amount to persecution. In addition, the Board finds that being ostracized by her family, of which some are her agents of persecution, does not amount to persecution. 9 In my opinion, in deciding whether the applicant’s fear could amount to persecution, the Board failed to assess or even acknowledge that the applicant’s primary fear was that she would be forced to marry her cousin. The ostracism the applicant alleged was a side issue flowing from her main fear of a forced marriage. The applicant stated in her personal information form narrative that her uncles told her she “had” to marry her cousin and that she was “disobeying tradition” by refusing to do so. She said she came to Canada because her family “kept pressuring” her to marry her cousin. 10 I disagree with the respondent that being “pressured” to marry her cousin is not the same as being “forced” to do so. The Oxford English Dictionary (online: www.oed.com) defines the verb “pressure” as “[t]o apply pressure to, esp. to coerce or persuade by applying psychological or moral pressure”. Considering the totality of the evidence and this defi- nition of the verb “pressure”, I am satisfied that the applicant was indeed being “forced” to marry her cousin. As the Board did not address whether the direct harm of forced marriage amounted to persecution, I agree with the applicant that the Board’s analysis on this point was unreasonable.

2. Did the Board misconstrue the legal test for an IFA? 11 As for the Board’s IFA finding, the applicant maintains the Board incorrectly articulated the test and erroneously incorporated the issue of state protection into its IFA analysis. 12 The respondent asserts that the Board clearly relied on and applied the appropriate standard and test for an IFA and specific words and Henguva v. Canada (MCI) Dani`ele Tremblay-Lamer J. 337

phrases should be read in context in a way to ensure harmony and internal consistency. 13 At paragraph 24 of its decision, the Board correctly articulated the first prong of the test for an IFA (Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706 (Fed. C.A.); Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 589 (Fed. C.A.));: 24 The leading case on IFA directs the Board to use a twopronged test when considering an IFA. First, the Board must be satisfied that, on a balance of probabilities, no serious possibility of persecution exists, or, in this case, that a claimant would not be subjected personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture, in that part of the country where the IFA exists. [...] 14 However, in my view the Board misconstrued the test for an IFA. As the applicant underlines, the Board considered that the applicant had not approached the authorities in Walvis Bay for protection prior to leaving Namibia as part of its IFA analysis. In fact, the Board devoted five paragraphs of its IFA analysis to this consideration, which the Board identified as “an important IFA sub-issue”. After looking at this “sub- issue”, which the Board acknowledged overlapped with its state protection analysis, the Board concluded that it would not be objectively unreasonable for the Board to expect the applicant to seek refuge in Walvis Bay. 15 It is trite law that the issue of state protection is distinct from the issue of an IFA. The Board’s intermingling of these two questions in its application of the test for an IFA was incorrect. 16 I also agree with the applicant that the Board erred by requiring that the applicant show that her uncle and cousin “would be able” to find her in Walvis Bay as part of its analysis, as this held the applicant to a higher standard than that of a “serious possibility of persecution”.

3. Did the Board make an unreasonable determination regarding the availability of state protection? 17 Finally, I am of the view that the Board also erred in its state protection analysis. The Board’s conclusion that adequate state protection would be available to applicant if she were to return to Namibia and seek it was based on the following findings: 338 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

• The applicant’s testimony regarding what happened to other victims of forced marriages and domestic violence was vague and the applicant’s reasons for not going to the police more than once were not compelling; and • The applicant did not utilize the avenues available to her to seek state protection before asking for international protection, such as complaining about the poor police service she received to the Po- lice Commissioner of the Namibian Police, pursuing the matter through the criminal or civil courts, seeking help from government and non-government agencies, and moving to a women’s shelter. 18 As submitted by the applicant, the Board’s state protection analysis failed to take into account the adequacy of the state protection available to the applicant to protect her from forced marriage. State protection need not be perfectly effective (Dominguez Hernandez c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2007 FC 1211 (F.C.) at para 13, citing Perez Burgos c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2006 FC 1537 (F.C.) at para 36). However, any efforts undertaken by the government of Namibia to protect victims of forced marriage must actually translate into adequate state protection at the op- erational level (Meza Varela v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 1364 (F.C.) at para 16). While the Board canvassed remedies available to women facing domestic violence, the Board failed to analyze whether the remedies available to victims of domestic violence are available to victims of forced marriage. 19 Further, contrary to Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, the Board found that the applicant would be able to access service and protection from non-governmental organizations, such as women’s shelters and women’s support groups. The fact that a claimant did or did not seek protection from non-governmental groups is irrelevant to the analysis of state protection. The jurisprudence of this Court is clear that the police force is presumed to be the main institution mandated to protect citizens and that other governmental or private institutions are presumed not to have the means nor the mandate to assume that responsibility (Katinszki v. Canada (Minister of Citizenship and Immigration), 2012 FC 1326 (F.C.) at para 15). 20 Therefore, in my opinion the Board’s state protection assessment was also unreasonable. Henguva v. Canada (MCI) Danièle Tremblay-Lamer J. 339

Conclusion 21 This application for judicial review is granted, the decision is quashed and the matter is referred back to be re-determined by a differently constituted panel.

Judgment THIS COURT’S JUDGMENT is that: 1. This application for judicial review is granted; 2. The decision is quashed and the file is sent back to a differently constituted panel for redetermination; and 3. No question is certified. Application granted. 340 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

[Indexed as: Aggi de Oliveira v. Canada (Minister of Public Safety and Emergency Preparedness)] Andre Luis Aggi de Oliveira, Applicant and Minister of Public Safety and Emergency Preparedness or Minister of Citizenship and Immigration, Respondents Federal Court Docket: IMM-10560-12 2013 FC 488 Sean Harrington J. Heard: April 29, 2013 Judgment: May 9, 2013 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Bias –––– Claimant was Brazilian citizen — Claimant was homosexual — Claimant alleged homophobic incident in which he was attacked at knife point — Claimant made complaint to police who instructed him to return in morning — Claimant did not return to police station but fled to Canada and applied for refugee protection — Board member found claimant was member of particular social group but dismissed application on grounds that adequate state protection existed in Brazil — Claimant brought application for judicial review — Application dismissed — No basis existed for claimant’s allegation of bias by board member — Claimant only alleged bias following hearing, having complimented member on comfortable and non-adversarial environment at hearing — Member’s references to claimant’s partner as “boyfriend”, to meeting online as “romantic” and to men as “dudes” were not demeaning, sarcastic or homophobic — Hearing was conducted in conversational tone and although phrases chosen may not have been best in circumstances they did not constitute bias. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Protection of members of particular groups — Sexual orientation –––– Claimant was Brazilian citizen — Claimant was homosexual — Claimant alleged homophobic incident in which he was attacked at knife point — Claimant made complaint to police who instructed him to return in morning — Claimant did not return to police station but fled to Canada and applied for refugee protection — Board member found claimant was member of particular social group but dismissed application on grounds that adequate state protection existed in Brazil — Claimant brought application for judicial review — Application dismissed — Board member applied correct legal test re- Aggi de Oliveira v. Canada (Minister of Public Safety) 341

garding state protection and his decision was reasonable — Member’s examination of claimant’s decision not to return to police station was not aggressive or intimidating — Member considered and fully accepted claimant’s subjective fear or persecution — Apart from alleged attack, aggregate of other incidents claimant experienced did not amount to persecution — Member found that protection in Brazil for homosexuals, while not perfect, was adequate. Cases considered by Sean Harrington J.: C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — referred to Canada (Minister of Employment & Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130, 150 N.R. 232, 99 D.L.R. (4th) 334, 1992 CarswellNat 78, [1992] F.C.J. No. 1189 (Fed. C.A.) — followed Cardinal v. Kent Institution (1985), [1985] 2 S.C.R. 643, [1986] 1 W.W.R. 577, 24 D.L.R. (4th) 44, 63 N.R. 353, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 1985 CarswellBC 402, 1985 CarswellBC 817, [1985] S.C.J. No. 78 (S.C.C.) — considered 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 Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — considered Kadenko v. Canada (Solicitor General) (1996), 1996 CarswellNat 2216, (sub nom. Kadenko v. Canada (Solliciteur général)) 206 N.R. 272, (sub nom. Kadenko v. Canada (Solliciteur général)) 124 F.T.R. 160 (note), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376, [1996] A.C.F. No. 1376 (Fed. C.A.) — considered Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171, 1989 CarswellNat 906, [1989] F.C.J. No. 505 (Fed. C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered 342 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

s. 97 — considered

APPLICATION by claimant for judicial review of board member’s decision to dismiss application for refugee protection on grounds adequate state protection existed.

Fritz C. Gaerdes, for Applicant Jennifer Dagsvik, for Respondents

Sean Harrington J.:

1 Mr. Aggi de Oliveira is Brazilian. He is a lawyer. He speaks flawless idiomatic English. He is gay. 2 He has sought protection in Canada because he fears persecution in Brazil based on his sexual orientation. The final event which caused him to leave Brazil was an attack in the early morning hours by two “hoodies” who at knife point threatened to kill him if he did not change his “faggot” ways. He went to the police to file a complaint. They told him to come back in the morning. Instead, he came here. 3 The board member of the Refugee Protection Division, of the Immi- gration and Refugee Board of Canada, who heard his case found him to be credible and to have a genuine subjective fear of persecution should he be returned to Brazil. He analyzed the claim under section 96 of the Immigration and Refugee Protection Act (IRPA) on the basis that Mr. Aggi de Oliveira was a member of a “particular social group”; gay men. As a result, the member was only required to find a serious possibility of persecution of similarly situated individuals. Had he considered Mr. Aggi de Oliveira to be simply a victim of crime, the analysis would have been under section 97, which requires an applicant to prove on the higher standard of the balance of probabilities that he would be subjected personally to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment. The board member determined that Mr. Aggi de Oliveira’s claim was not objectively well-founded because there was adequate state protection in Brazil, which protection was not sought. In this judicial review, Mr. Aggi de Oliveira, who was self-represented at his refugee hearing, but who is now represented by counsel, alleges not only that the board member’s analysis of state protection was unreasonable, and actually incorrect in law, but also that there is a reasonable apprehension of bias in that he did not get a fair hearing because of remarks of the member which he took to be homophobic. Aggi de Oliveira v. Canada (Minister of Public Safety) Harrington J. 343

Decision 4 I find that there is no basis for alleging bias on the part of the board member. I find further that he applied the correct legal test regarding state protection and that his decision was reasonable. The application shall therefore be dismissed.

Bias 5 Natural justice dictates that a party be given a reasonable chance to make his or her case or defence before a neutral decision maker. Bias, real or apprehended, taints the actual or perceived objectivity of the decision maker and violates natural justice. Faced with such a situation, the general rule, as laid down by the Supreme Court in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78 (S.C.C.), is that the reviewing court is not to consider what the decision would have been, had there been a fair hearing. A new hearing is required. 6 The test to ascertain bias, as set out by Mr. Justice de Grandpr´e in Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.), has universally been followed. He said at page 394: The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable 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, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.” He added that the grounds of the apprehension must be substantial and not based on a “very sensitive or scrupulous conscience.” 7 Natural justice, including procedural fairness, is beyond the pale of judicial review. No deference whatsoever is owed to the decision maker (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28 (S.C.C.)). The hearing was conducted on 12 June 2012, and the decision rendered 26 September 2012. It was only after that decision that Mr. Aggi de Oliveira complained about the 344 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

board member’s behaviour during the hearing. Indeed, at the conclusion he told the board member: Thanks for hearing me... Thanks for especially making me feel comfortable because I thought it would be sort of — I don’t know. I read — I was reading yesterday ’cause the nature of this hearing is non-adversarial — adversarial right? Non-adversarial, that’s the word I read [...] I thought [...] there would be someone here trying to prove the opposite of what I am seeking. 8 The Ministers submit that had there been any apprehension of bias on the part of the board member, Mr. Aggi de Oliveira waved same. As I have found that there is no reasonable basis for apprehending bias in the first place, I do not have to consider whether his silence over a three and a half month period constituted a waiver. 9 The allegations against the board member are that he was disrespect- ful, too casual and confrontational. In stating that Vancouver was a gay- friendly city, while some of the environs were not, some of his language may have been taken to indicate that he was not gay himself. He also referred to Mr. Aggi de Oliveira’s spouse as his “boyfriend” rather than as his “husband” or “spouse”. The reference to his spouse as “boyfriend” is not demeaning. Mr. Aggi de Oliveira himself referred to him as his “partner” not his “spouse”. No marriage certificate was produced. 10 During the hearing, he inquired how he had met his spouse, which was on a website. The board member said “that is kind of romantic”. Mr. Aggi de Oliveira said this was stated in a sarcastic tone. However, not only a transcript of the hearing, but a recording thereof was produced as well. There was no sarcasm whatsoever in the statement. Rather, in context, “romantic” means full-hardy, risky, certainly not cool and calculated. 11 Mr. Aggi de Oliveira has the impression that the board member has a personal bias against or non-impartiality towards homosexual men, in part because he referred to them as “dude”. 12 The board member was commenting upon changes in Vancouver, and identified areas that “are very gay positive parts of town...but you get out to the Valley, Abbotsford, Langley...”, at which point Mr. Aggi de Oliveira himself added “New Westminster”. The board member continued “I wouldn’t hold hands with a dude down there. I wouldn’t kiss a dude down there. They’re very conservative, so it’s just...you know...one hour out of Vancouver, you’re going to be in homophobic land.” Aggi de Oliveira v. Canada (Minister of Public Safety) Harrington J. 345

13 The word “dude” came up because of the conversational tone of the hearing. This was not a case of an applicant testifying through an interpreter. Mr. Aggi de Oliveira speaks flawless idiomatic English, which lent itself to a more relaxed hearing. Perhaps, “dude” was not the best word, but any word would do if one is looking to take offence. Nobody enlightened me as to whether “dude” has a meaning other than that set out in the dictionary. 14 His point was that Canada is not universally accepting, and this led to an analysis of the situation in Brazil, where major cities are gay friendly, at least in specific areas. He may have had an internal flight alternative in mind, but instead decided on state protection. 15 The alleged confrontation was when the member said that Mr. Aggi de Oliveira may have blown off his chances by declining to return to the police station in the light of day. The member’s tone was not aggressive; Mr. Aggi de Oliveira was not intimidated and replied in kind. The member is entitled to cross-examine. The remark fell far short of that and simply was fair comment on the concept of state protection. 16 It would have been relatively easy for the board member to camou- flage any bias on his part. He mentioned, but did not give much weight, to two incidents. The first is that after having been attacked by the “hoodies”, even before reporting to the police he prepared and sent a long email to Canadian officials saying he was on his way here. The second is that he had developed an online relationship with a French national and they agreed to meet in Vancouver where they subsequently married. These incidents could have put his subjective fear into question, a fear which the board member nevertheless fully accepted.

State Protection 17 Mr. Aggi de Oliveira recounted a number of incidents over several years, none of which alone, or in the aggregate, could be considered persecution, save and except the incident involving the “hoodies”. Being told by a waiter not to kiss his boyfriend in a Brazilian restaurant is hardly a sign of persecution, particularly since no evidence was led that passionate kissing between male and female would have been acceptable. 18 Mr. Aggi de Oliveira speculates as to why, after the attack by the “hoodies” he was told to come back during the day shift. It may well have been that there was only a skeleton staff in the station. In any event, he was unable to identify his attackers. 346 IMMIGRATION LAW REPORTER 17 Imm. L.R. (4th)

19 The test for state protection is well known. The burden is on the applicant and the more democratic the country the more likely we are to presume that state protection is available. The board member found that state protection for gays and lesbians in Brazil is far from perfect, but applying the decision of the Federal Court of Appeal in Canada (Minister of Employment & Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130, [1992] F.C.J. No. 1189 (Fed. C.A.), concluded that, based on the review of the country conditions, protection was adequate. That is the test. One cannot insist upon perfection. 20 Brazil is a democracy. Those who finally caused him to leave Brazil were not state actors. In Hinzman, Re, 2007 FCA 171, 362 N.R. 1, [2007] F.C.J. No. 584 (F.C.A.), after referring to Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376 (Fed. C.A.) and Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171, [1989] F.C.J. No. 505 (Fed. C.A.), Mr. Justice Sex- ton, speaking for the Court of Appeal, said at paragraph 57: Kadenko and Satiacum together teach that in the case of a developed democracy, the claimant is faced with the burden of proving that he exhausted all the possible protections available to him and will be exempted from his obligation to seek state protection only in the event of exceptional circumstances: Kadenko at page 534, Satiacum at page 176. Reading all these authorities together, a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status. In view of the fact that the United States is a democracy that has adopted a comprehensive scheme to ensure those who object to military service are dealt with fairly, I conclude that the appellants have adduced insufficient support to satisfy this high threshold. Therefore, I find that it was objectively unreasonable for the appellants to have failed to take significant steps to attempt to obtain protection in the United States before claiming refugee status in Canada. 21 So it is in this case.

Order FOR REASONS GIVEN; THIS COURT ORDERS that: 1. The application for judicial review is dismissed. Aggi de Oliveira v. Canada (Minister of Public Safety) Harrington J. 347

2. There is no serious question of general importance to certify. Application dismissed.