IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 21 (Cited 21 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 21 (Cited 21 Imm. L.R. (4th))

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[Indexed as: Canadian Arab Federation v. Canada (Minister of Citizenship and Immigration)] Canadian Arab Federation (CAF), Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-447-09 2013 FC 1283, 2013 CF 1283 Russel W. Zinn J. Heard: May 28-30, 2013 Judgment: December 23, 2013 Administrative law –––– Discretion of tribunal under review — Distinction between ministerial and discretionary acts –––– Political acts — Applicant was non-governmental organization which provided services to persons of Arab ancestry, including new arrivals to Canada — In furtherance of that service mandate, for some time applicant had been party to funding agreements with respondent Minister for Citizenship and Immigration, pursuant to Language In- struction for Newcomers to Canada program, to provide language training services — Members of applicant described Canadian politicians of all stripes as “professional whores of war” for supporting Israel — In personal capacity, Vice-President of applicant attended “peace conference” in Egypt which also received delegations from Hamas, Hezbollah and Islamic Jihad, terrorist organizations — Applicant’s website contained links to training videos displaying paramilitary activities of Hamas and Islamic Jihad — Applicant honoured one B, who had described Canada as country of “infidels or non-believers” and was considered apologist for September 11, 2001 terror attacks in United States — Applicant sponsored essay contest on subject of “ethnic cleansing” of Palestin- ian peoples by Israel — On basis of above-noted actions, Minister declined to renew language training funding agreement, stating that applicant appeared to support terrorist organizations and its representatives were associated with arguably anti-Semitic statements — Applicant commenced proceeding for judicial review of decision of Minister — Application dismissed — Standard of review was reasonableness — Minister had clear political discretion to decline to associate Crown in Right of Canada with support for terrorist organizations or offensive and pejorative utterances — Applicant likewise could not rely upon submission that applicant did not formally authorize authors of impugned statements to make statements, inter alia given presence of statements on applicant’s own website — This was particularly so given that impugned statements were au- thored by members of applicant’s executive — Record was “replete with news articles and statements of others” indicating that applicant apparently endorsed 176 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

or supported named terrorist organizations and knowingly associated itself with members uttering arguably anti-Semitic statements — Accordingly, Minister’s decision was within range of reasonably expected outcomes in present case and application was accordingly properly dismissed. Cases considered by Russel W. Zinn J.: Baier v. Alberta (2007), 2007 SCC 31, 2007 CarswellAlta 853, 2007 Carswell- Alta 854, [2007] 9 W.W.R. 389, 76 Alta. L.R. (4th) 1, 283 D.L.R. (4th) 1, 365 N.R. 1, [2007] 2 S.C.R. 673, 412 A.R. 300, 156 C.R.R. (2d) 279, 404 W.A.C. 300, [2006] S.C.C.A. No. 254, [2007] S.C.J. No. 31 (S.C.C.) — considered Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — 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.) — referred to Cie pétrolière Impériale c. Québec (Tribunal administratif) (2003), 5 Admin. L.R. (4th) 1, 310 N.R. 343, (sub nom. Imperial Oil Ltd. v. Quebec (Minister of the Environment)) 231 D.L.R. (4th) 577, 2003 SCC 58, 2003 CarswellQue 2315, 2003 CarswellQue 2316, (sub nom. Imperial Oil Ltd. v. Quebec (Minister of the Environment)) [2003] 2 S.C.R. 624, 5 C.E.L.R. (3d) 38, REJB 2003-49134, [2003] S.C.J. No. 59 (S.C.C.) — considered Davis v. Guelph (City) (2011), 2011 CarswellOnt 13588, 2011 ONCA 761, 6 C.L.R. (4th) 75, 92 M.P.L.R. (4th) 163, 286 O.A.C. 127, 345 D.L.R. (4th) 1, [2011] O.J. No. 5439, [2012] S.C.C.A. No. 41 (Ont. C.A.) — followed Irving Shipbuilding Inc. v. Canada (Attorney General) (2009), 2009 Car- swellNat 5610, 2009 CAF 116, 2009 FCA 116, 314 D.L.R. (4th) 340, 2009 CarswellNat 920, 389 N.R. 72, [2010] 2 F.C.R. 488, 98 Admin. L.R. (4th) 51, [2009] F.C.J. No. 449 (F.C.A.) — followed Knight v. Indian Head School Division No. 19 (1990), [1990] 1 S.C.R. 653, 69 D.L.R. (4th) 489, [1990] 3 W.W.R. 289, 30 C.C.E.L. 237, 90 C.L.L.C. 14,010, 43 Admin. L.R. 157, 83 Sask. R. 81, D.T.E. 90T-475, 1990 Car- swellSask 146, 1990 CarswellSask 408, 106 N.R. 17, [1990] S.C.J. No. 26, EYB 1990-67929 (S.C.C.) — considered Mavi v. Canada (Attorney General) (2011), 2011 CarswellOnt 4429, 2011 Cars- wellOnt 4430, 2011 SCC 30, 332 D.L.R. (4th) 577, 417 N.R. 126, 97 Imm. L.R. (3d) 173, (sub nom. Canada (Attorney General) v. Mavi) [2011] 2 S.C.R. 504, 19 Admin. L.R. (5th) 1, 279 O.A.C. 63, 108 O.R. (3d) 240, [2011] S.C.J. No. 30 (S.C.C.) — 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 Canadian Arab Federation v. Canada (MCI) 177

Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 134 N.R. 241, [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, 4 Admin. L.R. (2d) 121, 95 Nfld. & P.E.I.R. 271, 301 A.P.R. 271, 1992 CarswellNfld 179, 1992 CarswellNfld 170, EYB 1992-67349, [1992] S.C.J. No. 21 (S.C.C.) — referred to Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) (1990), 2 M.P.L.R. (2d) 217, [1991] 2 W.W.R. 145, 75 D.L.R. (4th) 385, 116 N.R. 46, 69 Man. R. (2d) 134, [1990] 3 S.C.R. 1170, 1990 CarswellMan 383, 46 Admin. L.R. 161, 1990 CarswellMan 235, EYB 1990-67192, [1990] S.C.J. No. 137 (S.C.C.) — considered Wells v. Newfoundland (1999), 99 C.L.L.C. 210-047, 180 Nfld. & P.E.I.R. 269, 548 A.P.R. 269, 46 C.C.E.L. (2d) 165, [1999] 3 S.C.R. 199, 15 Admin. L.R. (3d) 268, 1999 CarswellNfld 214, 1999 CarswellNfld 215, 177 D.L.R. (4th) 73, 245 N.R. 275, [1999] S.C.J. No. 50 (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. 1 — referred to s. 2(b) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3 — referred to

APPLICATION by non-governmental organization for judicial review of decision of respondent Minister for Citizenship and Immigration declining to provide applicant with funding pursuant to Language Instruction for Newcomers to Canada program.

Barbara Jackman, Hadayt Nazami, for Applicant Mary Matthews, Nur Muhammed-Ally, Eleanor Elstub, Melissa Mathieu, for Respondent 178 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Russel W. Zinn J.:

1 This is an application for judicial review by the Canadian Arab Feder- ation [CAF] of a decision by The Minister of Citizenship and Immigra- tion, then Jason Kenney [the Minister], not to enter into a funding agreement under the Language Instruction for Newcomers to Canada [LINC] program for the year 2009-2010. This decision was made by the Minister despite the fact that Citizenship and Immigration Canada [CIC] had previously entered into similar funding arrangements with CAF for many years; the most recent of which expired March 30, 2009, just days after the decision under review was made. 2 The reasons for the Minister’s decision are set out in a letter to CAF dated March 18, 2009, from the Associate Assistant Deputy Minister of CIC to Khaled Mouammar, President of CAF at that time: As you are also aware, serious concerns have arisen with respect to certain public statements that have been made by yourself or other officials of the CAF. These statements have included the promotion of hatred, anti-semitism [sic] and support for the banned terrorist organizations Hamas and Hezbollah. The objectionable nature of these public statements — in that they appear to reflect the CAF’s evident support for terrorist organizations and positions on its part which are arguably anti-Semitic — raises serious questions about the integrity of your organization and has un- dermined the Government’s confidence in the CAF as an appropriate partner for the delivery of settlement services to newcomers.

Background Nature of CAF 3 CAF’s objectives as set out in its Letters Patent, relate to advancing the interests of Arabs and Arab communities in Canada in various ways, including “[t]o promote ties and mutual understanding between Arab so- cieties, organizations and communities in Canada and the Arab homeland... to provide assistance to new immigrants to Canada from the Arab homeland... [and] to disseminate information about and encourage support for Arab causes in Canada and the Arab homeland, particularly the cause of the suffering Palestinian people.” 4 CAF’s operation had two branches: Settlement Services and Immi- grant Support, and Community Engagement. Settlement Services and Immigrant Support was directed towards assisting both Arab and non- Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 179

Arab newcomers integrate into the community. Community Engagement was directed towards capacity building, advocacy, and community services. 5 CAF delivered two main programs under its Settlement Services branch: LINC, which provided English as a second language training to newcomers, and Job Search Workshops [JSW]. Most of the newcomers attending these programs were originally from non-Arab countries. CAF received funding for both of these programs from CIC by way of contribution agreement arrangements.

CIC Contribution Agreements 6 CIC contracted with CAF and others as private service provider organizations for the provision of settlement services to newcomers to Can- ada. The contracts provided for an amount of funding allocated to the service provider for reimbursable expenses. An expense unrelated to the LINC or JSW programs cannot be recovered from the funds earmarked in the contribution agreement. As was noted by the Minister in his mem- oranda, a party to a contribution agreement does not financially benefit from the agreement; however, there may be indirect benefits: None of the funds provided by Canada through the contribution agreement was [sic] intended to benefit the CAF. An organization may attain incidental advantages as a result of settlement funding; for example, there may be legitimacy attached to organizations who receive government funds and there may be an opportunity to share infrastructure costs with the settlement program. The full amount of the contribution agreement, however, is intended to directly benefit newcomers taking LINC classes. 7 It is also relevant to this application and it is the Minister’s position, that the LINC program offers newcomers more than just language training. The Minister points out that it is intended that the program will also provide newcomers with an orientation to the Canadian way of life including “social, economic, cultural and political integration,” and therefore the suitability of the program provider in this respect is critical. The CIC Application Package given to service providers sets out this facet of the program, as follows: By providing basic language instruction to adult newcomers in En- glish or French, LINC facilitates the social, cultural[,] political and economic integration of immigrants and refugees into Canada. In addition, LINC curricula include information that helps newcomers become oriented to the Canadian way of life. This, in turn, helps them 180 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

to become participating members of Canadian society as soon as possible. 8 CAF had most recently negotiated a contribution agreement and signed a contract with CIC for the period April 1, 2007 to March 31, 2009. On December 2, 2008, CIC wrote to all parties in receipt of LINC funding at that time, informing them that a new settlement program would be forthcoming but its implementation was still underway. As a consequence, “CIC has decided to extend current LINC contribution agreements to March 31, 2010.” Each service provider was asked to submit a budget application and propose revised activities to CIC, which application was subject to an approval process. 9 In the information accompanying this request for applications for amendment, CIC cautioned CAF and other applicants not to assume approval for the 2009-2010 year, unless and until such approval was received in writing from CIC: Do not assume that your application for amendment is approved until you are notified in writing by CIC. Any expenditures incurred prior to the approved start-up date are your own responsibility and will not be reimbursed. We also ask you not to hire staff or make any com- mitments until you have been informed of CIC’s approval. If your application is approved, it will then be used to amend your current Contribution Agreement between your organization and Citizenship and Immigration Canada. 10 CAF submitted a proposal for 2009-2010 on December 9, 2008. On February 12, 2009, a settlement officer from CIC recommended its approval. He noted in that recommendation that “[t]he Canadian Arab Fed- eration delivers a good quality LINC program” and that despite a request for an annual increase to salaries of 2.5%, the proposal for 2009-2010 was $50,000 less than the previous year. The settlement officer emailed an unexecuted final draft of the further agreement to CAF; however, given the value of the proposed contract, final approval was required by the Minister or his delegate. 11 There is nothing in the record, nor was it submitted by CAF, that CIC ever represented that final approval had been given. In fact, even though contractual negotiations had been concluded and the proposal endorsed by a settlement officer, the proposal still had to be approved and endorsed by a review officer, the local manager, and the regional director before CIC National Headquarters and the Minister’s office would be notified of it. If the regional director endorsed the proposal, he had authority to approve and execute the agreement at that stage; however, CAF’s Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 181

proposal never made it to this stage of the process. CAF’s proposal had been approved by a settlement officer on February 12, 2009 and a review officer on February 16, 2009, but before it was sent to a local manager, CIC National Headquarters intervened and raised concerns about continuing to fund CAF.

Events Prior to Minister Kenney’s Appointment as Minister of CIC 12 Jason Kenney became the Minister of CIC, responsible for the Immi- gration and Refugee Protection Act, SC 2001, c 27 [the Act] on October 30, 2008. He was preceded in that office by Diane Finley. On August 7, 2008, Minister Finley issued a Press Release in which she stated that “[t]o help newcomers settle in the community of Scarborough in the City of Toronto, the Government is committing more than $10 million over the next two years (through to 2010) to six agencies that provide settlement services.” The Press Release went on to list the “six agencies receiving the funding in today’s announcement.” CAF was one of the listed agencies, and was adjacent to the figure of $2,544,815. 13 Mohamed Boudjenane, National Executive Director of CAF, attests in his affidavit that this announcement led CAF to believe that it was to be funded for 2009-2010 and the finalization of the details would be a mere formality: The funding was originally meant to continue for two years but in the second year, 2008, there was an announcement that it was to continue into a third year to 2010. The Minister of Citizenship and Im- migration, Diane Finlay [sic], made a public announcement on Au- gust 7, 2008 to this effect... It was certainly the basis upon which CAF operated. Both myself and Sara Amash, the project and program manager for CAF were led to believe that the funding for 2009- 2010 would continue as previously approved and that it was merely a formality to finalize the details of the contract for that year. 14 In contrast, Lee Bartlett, Director of Operations for Settlement Ser- vices for the Toronto and York offices of CIC, attests in his affidavit, sworn September 22, 2009, that the breakdown of the $2,544,815 figure in the Minister’s Press Release is made up of funding to CAF under both the LINC program and under the Immigration Settlement and Adaption Program [ISAP], as follows, none of which relates to LINC funding for 2009-2010: 182 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

FY1 07/08 FY2 08/09 FY3 09/10 TOTAL LINC $1,045,782 $1,037,505 N/A $2,083,287 ISAP $ 130,804 $ 166,581 $164,179 $ 461,564 15 The total of the funding in Mr. Bartlett’s chart is $2,544,851 - $46 greater than the Minister’s announced funding for CAF. Nevertheless, I find that the Press Release could not have led CAF to believe that it had secured LINC funding for 2009-2010, as is alleged by Mr. Boudjenane. The reference to funding for 2009-2010 in the Press Release referred to ISAP funding. Mr. Bartlett was cross-examined on his affidavit and his evidence was unshaken that the figure did not include 2009-2010 LINC funding because no decision had been made to extend previous LINC agreements, nor had any such announcement been made at the date of the Press Release: In August 2008, not even a negotiation or even a call for proposals around an extension or even decisions around how we would extend LINC for 2009/10 had been made or announced, and the LINC agreement that was in place at the time of August for CAF ran for 2007/08 and 2008/09, whereas the ISAP agreement for CAF ran 2007/08 to 2009/10, inclusive. ... [T]he Minister would not make an announcement that agreements had been reached around funding until such an agreement had been put in place....[I]t wouldn’t have been possible for the Minister to have made an announcement around LINC for 2009/10 for CAF if we hadn’t even — or CIC, sorry, hadn’t even at that point set out the process for entering into further agreements, and equally hadn’t received any proposal from CAF at that point in relation to the amounts that it would seek for LINC in 2009/10 for further agreements.

The Minister’s Position on Government Funding 16 Alykhan Velshi, the Minister’s Communications Director, attests in his affidavit, that since he began working for the Minister in 2007 (the Minister at that time was the Secretary of State for Multiculturalism), the Minister has held the view that the Crown should not be funding certain organizations: [W]hile private citizens and organisations are free to express their opinions, no individual or organisation is entitled to a financial subsidy from taxpayers. To that end, groups that promote hatred, includ- Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 183

ing anti-Semitism, or excuse terrorism and violence should not receive any official recognition or subsidy from the state. 17 Mr. Velshi points to a number of public statements by the Minister in support of this assertion. For example, on February 17, 2009, at a conference in London, England, the Minister gave a speech in which he made the following statement: There are organisations in Canada, as in Britain, that receive their share of media attention and public notoriety, but who, at the same time as expressing hateful sentiments, expect to be treated as respect- able interlocutors in the public discourse. ... I think as well of the leader of the Canadian Arab Federation, who notoriously circulated an e-mail when my colleague, our shadow For- eign Minister, Bob Rae, was running for the leadership of his party, calling on people to vote against Mr. Rae because of Arlene Perly Rae’s involvement in Canada’s Jewish Community. The same individual, the same organisation, the Canadian Arab Federation, just last week circulated — including to all parliamentarians — videos which include propaganda, including the inculcation to hatred, of children by organisations such as Hamas and Islamic Jihad. These and other organisations are free within the confines of our law and consistent with our traditions of freedom of expression, to speak their mind, but they should not expect to receive resources from the state, support from taxpayers or any other form of official respect from the government or the organs of our State. [emphasis added] 18 A week later, on February 24, 2009, during Question Period, the Min- ister was asked about funding for certain organizations. The Member asking the question stated that “the Canadian Arab Federation recently circulated videos from banned terrorist organizations, such as Hamas and Islamic Jihad, called Israel a ‘racist state’, and attacked a member of the House because of his wife’s involvement in the Jewish community.” He then asked: “What is the government’s position on whether such groups should receive taxpayer support?” The Minister responded: “[T]he Gov- ernment of Canada should take a zero tolerance approach to organizations that make excuses for terrorism, for violence, for hatred and for anti-Semitism.... From our point of view, these groups do not deserve and have no right to taxpayers’ dollars to promote their kind of extremism.” The Minister expressed similar sentiments during radio interviews he gave on March 2, 2009, and March 6, 2009. 184 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

19 On March 10, 2009, at the Standing Committee on Citizenship and Immigration, the Minister outlined his reason for refusing to extend funding to CAF for 2009-2010: The very first day I arrived at Canadian Heritage as the secretary of state responsible for the multiculturalism program, I received a brief- ing on grants and contributions. I indicated to the officials that I wanted to ensure that we were not providing grants and contributions to organizations that make excuses for, or apologize for, violence or terrorism, or organizations that are terrorist or that promote hatred. I mentioned, in particular, Mr. Mohamed Elmasry of the Canadian Is- lamic Congress because of his remarks that Israelis over the age of 18 are legitimate targets for elimination. I further mentioned, in particular, Mr. Khaled Mouammar, president of the Canadian Arab Federation - this was a discussion I had with my officials in January 2007 - because of his circulation, during the 2006 Liberal leadership convention, of a flyer that attacked Bob Rae, a respected member of this Parliament, because of his wife’s involvement in the Jewish community. Following the circulation of that flyer, Liberal Senator Yoine Goldstein referred to this flyer as “racist filth”. It was my view then, and it’s remained my view since, that we ought not to finance organizations that promote extremism or hatred - in this case, hatred toward Jewish people in particular - or who publicly support a banned, illegal terrorist organization. Mr. Mouammar has a long record of public comments expressing support for Hamas and Hezbollah, which are two banned, illegal, and essentially anti-Semitic terrorist organizations. He has referred to Israel as a racist state and he has called for the end of Israel as a Jewish state. In my judgment, these and other comments of his are beyond the pale. Do I suggest that we should have a test on political opinions for the office-holders of NGOs that receive grants and contributions? No, absolutely not. People are free to say what they like within the bounds of our laws. People are free to criticize cabinet ministers or the government. But I do not believe we have any obligation to provide subsidies to individuals who use their organizations as platforms to promote extremism or hatred or to apologize for terrorism. That’s the view I articulated in January 2007 at Canadian Heritage. As a result, we provided no funding to these organizations. That’s also the view I articulated recently at the London conference on anti- Semitism. I have also articulated this to my officials. I have asked my department to find ways in which we can include the promotion of Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 185

hatred or apologizing for terrorism as some of the criteria used in considering applicants for grants or contributions.

The Minister’s View of CAF 20 The Minister was clearly aware of CAF before he became Minister of CIC; however, he only became aware that CIC was funding CAF on Feb- ruary 2, 2009. Upon the Minister becoming aware, he emailed his Chief of Staff expressing his position on CAF and the funding agreement, as follows: ... I am unclear who in our office has the lead on settlement funding. In any event, please ask the Dept to bring forward complete information on the contribution embarrassingly approved by our government for the radical and anti-semitic [sic] Canadian Arab Federation This is the same group whose President attacked Bob Rae because his wife is jewish [sic], and who now is calling me a “professional prostitute” (I guess that’s better than being an amateur!) I would like to know the status of their contribution agreement with CIC to see if they are in breach in any possible respect. I want to pursue all legal means to terminate this shameful funding arrange- ment, and to ensure that it is not renewed. [internet references omitted] 21 The decision under review does not set out the specific conduct or events that the Minister took into consideration in reaching his decision not to fund CAF. Alykhan Velshi, the Minister’s Communications Direc- tor, testified that the statements relied on to reach the conclusion that CAF’s statements “have included the promotion of hatred, anti-semitism [sic] and support of the banned terrorist organizations Hamas and Hezbollah,” included the following six matters.

1. The Bob Rae Flyer 22 In 2006, during the Liberal Party Leadership Convention, CAF’s President, Khaled Mouammar, using his personal email account, for- warded a leaflet that attacked Bob Rae and his wife for involvement in the Jewish community. The flyer was originally produced and emailed by a man who was not associated with CAF. The flyer contains the following text over a picture of Bob Rae: Bob Rae was a keynote speaker for the [Jewish National Fund of Canada], a group shown by Israeli scholars to be complicit in war crimes and ethnic cleaning. 186 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Rae’s wife is a Vice President of the [Canadian Jewish Congress], a lobby group which supports Israeli Apartheid and Israel’s illegal Apartheid Wall. President Carter has condemned Israeli Apartheid. Bob Rae supports Israeli Apartheid. Don’t elect a leader who supports Apartheid! 23 The distribution of the Bob Rae Flyer to delegates was reported by Canadian Press: “Bob Rae was the target of anti-Semitic attacks during the Liberal leadership contest, motivated at least in part by the fact that his wife is Jewish.” When contacted by Canadian Press, CAF denied pro- ducing or distributing the flyer but later issued a press release stating: “CAF believes that Canadians have a right to know the factual information provided” in the flyer. 24 Mr. Velshi testified that the Bob Rae Flyer formed part of the basis for the Minister’s decision as it attacked Mr. Rae because of his wife’s involvement in the Jewish community, and specifically the Canadian Jewish Congress. In Mr. Velshi’s view, the Bob Rae Flyer was anti-Se- mitic and thus a form of hatred.

2. Rallies in January 2009 25 In January 2009, CAF in conjunction with other organizations, organized several rallies where some protestors (who were not related to CAF) held offensive placards and shouted repugnant slogans. Some participants were seen holding signs equating Israelis to Nazis, some were screaming vulgarities like “Jewish child, you are going to fucking die. Hamas is coming for you. Fuck off.” Hezbollah flags were flying in the background, and some signs likened Zionism to Nazism and terrorism. 26 It was during one of these rallies that Mr. Mouammar described the Minister, among others, as a professional whore of war: We have politicians who are professional whores who support the war [i.e. the Israel-Palestine conflict] as Norman Finkelstein said at that lecture at the University of Toronto. These are, these are people like Peter Kent across the street, like Jason Kenney, like Michael Ignatieff, who only had to say while Israel was murdering women and children with phosphorous bombs burning their fleshes, the only thing these, these, professional politicians; who are whores, whores of war, the only thing they had to say was that Israel had the right to defend itself by killing women and children with phosphorous bombs. Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 187

The Minister denies that this derogatory name calling triggered or played a part in his decision. Given that he had made statements regarding government funding to CAF as early as 2007, there is no reason to question his assertion.

3. The 2007 Cairo Conference 27 Ali Mullah, Vice President of CAF at the time, attended the Cairo Conference, which described itself as an “international peace conference.” It was attended by many people with different backgrounds, including some Jewish participants. The conference was also attended by delegates from Hamas, Hezbollah, Jemaah Islamiyya, and the Palestine Liberation Front - four organizations on Canada’s list of terrorist organizations. Although it was reported that CAF had sent Mr. Mullah as its delegate, it was later confirmed that he attended in his personal capacity, and not as a representative of CAF.

4. Distribution of Links from Terrorist Organizations 28 On February 2, 2009, the Minister became aware that CAF, in its Daily Gaza Bulletin and its webpage, had links to web sites that featured videos with images of Hamas operatives undergoing training and which depicted flags of Hamas and Islamic Jihad. CAF asserts that it never endorsed the contents of the videos in the links it posted and transmitted; rather it simply directed readers to facts so that they could form their own opinions on the issues.

5. Honouring Zafar Bangash 29 CAF, at its 40th Anniversary Gala, honoured Zafar Bangash, who is otherwise not affiliated with CAF. Mr. Bangash has referred to Canadi- ans as “infidels or non-believers” in the past and reported on the Septem- ber 11 attacks in a way that was unsympathetic to the victims.

6. Essay Contest 30 CAF sponsored an essay contest (with two other organizations) on the “ethnic cleansing” of Palestine. The timing of this contest coincided with the 60th anniversary of the establishment of Israel as a state. The Minister contends that the use of the term “ethnic cleansing” assumes that Jewish people are engaged in genocide and constitutes anti-Semitism. 31 Collectively, these six incidents formed the basis for the Minister’s decision. 188 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

CAF Requests to Meet with the Minister 32 On March 2, 2009, the President of CAF wrote to the Minister requesting a meeting: It is important that CAF’s working relationship with you and the Ministry of Immigration is based upon mutual respect and proactive outreach on both sides to the benefit of Arab Canadian communities on the whole. CAF is therefore requesting a meeting with you in the presence of other concerned Arab Canadians. This meeting will be a great opportunity to enhance and strengthen our working relationship. The Minister did not respond. 33 The letter does not indicate why it was sent at that time; however, it is noteworthy that it was sent two weeks following the Minister’s speech in London where he said, with reference to CAF and others, that while they are at liberty to engage in free speech within the law, “they should not expect to receive resources from the state, support from taxpayers or any other form of official respect from the government or the organs of our state.” 34 It is against this backdrop that the following issues arise.

Issues 35 The six issues raised by CAF in its written memorandum can be col- lapsed and addressed within a discussion of the following four questions: a. Did the Minister owe CAF a duty of procedural fairness, and if so, was it breached? b. Is the Minister’s decision not to enter into a funding agreement with CAF under the LINC program tainted by a reasonable apprehension of bias? c. Was CAF’s section 2(b) Charter right to freedom of expression engaged, and if so, was that right infringed, and, was the infringement justified? d. Was the Minister’s decision reasonable?

1. Did the Minister owe CAF a duty of procedural fairness? 36 CAF submits that the Minister owed it a duty of fairness because: 1. A duty of fairness is imposed on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual: Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 189

Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 (S.C.C.), at 653 [Cardinal]; 2. CAF had received funding for the LINC program without any issues for twelve consecutive years; 3. CAF had a legitimate expectation that funding would be renewed because of its history with CIC and because the contract for 2009- 2010 had been negotiated and was awaiting final approval; and 4. Final approval had historically been a formality after the contract’s terms had been negotiated and the Minister rarely intervened at any stage. 37 The Minister submits that no duty of fairness was owed to CAF because: 1. The relationship between CAF and CIC was purely contractual in nature and no duty of fairness is owed by the government when it is exercising its contractual rights in the same manner as an ordinary citizen: New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9 (S.C.C.) at paras 103-104, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]; 2. The funding period under the last executed agreement between CIC and CAF for the provision of LINC services expired on March 31, 2009, no new agreement had been executed, and CAF was specifically advised that approval could not be taken for granted; and 3. There is no obligation on CIC to enter into a new agreement with any party, or to renew an existing agreement that is set to expire, merely because it is a government institution. 38 The following provides the reasons for my conclusion that the Min- ister did not owe a duty of procedural fairness to CAF. In summary, it is because the nature of the relationship was strictly commercial. There is no statutory provision that imposes procedural fairness obligations in relation to contribution agreements, nor is there any contractual provision set out in the call for proposals or the contribution agreements themselves that stipulates that service provider organizations will be treated in a procedurally fair manner. Finally, according procedural rights in what is essentially a strictly commercial context would unduly burden the Minister, particularly where the window for making a decision is short and there are greater public policy considerations which the Minister must weigh. In such a context, the parties’ rights are best protected by a 190 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

reviewing court’s assessment of the reasonableness of the decision, not by extending procedural rights where none would otherwise exist. 39 When determining whether a duty of procedural fairness applies to the decision under review, one must first determine the nature of the relationship between the affected person and the public authority. 40 In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 (S.C.C.), at 669, the Supreme Court, relying upon the decision of Justice LeDain in Cardinal at 653, stated that whether the duty of fairness exists will be dependant upon “the consideration of three factors: (i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual’s rights.” 41 In Dunsmuir at para 114, the Supreme Court noted an exception to this broad statement of principle [the Dunsmuir exception]. Dunsmuir involved the dismissal of an employee from his employment with the prov- ince: The principles expressed in Knight in relation to the general duty of fairness owed by public authorities when making decisions that affect the rights, privileges or interests of individuals are valid and important. However, to the extent that the majority decision in Knight ignored the important effect of a contract of employment, it should not be followed. Where a public employee is protected from wrong- ful dismissal by contract, his or her remedy should be in private law, not in public law. [emphasis added] 42 CAF submits that the Dunsmuir exception does not apply to the relationship between CAF and CIC. CAF relies on the Supreme Court of Canada’s decision in Mavi v. Canada (Attorney General), 2011 SCC 30, [2011] 2 S.C.R. 504 (S.C.C.) [Mavi] for the proposition that the Dun- smuir exception to the duty of fairness was intended to be narrow and specific to the employment context and therefore does not apply to this case. In particular, the Supreme Court in Mavi held, at para 51, that: The situation here does not come close to the rather narrow Dun- smuir employment contract exception from the obligation of procedural fairness. As the Dunsmuir majority itself emphasized: This conclusion does not detract from the general duty of fairness owed by administrative decision makers. Rather it acknowledges that in the specific context of dismissal Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 191

from public employment, disputes should be viewed through the lens of contract law rather than public law. [Emphasis added; para. 82.] Dunsmuir was not intended to and did not otherwise diminish the requirements of procedural fairness in the exercise of administrative authority. [emphasis in original] 43 In my view, the Dunsmuir exception is not as narrow as CAF submits. I find support for this view in the decision of the Federal Court of Appeal in Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488 (F.C.A.) [Irving Shipbuilding], wherein Justice Evans for the Court and with reference to Dunsmuir, stated at para 60 that the broader point made in that case “is that when the Crown enters into a contract, its rights and duties, and the available remedies, are generally to be determined by the law of contract.” I also agree with Justice Evans’ statement at para 45 that “[t]he common law duty of fairness is not free-standing but is imposed in connection with the particular scheme in which the impugned administrative decision has been taken.” 44 In Mavi, unlike in Irving Shipbuilding, while the parties’ relationship was governed by a contract, it was also inextricably rooted in statute, as was noted by the Court at para 2: The present proceedings were initiated by eight sponsors who denied liability under their undertakings. As will be explained, the undertakings are valid contracts but they are also structured, controlled and supplemented by federal legislation. The debts created thereby are not only contractual but statutory, and as such their enforcement is not exclusively governed by the private law of contract. The issue raised by this appeal is the extent to which, if at all, the government is constrained by considerations of procedural fairness in making enforcement decisions in relation to these statutory debts. [emphasis added] In my view, the fact that the contracts were grounded and rooted in statute distinguishes Mavi from Irving Shipbuilding and from this case. The undertakings in Mavi were not of a strictly contractual nature. In fact, the Supreme Court in Mavi distinguished Dunsmuir on this basis, stating at para 47: The Attorneys General resist the application of a duty of procedural fairness in part on a theory that the claims against the sponsors are essentially contractual in nature. Dunsmuir, they say, stands for the proposition that procedural fairness does not apply to situations gov- 192 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

erned by contract. However, in this case, unlike Dunsmuir, the gov- ernments’ cause of action is essentially statutory. [emphasis added] 45 Unlike in Mavi, one cannot say that the relationship of the parties in this case is “structured, controlled and supplemented by federal legislation,” or that the cause of action is essentially statutory. The Settlement Manual — a guidebook given to settlement officers for evaluating applications for funding — states that “[w]ith the establishment of the Depart- ment of Citizenship and Immigration in 1950, the federal government made provisions in its Annual Estimates for payments to not-for-profit organizations in order to provide settlement services to immigrants in Canada.” These settlement programs fall within the Act’s objectives in section 3, most particularly the objective “to promote the successful integration of permanent residents into Canada.” The parties have not pointed to any other statutory provision relevant to LINC funding. Ac- cordingly, there is no statutory provision governing procedural fairness in relation to the possible extension of the term of an existing contribution agreement. 46 In this case, the parties were in a purely contractual relationship at the time the Minister made his decision. CAF was a party to a LINC funding contract with CIC, ending March 31, 2009. There was no provision in that contract for the automatic renewal or extension of that term. How- ever, as a consequence of that contractual relationship, CAF was invited to submit a proposal for an amendment to the contract to extend its term for one year. CAF was informed that its contract with CIC would be extended to March 31, 2010, subject to an application being submitted and “approved.” Despite the negotiations for 2009-2010 having been completed, the fact remains that no contract for funding for 2009-2010 had been approved or executed, and it had been made clear to CAF in both the Guidelines for Amendments: Language Instruction for Newcom- ers to Canada (LINC) 2009-2010, and subsections 4.6 and 12.5 of the 2007-2009 contribution agreement, that it should not expect any additional funding beyond March 31, 2009, until it was notified in writing that the application for an amendment to extend the term of the existing contract had been approved. 47 There was nothing in the documents sent to CAF that committed CIC to amend the existing contract. The letter from CIC indicating that the contract term of CAF’s existing contribution agreement could be extended is akin to a request for the submission of a proposal and, as was Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 193

held in Irving Shipbuilding, arguably creates a contract when the recipi- ent responds. In this case, that contract contains no express promise that parties responding will be treated in a procedurally fair manner. 48 CAF points out that there was nothing in the document package to indicate that organizations that were considered by the Minister to be anti-Semitic or supporters of terrorism would not be granted a contract extension. Equally there was nothing in the package that indicated that approval by the Minister would be automatic even if his officials were otherwise satisfied with the proposal. 49 Accordingly, to the extent that the parties’ relationship was a commercial and contractual relationship, there is nothing in the record that suggests that there was any obligation on the Minister to engage with CAF about his concerns prior to making his decision not to extend the existing contract’s term. There is neither a statutory or contractual basis on which this Court can impose on a duty of procedural fairness on the Minister.

Implied Duty of Fairness 50 The question remains whether there is any implied duty of procedural fairness. I find that there is no implied duty in this case for many of the reasons the Court found that there was no implied duty of fairness in Irving Shipbuilding. 51 First, this is essentially a commercial relationship, notwithstanding the fact that the service provider makes no profit from the agreement. As Justice Evans stated at para 46 of Irving Shipbuilding: “It will normally be inappropriate to import into a predominantly commercial relationship, governed by contract, a public law duty developed in the context of the performance of governmental functions pursuant to powers derived solely from statute.” 52 Second, if CAF is awarded procedural rights in this context, it would open the door to every failed applicant for a contribution agreement being entitled to at least notification that their proposal was not going to be accepted and an opportunity to address the reasons why. Such an obligation on the Minister would unduly delay his decisions in a process when, as in this case, the time for a decision is short. Further, it opens the door to what Justice Evans called a “cascading array of potential procedural rights-holders.” Where there are more persons seeking funding than funds available, any change in decision by the Minister leads automatically to a subsequent failed applicant. If procedural fairness is extended 194 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

to the initial failed applicant, the same safeguards must be extended to the subsequent failed applicants. 53 Third, as was submitted by the Minister, a decision on funding settlement programs for newcomers to Canada involves broader public policy considerations; there is more at stake than just the relationship between the service provider and CIC. Those who enrol in the LINC program are to be orientated to the Canadian way of life and therefore the suitability of the program provider is critical. The question of whether a particular organization is best suited to act as a beacon of Canadian values in the provision of settlement services (even when its second-language training program is otherwise fully acceptable), is not something subject to judicial review on procedural grounds. The Applicant’s interests - to the extent that they have interests at all - are protected from capricious decision-making under the reasonableness standard, not by affording it procedural fairness. 54 Even if the nature of the relationship between CIC and CAF was other than that of a commercial contract, and even if the Dunsmuir exception was read to apply as narrowly as CAF submits, I nevertheless would have found that CAF does not have a right, privilege, or interest that is affected by the decision sufficient to impose a duty of fairness on the Minister. 55 The Supreme Court held in Cardinal that a duty of fairness is imposed on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. This language was tracked in the Supreme Court’s decision in Knight, when it stated that the effect of the decision on the individual’s rights is a factor to be considered when determining whether a duty of fairness applies. In Wells v. Newfoundland, [1999] 3 S.C.R. 199 (S.C.C.) [Wells], the Supreme Court again reaffirmed the concept that a right, interest, or privilege must be engaged before a duty of fairness will be imposed, when at 224, it said that “[t]here is no vested interest at stake causing a duty of fairness to arise (Knight, supra). The respondent did not show any basis on which he could have formed a reasonable expectation to be consulted in the process.” 56 Although the Court’s comments in Wells were directed towards the issue of procedural fairness in the context of reappointment of a public official following lawful termination, the message is still instructive — there must be some valid interest that stands to be affected by the decision for there to be a duty of fairness owed. Here, CAF (or any other Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 195

service provider organization for that matter) does not have a right to LINC funding. While the Minister conceded that there may be indirect benefits to CAF as a result of the contribution agreements such as increased legitimacy of the organization as a result of its contractual relationship with the government, or the sharing of infrastructure costs with CAF’s other operations, I find that these are not sufficient privileges or interests so as to engage an obligation of fairness. 57 If the added legitimacy resulting from the very act of contracting with the government is a sufficient interest to impose procedural fairness obligations, virtually every party that contracts with the government in any fashion will suddenly acquire procedural rights. Furthermore, part of the reason that the Minister decided not to continue to fund CAF was because he did not think it was appropriate for the government to appear to support, endorse, or legitimize an organization that might be viewed as anti-Semitic or that might support terrorism. 58 The sharing of infrastructure costs is similarly not a sufficient interest to impose an overarching duty of fairness on the Minister. In this case, the actual financial benefit to CAF cannot be significant — it was already renting a separate building for its other operations and the majority of the LINC staff played no additional role in CAF’s other operations. Furthermore, funding for the LINC program was provided on a cost-recovery basis for recoverable expenses related to the LINC program only. This effectively limited the extent to which costs unrelated to the program could be reimbursed. On the other hand, as I have already indicated, imposing a duty of fairness on the Minister would significantly constrain his ability to expeditiously make broad, policy-based decisions. Any incidental interest CAF may have had was heavily outweighed by the public’s interest in a Minister with the discretion to make decisions swiftly, instead of one who is paralyzed by procedure. 59 For these reasons, I find that CAF was not entitled to procedural fairness in the Minister’s decision not to accept their proposal and extend the term of its contribution agreement with CIC under the LINC Program.

Content of the Duty of Fairness 60 Had I found that it was entitled to procedural fairness, I would have found that this case attracts no more than minimal procedural protections and that those requirements were met. The five factors set out in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), which the Court is to consider when determining what procedu- 196 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

ral rights the duty of fairness requires in a particular context, all point to such a conclusion. 61 The decision not to approve an extension of CAF’s LINC funding is not close to judicial decision-making. It is discretionary and purely administrative. Although there is no appeal from such a decision, there is no impediment to CAF applying in the future for funding and this, in my view, points to a lower duty of fairness. 62 Despite the fact that LINC funding comprised roughly 74 percent of CAF’s annual budget, the LINC funding was not critical to CAF’s operations as the provision of LINC training was not within its main mandate nor did the contribution agreements generate income for CAF’s activities as funding was provided on a cost recovery flow-through basis. CAF had no legitimate expectation that the contract extension would be provided. In fact, it was aware from the Minister’s statements that funding was in jeopardy. Further, CAF had no legitimate expectations in the process - on the contrary, CAF was explicitly told not to expect approval until it was notified in writing and similarly, not to incur any expenses or hire any staff until final approval was received. Despite approval appearing to be a formality in years past, it does not change the fact that the Minister always had ultimate discretion. 63 Lastly, the choice of procedure used by CIC and the requirement of the Minister’s approval given the value of the contract, are left to the Minister. All of these factors indicate that minimal procedural protections would have been appropriate in this case. 64 Had it been entitled to fairness, in my view, the following are the procedural rights CAF would have been entitled to receive: (1) to know the reasons why the Minister did not approve its proposal, (2) to know the Minister’s concerns regarding it and the fact that those concerns could lead to it not being approved for future funding, and (3) to be given an opportunity to respond to those concerns. 65 Here, a letter was provided to CAF outlining the Minister’s reasons for his decision. The Minister submits that the other two elements are also satisfied. He says that CAF was aware of his concerns and it had the opportunity to respond to them. The notification and response, he says, were the numerous public statements he and CAF officials made. 66 The Minister made many public statements detailing the specific statements and activities of CAF that he says he considered when making the decision. He also made it clear that CAF’s LINC funding was in jeopardy as a result of those statements and activities. Further, CAF was Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 197

aware of the Minister’s specific concerns, it addressed them, and offered its response in various statements and press releases. In a radio interview on February 17, 2009, nearly a month before the decision, the inter- viewer put directly to Mr. Mouammar that the Minister was “poised to slash federal funding to Canada’s largest Arabic group” because “groups whose leaders say intolerant or hateful things should not get taxpayers’ funding.” Mr. Mouammar responded: It does not belong to Jason Kenny [sic], and it’s up to Canadian taxpayers to decide who gets this money to provide such settlement services, not Jason Kenny [sic]. His approach is really a fascist approach. He is threatening people that you cannot criticize government policies, and if you do, you are therefore banned from receiving funding from settlement services, which are not under his jurisdiction, because as I said, this is taxpayers’ money. 67 No authority was provided for the proposition that public statements provide notice of the sort required to satisfy the duty of procedural fairness. However, I can see no principled basis to reject the adequacy of notice through public statements provided they are sufficiently detailed, the receiving party is made aware of them, and the receiving party provides a response. In this case, I find all of the requirements were satisfied and the notice was adequate. 68 I cannot see how the fairness of the decision-making process would have been enhanced had the Minister sent a formal notice to CAF detailing the very statements and concerns he had publicly expressed, and given it an opportunity to respond. The function of notice had clearly been served as evidenced by Mr. Mouammar’s response during the Feb- ruary 17, 2009 interview. Further, it is not suggested by CAF that it could have or would have offered a response that differed from the public response it had given. 69 In my view, CAF was aware of the Minister’s concerns and the possible result. CAF responded publicly to those concerns. The Minister had CAF’s public responses before him when he made his decision. The three elements required by the duty of fairness were therefore satisfied in these unique circumstances. Had I found otherwise, on these facts, I would have found the breach to have been a technical, inconsequential breach, and the result unlikely to have been different in light of the parties’ public discourse. For those reasons, I would not have exercised my discretion to award CAF a remedy. 198 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

2. Was the Minister’s Decision Tainted by a Reasonable Apprehension of Bias? 70 Regardless of whatever else the duty of fairness may require in terms of procedural protections, where fairness applies, the decision maker must in all cases be impartial and free from a reasonable apprehension of bias. Because I have found that no duty of fairness applied here, I need not explore whether the decision was tainted by a reasonable apprehension of bias. However, should a reviewing court determine that fairness did apply, I shall provide my assessment of CAF’s allegations of bias. 71 The test to be applied in determining whether an administrative decision-maker is biased will vary depending on the nature of the decision- making body: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (S.C.C.), at 637- 640 [Newfoundland Telephone]. 72 The Ontario Court of Appeal in Davis v. Guelph (City), 2011 ONCA 761 (Ont. C.A.) at para 71, (2011), 345 D.L.R. (4th) 1 (Ont. C.A.), sum- marized how to determine the appropriate test for bias: At the adjudicative end of the spectrum, the traditional “reasonable apprehension of bias” test will apply in full force. At the other end of the spectrum, however - where the nature of the decision is more of an administrative, policy or legislative nature - the courts have held that a more lenient test, known as the “closed mind” test is applicable. [references omitted] 73 Additionally, the Supreme Court of Canada stated in Cie pétrolière Impériale c. Québec (Tribunal administratif), [2003] 2 S.C.R. 624 (S.C.C.), at 646-647 that: The appellant’s reasoning thus treats the Minister, for all intents and purposes, like a member of the judiciary, whose personal interest in a case would make him apparently biased in the eyes of an objective and properly informed third party. This line of argument overlooks the contextual nature of the content of the duty of impartiality which, like that of all of the rules of procedural fairness, may vary in order to reflect the context of a decision-maker’s activities and the nature of its functions. [emphasis added] 74 CAF submits, without analysis, that the appropriate standard is a reasonable apprehension of bias and not the closed mind test. The Minister says that this was a policy driven decision - he exercised a broad discretion, weighed competing interests, and made a decision respecting a Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 199

commercial relationship - and therefore the higher standard of a closed mind is appropriate. 75 I agree with the Minister that the closed mind test is the appropriate standard by which to judge his decision because the Minister is a demo- cratically elected official and this particular decision comes in the context of the administration of the Act. The question to be asked is whether the Minister had prejudged the matter “to the extent that any representations at variance with the view, which has been adopted, would be futile:” Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 (S.C.C.), at 1197. For the following reasons, I find that the Minister’s mind was closed. 76 The Minister says that he did not make up his mind until March 18, 2010, and he was impartial when he rendered his decision. The Court was pointed to comments he made in numerous radio interviews leading up to the decision, including the following: a. In an interview on March 2, 2009 the Minister made clear to the host that he had not yet made a decision; and b. The Minister stated in an interview on March 14, 2009 that if the character of CAF were to change and there was to be new leadership that was more in keeping with Canadian values, he would be”...entirely comfortable with [CAF] being a service delivery partner.” 77 The Minister submits that while he expressed strong opinions prior to the decision, these statements did not indicate that his position could not be dislodged. He reminds the Court that in Newfoundland Telephone, the Supreme Court of Canada stated at 639 that “a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing.” 78 However, the Minister’s public statements are only part of the evidence that must be examined to determine whether he had a closed mind regarding CAF. Private statements are often more indicative of a person’s true state of mind, than public statements. This may be especially true of political figures. 79 I agree with CAF that particularly telling is the Minister’s February 2, 2009 email in which he requests “information on the contribution agreement embarrassingly approved by our government for the radical and anti-semitic [sic] Canadian Arab Federation.” He goes on to say that he 200 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

wants “to pursue all legal means to terminate this shameful funding ar- rangement, and to ensure that it is not renewed.” [emphasis added] 80 Any reasonable person reading this would conclude that the Minister had made up his mind about the issue of future funding for CAF; his only interest was in pursuing the means to reach his end goal of terminating the relationship CIC had with CAF. 81 I conclude, despite the Minister’s public statements and assertions to the contrary, that his private actions revealed that he would not truly consider CAF’s submissions - that any efforts by CAF short of changing its leadership were futile. His mind was closed.

3. Was CAF’s Freedom of Expression Infringed? 82 There is no doubt, and it was undisputed by the Minister, that CAF’s advocacy activities are protected expression. Additionally, the expression surrounding the LINC program is also protected. Nevertheless, I find that CAF’s freedom of expression was not infringed. 83 The Supreme Court of Canada in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 (S.C.C.) [Baier], set out how one determines whether a right claimed is a positive entitlement to a particular platform or benefit, or a negative right to be free from government restraint. The claim is a positive entitlement claim if the government has to legislate or otherwise act to support or enable an expressive activity; the claim is a negative rights claim if what is being sought is freedom from government restriction on activity that people would otherwise be free to engage without any need for government support or enablement. 84 CAF contends that by cancelling its LINC funding, the Minister re- stricted its expression surrounding the Israel-Palestine conflict and therefore, that this is a standard negative rights freedom of expression claim. CAF is asking that the Minister be restrained from restricting expression in which it would otherwise be free to engage. The Minister contends that this is a positive rights claim because CAF is seeking positive entitlement to funds for its LINC program and by extension, its expression. 85 I agree with the Minister that this is a positive rights claim for three reasons. 86 First, only the expression through the LINC program is engaged by the decision to cut funding. There is no link between the discontinuation of funding for LINC training and CAF continuing its advocacy surrounding the Israel-Palestine conflict. The funding provided by the contribu- Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 201

tion agreement was intended only for expenses related to the LINC program, and for no other purpose. CAF was reimbursed only for eligible costs actually incurred in carrying out the services during the term of the contract - the funds were not provided to be used at CAF’s discretion. It is notable that CAF’s LINC contract was not terminated as a consequence of its speech, it was merely not extended. Further, CAF’s other contribution agreement for ISAP continued. In addition, the LINC program was run by CAF’s Settlement Services branch which is entirely separate from its advocacy branch. The two were essentially wholly independent, even operating out of entirely separate geographic locations. These factors demonstrate the separation between CAF’s LINC operation and its advocacy operation. 87 Second, the LINC program is a platform that the government created. Since access to the LINC program requires enablement by the government, this points to a positive rights claim. 88 Third, Baier makes clear that a claim does not become a negative rights claim simply because the applicant historically had access to the platform of expression prior to the legislation or decision to disentitle the applicant. In this case, CAF’s access to the LINC program for 12 years prior to the Minister’s decision does not automatically convert the claim into a negative one. The Court in Baier said that “to hold otherwise would mean that once a government had created a statutory platform, it could never change or repeal it without infringing s. 2(b) and justifying such changes under s. 1.” 89 Baier held that an applicant must establish the following factors to successfully claim a positive entitlement under s. 2(b) of the Charter: 1. The claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime; 2. The claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s. 2(b) freedom of expression, or has the purpose of infringing freedom of expression under s. 2(b); and 3. The government is responsible for the inability to exercise the fundamental freedom. 90 In Baier, legislation was passed that disqualified school employees from running for positions as school trustees of any school board unless they went on a leave of absence and resigned from their positions as teachers if elected. The Alberta Teachers Association alleged that this 202 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

was an infringement of the employees’ freedom of expression. It argued that the role of a school trustee was a unique platform for advocacy surrounding educational issues and therefore constituted a fundamental freedom. 91 The Court rejected this characterization saying that “claiming a unique role is not the same as claiming a fundamental freedom. The ap- pellants’ claim, as they have articulated it, is grounded in access to the particular statutory regime of school trusteeship” (at para 44). Similarly, CAF’s access to LINC funding is a particular platform created by the government, not a fundamental freedom. 92 The Court in Baier also stated that even if eligibility for trusteeship was a fundamental freedom, removing eligibility was not a substantial interference with freedom of expression because even without the position, teachers could still engage in advocacy surrounding educational issues. This is analogous to CAF’s situation: even without access to the LINC program, CAF can still engage in, and has still engaged in, its advocacy surrounding the Israel-Palestine conflict. Discontinuing LINC funding has not created an “inability” to engage in expression or substan- tially interfered with CAF’s expression. 93 In summary, there is no positive entitlement to funding because the right to administer the LINC program is not grounded in a fundamental freedom. There is also no substantial interference with CAF’s advocacy efforts because CAF has continued to express its ideas surrounding the Israel-Palestine conflict despite not receiving funding for LINC training. 94 Having found that there is no breach of s. 2(b) of the Charter, it is unnecessary for me to conduct a section 1 analysis.

4. Was the Minister’s Decision Reasonable? 95 There is no jurisprudence on the applicable standard for reviewing a decision (Ministerial or not) to reject a funding request under the LINC program. After undertaking the analysis set out in Dunsmuir, I determine the applicable standard of review to be reasonableness. The factors to be considered are: (i) the existence of a privative clause, (ii) any special expertise of the decision- maker, and (iii) the nature of the question being decided. 96 First, there is no privative clause at play and thus there is no reason to extend to the Minister any added deference. Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 203

97 Second, one could argue that the Minister has no particular expertise that is relevant to the determination of whether or not funding should be granted to CAF for administering the LINC program, and therefore little deference is required. However, the Minister is an elected official making a decision in the administration of the Act that involves broader policy considerations and therefore he should be granted deference by virtue of his position. This factor points to a reasonableness standard of review. 98 Third, the nature of the question being decided also points to reasonableness. In this case, this is a policy-driven commercial decision made with the intent of giving effect to the broad purposes of the Act. There is no question of law central to the importance of the legal system. There- fore, much deference is owed. 99 Accordingly, the applicable standard in this case is the reasonableness standard. The fact that this is a broad policy-based decision by an elected official warrants a high degree of deference for his decision. 100 The reasonableness standard of review requires only that the Min- ister’s decision fall within a range of reasonable outcomes to avoid being overturned. 101 In assessing whether the decision falls within that range, one must first correctly determine what is being assessed. The parties differ in their characterization of the Minister’s decision. CAF submits that the Min- ister’s decision is that CAF is anti-Semitic and supports terrorist organizations and it is that decision which is unreasonable. The Minister submits that he decided not to distribute finite resources to fund CAF because it is not an appropriate service provider organization as it appears to be engaged in extremism contrary to Canadian values, and that decision was reasonable. 102 In the March 18, 2009 letter, it is stated that the Minister decided not to renew CAF’s funding, because: Serious concerns have arisen with respect to certain public statements that have been made by yourself or other officials of the CAF. These statements have included the promotion of hatred, anti-semitism [sic] and support for the banned terrorist organizations Hamas and Hezbollah. The objectionable nature of these public statements — in that they appear to reflect the CAF’s evident support for terrorist organizations and positions on its part which are arguably anti-Semitic — raises serious questions about the integrity of your organization and has un- 204 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

dermined the Government’s confidence in the CAF as an appropriate partner for the delivery of settlement services to newcomers. [emphasis added] 103 Based on the express wording of the decision letter, I agree with the Minister’s characterization of the decision. The question that must be addressed is whether or not it was reasonable to not continue funding CAF’s LINC program because it is an organization that appears to be anti-Semitic and support terrorist organizations. I find that the Minister’s decision in this case falls within the range of reasonable outcomes. 104 CAF filed many affidavits from academic scholars, legal professors, Jewish advocacy groups, and people who have worked closely with CAF, stating that they have never witnessed anti-Semitism, promotion of hatred, or support for terrorism from CAF. While this evidence is compelling, it must be considered in light of the conflicting opinion and evidence in the record on the question of what constitutes anti-Semitism and evidence of how other Canadians have perceived CAF’s actions. The only thing that is clear from the record is that there is no consensus. 105 The Court is not required to resolve the question of what constitutes anti-Semitism because the Minister did not say that CAF is anti-Semitic, rather he said that public statements made “appear to reflect the CAF’s evident support for terrorist organizations and positions on its part which are arguably anti-Semitic.” The Minister does not have to prove that CAF is anti-Semitic, only that they could appear to be anti-Semitic. There is an abundance of evidence in the record to show that, although many do not consider CAF’s actions to be anti-Semitic, including people of Jewish ethnicity, there are many others that hold the opposite view, including a former CAF president. In this context, it is especially important to be deferential to the Minister’s decision. 106 With respect to the six specific matters relied on by the Minister, it is submitted by CAF that it did not authorize them, the persons involved were not officially representing CAF at the time, or the actions and content were not endorsed or approved of by CAF. In many cases, this de- fense ignores the maxim that “one is known by the company one keeps.” Quite simply, CAF cannot completely disassociate itself from the content of web links it includes in its materials, or from comments, distribution of materials, or attendances at meetings and conferences by its executive. 107 All of the statements and actions raised by the Minister can, in my view, reasonably lead one to the view that CAF appears to support organizations that Canada has declared to be terrorist organizations and Canadian Arab Federation v. Canada (MCI) Russel W. Zinn J. 205

which are arguably anti-Semitic. Aside from the Minister himself reaching this view, the record is replete with news articles and statements of others to the same effect, all of which support that it was not unreasonable for the Minister to reach that conclusion. 108 The decision, for these reasons, falls within the scope of reasonableness, as described in Dunsmuir at para 47.

Costs 109 The Minister is entitled to his costs. If the parties cannot reach an agreement on quantum, they are to advise the Court within 30 days of this decision. The Minister shall provide his written submissions on costs, not exceeding ten (10) pages, within ten (10) days thereafter, and CAF shall have twenty (20) days from receipt of the Minister’s submissions to provide its written response.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. The application is dismissed; and 2. Costs are awarded to The Minister of Citizenship and Immigration. Application dismissed. 206 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[Indexed as: Salahaldin v. Canada (Minister of Citizenship and Immigration)] Harith Ahmad Salahaldin and Nadia Ibrahim Ismail, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-10582-12 2014 FC 51 Sandra J. Simpson J. Heard: December 17, 2013 Judgment: December 17, 2013 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Miscellaneous –––– Visa officer denied principal applicant’s application for permanent residence on basis of inadmissibility — Officer determined that principal applicant was prescribed senior official in service of Iraqi government — Officer concluded that principal applicant became senior official in Iraqi government as result of his work on certain project and reached this conclusion largely because principal applicant met regularly with certain Minister — Application brought for judicial review — Application granted — Matter was to be redetermined by different visa officer — Decision did not meet test for reasonableness established by Supreme Court of Canada in certain case law, because evidence showed that principal applicant’s access to Minister was only by reason of his part-time position on project — He was never Ministry official — He had no title within Ministry and his name did not appear on list of those who held senior government positions which was prepared by government of Iraq after U.S. invasion in 2003. Cases considered by Sandra J. Simpson J.: New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Salahaldin v. Canada (MCI) Sandra J. Simpson J. 207

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 35(1)(b) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 16 — pursuant to

APPLICATION for judicial review of decision of visa officer, involving officer’s denial of principal applicant’s application for permanent residence on basis of inadmissibility.

Asiya Hirji, for Applicants John Loncar, for Respondent

Sandra J. Simpson J. (orally):

1 This application for judicial review of a decision of a Visa Officer (the Officer) dated September 10, 2012 (the Decision) involves the Of- ficer’s denial of the principal Applicant’s application for permanent residence on the basis of inadmissibility pursuant to s. 35(1) (b) of the Immi- gration and Refugee Protection Act (S.C. 2001, c. 27), s. 16 of the Regulations (SOR/2002-227), and Immigration Manual ENF 18 at s. 8.2, category 2. 2 The issue is the reasonableness of the Officer’s determination that the principal Applicant was a prescribed senior official in the service of the Iraqi government. 3 The Applicant is a medical doctor whose career has centered on teaching and practicing his profession. The details follow: • 1968: The principal applicant received his Bachelor of Medicine from the University of Baghdad, College of Medicine. • 1968-1970: The principal Applicant worked as a general practitioner with the Ministry of Health and practiced medicine in rural areas in Iraq. • 1975: The principal Applicant received a Diploma in Otolaryngol- ogy from the University of Baghdad, College of Medicine. • October 1975: The principal Applicant began working as an ear, nose and throat specialist at the Sulaymania General Hospital in Iraq. 208 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

• October 1978-June 1982: The principal Applicant received a scholarship from the University of Salford in England to complete a Master’s of Audiology, specializing in the rehabilitation and care of hearing impaired individuals. • June 1982-August 1988: The principal Applicant accepted a position as an Ear, Nose, and Throat specialist and Audiologist at the Yarmouk Teaching Hospital. • 1982: The principal Applicant was accepted for consultancy work with the Ibin Sina Hospital in Baghdad. • 1984-1996: The principal Applicant opened his own private medical clinic where he treated deaf patients. He specialized in ear, nose and throat ailments, and audiology. • 1988: The principal Applicant was chosen to work as an assistant lecturer at the College of Medicine at the University of Al Mustansiriya. • 1989: The principal Applicant began working as a placement doctor with the Handicap Diagnosis Committee for the Department of Labour and Social Welfare, which falls under the Ministry of La- bour and Social Affairs (MOLSA). • 1992: The principal Applicant was promoted to full lecturer in audiology at the University of Baghdad, College of Medicine. • October 22, 1992-February 10, 1995: The principal Applicant was selected for a part-time position as the local Project Manager for the Childhood Disability Project (the Project). The Project was co- ordinated and organized by UNICEF and the MOLSA. The evidence is not clear about whether the MOLSA and/or UNICEF funded the Project and it is not clear how the principal Applicant was paid for his work on the Project. However, it is clear that the Minster of the MOLSA (the Minister) and UNICEF personnel su- pervised the Project and that, in his role as Project Manager, the principal Applicant attended regular meetings with the Minister and his staff and representatives of UNICEF. • 1992-1996: During the Project, the principal Applicant also lec- tured at the University of Baghdad, College of Medicine.

The Decision 4 The Officer concluded that the principal Applicant became a senior official in the Iraqi government as a result of his work on the Project and Salahaldin v. Canada (MCI) Sandra J. Simpson J. 209

reached this conclusion largely because the principal Applicant met regularly with the Minister.

Conclusion 5 In my view the Decision does not meet the test for reasonableness established by the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), because the evidence shows that the principal applicant’s access to the Minister was only by reason of his part-time position on the Project. He was never a Ministry official. He had no title within the Min- istry and his name did not appear on the list of those who held senior government positions which was prepared by the government of Iraq after the U.S. invasion in 2003.

Certification 6 No question was posed for certification.

Order THIS COURT ORDERS that: The application for judicial review is allowed and the matter is to be redetermined by a different Visa Officer. New evidence may be submitted on the reconsideration. Application granted. 210 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[Indexed as: Modeste v. Canada (Minister of Citizenship and Immigration)] Sherisa Shermika Patricia Modeste, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-9659-12 2013 FC 1262 James Russell J. Heard: September 24, 2013 Judgment: December 18, 2013 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Domestic abuse — Refugee claimant was 10 year old female citizen of St Lucia who arrived in Canada with her mother — Mother had made successful refugee claim based on gender-related persecution in form of physical, sexual and psychological violence perpetrated by common law husband, who was also claimant’s father, and failure of state to protect her from that violence — Refugee Protection Division of the Immigration and Refugee Board (“Board”) determined that claimant was not Convention refugee or person in need of protection although she had witnessed some of violence of father toward mother as she had not personally been subjected to violence or threats and had good relationship with father — Claimant brought application for judicial review of decision of Board — Application allowed; matter returned for reconsideration — If objective evidence demonstrates that particular group is at risk, RPD is required to determine whether claimant fits that profile in assessing claim under subsection 97(1) of Act and failure to conduct such analysis is reviewable error — Here, there was extensive evidence regarding risk of violence faced by women and children in Saint Lucia, and of inadequacy of state protection for victims of domestic violence, and this very evidence was accepted by RPD in granting mother’s refugee claim — Determinative issue was whether there was serious possibility that such harm would come to pass based on claimant’s profile — In light of horrific violence perpetrated by father against mother, and inability of state to protect women in Saint Lucia against such abuse, failure of RPD to answer this determinative question made its ultimate conclusion unsafe and unreasonable — Claimant had already been subjected to abuse by father as she was forced to witness fataher’s violence to mother — If she were returned to Saint Lucia, there was real prospect that claimant may have to wit- Modeste v. Canada (MCI) 211 ness further violence by her father against her mother, if mother returned with her, and claimant could also be personally victimized by her father. Cases considered by James Russell J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to 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.) — referred to Ayaichia v. Canada (Minister of Citizenship & Immigration) (2007), 309 F.T.R. 251, 2007 FC 239, 2007 CarswellNat 449, 309 F.T.R. 251 (Eng.), [2007] F.C.J. No. 300 (F.C.) — referred to Brovina v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 1243, 2004 FC 635, 2004 CarswellNat 2841, 2004 CF 635, 254 F.T.R. 244, [2004] F.C.J. No. 771 (F.C.) — considered Burgos-Rojas v. Canada (Minister of Citizenship & Immigration) (1999), 1999 CarswellNat 105, 162 F.T.R. 157, 1999 CarswellNat 4443, [1999] F.C.J. No. 88 (Fed. T.D.) — referred to Gallardo v. Canada (Minister of Citizenship & Immigration) (2006), 58 Imm. L.R. (3d) 238, 2006 FC 1331, 2006 CarswellNat 5809, 2006 CF 1331, 2006 CarswellNat 3607, 302 F.T.R. 252 (Eng.) (F.C.) — referred to Guerilus c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CarswellNat 886, 2010 CF 394, 2010 CarswellNat 2188, 2010 FC 394, [2010] F.C.J. No. 438 (F.C.) — referred to Guerrero Moreno v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 841, 2011 CarswellNat 2547, 2011 CF 841, 2011 CarswellNat 3923, [2011] F.C.J. No. 1042 (F.C.) — referred to Jean v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 1014, 2010 CarswellNat 3827, 2010 CarswellNat 4655, 2010 CF 1014, [2010] F.C.J. No. 1254 (F.C.) — referred to Kamalanathan v. Canada (Minister of Citizenship & Immigration) (2001), 15 Imm. L.R. (3d) 55, 2001 FCT 553, 2001 CarswellNat 1092, 2001 Car- swellNat 5753, 2001 CFPI 553, [2001] F.C.J. No. 826 (Fed. T.D.) — referred to Kandiah v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 181, 2005 CF 181, 2005 CarswellNat 3978, 2005 CarswellNat 390, [2005] F.C.J. No. 275 (F.C.) — referred to Karsoua v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 5383, 2007 FC 58, 2007 CarswellNat 140, 2007 CF 58 (F.C.) — referred to 212 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

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 Kulasingham v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 543, 2012 CarswellNat 1340, 2012 CF 543, 2012 CarswellNat 4176 (F.C.) — referred to Mohacsi v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 429, 2003 CarswellNat 941, 231 F.T.R. 276, 2003 CarswellNat 4886, [2003] 4 F.C. 771, 27 Imm. L.R. (3d) 91, 2003 CFPI 429, [2003] F.C.J. No. 586 (Fed. T.D.) — 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 New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Pacheco v. Canada (Minister of Citizenship & Immigration) (2012), 410 F.T.R. 250 (Eng.), 2012 CarswellNat 1757, 2012 FC 682, 2012 CarswellNat 2674, 2012 CF 682 (F.C.) — referred to Ragupathy v. Canada (Minister of Citizenship & Immigration) (2006), 53 Imm. L.R. (3d) 186, [2007] 1 F.C.R. 490, 2006 CarswellNat 1100, 2006 FCA 151, 2006 CarswellNat 3509, 350 N.R. 137, 2006 CAF 151, [2006] F.C.J. No. 654 (F.C.A.) — referred to Ramirez v. Canada (Solicitor General) (1994), 88 F.T.R. 208, 1994 CarswellNat 449, [1994] F.C.J. No. 1888 (Fed. T.D.) — referred to Modeste v. Canada (MCI) James Russell J. 213

Sida v. Canada (Minister of Citizenship & Immigration) (2004), 2004 Car- swellNat 1943, 2004 FC 901, 2004 CarswellNat 4454, 2004 CF 901, [2004] F.C.J. No. 1096 (F.C.) — referred to Singh c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2009), 2009 FC 1070, 2009 CarswellNat 4811, 2009 CarswellNat 3322, 2009 CF 1070, [2009] F.C.J. No. 1312 (F.C.) — referred to Velez v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 923, 2010 CarswellNat 3382, 2010 CF 923, 2010 CarswellNat 4191, [2010] F.C.J. No. 1138 (F.C.) — referred to VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), 2000 CarswellNat 2531, 26 Admin. L.R. (3d) 1, 261 N.R. 184, 193 D.L.R. (4th) 357, [2001] 2 F.C. 25, 2000 CarswellNat 3453, [2000] F.C.J. No. 1685 (Fed. C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “réfugié” — considered s. 97 — considered s. 97(1) — considered

APPLICATION by claimant for judicial review of decision of Board.

Jayson Thomas, for Applicant Nicole Rahaman, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of the Refugee Protection Division of the Immigration and Ref- ugee Board [RPD or the Board], dated 17 August 2012 [Decision], which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a ten-year-old citizen of Saint Lucia who arrived in Canada with her mother on 11 December 2011. The Applicant’s mother, Agatha Shermain Gabriel [Agatha] made a successful refugee claim based on gender-related persecution in the form of physical, sexual and 214 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

psychological violence perpetrated by her common law husband, who is also the Applicant’s father, and the failure of the state to protect her from that violence. Agatha claimed that her common law husband raped her at gunpoint, pistol whipped her, attacked her with a knife, beat her with a walking stick, and repeatedly threatened and assaulted her, and that the police failed to intervene despite many requests for help. Based on the evidence presented, the RPD found that Agatha’s evidence was credible and that she is a Convention refugee. However, the Board determined that the Applicant was not a Convention refugee or a person in need of protection, as she had not personally been subjected to violence or threats. 3 The Applicant’s refugee claim was heard together with her mother’s claim, and the Applicant’s mother acted as her designated representative. Therefore, the Applicant did not give oral testimony at the hearing. Rather, the RPD member asked questions of Agatha relating to the Ap- plicant’s claim. Agatha testified that the Applicant and her father “were close,” and that the Applicant had not been physically assaulted by her father, nor did she personally “have problems with anyone” in Saint Lu- cia (Transcript at p. 15-16). However, Agatha’s Personal Information Form [PIF] stated that the Applicant had witnessed some of the violence of her father towards Agatha, and that both of them had been “forced to live like fugitives with the fear of being killed hanging over our heads each day” (PIF at para 2, 12). When asked at the hearing what the Appli- cant would have to fear if she returned to Saint Lucia, Agatha replied: “She would have to fear losing her mother” (Transcript at p. 16).

Decision Under Review 4 The RPD’s written reasons focused primarily on the claim of Agatha. The Board found that she was a credible witness and was persuaded that, on a balance of probabilities, she had been the victim of horrendous domestic violence over a prolonged period of time in Saint Lucia. The Board also found that Agatha had rebutted the presumption of state protection, as her oral testimony and the documentary evidence before the Board provided “clear and convincing proof that state protection in Saint Lucia is inadequate for victims of domestic violence.” While there is legislation in place to deal with domestic violence in Saint Lucia, the Board found that it was not being effectively implemented, and that Agatha had complained to police many times with no resulting arrest or charges against her common law husband. As such, the Board found that Agatha had met her burden of proof, establishing a serious possibility of persecu- Modeste v. Canada (MCI) James Russell J. 215

tion in Saint Lucia on a convention refugee ground related to her gender and membership in a particular social group as a victim of domestic violence, and was therefore a convention refugee. 5 The Board then turned to the Applicant’s claim and provided the following reasons for rejecting it: [42] The minor claimant was not physically harmed by her father while she resided in Saint Lucia. The principal claimant described the relationship between the minor claimant and her father as close. The principal claimant indicated that the minor claimant had witnessed the domestic violence but the minor claimant had been treated well by her father. [43] The minor claimant has not met her burden of proof. There is insufficient evidence to support a finding that the minor claimant faces a serious possibility of persecution on a convention refuge [sic] ground should she return to Saint Lucia. [44] Nor has sufficient reliable evidence been presented to establish on a balance of probabilities that it is more likely than not that the minor claimant would be subjected to a danger of torture or face a risk to life or a risk of cruel and unusual punishment upon her removal to Saint Lucia. [45] The claims of the minor claimant are rejected. Sherisa Patricia Modeste is neither a convention refugee nor a person in need of protection.

Issues 6 The Applicant raises the following issues in these proceedings: a. Was the Decision unreasonable, in that the RPD failed to consider whether the Applicant, as a minor female from Saint Lucia and the daughter of an individual found to have subjected Agatha to domestic violence, would face a risk of gender-based violence if returned to Saint Lucia? b. Did the RPD provide inadequate reasons for its conclusion that there was “insufficient evidence” to support the Applicant’s claim?

Standard of Review 7 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- 216 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48 [Agraira]. 8 The Respondent submits that the question of whether a claimant has a well-founded fear of persecution is reviewable on a standard of reasonableness (Kulasingham v. Canada (Minister of Citizenship & Immigra- tion), 2012 FC 543 (F.C.) at para 23; Guerrero Moreno v. Canada (Minister of Citizenship & Immigration), 2011 FC 841 (F.C.) at para 7; Jean v. Canada (Minister of Citizenship & Immigration), 2010 FC 1014 (F.C.) at para 9), and that determinations under section 97 are also reviewable on a standard of reasonableness (Pacheco v. Canada (Minister of Citizenship & Immigration), 2012 FC 682 (F.C.) at para 12; Guerilus c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 394 (F.C.) at para 9. I agree that the determinations at issue here are questions of mixed fact and law that are reviewable on a standard of reasonableness: Dunsmuir, above at para 53. 9 With respect to the issue of inadequate reasons, in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) [Newfoundland Nurses], the Supreme Court of Canada held at para 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” As such, this issue will be considered in the context of the reasonableness of the Decision. 10 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at para 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the Modeste v. Canada (MCI) James Russell J. 217

sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 11 The following provisions of the Act are applicable in these proceedings: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the 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. 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 218 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la 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.

Argument Applicant 12 The Applicant argues that the Decision was unreasonable because the Board failed to consider whether her profile as a minor female from Saint Lucia and the daughter of an abusive male placed her at risk of gender- related persecution if returned to Saint Lucia. The Board’s findings regarding the violence suffered by Agatha and the absence of state protection made such an analysis mandatory in this case. The Applicant also Modeste v. Canada (MCI) James Russell J. 219

argues that the RPD failed to provide adequate reasons for rejecting her claim. 13 It is well-established, the Applicant argues, that if objective evidence demonstrates that a particular group is at risk, the RPD is required to determine whether the applicant fits that profile in assessing a claim under subsection 97(1) of the Act. The failure to conduct such an analysis is a reviewable error: Alemu v. Canada (Minister of Citizenship & Immigration), 2004 FC 997 (F.C.) at para 46, citing Ramirez v. Canada (Solicitor General) (1994), 88 F.T.R. 208 (Fed. T.D.), Burgos-Rojas v. Canada (Minister of Citizenship & Immigration) (1999), 162 F.T.R. 157 (Fed. T.D.), and Kamalanathan v. Canada (Minister of Citizenship & Im- migration) (2001), 15 Imm. L.R. (3d) 55 (Fed. T.D.). Here, there was extensive evidence regarding the risk of violence faced by women and children in Saint Lucia, and of the inadequacy of state protection for victims of domestic violence, and this very evidence was accepted by the RPD in granting Agatha’s refugee claim. Notwithstanding this evidence, the RPD failed to consider whether the Applicant would face such a risk if returned to Saint Lucia. 14 The RPD’s explanation for rejecting this aspect of the Applicant’s claim was that her father had not yet physically abused her. However, the determinative issue was whether there was a serious possibility that such harm would come to pass based on the Applicant’s profile. In light of the horrific violence perpetrated by the Applicant’s father against the Appli- cant’s mother, and the inability of the state to protect women in Saint Lucia against such abuse, the failure of the RPD to answer this determinative question makes its ultimate conclusion unsafe and unreasonable. 15 The Applicant argues that the reasons provided by the RPD are inadequate because they fail to explain in clear and unmistakable terms why the Applicant’s profile as a minor female does not put her at risk of gender-related persecution. The explanation that there was “insufficient evidence” to support the Applicant’s claim fails to indicate why this was the case and what evidence in particular was missing: Gallardo v. Canada (Minister of Citizenship & Immigration), 2006 FC 1331 (F.C.) at paras 11-16; Mohacsi v. Canada (Minister of Citizenship & Immigration), [2003] 4 F.C. 771 (Fed. T.D.).

Respondent 16 The Respondent argues that the Applicant has failed to demonstrate any error in the RPD’s Decision. Rather, the Decision fully addresses the 220 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Applicant’s risk, the reasons sufficiently explain the RPD’s analysis, and the Decision itself is reasonable. 17 The Applicant’s mother testified that the Applicant had never been abused by her father, that the two had a close relationship, and that there was no one else the Applicant feared in Saint Lucia. Furthermore, there was no evidence that the Applicant objectively faced a risk of domestic violence in Saint Lucia. Before counsel for the Applicant made oral submissions, the RPD gave notice of its concerns regarding this aspect of the claim, and counsel failed to make any persuasive argument that the Ap- plicant faced a legitimate risk of domestic violence. 18 The Respondent argues that the RPD is not required to conduct separate analyses under sections 96 and 97 where no claims have been made or evidence adduced that would warrant such a separate analysis: Velez v. Canada (Minister of Citizenship & Immigration), 2010 FC 923 (F.C.) at paras 46-48; Sida v. Canada (Minister of Citizenship & Immigration), 2004 FC 901 (F.C.) at para 15; Kandiah v. Canada (Minister of Citizenship & Immigration), 2005 FC 181 (F.C.) at para 16; Brovina v. Canada (Minister of Citizenship & Immigration), 2004 FC 635 (F.C.) at paras 17-18 [Brovina]. Here, the evidence underlying both claims was the same: the Applicant witnessed her father’s violence towards her mother, and there was country condition evidence that victims of domestic violence cannot access state protection in Saint Lucia. However, the Respondent argues, the Applicant did not establish that she herself faced a risk of domestic violence in Saint Lucia. 19 As in Brovina, above, the RPD in this case made a “brief but defensible” finding that the Applicant faced no risk under section 97. That provision requires that the individual’s removal “would subject them personally” to a danger or risk. Evidence regarding country conditions alone cannot establish such a personalized risk: Singh c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 1070 (F.C.) at para 25; Ayaichia v. Canada (Minister of Citizenship & Immigration), 2007 FC 239 (F.C.)at para 21-22. The Applicant failed to establish a tangible connection between her personal situation and the general prevalence of domestic violence in Saint Lucia. The onus was on the Applicant to establish her section 97 claim on a balance of probabilities (Karsoua v. Canada (Minister of Citizenship & Immigration), 2007 FC 58 (F.C.) at para 35), and the Applicant failed to meet that onus. The RPD’s findings were therefore reasonable. Modeste v. Canada (MCI) James Russell J. 221

20 The Respondent argues that the RPD’s reasons meet the standard of justification, transparency and intelligibility. The governing principle in reviewing a decision on the standard of reasonableness is deference. The Court must not review reasons in a vacuum but rather in the context of the evidence, submissions and process. Reasons need not be perfect or comprehensive: N.L.N.U., above, at paras 1, 14, 18; Dunsmuir, above, at para 47. Here, the Decision informs the Applicant why her claim was refused and how the RPD weighed the evidence leading to its conclusion. The reasons were therefore adequate: Ragupathy v. Canada (Minister of Citizenship & Immigration), 2006 FCA 151 (F.C.A.) at paras 13-15; VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), [2001] 2 F.C. 25 (Fed. C.A.) at paras 17, 19.

Analysis 21 As counsel pointed out, this is a somewhat strange case in which the Applicant was not granted refugee protection when her mother was. 22 It seems to me that the principal reason for this is that Agatha, the Applicant’s mother, testified at the hearing that the Applicant and her father were close and he had not harmed the Applicant in the way he had harmed Agatha. 23 A reading of the PIF places the evidence given by Agatha at the hearing in a slightly different light. In her PIF, Agatha said that: Patrice Modeste has an uncontrollable desire for sex and violence after abusing alcohol and drugs. My daughter and I have been forced to live like fugitives with the fear of being killed hanging over our heads each day. 24 Agatha also said in her PIF that: My daughter developed an instinctive fear of Patrice such that, the mention or reference to him, generated visible unease to her. 25 These statements are somewhat inconsistent with the statements made by Agatha in oral testimony and neither the RPD nor Applicant’s counsel explored the issue with Agatha, so that it is difficult to understand what was the real relationship between the Applicant and her father. 26 The applicant was 10 years old at the time of the hearing and it is of concern that her fate was in the hands of others who, perhaps, did not make clear what the real risk was. 222 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

27 I think, however, that the RPD should have been alive to these concerns. The Board’s reasons for rejecting the Applicant’s claim are brief and, in my view, entirely miss what is of real concern in this case. 28 It is true that the oral evidence from Agatha was that the Applicant had not been physically harmed by her father and that she had a close relationship with him. 29 However, the evidence was also that the Applicant had been forced to witness the horrendous physical and psychological abuse of Agatha by her father. The record shows that that abuse was truly shocking and violent. The RPD acknowledges all of this and made no adverse credibility findings. 30 What is left out of account, however, is the Applicant’s having to live under these horrendous circumstances and to witness what was done to her mother, which was also a severe form of abuse of the Applicant by her father. And this is the risk that should have been assessed. For a child to have witnessed this kind of appalling violence is abuse of the child. 31 The closeness between the Applicant and her father exacerbates the risks she faces. If returned, she would have to face a man who is vio- lently abusive towards women and, if she is close to him, she will be forced to witness more of the same. This will again be violent abuse of the Applicant herself, even if her father does not harm her physically, and given the evidence, this man may well eventually turn upon his own daughter. 32 The problem here is not that the RPD failed to consider the extremely disturbing country documentation on domestic abuse in Saint Lucia. The problem is that the RPD failed to understand that the Applicant had already been abused by her father when he made her witness the terrible things he did to Agatha, and that the Applicant faces a continuation of that abuse if she is returned to Saint Lucia. She will confront a father with whom she has had a close relationship, and who will, no doubt, abuse his daughter again by exposing her to the extreme violence against others of which he is eminently capable. 33 In fact, if she is returned to Saint Lucia, there is a real prospect that the Applicant may have to witness further violence by her father against her mother, as there is little chance the latter will let her return on her own. Agatha testified at the RPD hearing that her mother is unemployed and that “I don’t have anyone that I could send my daughter back to in St. Lucia right now”. This raises the frightening prospect that the Appli- cant, who is eleven years old, would have to live with her father, who has Modeste v. Canada (MCI) James Russell J. 223

a demonstrated propensity for extreme domestic violence, or that to avoid this eventuality, her mother would have to return to Saint Lucia despite the risks she faces there. 34 The Applicant is now eleven years old and her vulnerability is obvious. According to the country documentation, domestic violence against women and children is rampant in Saint Lucia and there is no adequate state protection. The personal risks to the Applicant of further exposure to her father are, in my view, terrifying. I think it was unreasonable of the RPD not to fully appreciate these risks and not to assess them under sections 96 and 97. In my view, this matter must be returned for reconsideration. As part of its reconsideration, the RPD will assume the following: (a) The Applicant has already been the victim of severe abuse at the hands of her father because she has been forced to witness the severe and degrading violence imposed upon her mother by her father in a household marred by drunkenness and violence; (b) The Applicant will again be exposed to her father’s violence; (c) There is no adequate state protection for women and children against domestic violence in Saint Lucia where such violence is rampant. 35 The RPD should consider and assess the Applicant’s claim under both section 96 and 97 of the Act and, in so doing, should also consider the dangers of the father harming her physically and psychologically through direct violence, in addition to what she faces by being exposed to his violence against others. 36 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that: 1. The application is allowed. The decision is quashed and the matter is returned for reconsideration by a differently constituted RPD, in accordance with my reasons. 2. There is no question for certification. Application allowed. 224 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[Indexed as: Canada (Minister of Citizenship and Immigration) v. Rahman] The Minister of Citizenship and Immigration, Applicant and Yasmin Rahman, Respondent Federal Court Docket: T-2292-12 2013 FC 1274 James Russell J. Heard: September 12, 2013 Judgment: December 20, 2013 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — General principles –––– Respondent, citizen of Bangladesh, applied for Canadian citizenship — Citizenship judge approved respondent’s citizenship application under s. 5(1) of Citizenship Act — Applicant appealed — Appeal allowed — Only problematic aspect of reasons was reference to Bangladeshi letter which, contrary to reasons, revealed that respondent was in possession of second passport that did overlap with part of review period — Copies of second passport were not provided to citizenship judge by respondent and were not part of record before court — It was not known what, if anything, this passport showed regarding respondent’s presence in or absence from Canada during review period — Had citizenship judge been aware of both passports, it was not possible to tell what his decision would have been — Citizenship judge made error in assessing evidence, and that error was material to decision — Citizenship judge did not indicate how respondent established minimum of 1,095 days of physical residence in Canada, and review of record suggested that there was insufficient evidence to support minimum of 1,095 days — It was not clear upon which basis citizenship judge concluded that residency had been established — Decision lacked transparency and intelligibility. Cases considered by James Russell J.: Abbas v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 145, 2011 CarswellNat 312, 2011 CF 145, 2011 CarswellNat 1278, [2011] F.C.J. No. 167, [2011] A.C.F. No. 167 (F.C.) — referred to Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Canada (MCI) v. Rahman 225

Canada (Minister of Citizenship and Immigration) v. Lee (2013), 2013 CF 270, 2013 CarswellNat 1252, 2013 FC 270, 2013 CarswellNat 629 (F.C.) — distinguished Canada (Minister of Citizenship & Immigration) v. Al-Showaiter (2012), 6 Imm. L.R. (4th) 214, 2012 FC 12, 2012 CarswellNat 16, 2012 CarswellNat 362, 2012 CF 12 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. El-Koussa (2012), 2012 FC 13, 2012 CarswellNat 18, 2012 CarswellNat 363, 2012 CF 13, 7 Imm. L.R. (4th) 28, 403 F.T.R. 142 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Elzubair (2010), 2010 Car- swellNat 3030, 2010 CF 298, 2010 CarswellNat 573, 2010 FC 298, [2010] F.C.J. No. 330 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Hannoush (2012), 2012 CF 945, 2012 CarswellNat 3452, 2012 CarswellNat 2866, 2012 FC 945, 416 F.T.R. 156 (Eng.), [2012] F.C.J. No. 1040 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Jeizan (2010), 2010 Car- swellNat 2159, 2010 CF 323, 386 F.T.R. 1 (Eng.), 2010 FC 323, 2010 Car- swellNat 633, [2010] F.C.J. No. 373 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Salim (2010), 2010 Car- swellNat 5171, 92 Imm. L.R. (3d) 196, 2010 CF 975, 2010 CarswellNat 3654, 2010 FC 975, [2010] F.C.J. No. 1219 (F.C.) — referred to Canada (Ministre de la Citoyenneté & de l’Immigration) c. Bousserghini (2012), 2012 CF 88, 2012 CarswellNat 156, 2012 CarswellNat 3737, 2012 FC 88, (sub nom. Canada (Minister of Citizenship and Immigration) v. El Bousserghini) 408 F.T.R. 9 (Eng.), [2012] F.C.J. No. 106, [2012] A.C.F. No. 106 (F.C.) — considered Canada (Ministre de la Citoyenneté & de l’Immigration) c. Saad (2011), 2011 CarswellNat 5887, 2011 FC 1508, 2011 CF 1508, 2011 CarswellNat 5429, 404 F.T.R. 9, [2011] A.C.F. No. 1801, [2011] F.C.J. No. 1801 (F.C.) — referred to Canada (Ministre de la Citoyenneté & de l’Immigration) c. Takla (2009), 2009 CarswellNat 3741, 2009 FC 1120, (sub nom. Canada (Minister of Citizenship and Immigration) v. Takla) 359 F.T.R. 248 (Eng.), 2009 Car- swellNat 4777, 2009 CF 1120, [2009] F.C.J. No. 1371 (F.C.) — referred to Cardin v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 91, 2011 FC 29, 95 Imm. L.R. (3d) 57, 382 F.T.R. 164 (Eng.), 2011 CarswellNat 6418, 2011 CF 29 (F.C.) — referred to Farrokhyar v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 697, 2007 CarswellNat 4541, 2007 CarswellNat 1913, 2007 CF 697, [2007] F.C.J. No. 946, [2007] A.C.F. No. 946 (F.C.) — referred to Imran v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 3411, 2012 CF 756, 2012 CarswellNat 2630, 2012 FC 756, 413 F.T.R. 138 (Eng.), [2012] F.C.J. No. 994 (F.C.) — considered 226 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

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 Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — 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 New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Papadogiorgakis, Re (1978), 1978 CarswellNat 23, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243, 1978 CarswellNat 23F, [1978] F.C.J. No. 31 (Fed. T.D.) — referred to Pourghasemi, Re (1993), 1993 CarswellNat 77, 19 Imm. L.R. (2d) 259, 62 F.T.R. 122, [1993] F.C.J. No. 232 (Fed. T.D.) — referred to Rizvi v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 1641, 2005 CarswellNat 5681, 2005 CarswellNat 4153, 2005 FC 1641, [2005] F.C.J. No. 2029 (F.C.) — referred to Saad c. Canada (Ministre de la Citoyennet´e et de l’immigration) (2013), 2013 FC 570, 2013 CarswellNat 1623, 2013 CF 570, 2013 CarswellNat 2007 (F.C.) — considered Canada (MCI) v. Rahman James Russell J. 227

SRI Homes Inc. v. R. (2012), 2012 FCA 208, 2012 CarswellNat 2537, [2012] 6 C.T.C. 61, 2012 CarswellNat 4382, 2012 CAF 208, 352 D.L.R. (4th) 343, [2012] F.C.J. No. 1000, [2012] A.C.F. No. 1000 (F.C.A.) — referred to Vega v. Canada (Minister of Employment & Immigration) (2009), 2009 CF 1079, 2009 CarswellNat 4479, 2009 FC 1079, 2009 CarswellNat 3329 (F.C.) — referred to Zhao v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 4487, 2006 FC 1536, 2006 CarswellNat 6246, 306 F.T.R. 206 (Eng.), 2006 CF 1536, [2006] F.C.J. No. 1923 (F.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1) — considered s. 5(1)(c) — considered s. 5(5) — considered s. 5(6) — considered s. 14(5) — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 21 — considered

APPEAL by applicant from decision of citizenship judge approving respondent’s citizenship application under s. 5(1) of Citizenship Act.

Suranjana Bhattacharyya, for Applicant Subodh S. Bharati, for Respondent

James Russell J.: Introduction 1 This is an appeal under subsection 14(5) of the Citizenship Act, RSC 1985, C-29 [Citizenship Act] and section 21 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act] of a decision of a Citizenship Judge dated 8 November 2012 [Decision] approving the Respondent’s citizenship application under subsection 5(1) of the Citizenship Act.

Background 2 The Respondent is a citizen of Bangladesh who first came to Canada as a Permanent Resident in August 2006. She applied for Canadian citizenship, along with two of her children, on 30 August 2010. This appeal relates only to the Decision on the Respondent’s citizenship application, and not to that of her children. 228 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

3 As part of the citizenship process, the Respondent was asked in No- vember 2011 to submit a traveller history for herself and her children from Canada Border Services Agency (ICES Traveller History), photocopies of all pages of all passports covering the relevant period, and certain other documents relating to taxation, schooling and domicile, and to complete a Residence Questionnaire. On 5 October 2012, she was asked to submit ministry of health claims from 30 August 2006 to 30 August 2010 [Review Period], a record of her entry and exit from Bangladesh during the Review Period, and a letter from the proper authorities in Ban- gladesh indicating all passports ever issued to her, with issue and expiry dates. 4 The Respondent provided the record of entry and exit from Ban- gladesh on a single sheet of paper, which she attests was self-generated based on the date stamps in her passports and was never represented to be anything else. The Respondent suggested that this record “purports to be from the Bangladesh Minister of the Interior,” but this contention does not appear to be central to the appeal. 5 The list of the Respondent’s passports provided by the Department of Immigration and Passports of Bangladesh indicates that she held two passports from that country for part of the Review Period - specifically from 30 August 2006 to 12 October 2007. The Respondent’s explanation was that she had exhausted the pages for stamps prior to the expiration of the first passport (R0476041), and therefore applied for and obtained a new one (Z0326827). The Applicant says the Citizenship Judge over- looked the overlapping passports, and this was a reviewable error. 6 Along with her own application, the Respondent submitted citizenship applications for two of her children. However, these children were attending school in Bangladesh during most of the Review Period, and the Respondent now acknowledges that it was a “mistake” to apply for their citizenship as there was no way they could have met the residency requirement. She states that it was an “error on [her] part” to list only their first extended absence from Canada during the Review Period, when in fact they were rarely in Canada during this time.

Decision Under Review 7 The Decision of the Citizenship Judge was entered on the usual form, indicating that the requirements under subsection 5(1) of the Act had Canada (MCI) v. Rahman James Russell J. 229

been met. The handwritten reasons provided in support of the Decision read, in their entirety: Careful review of all documents now on file indicate that applicant on the balance of probabilities meets residence. Specifically, ICES confirms declared entries into Canada. As per letter from Ban- gladeshi passport authority, it appears that applicant was not in possession of second passport for review period. Concern why children schooled in Bangladesh, according to applicant children were en- rolled in American “Ivy League” type school not available to them in Canada at that time. Absences also confirmed by relevant ppt.

Issues 8 The Applicant submits that there are two issues on this appeal: 1. Did the Citizenship Judge err when he concluded that the Respon- dent had satisfied the residency requirement under paragraph 5(1)(c) of the Citizenship Act?; and 2. Were the Citizenship Judge’s reasons inadequate? 9 In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) [Newfoundland Nurses], the Supreme Court of Canada held at para 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” Given my conclusion below that reasonableness is the appropriate standard of review in this case, any issue that may arise as to the adequacy of reasons will be considered in the context of the reasonableness of the Decision. 10 As such, the only issue on this appeal is whether the Citizenship Judge applied the residency requirement under paragraph 5(1)(c) of the Citizenship Act in a manner that made the Decision unreasonable.

Standard of Review 11 While this is a statutory appeal from a decision of a Citizenship Judge and not a judicial review, case law has established that it is the administrative law principles governing the standard of review that apply: see Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Takla, 2009 FC 1120 (F.C.) at paras 16-39 [Takla]. 12 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- 230 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48 [Agraira]. 13 The Applicant argued that reasonableness is the appropriate standard of review in this case, citing Canada (Minister of Citizenship & Immigration) v. Jeizan, 2010 FC 323 (F.C.) at para 12 [Jeizan], and while not addressing the issue directly, it is clear from the Respondent’s arguments that she takes the same view. I agree with my colleague Jus- tice Gagn´e’s observation that “[i]t is generally accepted in the case law that a citizenship judge’s application of evidence to a specific test for residency under paragraph 5(1)(c) of the Act raises questions of mixed fact and law and is thus reviewable on a standard of reasonableness”: Saad c. Canada (Ministre de la Citoyennet´e et de l’immigration), 2013 FC 570 (F.C.) at para 18. 14 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at para 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59 [Khosa]. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 15 The following provisions of the Citizenship Act are applicable in these proceedings: Grant of citizenship 5. (1) The Minister shall grant citizenship to any person who (a) makes application for citizenship; (b) is eighteen years of age or over; Canada (MCI) v. Rahman James Russell J. 231

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; (d) has an adequate knowledge of one of the official languages of Canada; (e) has an adequate knowledge of Canada and of the responsibili- ties and privileges of citizenship; and (f) is not under a removal order and is not the subject of a decla- ration by the Governor in Council made pursuant to section 20. [...] 14 [...] Appeal (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which (a) the citizenship judge approved the application under subsection (2); or (b) notice was mailed or otherwise given under subsection (3) with respect to the application. (6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. Attribution de la citoyennet´e 5. (1) Le ministre attribue la citoyennet´e a` toute personne qui, a` la fois: a) en fait la demande; b) est ag´ˆ ee d’au moins dix-huit ans; 232 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission a` titre de résident permanent, (ii) un jour pour chaque jour de résidence au Canada après son admission a` titre de résident permanent; d) a une connaissance suffisante de l’une des langues officielles du Canada; e) a une connaissance suffisante du Canada et des respon- sabilités et avantages conférés par la citoyenneté; f) n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une déclaration du gouverneur en conseil faite en application de l’article 20. [...] 14 [...] Appel (5) Le ministre et le demandeur peuvent interjeter appel de la déci- sion du juge de la citoyenneté en déposant un avis d’appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas: a) de l’approbation de la demande; b) de la communication, par courrier ou tout autre moyen, de la décision de rejet. (6) La décision de la Cour rendue sur l’appel prévu au paragraphe (5) est, sous réserve de l’article 20, définitive et, par dérogation a` toute autre loi fédérale, non susceptible d’appel. 16 The following provision of the Federal Courts Act is applicable in these proceedings: Citizenship appeals 21. The Federal Court has exclusive jurisdiction to hear and determine all appeals that may be brought under subsection 14(5) of the Citizenship Act. Appels en matière de citoyenneté 21. La Cour fédérale a compétence exclusive en matière d’appels in- terjetés au titre du paragraphe 14(5) de la Loi sur la citoyenneté. Canada (MCI) v. Rahman James Russell J. 233

Argument Applicant 17 The Applicant argues that the Citizenship Judge erred in finding that the Respondent met the residency requirement for citizenship, without a proper analysis of the evidence and without stating which residency test he applied. 18 It is not clear from the reasons which test of residency the Citizenship Judge applied. The Applicant argues that this alone makes the Decision unreasonable. The Citizenship Act does not define “residence” or “resident,” and the jurisprudence of this Court is split as to the legal test to be applied, with three different tests emerging: Zhao v. Canada (Minister of Citizenship & Immigration), 2006 FC 1536 (F.C.) at paras 50-51. These include a test based on the quality of the applicant’s attachment to Can- ada (see Papadogiorgakis, Re, [1978] 2 F.C. 208, 88 D.L.R. (3d) 243 (Fed. T.D.) at paras 15-17), a test based on physical presence in Canada for the requisite number of days (see Pourghasemi, Re (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259 (Fed. T.D.)), and a third test combining elements of both of the aforementioned tests, focusing on where the applicant “regularly, normally or customarily lives” or has “centralized his or her mode of existence” (see Koo, Re (1992), [1993] 1 F.C. 286, 19 Imm. L.R. (2d) 1 (Fed. T.D.) at para 10). The Applicant argues that while a Citizenship Judge has discretion to apply any one of the residency tests noted above, they must clearly state which test they have applied (Cardin v. Canada (Minister of Citizenship & Immigration), 2011 FC 29 (F.C.) at paras 12, 18 [Cardin]; Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Saad, 2011 FC 1508 (F.C.) at paras 14, 18, 19, 21; Jeizan, above at para 18), and that the Citizenship Judge failed to do so in this case. 19 In addition, the Applicant argues that a citizenship applicant must provide sufficient objective evidence to demonstrate that they have satisfied the residency requirement, irrespective of the test eventually applied by the Citizenship Judge (Vega v. Canada (Minister of Employment & Immigration), 2009 FC 1079 (F.C.) at para 13; Farrokhyar v. Canada (Minister of Citizenship & Immigration), 2007 FC 697 (F.C.) at para 17; Rizvi v. Canada (Minister of Citizenship & Immigration), 2005 FC 1641 (F.C.) at para 21; Abbas v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 145 (F.C.) at paras 8-9, 11), and that the Citizenship Judge in this case erred in finding that the residency requirement was met in the absence of such evidence. 234 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

20 Specifically, the Applicant argues that the Citizenship Judge made a material factual error when he found, based on the letter provided by the Bangladesh passport authorities, that the “applicant was not in possession of [a] second passport for [the] review period.” On the contrary, the Re- spondent had two valid Bangladeshi passports (Z0326827 and R0476041) for 407 days of the Review Period (30 August 2006 to 12 October 2007), and her residency cannot be properly assessed in the absence of the second passport. If these 407 days are deducted from the residency period in addition to the Respondent’s declared absences, the Applicant says that the Respondent would only have 697 days of residency during the Review Period, which is far short of the required 1095 days. 21 The Citizenship Judge also erred, the Respondent argues, by relying upon an unauthenticated and unreferenced record of entry and exit from Bangladesh. There were also inconsistencies in the Applicant’s own evidence relating to her residency in June and July 2007 that the Citizenship Judge failed to deal with, and the Respondent’s representations regarding the residency of her two accompanying children, which showed only one absence from Canada greater than six months, were inconsistent with the fact that they were being schooled in Bangladesh. 22 Finally, the Applicant argues that the Citizenship Judge’s reasons lacked sufficient clarity, precision and intelligibility. While acknowledging that this is no longer a stand-alone ground of review, the Applicant says the reasons provided here hinder any assessment of the reasonableness of the Decision: N.L.N.U., above, at para 14; Canada (Minister of Citizenship & Immigration) v. Al-Showaiter, 2012 FC 12 (F.C.) at para 21-23 [Al-Showaiter]; Canada (Minister of Citizenship & Immigration) v. El-Koussa, 2012 FC 13 (F.C.) at paras 22-24. Specifically, the reasons do not sufficiently explain the grounds on which the application was approved, or engage in a meaningful analysis of how the Respondent met the residency requirement under paragraph 5(1)(c) of the Act. As such, the reasons do not allow a reviewing court to understand why the Citi- zenship Judge made his Decision, or to determine whether the conclusion is within the range of reasonable outcomes: N.L.N.U., above, at para 16.

Respondent 23 The Respondent argues that the Applicant has failed to demonstrate any error in the Decision that warrants judicial intervention. Canada (MCI) v. Rahman James Russell J. 235

24 The Respondent reiterates that the adequacy of reasons is not a stand- alone basis for quashing a decision (N.L.N.U., above; Canada (Minister of Citizenship & Immigration) v. Hannoush, 2012 FC 945 (F.C.) at para 6 [Hannoush]), and argues that the brevity of reasons is not in itself a sufficient ground to impugn the Decision of the Citizenship Judge. Rather, the requirement is to provide a sufficient basis for a court sitting in review to understand why the Decision was made and to assess its reasonableness: Canada (Minister of Citizenship and Immigration) v. Lee, 2013 FC 270 (F.C.) at para 37 [Lee]; SRI Homes Inc. v. R., 2012 FCA 208 (F.C.A.) [SRI Homes]. 25 Here, the Citizenship Judge identified the basis for the Decision and the evidence relied upon when he wrote: “Specifically, ICES confirms declared entries into Canada.” This is similar to Lee, where the reasons were also brief but made it clear that the decision was based mainly on the ICES report showing entries into Canada (Lee, above, at paras 34, 38). It is distinguishable from other cases where appeals were allowed on the basis that no reasons were given (see Hannoush, above; Canada (Minister of Citizenship & Immigration) v. Elzubair, 2010 FC 298 (F.C.) [Elzubair]; Canada (Minister of Citizenship & Immigration) v. Salim, 2010 FC 975 (F.C.) at para 23 [Salim]; Al-Showaiter, above, at para 17). 26 In Lee, above, the Court found that while the ICES report did not in itself establish residency, it did at least corroborate the Respondent’s statements and did not cast doubt on her evidence or declarations. The Respondent argues that the same applies here, as the dates from the ICES report are consistent with those provided by the Respondent in the documents supporting her application, and do not cast doubt on any of her evidence or declarations. Furthermore, the Court in Lee observed that the Citizenship Act does not require corroboration, and it is up to the original decision-maker to determine the extent and nature of the evidence required, taking the context into consideration: Lee, above at para 38. Def- erence is owed to the decision-maker’s choices in weighing the evidence, and the fact that the Citizenship Judge here chose to focus on the ICES report is not a reviewable error: Khosa, above, at paras 25, 61; Lee, above at para 48. 27 The Respondent says it is now trite law that a Citizenship Judge is not obliged to expressly identify the test being applied. Rather, if the record shows that the Applicant has been in Canada for the requisite period of time and there is no qualitative assessment, it is reasonable to infer that the Citizenship Judge applied the physical presence or “quantitative” test, 236 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

which is the most stringent of the three tests: Hannoush, above, at para 13; Lee, above, at para 30; SRI Homes, above, at paras 13-15; Elzubair, above, at para 14; Salim, above, at para 10; Imran v. Canada (Minister of Citizenship & Immigration), 2012 FC 756 (F.C.) at para 22. Here, given that the Citizenship Judge made a clear reference to the ICES report and the Applicant’s passports and made no assessment of any of the qualitative assessment criteria, it is more than reasonable to infer that the “quantitative” test was applied. Moreover, the rationale for the application of one test or another can be inferred from the facts of the case (Cardin, above, at para 18), and in this case, the rationale for applying the “quantitative” test is present in the facts shown in evidence. 28 The Respondent submits that the only factual inconsistency in her evidence regarding her residency in Canada arose from a typographical error, which listed her as being in Bangladesh from 14 August 2006 to 21 July 2007, when the latter date should have read 21 June 2007. This re- solves the apparent conflict with her evidence that she was in the United States from 28 June 2007 to 8 July 2007. She submits that based on all of the evidence provided in support of her application, and taking the above clarification into account, she spent 1,131 days in Canada during the review period, exceeding the required 1095 days under the quantitative test. 29 As noted above, the Respondent acknowledges that her children could not have met the residency requirements, and that it was a mistake to apply for their citizenship, but she argues that this should not impact her own citizenship application, as she meets the residency requirement. 30 Also as noted above, the Respondent submits that her reason for holding two Bangladeshi passports at the same time was that she exhausted the stamp pages in the first before it expired. She argues that no improper purpose could have been served by the second passport vis-`a-vis her citizenship application, as she had reported herself to be in Bangladesh for most of the time of the overlap (i.e. from 14 August 2006 to 21 June 2007), and did not purport to be in Canada. 31 As such, the Respondent argues that none of the factual errors alleged by the Applicant were material to the Citizenship Judge’s overall determination that the Respondent met the residency requirement under paragraph 5(1)(c) of the Citizenship Act, and the appeal should be denied. Canada (MCI) v. Rahman James Russell J. 237

Analysis 32 The inadequacy of reasons is not a stand-alone basis for review in this type of case (see N.L.N.U., above, at para 22, and Hannoush, above, at para 6) and the issue is whether the reasons allow the Court to understand why the Citizenship Judge made the Decision and permit it to understand whether the conclusion falls within the range of acceptable outcomes as established in Dunsmuir at para 47. See Lee, above, at para 37. 33 The Respondent places a heavy reliance on Lee, above, where the decision of the citizenship judge relied mainly on the ICES report. As Jus- tice Strickland pointed out in Lee at paras 34 and 38: 34 In his reasons, the Citizenship Judge stated that “after very careful consideration of all of the documentary evidence along with the ver- bal evidence presented at the hearing”, he was “satisfied that [the] applicant, on the balance of probabilities, meets the requirements of 5(1)(c)” of the Citizenship Act. The Citizenship Judge also stated that he based his decision “mostly on the strength of the ICES report that shows no entries into Canada during [the] review period.” Taken together, the extent and nature of this evidence satisfied him that the Respondent met the residency requirements. [...] 38 Here, the ICES report appears to have formed the main basis for the Decision. The Applicant asserts that in and of itself the ICES report does not establish the Respondent’s residency during the relevant four-year period. Although this may be correct, the report at least corroborates the Respondent’s statement that she has not left Canada during the relevant period. Further, it does not cast doubt on any of her evidence or declarations (Tanveer, above, at para 11). As this Court stated in El Bousserghini, above, at para 19, the Citizen- ship Act “does not require corroboration. It is the responsibility of the original decision-maker, taking the context into consideration, to determine the extent and nature of the evidence required”. 34 The Respondent acknowledges that her children could not have met the residency requirement for their citizenship applications, but she says that their ineligibility should not impact her own citizenship application. I agree, and I do not think this was a consideration in the Decision. The Citizenship Judge appears to have accepted that the fact of the children being in Bangladesh attending an “Ivy League” school was no reason to question the Respondent’s period of residence in Canada. 35 In my view, the only problematic aspect of the reasons is the reference to the Bangladeshi letter which, contrary to the reasons, reveals that 238 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

the Respondent was in possession of a second passport that does overlap with part of the Review Period. 36 The Respondent has explained to the Court as part of this review application that the reason she held two passports between August 30, 2006 and October 12, 2007 was that her passport (R0476041) was valid until October 12, 2007, but she had exhausted the stamp pages prior to the expiry date and so applied for and obtained a new passport (Z0326827). In other words she concedes that she had two “valid” passports. 37 She also says that the second passport is not material because she reported herself that she was in Bangladesh for most of the time covered by the second passport (specifically from August 14, 2006 to June 21, 2007) and she did not purport to be in Canada. 38 However, we do not know how much of the time covered by the second passport the Respondent spent in Bangladesh, or elsewhere outside of Canada. If it was the whole period covered, this would mean an additional 100 days of absence. When this is subtracted from the 1,131 days the Respondent says she spent in Canada, this results in 1,031 days of residency within the applicable period, and this falls below the 1,095 quantitative threshold which she says the Citizenship Judge applied in this case. 39 If the Respondent says that she spent most of the overlap period in Bangladesh, then she has not demonstrated to the Court that she meets the 1,095 day residency requirement. 40 The Respondent was required to submit copies of all pages of all passports covering the period from August 30, 2006 to the date of the request. The requirement is clear and unequivocal. The Respondent was required to provide a “letter from the proper authorities in Bangladesh indicating all passports ever issued to you with issue and expiry dates.” The letter from the Bangladesh Department of Immigration and Pass- ports revealed that two passports had been issued for the relevant period: R0476041 - 13 October 2002 - 12 October 2007 Z0326827 - 10 April 2006 - 12 October 2012 41 The Relevant Period for her citizenship application was August 30, 2006 to August 30, 2010. This means that from August 30, 2006 to Octo- ber 12, 2007 the Respondent had two passports that were relevant to the Decision. 42 In oral argument before me, Respondent’s counsel said that the passport overlap of three months does not relate to the Review Period, the Canada (MCI) v. Rahman James Russell J. 239

Citizenship Judge was fully aware that there were two passports, and the second passport was not material. These assertions are not tenable. The overlap does relate to the Review Period. Clearly, then, the Citizenship Judge was wrong when he said that: As per letter from Bangladesh authority, it appears that applicant was not in possession of second passport for review period. 43 The Respondent attempts to overcome this problem by pointing out that the October 20, 2012 letter from the Bangladesh Department of Im- migration and Passports says that the passports listed have been issued “from this office as per govt. rules and regulation.” This means, says the Respondent, that the second passport must have been issued because the first passport was “exhausted.” I do not think this addresses the mistake. 44 The problem is how to make sense of the Citizenship Judge’s words that the letter from the Bangladesh authority reveals that the Respondent was not in possession of a second passport for the Review Period (clearly wrong), and whether or not this mistake is material to the Decision. 45 As per instructions, the Respondent was obliged to provide copies of all pages from relevant passports. See Applicant’s Record at page 172. The Respondent only provided copies from passport No. Z0326827. The stamps in this passport and the report from the ICES that the Respondent was required to request and submit reveal the following absences from Canada: August 30, 2006 - June 21, Bangladesh 296 days 2007 June 28, 2007 - July 7, 2007 United States 10 days February 22, 2008 - March 6, Bangladesh 14 days 2008 August 16, 2009 - August 27, Bangladesh 12 days 2009 May 30, 2010 - June 10, 2010 Bangladesh 12 days 46 Copies of the second passport, No. R0476041, were not provided to the Citizenship Judge by the Respondent and are not part of the record before me. We simply do not know what, if anything, this passport shows regarding the Respondent’s presence in or absence from Canada during the review period. 47 Had the Citizenship Judge been aware of both passports, it is not possible to tell what his Decision would have been. Passports are clearly 240 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

important for calculating the residence requirement, and the Citizenship Judge obviously concluded that there was only one passport of relevance. 48 The question turns on the Respondent’s whereabouts during two periods of time: June 22, 2007 to June 27, 2007 (6 days); and July 9, 2007 to October 12, 2007 (95 days). The reason this is so can be understood from the chart below: Dates Location Days Days Days Notes in Outside When Canada Canada Location Uncertain August 30, Ban- 296 Respondent de- 2006 - June gladesh clared this ab- 21, 2007 sence and ICES confirms re-entry on June 22, 2007. June 22, Un- 6 This is during 2007 - June known the period that 27, 2007 Respondent had two valid passports. June 28, United 10 Respondent de- 2007 - July States clared this ab- 7, 2007 sence and ICES confirms re-entry on July 8, 2007. July 8, 2007 Canada 1 ICES confirms - July 9, Respondent en- 2007 tered Canada from the United States on July 8, 2007, and the record shows she attended a doctor’s appointment on July 9, 2007. Canada (MCI) v. Rahman James Russell J. 241

Dates Location Days Days Days Notes in Outside When Canada Canada Location Uncertain July 10, Un- 94 This is during 2007 - Octo- known the period that ber 12, 2007 Respondent had two valid passports. October 13, Canada 132 Respondent had 2007 - Feb- only one valid ruary 21, passport during 2008 this period. The latest she could have re-entered Canada on the previous passport was October 12, 2007. February 22, Ban- 14 Respondent de- 2008 - gladesh clared this ab- March 6, sence and ICES 2008 shows re-entry on March 7, 2008. March 7, Canada 527 Respondent had 2008 - Au- only one valid gust 15, passport, which 2009 shows no depar- tures or re-entry during this period. August 16, Ban- 12 Respondent de- 2009 - Au- gladesh clared this ab- gust 27, sence and ICES 2009 shows re-entry on August 28, 2009. 242 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Dates Location Days Days Days Notes in Outside When Canada Canada Location Uncertain August 28, Canada 275 Respondent had 2009 - May only one valid 29, 2010 passport, which shows no depar- tures or re-entry during this period. May 30, Ban- 12 Respondent de- 2010 - June gladesh clared this ab- 10, 2010 sence and ICES shows re-entry on June 11, 2010. June 11, Canada 81 Respondent had 2010 - Au- only one valid gust 30, passport, which 2010 shows no depar- tures or re-entry during this period. 1,016 344 100 Total = 1460 49 While the parties’ post-hearing submissions continue to discuss earlier discrepancies and inaccuracies (apparently in an effort to impugn and defend credibility, respectively), I do not think there is any serious dispute at this stage about the dates listed above. The only dispute is about what inferences can and should be drawn from the evidence about the Respondent’s whereabouts on the approximately 100 days when she claims she was in Canada, but had access to a second valid passport that was not placed in evidence before the Citizenship Judge. 50 As the chart above makes apparent, if the additional 100 days are added to the days of residency, the total would be 1,116, exceeding the minimum requirement of 1095. If these 100 days are added to the days of absences, the Respondent falls short of meeting the numerical test for residency. Canada (MCI) v. Rahman James Russell J. 243

51 The Applicant argues that the Respondent’s whereabouts during these 100 days (in their view, 102 days) cannot be known because only one of the two passports was in evidence before the Citizenship Judge. The Re- spondent says that it is unreasonable speculation to say that she could have been out of the country during these days, since there is no evidence to that effect. In my view, it was the Respondent’s responsibility to place evidence before the Citizenship Judge showing that she met the test for residency (Vega at para 13; Farrokhyar at para 17; Rizvi at para 21; Ab- bas at paras 8-9, all above). Based on the analysis that follows, I do not think she discharged that burden. 52 My review of the record suggests the following: a. Passport R0476041 was valid from October 13, 2002 to October 12, 2007. The portion of the Review Period during which this passport was valid was August 30, 2006 to October 12, 2007. Copies of the pages of this passport were not provided to the Citi- zenship Judge, and are therefore not part of the CTR or the record before me. We simply do not know what if anything this passport shows in terms of the Respondent’s presence or absence from the country during the disputed periods of time. I will call this passport #1, because it was chronologically the first to be issued; b. Copies of the pages in passport ZO326827 were provided to the Citizenship Judge. This passport was valid throughout the Review Period (it was valid from April 10, 2006 to October 12, 2012). I will call this passport #2, because it was chronologically the second to be issued; c. The Respondent argues that, according to the laws and regulations of Bangladesh, a new passport can only be issued if the previous passport is lost, full or expired, and the letter from the Ban- gladeshi Department of Immigration and Passports states that the listed passports were issued as per government rules and regulations (see copy in Applicant’s Record at page 31). Thus, there is no way she would have been issued passport #2 if passport #1 was still in a usable state. However, the Applicant points out that the letter does not state that a new passport can only be issued if the previous one is lost, full or expired, and that there is no evidence before me about the Bangladeshi government’s rules and regulations for issuing passports. I agree with the Applicant. The Re- spondent would need to prove this as a matter of foreign law (i.e. 244 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

as a matter of fact), and this has not been done. The Court cannot take judicial notice of the laws and regulations of Bangladesh; d. The Respondent was directed (see page 172 of Applicant’s Re- cord) to provide copies of all passports covering the Review Pe- riod. The letter of November 15, 2011 from V. Huang, Citizenship Officer to the Respondent states in relevant part [all emphasis in original]: ...After further review of your application and accompanying documentation, we require a photocopy of the following before a decision can be rendered on your application... Please ensure that you provide CLEAR and LEGIBLE photocopies. [...] 2. All pages, including blank pages, of all passports and/or travel documents (valid, expired and cancelled passports) covering the period from 2006 to PRESENT. This request applies to yourself and your children. The Respondent argued in post-hearing submissions that she disclosed the existence of both relevant passports, since they were listed in the letter from the government of Bangladesh. Counsel acknowledged that the Respondent “did not provide a copy of [passport #1]” to the Citizenship Judge, and stated that she “did so for a good reason: she did not utilize said passport during the review period, because it had become full prior to August 30, 2006 and was therefore unusable for travelling purposes.” I do not agree that the Respondent had a good reason for not providing copies of passport #1 to the Citizenship Judge. The instructions quoted above seem clear and unequivocal, and the Respondent failed to comply with them. I agree with the Applicant that there is no evidence on the record that the Respondent “did not utilize said passport during the review period, because it had become full prior to August 30, 2006 and was thus unusable for travelling purposes.” Passport #1 may very well reveal exactly what the Respondent claims, but the Citizenship Judge could not have known this, nor can the Court, because it was not and is not in evidence. e. The Applicant states that the ICES only records entries involving air travel, while passports track all entries and exits from Canada (Applicant’s Post-Hearing Reply Submissions at para 20). This is not the kind of easily verifiable information of which I can take Canada (MCI) v. Rahman James Russell J. 245

judicial notice (i.e. a question on which easily accessible information of undisputed reliability can be found). I do not have direct evidence on these points, but it may be possible to draw certain inferences from the evidence I do have; f. With respect to the latter statement (that passports track all entries and exits from Canada), the record seems to indicate that Canada does not track exits (or at least does not provide exit stamps in passports), so this claim would be reliant on the fact that other countries will always stamp passports on entry (see Applicant’s Record at 48, which summarizes the stamps in the passport that the Respondent did provide: for many countries we see both entry and exit stamps, but for Canada, the “exit” column is always blank); g. With respect to the former statement (that the ICES only captures air travel), the Respondent does not appear to dispute this. Rather, her argument is that it is irrational to argue that the Respondent could have avoided entries in the ICES system for the 100 days in dispute by using a different passport, when in fact she could have done so at any time during the four year Review Period by making land crossings to and from the U.S. and flying from there. As such, the Respondent argues that it is “declared” absences and not “possible” absences that must form the basis of citizenship decisions. I think this argument misses the point. The Applicant’s argument is not simply that the undisclosed passport (passport #1) could have enabled the Respondent to avoid further entries under passport #2 in the ICES system, but rather that the passports themselves provide important evidence of entry and exit that the Re- spondent was required to submit; h. The ICES system seems to capture some land crossings. The request form provided to the Respondent with the November 15, 2011 letter from CIC, to enable her to request the ICES records from CBSA, includes the following pre-checked selections (Ap- plicant’s Record at page 174): I would like my ICES Traveller History for the period 2006 to PRESENT. I would like my ICES Traveller History Records to be released in their entirety. If you have Land Border crossings to/from the United States, include additional proof of return AND departure. 246 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

All of the entries listed for the Respondent were by air (see Appli- cant’s Record at page 37); i. CBSA’s response, dated March 13, 2012 (see Applicant’s Record at 35) lists only the disclosed passport Z0326827 (passport #2) and not passport #1 as a basis for the records search. The response reads in relevant part: This letter is in response to your request under the Privacy Act. Your request reads: Traveller’s history report including land border crossings from 2006 to present pertaining to RAHMAN, Yasmin; DOB: Feb. 06-1965; FOSS ID: 5631-4623; Passport: ZO326827... The processing of your request is now complete. Please note that the records are being released in their entirety. Please note that when travelling by coach, passenger travel documents are not always scanned in the Canada Border Ser- vices Agency’s Integrated Customs Enforcement System. Without knowing more about this system (and I appear to have no evidence in this regard), it seems impossible to know whether, based on the other fields included (i.e. date of birth, FOSS ID), this report would have also picked up entries and exits for which passport #1 was used. 53 Considering all of the evidence, I do not think there is sufficient information to say that the Respondent was in Canada during the 100 days in dispute, or that she was not in Canada. What is clear is that: a) the burden of proof was the Respondent’s to meet; and b) she was instructed to submit copies of “all passports and/or travel documents (valid, expired and cancelled passports)” covering the Review Period, and failed to do so. She did not argue that this passport was lost or somehow inaccessible to her, but simply that she had a “good reason” for not providing it. In these circumstances, I think it is appropriate to find that the Respondent has not met the numerical test of residency. 54 In my view, Lee, above, cited by the Respondent, is distinguishable. In that case, the Court found that the fact that the Citizenship Judge relied mainly on the ICES, and that the latter did not in and of itself establish the Respondent’s residency during the relevant four-year period, was not a sufficient reason to overturn the decision (see Lee at para 38). The Court quoted Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Bousserghini, 2012 FC 88 (F.C.) at para 19 for the proposition that the Citizenship Act “does not require corroboration. It is the responsibility of Canada (MCI) v. Rahman James Russell J. 247

the original decision-maker, taking the context into consideration, to determine the extent and nature of the evidence required.” Had the Citizen- ship Judge properly considered the evidence in this case and decided that it was sufficient to render a positive decision, I would agree that the Court should not intervene. However, what is at issue here is an error in considering the evidence. It is not the Court’s role to say what conclusion the Citizenship Judge would have reached had he or she properly considered the evidence. 55 In my view, the Citizenship Judge made an error in assessing the evidence, and that error was material to the Decision. It cannot be said that the outcome would not have been different if the error had not been made, because the Respondent has not shown that she met the numerical test of residency in order to qualify for citizenship. 56 It is not possible to say what the result would have been had the Citi- zenship Judge been aware of the second passport and its contents. In my view, then, the Decision lacks transparency and intelligibility and must be returned for reconsideration. 57 The Applicant also argues that it is not clear from the reasons which residency test the Citizenship Judge applied. As the Respondent points out, however, Justice Harrington found in Hannoush, above, at para 13, that if the record shows that the physical presence requirement of 1,095 has been met and the citizenship judge did not carry out a qualitative analysis, the inference can be made that the physical presence test was applied: 13 However, basing myself on the decision of the Supreme Court in N.L.N.U., above, and the very recent decision of the Federal Court of Appeal in SRI Homes, above, if the record shows that the applicant claims to have been present here at least 1,095 days, and no analysis has been done along the lines of the applicant’s heart being here although his body was elsewhere, it is reasonable to infer that the physical presence test, the most stringent one, was applied. It has been held on a number of occasions that once it is established that an applicant has been here for 1,095 days, it is not necessary to consider the other tests (Canada (Minister of Citizenship and Immigration) v. Elzubair, 2010 FC 298, [2010] F.C.J. No. 330; Canada (Minister of Citizenship and Immigration v. Salim, 2010 FC 975, [2010] F.C.J. No. 1219 (QL) and Imran v. Canada (Minister of Citizenship and Immigration), 2012 FC 756). 248 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

58 As Justice Harrington also pointed out in Imran, above, at para 22: 22 In Canada (Minister of Citizenship and Immigration) v Salim, 2010 FC 975, [2010] FCJ No 1219 (QL), I agreed with Mr. Justice Mainville’s decision in Takla adding, as did Mr. Justice Zinn in Can- ada (Minister of Citizenship and Immigration) v Elzubair, 2010 FC 298, [2010] FCJ No 330 (QL), that if the applicant had been physically present for at least 1,095 days during the relevant period, the residency test had been established, without the need for further inquiry. 59 In the present case, the Citizenship Judge does not indicate how the Respondent established a minimum of 1,095 days of physical residence in Canada. As set out above, my own review of the record suggests that there is insufficient evidence to support a minimum of 1,095 days. This being the case, the Respondent cannot rely upon Hannoush, above, and Imran, above. It is not clear upon which basis the Citizenship Judge concluded that residency had been established. Once again, the Decision lacks transparency and intelligibility on this issue.

Judgment THIS COURT’S JUDGMENT is that the application is allowed. The Decision is quashed and the matter is returned for reconsideration by a different citizenship judge. Appeal allowed. Balazuntharam v. Canada (MCI) 249

[Indexed as: Balazuntharam v. Canada (Minister of Citizenship and Immigration)] Yazhkovan Balazuntharam, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7620-13 2013 FC 1286 Yvan Roy J. Heard: December 19, 2013 Judgment: December 23, 2013 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Foreign national had been granted refugee status in 1998, apparently due to his involvement with Lib- eration Tigers of Tamil Eelam [LTTE], which resulted in his detention and torture by Sri Lankan army — Permanent resident application was denied in 2006 as foreign national was found inadmissible by reason of serious criminality — Minister‘s delegate concluded that foreign national could be removed to Sri Lanka in view of his extensive criminal activities in Canada despite fact that he had been declared to be refugee 15 years before — Foreign national alleged that he was arrested and tortured in Sri Lanka more than 15 years before because of his association with LTTE and that there was connection with LTTE in commission of crimes in Canada for which he was inadmissible — Foreign national applied for judicial review of Minister‘s delegate‘s decision and sought stay of removal incidental to application — Motion granted; removal order stayed until underlying judicial review application heard by court — People with foreign national‘s profile, such as failed asylum seeker, would be easily detected upon return to Sri Lanka and therefore torture was real possibility — There was serious issue to be tried, and balance of convenience and irreparable harm considerations favoured foreign national. Cases considered by Yvan Roy J.: RJR-MacDonald Inc. v. Canada (Attorney General) (1994), [1994] 1 S.C.R. 311, 1994 CarswellQue 120F, 1994 CarswellQue 120, 54 C.P.R. (3d) 114, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 164 N.R. 1, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 60 Q.A.C. 241, 111 D.L.R. (4th) 385, EYB 1994-28671, [1994] A.C.S. No. 17, [1994] S.C.J. No. 17 (S.C.C.) — followed 250 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123, 1988 CarswellNat 64, 1988 CarswellNat 1571, [1988] F.C.J. No. 587 (Fed. C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36 — considered s. 72 — considered s. 115(1) — considered s. 115(2) — considered s. 115(2)(a) — considered s. 115(2)(b) — considered

MOTION by foreign national for stay of execution of removal order issued by Minister of Citizenship and Immigration.

Anthony Navaneelan, for Applicant John Provart, Sophie Karantonis, for Respondent

Yvan Roy J.:

1 By a decision dated November 4, 2013, the respondent, through his delegate, concluded that the applicant could be removed to Sri Lanka in view of his extensive criminal activities in Canada despite the fact that he has been declared to be a refugee some 15 years ago. 2 The applicant seems to have been granted refugee status on account of his involvement with the Liberation Tigers of Tamil Eelam [LTTE], which resulted in his detention and torture at the hands of the Sri Lankan army. We have to say that it “seems” to be the case because the positive decision was not available on this record. It is not clear whether it could be made available. Refugee status was granted on December 2, 1998. However, the applicant never became a permanent resident; his application was denied on June 1, 2006 because he was found inadmissible by reason of serious criminality. For the limited purpose of this stay application, it will suffice to say that the criminal activities of the applicant fall within the parameters of section 36 of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 (the “Act”). 3 The legal framework is the following. It is section 115 of the Act that finds application. Subsections (1) and (2) are relevant: 115. (1) A protected person or a person who is recognized as a Con- vention refugee by another country to which the person may be re- Balazuntharam v. Canada (MCI) Yvan Roy J. 251

turned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. (2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. 115. (1) Ne peut etreˆ renvoyée dans un pays où elle risque la persécu- tion du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a et´´ e reconnue par un autre pays vers lequel elle peut etreˆ renvoyée. (2) Le paragraphe (1) ne s’applique pas a` l’interdit de territoire: a) pour grande criminalité qui, selon le ministre, constitue un danger pour le public au Canada; b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas etreˆ présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada. 4 The reasons for the determination made in this case pursuant to paragraphs 115(2)(a) and (b) were completed by the Minister’s delegate on November 14, 2013. It is a document 27 pages long. It is from that decision, finding that the applicant can be sent back to Sri Lanka in spite of having been found to be a refugee some 15 years ago, that judicial review is sought in accordance with section 72 of the Act. The motion for a stay is incidental to the application for leave and for judicial review of the Minister’s delegate decision. If the motion is granted, that will allow for the case to be heard on its merits. 5 It is not disputed that the tri-partite test of RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.) and Toth v. Canada (Minister of Employment & Immigration) (1988), 86 N.R. 302 (Fed. C.A.) controls. Hence, the Court must be satisfied that there is a 252 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

serious issue to be tried on the judicial review, that irreparable harm to the applicant will arise if deported, and the balance of convenience favours him. Failure on the part of the applicant on any prong of the test is fatal. 6 The parties agree that as for the serious issue prong of the test, the burden on the applicant is to show that the issue raised is neither frivolous nor vexatious. That is a fairly low threshold. 7 In essence, the applicant argues that he was arrested and tortured in Sri Lanka more than 15 years ago because of his association with the LTTE. He is also arguing that there was a connection with the LTTE in the commission of the crimes in Canada for which he is inadmissible and which constitute in the opinion of the Minister a danger to the public in Canada. 8 This is a case that largely turns on its peculiar facts. If the applicant can show that he has been a person of interest for the Sri Lankan authorities in the mid-nineties, as opposed to being a bystander who was merely rounded up with others, an argument can be made that he might still be a person of interest many years later. It is all a function of the interest he presented then. 9 Similarly, counsel for the applicant suggests (more than he actually proves) that the illegal activities of the applicant in this country since he has been allowed to remain may have contributed to the LTTE in some fashion. If that is accurate, that would tend to suggest that the applicant could be, even to this day, a person of interest for the Sri Lanka authorities. 10 However, it is disputed that the facts of this case rise to the level of making this applicant that kind of a person of interest. My own review of the evidence and the arguments left me unconvinced that the allegations can be proven or substantiated at this stage. However, such is not the test. The test is rather whether the issue raised is frivolous or vexatious. 11 The more it can be shown by the applicant that his activities then and now are done for the benefit of or in association with the LTTE, the more it can also be inferred that the applicant runs a serious risk of beatings and torture if returned. That much seems to be conceded by the Min- ister’s delegate when he writes: Overwhelmingly, the documentary evidence provides information that supports a finding that persons who are detained by the Sri Lankan army or the Terrorist Investigation Department (TID) are subject to abuses that range from denial of due process and other ba- Balazuntharam v. Canada (MCI) Yvan Roy J. 253

sic rights of detainees, to mistreatment amounting to torture. With respect to the latter, the evidence on file indicates that torture is sys- temic, and there is a pervasive sense of impunity regarding the abuse and torture of detainees. Freedom from Torture’s report Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka 2009 - 2011 compiled evidence from 35 medico-legal reports of Sri Lankan asylum seekers, and found that “those at particular risk of torture include Tamils who have an actual or perceived association with the Libera- tion Tigers of Tamil Eelam (LTTE).”38 Furthermore, the delegate does not dispute that people with the applicant’s profile, i.e. a failed asylum seeker, will be easily detected upon their return to Sri Lanka: According to the Canadian High Commission in Colombo, this questioning is completed by the Criminal Investigation Unit (CID) which also conducts criminal records checks, and the State Intelligence Ser- vice (SIS) which is interested in information about human trafficking and smuggling. A joint submission prepared by four parties (human rights organizations and one lawyer) states that failed asylum seekers are identifiable by their travel documents, are taken out of the immigration queue and subjected to special questioning by police and members of the Terrorist Investigation Department (TID). According to this joint submission, detention while the checks are completed by the police and the TID are completed could be a matter of hours or months, depending on the ability to reach family members and obtain police records. Mr. Balazuntharam may experience some difficulty in establishing his identity given the absence of his family members from Sri Lanka. However, the information on file leads me to conclude that detention upon arrival as a result of verification of identity or criminal history is routine, and there is insufficient evidence to lead me to conclude that detainees in these circumstances are more likely than not to be tortured. 12 In spite of those findings, the Minister’s delegate concludes against the applicant. At the end of the day, it seems to boil down to, that was then and this is now. The association with the LTTE may have been enough to be granted refugee status in 1998, but the criminal behaviour in Canada since then does not amount to crimes committed in association with the LTTE. Indeed, the civil war has been over for four years and it would take much more than the criminality exhibited by the applicant to make him a person of interest. If the profile of the applicant is not in tune with the argument made by counsel, which may very well be the case in 254 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

my estimation, the risk run by the applicant would be less than substantial. Hence, the delegate wrote: Although Mr. Balazuntharam is suspected of having ties with the LTTE through the criminal organization of which he was a part while in Canada, there is insufficient evidence on file to lead me to conclude that these suspicions are public knowledge such that they have come to the attention of the Sri Lankan authorities. Mr. Balazuntharam denies any association with the LTTE, either prior to his departure from Sri Lanka or as part of the Sri Lanka diaspora. 13 As I have tried to explain, the jurisdiction of the Court at this stage is to decide if the issue is either frivolous or vexatious. On this record, I am unable to conclude that the issue raised is without merit in that there is no arguable case. Furthermore, the stakes are high. As already acknowledged by the delegate, torture is a real issue. As such, if there is an issue to be tried, the balance of convenience and the irreparable harm prongs of the test would favour the applicant. 14 It seems to me that a proper examination of this case deserves that it be judicially reviewed. I am not convinced that the delegate’s decision is unreasonable but that is not for me to make that determination. 15 The applicant has been detained for some time. We were advised by his counsel that he has not made an application to be released in more than one year. I should not be taken to suggest that the ruling on this stay motion changes in any way the state of affairs ex ante. The risk that this applicant may pose has not been altered, one way or the other by this ruling. 16 I would grant the motion for a stay of execution of a removal order now scheduled for December 29, 2013 until the underlying judicial review application has been heard and decided by this Court.

Order THE COURT ORDERS that the motion for a stay of execution of a removal order now scheduled for December 29, 2013 is allowed until the underlying judicial review application has been heard and decided by this Court. Motion granted. Qureshi v. Canada (MCI) 255

[Indexed as: Qureshi v. Canada (Minister of Citizenship and Immigration)] Mohammad Shabir Qureshi, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-11690-12 2013 FC 1285 Peter Annis J. Heard: December 9, 2013 Judgment: December 23, 2013 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Specific vocational preparation –––– Applicant was citizen of Pakistan — Applicant applied for permanent residence in Canada under Federal Skilled Worker Class — Applicant claimed to have at least one year of continuous full-time or equivalent paid work experience in 10 years prior to his application under NOC 4131 (College and Other Vocational Instructors) — NOC 4131 did not contain any essential duties however main listed duties of College and Other Vocational Instructors included teaching, developing curriculum and teaching materials, administering tests and evaluating papers, and supervision of teaching assistants — Work reference letter from post grad college stated that foreign national worked as lecturer, however no other duties were indicated — Officer was not satisfied that applicant was college teacher as per national occupation classification’s definition — Ap- plicant brought application for judicial review — Application dismissed — Only reference for applicant contained in materials before officer identified that foreign national performed only one duty of lecturing, and none of other main duties described in NOC — Decision of officer that applicant failed to demonstrate that he met requirements of NOC 4131 for performance of some or all of main duties was reasonable — There was no requirement that officer provide fairness letter before rejecting application where only grounds for doing so was insufficiency of foreign national‘s evidence. Cases considered by Peter Annis J.: A’Bed v. Canada (Minister of Citizenship & Immigration) (2002), 223 F.T.R. 311, 2002 FCT 1027, 2002 CarswellNat 2618, 2002 CarswellNat 6141, [2002] F.C.J. No. 1347 (Fed. T.D.) — referred to Agrawal v. Canada (Minister of Citizenship & Immigration) (1999), 1999 Car- swellNat 1163, 172 F.T.R. 157, 1999 CarswellNat 5182, 50 Imm. L.R. (2d) 78, [1999] F.C.J. No. 930 (Fed. T.D.) — referred to 256 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Bhutto v. Canada (Minister of Citizenship & Immigration) (1999), 2 Imm. L.R. (3d) 118, 175 F.T.R. 318, 1999 CarswellNat 5575, 1999 CarswellNat 1740, [1999] F.C.J. No. 1411 (Fed. T.D.) — referred to Chen v. Canada (Minister of Citizenship & Immigration) (2000), 7 Imm. L.R. (3d) 192, 2000 CarswellNat 5269, 2000 CarswellNat 521, [2000] F.C.J. No. 422 (Fed. T.D.) — referred to 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 Kamchibekov v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 1411, 2011 CarswellNat 5285, 2011 FC 1411, 2011 CarswellNat 5837, [2011] A.C.F. No. 1782, [2011] F.C.J. No. 1782 (F.C.) — referred to Kniazeva v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 472, 2006 CF 268, 2006 CarswellNat 2836, 52 Imm. L.R. (3d) 298, 2006 FC 268, 288 F.T.R. 282 (Eng.), [2006] A.C.F. No. 336, [2006] F.C.J. No. 336 (F.C.) — referred to Rukmangathan v. Canada (Minister of Citizenship & Immigration) (2004), 247 F.T.R. 147, 2004 CarswellNat 488, 2004 FC 284, 2004 CF 284, 2004 Car- swellNat 1673, [2004] A.C.F. No. 317, [2004] F.C.J. No. 317 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 2 — considered s. 80(3)(b) — considered

APPLICATION for judicial review of decision by officer refusing applicant’s application for permanent residence.

Dov Maierovitz, for Applicant Tamrat Gebeyehu, for Respondent

Peter Annis J.: Introduction 1 This is an application, pursuant to s 72.1 of the Immigration and Ref- ugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a deci- Qureshi v. Canada (MCI) Peter Annis J. 257

sion of a visa officer (“the Officer”) dated May 24, 2012, and received October 5, 2012, refusing the applicant’s application for permanent residence in Canada as a federal skilled worker. The applicant asks that the decision be set aside and remitted for reconsideration. 2 For the following reasons, the application is denied.

Background 3 The applicant, Mr Mohammad Shabir Qureshi, made an application for permanent residence in Canada from Pakistan under the Federal Skilled Worker Class [FSWC] in 2010 stating that he had at least one year of continuous full-time or equivalent paid work experience in the 10 years prior to his application under NOC 4131 (College and Other Voca- tional Instructors). 4 NOC 4131 did not contain any essential duties. It described the main duties of College and Other Vocational Instructors as follows: College and other vocational instructors perform some or all of the following duties: • Teach students using a systematic plan of lectures, demon- strations, discussion groups, laboratory work, shop sessions, seminars, case studies, field assignments and independent or group projects • Develop curriculum and prepare teaching materials and outlines for courses • Prepare, administer and mark tests and papers to evaluate students’ progress • Advise students on program curricula and career decisions • Provide individualized tutorial/remedial instructions • Supervise independent or group projects, field placements, laboratory work or hands-on training • Supervise teaching assistants • May provide consultation services to government, business and other organizations • May serve on committees concerned with matters such as budgets, curriculum revision and course and diploma requirements. These instructors specialize in particular fields or areas of study such as visual arts, dental hygiene, welding, engineering technology, policing, computer software, management and early childhood education. 258 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[Emphasis in original] 5 Attached to his application on the Schedule 3, Economic Classes - Federal Skilled Workers form, the applicant indicated for the NOC 4131 requirement that he had more than one year but less than two years of experience. He described the main duties of his experience as follows: “Worked as a Lecturer with Government Post Graduate College, Kohat, Pakistan & taught Political Science to Bachelor of Arts degree students according to University syllabus using lectures, discussion& [sic] seminars.” 6 The applicant submitted with his application a Service Certificate from the Government Post Graduate College, Kohat. The Certificate indicated that the applicant was a lecturer in Political Science for the 2007- 2008 session and that he was “delivering lectures of Political Science to inter and Degree classes respectively”. 7 The Officer’s notes on the applicant’s application are recorded in the Global Case Management System [GCMS] as follows: Although the NOC Code 4131 corresponds to an occupation specified in the instructions, I am not satisfied that client actually has experience in this occupation: none of the reference letters on file satisfied me that client performed the main duties for this occupation. Subj stated he had 1 yr of experience in NOC4131 on Schedule 3. Work reference letter from post grad college Kohat states that client worked as lecturer, however no other duties provided. I am therefore, not satisfied that he is a college teacher as per the national occupation classification’s definition. Application refused. [Emphasis added] 8 The letter sent to the applicant denying his application stated the following: Although the NOC code corresponds to the occupations specified in the Instructions, the main duties that you listed do not indicate that you performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC. [Emphasis added]

Issues 9 The issues that arise are the following: Qureshi v. Canada (MCI) Peter Annis J. 259

a. Is the decision of the Officer that the applicant failed to demonstrate that he met the requirements of NOC 4131 for performance of the main duties reasonable? b. Should the applicant have received a fairness letter?

Standard of Review 10 The respondent submits that factual determinations by an officer and findings of fact are reviewable on a standard of reasonableness. I agree. See, for example, Kniazeva v. Canada (Minister of Citizenship & Immi- gration), 2006 FC 268 (F.C.) at para 15.

Analysis Issue #1: Is the decision of the Officer that the applicant failed to demonstrate that he met the requirements of NOC 4131 for performance of the main duties reasonable? 11 The applicant raised the issue that the Officer changed the criteria applicable to him midstream and without notice. First, he submitted that the refusal letter applied the wrong test because the Officer stated that he did not perform “all of the essential duties,” while the NOC only speaks of indications that “some or all of the main duties” be performed. I find this to be an error of inadvertence in the letter, which misstated the Of- ficer’s decision by referring to “essential duties,” and not “main duties.” Moreover, NOC 4131 does not contain any essential duties. 12 The applicant further argues that the Officer also applied the wrong test for main duties when stating in his refusal letter that the applicant had not indicated that he had performed a “substantial number of the main duties”. As described above, the NOC only refers to the requirement that the applicant perform “some or all of the main duties”. 13 The Officer appears to rely upon Regulation 80(3)(b) of the Immigra- tion and Refugee Protection Regulations [IRPR], SOR/93-22 which states that a skilled worker is considered to have experience if he or she performed at least a substantial number of the main duties of the occupation as set out in the NOC: 80. (3) For the purposes of subsection (1), a skilled worker is considered to have experience in an occupation, regardless of whether they meet the employment requirements of the occupation as set out in the occupational descriptions of the National Occupational Classifica- tion, if they performed 260 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

(b) at least a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all the essential duties. [Emphasis added] 80. (3) Pour l’application du paragraphe (1), le travailleur qualifié, indépendamment du fait qu’il satisfait ou non aux conditions d’accès etablies´ a` l’égard d’une profession ou d’un métier figurant dans les description des professions de la Classification nationale des professions, est considéré comme ayant acquis de l’expérience dans la profession ou le métier: b) s’il a exercé une partie appréciable des fonctions principales de la profession ou du métier figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. [Nous soulignons] 14 Jurisprudence of this Court has interpreted “some or all of the main duties” of the NOC as a minimum threshold of “some”. This has been further interpreted to mean more than one duty, i.e. two main duties. See, for example A’Bed v. Canada (Minister of Citizenship & Immigration), 2002 FCT 1027 (Fed. T.D.) and the cases cited therein (Chen v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 422 (Fed. T.D.); Bhutto v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 1411 (Fed. T.D.); and Agrawal v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 930 (Fed. T.D.))). It does not appear that these cases considered whether the requirement of Regu- lation 80(3)(b) described above of performing a “substantial number” of the main duties of the occupation should have priority over the NOC requirement of “some or all”. 15 However, it is worth noting the relationship between the IRPR and the NOC requirements. NOC descriptions are developed by the Depart- ment of Human Resources and Skills Development Canada [HRSDC] pursuant to the IRPR. Section 2 of the IRPR states: “National Occupational Classification” means the National Occupa- tional Classification developed by the Department of Human Re- sources and Skills Development and Statistics Canada, as amended from time to time. « Classification nationale des professions » Le document intitulé Classification nationale des professions elabor´´ e par le ministère des Ressources humaines et du Développement des compétences et Statistique Canada, avec ses modifications successives. Qureshi v. Canada (MCI) Peter Annis J. 261

As a result, while the language of the NOC descriptions provides guidance to officers selecting qualified candidates, the IRPR would normally be thought to take precedence over the descriptions. If the Regula- tions use the language of “substantial number” while the NOC description uses the language of “some or all,” one would think that the Regulations would supersede the NOC description. 16 Sullivan on the Constructions of Statutes, 5th ed (Ottawa: LexisNexis Canada Inc, 2008) at 623-624 has stated: When an authority to make interpretive guidelines is conferred by statute, the resulting directives are not necessarily legislation. In Canada (Minister of Citizenship and Immigration v. Thamorem, for example, the Federal Court of Appeal ruled that directives made under s. 159 of the Immigration and Refugee Protection Act, providing that the Chairperson of the Immigration and Refugee Board “may issue guidelines in writing to the members of the Board...to assist members in carrying out their duties,” were merely administrative in character and lacked the status of law. In his majority judgment, Ev- ans J.A. pointed out the advantages achieved through reliance on guidelines and other “soft law.” 17 In any case, the applicant raised the issue of the “substantial number” requirement as described in the Officer’s refusal letter for the first time at the hearing over the objections of the respondent. Were I not satisfied that the applicant failed in his application to provide information that he had performed two of the main duties listed, I would have adjourned the matter to permit submissions on the point of whether the requirement in the NOC should have priority over that stated in the Regulation. As mentioned, it does not seem to have come up in the previous jurisprudence and it is not clear that given the normal hierarchy in legislative schemes the substantial number requirement in the Regulation should not prevail. 18 However, I agree with the respondent that the only reference contained in the materials before the Officer (the Service Certificate from the Government Post Graduate College, Kohat) identifies that the applicant performed only the one duty of lecturing, and none of the other main duties described in the NOC. 19 Additionally, while not determinative, but contributing to the reasonableness of the decision, I note that the statement at the end of the list of main duties indicates that instructors targeted by the NOC should teach vocational skills “such as visual arts, dental hygiene, welding, engineering technology, policing, computer software, management and early childhood education.” The employment information provided by the ap- 262 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

plicant was that he taught general academic knowledge courses such as political science. 20 I conclude therefore that the decision of the Officer that the applicant failed to demonstrate that he met the requirements of NOC 4131 for performance of some or all of the main duties was reasonable.

Issue #2: Should the Applicant have received a fairness letter? 21 The applicant also argues that he should have received a “fairness letter.” 22 I disagree. There is no requirement to issue a fairness letter or otherwise advise an applicant of the deficiencies in his application before rejecting it on the grounds of mere insufficiency of evidence (see Kamchibekov v. Canada (Minister of Citizenship & Immigration), 2011 FC 1411 (F.C.)). A duty of fairness may require officials to inform applicants of their concerns where a visa officer forms a negative impression of evidence tendered by the applicant (see, for example, Hassani v. Canada (Minister of Citizenship & Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 (F.C.) and Rukmangathan v. Canada (Minister of Citizenship & Immigration), 2004 FC 284 (F.C.) at paras 22-23). Those are not the facts herein.

Conclusion 23 For the reasons given above, this application for judicial review is denied. 24 There is no question requiring certification.

Judgment THIS COURT’S JUDGMENT is that this application for judicial review is denied. Application dismissed. Djordevic v. Canada (MCI) 263

[Indexed as: Djordevic v. Canada (Minister of Citizenship and Immigration)] Branislav Djordevic, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-9693-12 2014 FC 13 Russel W. Zinn J. Heard: November 20, 2013 Judgment: January 7, 2014 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — New evidence –––– Applicant was kidnapped, held for ransom, raped, beaten, had anti- Semitic slurs yelled at him and was released after his family paid ranson — Af- ter testifying against his kidnappers, applicant fled to Canada and filed claim for refugee protection, alleging he was kidnapped because he was Jewish and because of affluence of his family — Refugee protection division found that affluence of his family “played most significance in decision to kidnap claimant” and that kidnappers did not pose ongoing threat — PRRA officer determined that s. 113(a) of Immigration and Refugee Protection Act applied to evidence, which limited new evidence that could have been presented after refugee protection claim was rejected — Applicant brought application to review negative pre-removal risk assessment (PRRA) decision — Application granted — Application to be determined by another officer — While there might not have been increased risk to applicant from lower level players being released from prison, refugee protection division might have found that release of directing minds or leaders of kidnapping would have constituted increased risk such that he was person in need of protection — PPRA officer did not refer to risk of ongoing threat to applicant from criminal organization — There was no basis on which PRRA officer could have excluded evidence related to when kidnappers were released from prison — If word “includes” connoted that risk from kidnappers was also considered, then PRRA officer’s finding that it could have reasonably been presented to refugee protection division was nonsensical, for it was principal risk that was presented to refugee protection division. Cases considered by Russel W. Zinn J.: 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 264 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 108(4) — considered s. 113(a) — considered

APPLICATION to review negative pre-removal risk assessment decision.

Anthony Navaneelan, for Applicant Jamie Todd, for Respondent

Russel W. Zinn J.:

1 This is an application to review a negative Pre-Removal Risk Assess- ment [PRRA] decision. 2 There are a number of discrepancies and inconsistencies in the record before the Court as to the dates and timing of certain events. The officer begins the decision with this statement: “The applicant is a 29-year old applicant from Serbia.” However, Mr. Djordevic was born on June 10, 1976, and at the date of the PRRA decision, was 36 years-old. 3 The Court would be remiss if it did not point out the extremely lengthy and unexplained delays on the part of Citizenship and Immigra- tion Canada [CIC] in dealing with this and other applications filed by Mr. Djordevic. 4 Mr. Djordevic fled Serbia and entered Canada on August 19, 2002, and filed a claim for protection. It was denied on February 19, 2004, and an application for leave to review was denied by this Court on June 23, 2004. 5 More than 9 years passed before CIC served Mr. Djordevic with the PRRA Notification on October 28, 2010. He filed his PRRA application promptly on November 10, 2010. The application then languished until Djordevic v. Canada (MCI) Russel W. Zinn J. 265

the three-page decision under review was rendered more than 21 months later on August 1, 2012. 6 During this extended period, on December 19, 2005, Mr. Djordevic filed an application for permanent residence in Canada on humanitarian and compassionate grounds [H&C application]. Processing of the H&C application commenced April 5, 2006, and it was referred to the Etobicoke office on April 24, 2006. Nearly eight years have passed since it was filed, and yet CIC has not rendered any decision on his H&C application. 7 For the reasons that follow, this application must be allowed and Mr. Djordevic’s PRRA application determined by a different officer. CIC may wish to consider processing Mr. Djordevic’s H&C application first. Based on the record before this Court, and the fact that Mr. Djordevic has now spent 11 of his 37 years in Canada, it appears likely to be a deserving application.

Background 8 Mr. Djordevic is Serbian (formerly a citizen of Yugoslavia). On Sep- tember 4, 1999, he was kidnapped and held for ransom for approximately 20 hours. During his captivity, he was driven around in the trunk of a car. At some point he was let out, only to be raped, beaten, and have anti- Semitic slurs yelled at him. He was released after his family paid a ransom. 9 The kidnappers were eventually caught; one of them was killed in a police shootout. At the Refugee Protection Division [RPD], Mr. Djordevic testified that three members of the criminal gang who ab- ducted him were sentenced to twelve, nine, and four years imprisonment. Eight others were convicted and sentenced to periods of imprisonment ranging from six months to three and one-half years. 10 After testifying against his kidnappers, Mr. Djordevic fled to Canada and filed a claim for refugee protection. He alleged he was kidnapped because he was Jewish and because of the affluence of his family. 11 The RPD accepted that Mr. Djordevic was kidnapped, but was not convinced that the kidnapping was primarily related to his Jewish ethnicity. It found that the affluence of his family “played the most significance [sic] in the decision to kidnap the claimant” (emphasis added). The RPD was also not convinced that the kidnappers posed an on-going threat to him or that they blamed him for the death of their companion. Finally, the RPD considered whether there were compelling circumstances that 266 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

would permit granting refugee status under subsection 108(4) of the Im- migration and Refugee Protection Act, SC 2001, c 27, given that the Ap- plicant had contracted HIV, which he claimed was a result of being raped by his kidnappers. The RPD ultimately determined that “while abhorrent, his experiences did not meet the high standard of atrocious and appalling” and that the compelling circumstances exception in subsection 108(4) of the Act did not apply. 12 In his PRRA application, Mr. Djordevic set out three grounds of risk: The evidence submitted in this PRRA discloses that Mr. Dordevic [sic] would face numerous and serious breaches of his fundamental human rights in Serbia on account of past persecution, his Jewish ethnicity, and HIV positive status. Most seriously, Mr. Dordevic [sic] would face discrimination in employment and in assessing health care on the basis of his HIV-status. The evidence, as discussed below, also reveals a host of other societal abuses and discrimination against the vulnerable groups Mr. Dordevic [sic] belongs to. We submit that even if the discrimination he might face on any single ground might not amount to persecution, certainly the cumulative effect of discrimination on the separate grounds amounts to persecution. This is particularly so given that he would be ostracized from the community because of his HIV positive status. (emphasis in original) 13 The officer determined that paragraph 113(a) of the Act applied to the evidence submitted by Mr. Djordevic. It reads as follows: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; 113. Il est disposé de la demande comme il suit: a) le demandeur d’asile débouté ne peut présenter que des el´´ e- ments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre a` ce qu’il les ait présentés au moment du rejet; Djordevic v. Canada (MCI) Russel W. Zinn J. 267

Issues 14 A number of issues were raised by Mr. Djordevic; however, the determinative and intertwined issues are the officer’s interpretation of paragraph 113(a) of the Act and his assessment of the evidence submitted with the PRRA application.

Analysis 15 Mr. Djordevic submits that the PRRA Officer mistakenly believed that he could only consider new risks that he identified, and not new evidence of old risks that came to light after the RPD hearing. A PRRA Officer can consider new evidence that arose after, or could not have reasonably been presented at the RPD hearing, even if that new evidence goes to risk factors considered by the RPD: Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385, 289 D.L.R. (4th) 675 (F.C.A.) at paras 12-13 [Raza]. 16 The Respondent submits that the PRRA Officer applied the Raza test but determined that “the new evidence before the officer did not present a risk that could not have been contemplated at the RPD hearing.” 17 Raza says that a PRRA application cannot be rejected solely because it addresses the same risk considered by the RPD. The restriction, as clearly set out in paragraph 113(a) of the Act, is that an applicant “may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection” (emphasis added). 18 The Respondent points out that twice the officer expressed the correct test: “I find that he has not presented new evidence or evidence of a new risk development that would lead me to arrive at a different conclusion from that of the RPD” and “I find that the applicant has not provided new evidence or evidence of new risk developments since the RPD rejected his claim.” 19 However, between those two correct statements of the law, one finds the following inaccurate statement of the law which Mr. Djordevic submits shows that the officer applied an incorrect test by looking at whether he had raised a new ground of risk or a risk that could not have been raised before the RPD: I find that the risks identified by the applicant in his PRRA application could have reasonably been presented to the RPD at his hearing or at the time his claim was rejected. This includes his risk pertaining 268 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

to his Jewish ethnicity and HIV positive status. Both of these issues were known to the applicant at the time of his hearing. I have not been presented with a reasonable explanation as to why he did not present the risks to the RPD; nor have I been presented with an explanation as to why he reasonably could not have been expected to present his risks to the RPD. (emphasis added) 20 New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), instructs that a court may review the record before the administrative decision-maker to determine whether the decision is justified. Dunsmuir does not require or permit a court to perform the analysis that the decisionmaker failed to perform. In this case, the officer provides no analysis or commentary whatsoever of the 350 pages of submissions and evidence Mr. Djordevic filed with his PRRA application, other than the conflicting statements above. Because of the complete lack of analysis by the officer, this Court and the parties are left to guess which formulation of the test was used by the officer. This is reason alone to set aside his decision as not being transparent or intelligible. 21 To the extent that it can be said that the officer did assess the evidence, I agree with Mr. Djordevic that he erred. There was new evidence before the officer going to the issue of whether Mr. Djordevic faces an ongoing threat from those who kidnapped and raped him; namely, the evidence that they have all since been released from prison and the affidavit from Mr. Djordevic’s mother that the family continues to receive anonymous phone calls asking for Mr. Djordevic, and a refusal on the part of the police to take any proactive measures. 22 Although the RPD knew of the sentences meted out to the kidnappers, I agree with Mr. Djordevic that his mother’s affidavit and the recent release of the last of the kidnappers (Mr. Dejan and Mr. Oljeg) was evidence that could not reasonably have been available to be put to the RPD because they relate to events that happened after the RPD hearing. Fur- thermore, they are relevant evidence because they might contradict the RPD’s finding that the criminal organization that kidnapped Mr. Djordevic does not pose an ongoing risk to him. 23 There is no basis on which the PRRA Officer could have excluded the evidence related to when Mr. Dejan and Mr. Oljeg were released from prison. The evidence was credible - they were official documents from the Municipal Court in Novi Sad. The evidence was relevant - it is Djordevic v. Canada (MCI) Russel W. Zinn J. 269

capable of showing that Mr. Djordevic faces a risk that he did not face at the time of the RPD hearing in 2004; and the evidence is new for the same reason. The evidence is material because, had these two kidnappers in particular been released from prison at the time of the RPD hearing, the RPD may have found that Mr. Djordevic was a person in need of protection. 24 Mr. Dejan and Mr. Oljeg received the longest sentences of all of the kidnappers; although speculative and not argued by counsel, it is likely that they were the two most significant players in the kidnapping. Mr. Djordevic attests that Mr. Dejan was “one of the captains of the criminal organization” in his affidavit. Therefore, while there may not have been an increased risk to him from the lower level players being released from prison, the RPD may have found that the release of the directing minds or leaders of the kidnapping would constitute an increased risk such that he is a person in need of protection. 25 Despite this, the PRRA Officer does not refer to this evidence at all in the decision. He does not even refer to the risk of an ongoing threat to Mr. Djordevic from the criminal organization. The closest the PRRA Of- ficer comes to addressing this risk specifically is when he says “I find that the risks identified by the applicant in his PRRA application could have reasonably been presented to the RPD at his hearing or at the time his claim was rejected. This includes his risk pertaining to his Jewish ethnicity and HIV positive status.” 26 The Respondent submits that the word “includes” signaled that Jew- ish ethnicity and HIV+ status were only examples of the claims that could have reasonably been presented to the RPD and therefore, the PRRA Officer must have considered the risk from the kidnappers as well. 27 I disagree. As Mr. Djordevic pointed out at the hearing, if the word “includes” connotes that the risk from the kidnappers was also considered, then the PRRA Officer’s finding that it could have reasonably been presented to the RPD is nonsensical - for it was the principal risk that was presented to the RPD.

Conclusion 28 For these reasons the decision of the PRRA Officer is set aside. The PRRA application is to be determined by another officer who, if he finds paragraph 113(a) applies to disallow the 350 pages of evidence presen- 270 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

ted, is instructed to provide reasons why he or she so finds, particularly in light of the 10 years that have passed since the decision of the RPD. 29 No question was proposed for certification.

Judgment THIS COURT’S JUDGMENT is that this application is allowed, the Applicant’s PRRA application is to be determined by a different officer in keeping with these Reasons, and no question is certified. Application granted. Chung v. Canada (MCI) 271

[Indexed as: Chung v. Canada (Minister of Citizenship and Immigration)] Alejandro Mariano Chung, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-9844-12 2014 FC 16 James Russell J. Heard: August 29, 2013 Judgment: January 7, 2014 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Organized crime –––– Applicant was 47-year-old citizen of Chile and permanent resident of Canada — Applicant had years long association with Hells Angels, with status of “prospect” — Applicant was determined by Immi- gration Division (ID) to be person described under s. 37(1)(a) of Immigration and Refugee Protection Act, and therefore inadmissible to Canada — Applicant sought judicial review — Application dismissed — Applicant had notice that issue he had to answer was not just whether he knew of criminal activities of Manitoba Chapter, but also, given his history of involvement, how it was possible for him not to know of such activities — Applicant and his counsel decided not to enter evidence to explain how, in full context of evidence already entered, applicant was not aware of what was obvious — Applicant chose to meet whole case entered against him on mens rea with simple denial of any knowledge — In context of entire hearing, there was no procedural unfairness of kind that rule in case law was meant to alleviate — Rule in question does not automatically apply on failure to cross-examine on particular point — Questions of Minister’s counsel were directly related to mens rea issue and applicant’s denial of knowledge of criminal activities — There was no error with regard to procedural fairness — ID gave proper effect to presumption of credibility and applied right standard of proof to rebuttal of that presumption. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Inquiries — Procedure –––– Applicant was 47-year-old citizen of Chile and permanent resident of Canada — Applicant had years long association with Hells Angels, with status of “prospect” — Applicant was determined by Immigration Division (ID) to be person described under s. 37(1)(a) of Immigra- tion and Refugee Protection Act, and therefore inadmissible to Canada — Appli- cant sought judicial review — Application dismissed — Applicant had notice that issue he had to answer was not just whether he knew of criminal activities 272 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th) of Manitoba Chapter, but also, given his history of involvement, how it was possible for him not to know of such activities — Applicant and his counsel decided not to enter evidence to explain how, in full context of evidence already entered, applicant was not aware of what was obvious — Applicant chose to meet whole case entered against him on mens rea with simple denial of any knowledge — In context of entire hearing, there was no procedural unfairness of kind that rule in case law was meant to alleviate — Rule in question does not automatically apply on failure to cross-examine on particular point — Questions of Minister’s counsel were directly related to mens rea issue and applicant’s denial of knowledge of criminal activities — There was no error with regard to procedural fairness — ID gave proper effect to presumption of credibility and applied right standard of proof to rebuttal of that presumption. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — Of general importance –––– Applicant was found by Immi- gration Division (ID) to be inadmissible to Canada on basis of s. 37(1)(a) of Immigration and Refugee Protection Act — Judicial review application was unsuccessful, and applicant sought to certify question — Question was: What is degree of knowledge required for membership in criminal organization under s. 37(1)(a), in light of recent decision of Supreme Court of Canada? — Question was not certified — Applicant was in effect asking court to assess new issue and return matter for reconsideration on basis of new law and new arguments — Supreme Court case addressed Article 1F(a) of Refugee Convention — Case in question could not be applied to present case in suggested way — Complicity in crimes of organization (1F(a)) is very different from membership in organization (37(1)(a)) — There was nothing to suggest that Supreme Court intended its remarks to apply to s. 37(1)(a) of Act or to change law that was identified and applied in present case — Provision of Convention could not be equated with provision of Act because two provisions used different language and it seemed plain that knowledge requirements were different — In his application of factors in Supreme Court case to present case, applicant seriously misstated evidence before ID — Proposed question for certification was not serious question of general importance. Cases considered by James Russell J.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 415 N.R. 121, 2011 CAF 103, 96 Imm. L.R. (3d) 20, 2011 Car- swellNat 2494, [2012] 4 F.C.R. 538, 2011 FCA 103, 2011 CarswellNat 639, [2011] F.C.J. No. 407, [2011] A.C.F. No. 407 (F.C.A.) — considered Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Chung v. Canada (MCI) 273

Alam v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3904, 2005 CF 4, 41 Imm. L.R. (3d) 263, 2005 FC 4, 2005 Car- swellNat 55, [2005] F.C.J. No. 15 (F.C.) — referred to Amaya v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 3453, 2007 CF 549, 2007 CarswellNat 1384, 2007 FC 549, [2007] F.C.J. No. 743 (F.C.) — considered Bokhari v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 354, 2011 CarswellNat 839, 2011 CarswellNat 1707, 2011 CF 354, 96 Imm. L.R. (3d) 169, [2011] F.C.J. No. 462 (F.C.) — considered Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.) — followed 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 Castelly c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2008), (sub nom. Castelly v. Canada (Minister of Citizenship & Immigration)) 329 F.T.R. 311 (Eng.), 2008 CF 788, 2008 FC 788, 74 Imm. L.R. (3d) 209, (sub nom. Castelly v. Canada (Minister of Citizenship & Immigration)) [2009] 2 F.C.R. 327, 2008 CarswellNat 2009, 2008 CarswellNat 3508, [2008] F.C.J. No. 999, [2008] A.C.F. No. 999 (F.C.) — referred to Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2013), 2013 SCC 40, 2013 CarswellNat 2463, 2013 CarswellNat 2464, 361 D.L.R. (4th) 1, (sub nom. Ezokola v. Canada (Minister of Citizenship and Immigra- tion)) 447 N.R. 254, 18 Imm. L.R. (4th) 175, [2013] S.C.J. No. 40, [2013] A.C.S. No. 40 (S.C.C.) — followed Faryna v. Chorny (1951), 1951 CarswellBC 133, 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171, [1951] B.C.J. No. 152 (B.C. C.A.) — referred to He v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 367 F.T.R. 28 (Eng.), 2010 FC 391, 2010 CarswellNat 858, 2010 CF 391, 2010 CarswellNat 2135 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Lennon v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 2012 CarswellNat 3906, 2012 FC 1122, 2012 CarswellNat 4480, 2012 CF 1122, 11 Imm. L.R. (4th) 344 (F.C.) — considered 274 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

M’Bosso c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 2011 CarswellNat 1919, 2011 FC 302, (sub nom. M’Bosso v. Canada (Minister of Citizenship & Immigration)) 386 F.T.R. 48 (Eng.), 2011 Car- swellNat 602, 2011 CF 302, [2011] F.C.J. No. 345 (F.C.) — referred to Mugesera c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2005), (sub nom. Mugesera v. Canada (Minister of Citizenship & Immigration)) 197 C.C.C. (3d) 233, 2005 SCC 40, 2005 CarswellNat 1740, 2005 Car- swellNat 1741, 254 D.L.R. (4th) 200, 28 Admin. L.R. (4th) 161, 30 C.R. (6th) 39, (sub nom. Mugesera v. Canada (Minister of Citizenship & Immi- gration)) 335 N.R. 229, 47 Imm. L.R. (3d) 16, [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39, EYB 2005-91971 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed R. v. Lyttle (2004), 2004 SCC 5, 2004 CarswellOnt 510, 2004 CarswellOnt 511, 235 D.L.R. (4th) 244, 184 O.A.C. 1, [2004] 1 S.C.R. 193, 115 C.R.R. (2d) 172, 70 O.R. (3d) 256 (note), 17 C.R. (6th) 1, 180 C.C.C. (3d) 476, 316 N.R. 52, [2004] S.C.J. No. 8, REJB 2004-53613 (S.C.C.) — considered R. v. Palmer (1979), 1979 CarswellBC 533, 1979 CarswellBC 541, [1980] 1 S.C.R. 759, 30 N.R. 181, 14 C.R. (3d) 22, 17 C.R. (3d) 34 (Fr.), 50 C.C.C. (2d) 193, 106 D.L.R. (3d) 212, [1979] S.C.J. No. 126 (S.C.C.) — considered Rahal v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 871, 2012 FC 319, 2012 CF 319, 2012 CarswellNat 1289, [2012] F.C.J. No. 369 (F.C.) — referred to Rizwan v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3269, 2010 CF 781, 2010 FC 781, 2010 CarswellNat 2549, [2010] F.C.J. No. 957, [2010] A.C.F. No. 957 (F.C.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Stables v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1319, 2011 CarswellNat 4770, 248 C.R.R. (2d) 347, 2011 CarswellNat 6064, 2011 CF 1319, 3 Imm. L.R. (4th) 126, 343 D.L.R. (4th) 510, 400 F.T.R. 135 (Eng.) (F.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- Chung v. Canada (MCI) 275

swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — considered Tang v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 1497, 2009 CarswellNat 2096, 2009 CF 292, 2009 FC 292, 81 Imm. L.R. (3d) 304, [2009] A.C.F. No. 671, [2009] F.C.J. No. 671 (F.C.) — referred to Tjiueza v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 1260, 2009 CarswellNat 4275, 2009 CF 1260, 2009 CarswellNat 5824 (F.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 4(1) — considered s. 33 — considered ss. 34-37 — referred to s. 37 — considered s. 37(1)(a) — considered s. 72(1) — pursuant to s. 173(c) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(a) — considered Words and phrases considered: prospect There is no dispute that the Hells Angels is a criminal organization. The Appli- cant admits to being a past member of the Hells Angels with “prospect” status, which is the final rank before becoming a full-patch member...... Evidence was introduced that described the designation of a “hangaround” as requiring that “full patch members must be certain that the individual is systematically involved in crime before approving his promotion to this rank. He also has to receive majority approval in a vote.” A “prospect” is “an individual who is gaining the confidence of all colour-wearing members. He is demonstrating his loyalty and ability to carry out and obey orders. He has been actively involved in criminal activities.” This evidence was not challenged by the Applicant...... 276 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

The evidence shows that it was more than clear that the Minister’s case was that — given the nature of Hells Angels, its notoriety as a criminal organization, its long and arduous recruiting system, the criminal involvement of recruits at different stages in the hierarchy (friend, hang-around, prospect, full-patch), the Applicant’s own involvement and aspirations within the system, and his interaction with police in that context — the Applicant had full knowledge of the criminal nature of the Manitoba Chapter and, if he did not, then he was being wilfully blind. This meant that there were reasonable grounds to believe that he was, or had been, a member of a criminal organization in accordance with the governing jurisprudence.

APPLICATION for judicial review of decision finding applicant inadmissible to Canada.

David Matas, for Applicant Charlene Telles-Langdon, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [Act] for judicial review of the decision of the Immigration Division [ID] of the Immigration and Refu- gee Board, dated 6 September 2012 [Decision], which found that the Ap- plicant was a person described under subsection 37(1)(a) of the Act and was therefore inadmissible to Canada.

Background 2 The Applicant is a 47-year-old citizen of Chile and a permanent resident of Canada. He arrived in Canada in 1979, when he was 13 years old and, at the time of the Decision, had not been back to Chile since. 3 The Applicant has an extensive criminal record spanning approximately 30 years. He joined the Hells Angels in 2010, and quit in 2011, though he had been associated with the group for years. There is no dispute that the Hells Angels is a criminal organization. The Applicant admits to being a past member of the Hells Angels with “prospect” status, which is the final rank before becoming a full-patch member. 4 Detective Wes Law of the Winnipeg Police Service provided an opinion on the Applicant’s involvement with the Hells Angels (Applicant’s Record, page 14). The Applicant was observed at the Hells Angels Hal- loween Social on 27 October 2000 associating with Hells Angels mem- Chung v. Canada (MCI) James Russell J. 277

bers. On 28 January 2002, the Applicant was arrested for assault with another man who was wearing a Hells Angels baseball cap and T-shirt at the time. The victim of that assault was hesitant to cooperate with the police as he was aware that his attackers were members of the Hells An- gels, and the charges were eventually stayed. The Applicant was also seen associating with Hells Angels members and in attendance at other Hells Angels social events between 2003 and 2011. In 2011, the Appli- cant verbally confirmed to Detective Law that he was a prospect member of the Hells Angels. Later in 2011, he confirmed that he had been demoted to the rank of “hangaround,” but he did not explain the reason for the demotion. Based on the above, Detective Law’s opinion was that the Applicant is “an individual deeply entrenched in the Hells Angels Motor- cycle Club, and has actively involved himself in the Outlaw Motorcycle Gang lifestyle over the course of the past two decades.” 5 On 6 September 2012, the ID found the Applicant inadmissible to Canada under subsection 37(1)(a) of the Act on the grounds of organized criminality and ordered him deported.

Preliminary Matter 6 The Respondent requests that the Court amend the style of cause to replace “The Minister of Public Safety and Emergency Preparedness” as the Respondent with “The Minister of Citizenship and Immigration” pursuant to subsection 4(1) of the Act.

Decision Under Review 7 The ID noted that the standard of proof with respect to the facts alleged is “reasonable grounds to believe,” which is a lower standard than a “balance of probabilities” but requires more than a mere suspicion. The ID also noted that this was not a criminal trial and it did not need to be established that the Applicant was guilty of a criminal offence. 8 At the ID hearing, the Applicant testified that he joined the Hells An- gels in 2010 and later became a prospect, but then quit in October, 2011. When asked why he wanted to join, the Applicant said that he just wanted to ride a motorcycle with them, and that his close friend, Shane Kirton, had been a member of the Hells Angels for 10 years, and that he was always around Mr. Kirton. The Applicant admitted to being demoted from prospect to hangaround status, and said that it was because he had missed some events and a shift at the clubhouse. He said that he quit the Hells Angels because he had no time for it, it was causing him to spend 278 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

less time with his daughter, and because there was too much police har- assment. He claimed that he did not know why the police would be harassing the Hells Angels. 9 Evidence was introduced that described the designation of a “hangaround” as requiring that “full patch members must be certain that the individual is systematically involved in crime before approving his promotion to this rank. He also has to receive majority approval in a vote.” A “prospect” is “an individual who is gaining the confidence of all colour-wearing members. He is demonstrating his loyalty and ability to carry out and obey orders. He has been actively involved in criminal activities.” This evidence was not challenged by the Applicant. 10 The Applicant did not admit to any knowledge of Hells Angels’ criminal activity. As a hangaround, he said that his shifts at the clubhouse consisted of cleaning and serving drinks. He testified that he never heard any of the members talk about criminal offences, and that he never saw a member of the Hells Angels commit a criminal offence. Counsel submitted that just because the Applicant progressed to the level of prospect does not mean that he had knowledge of the criminal nature of the activities of the organization, and that the Hells Angels are secretive by nature. 11 The ID noted that the Applicant was observed by police as being involved with Hells Angels as early as 2000, and that the Applicant’s own evidence was that his life-long friend, Mr. Kirton, had been a member of the Hells Angels for 10 years. Another friend of the Applicant, Dale Pag- gett, testified that he knew some people involved in the Hells Angels but did not view the Hells Angels as being a criminal organization. The ID did not find this testimony helpful, as Mr. Paggett, unlike the Applicant, was not a hangaround or prospect. 12 The ID stated that the Hells Angels are a notorious criminal organization. The Applicant’s explanation that he wanted to become a full patch member simply to ride motorcycles with the group was not credible because the Applicant was pulled over by police while riding his motorcycle with the Hells Angels both when he was a hangaround and a prospect. Thus, he must have been able to ride his motorcycle with the group without being a full patch member. 13 Detective Law testified that the business of the Hells Angels is crime, and primarily drug trafficking. He said there is no misconception that they are just a group who likes to get together and ride motorcycles. For someone to make it to the rank of prospect he or she would need to have demonstrated a commitment to the organization and would be heavily Chung v. Canada (MCI) James Russell J. 279

involved and entrenched. Even to become an “official friend” of the Hells Angels, which is the rank below a hangaround, a person would have to have been actively involved in criminal activities. 14 The ID noted that the case of Amaya v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 549 (F.C.) [Amaya] established at para 30 that “In sum, even if the Applicant himself did not engage in the criminal activities, if he had knowledge of the activities, he would meet the requirements of membership. Knowledge of the gang’s activities is sufficient to satisfy any mens rea requirement.” 15 The ID specifically referred to the Applicant’s contention that his testimony that he was not aware of the criminal activity of other Hells An- gels was not seriously challenged in cross-examination. However, the ID stated that it did not have to accept the Applicant’s evidence as credible merely because of this and that it was entitled to consider the reasonable probabilities of the surrounding conditions. The ID thought that the Ap- plicant’s testimony was “entirely inconsistent with the preponderance of the probabilities which rationally emerge out of all the evidence in the case and I do not believe his evidence.” The ID also noted that, by virtue of subsection 173(c) of the Act, it was not bound by any legal or technical rules of evidence. 16 The ID noted it is sufficient to show that the Applicant was wilfully blind to the criminal nature of the Hells Angels. To establish wilful blindness it must be demonstrated that the Applicant knew of the need to make inquiries but chose to remain ignorant. The ID noted that on 29 July 2010 the Winnipeg Hells Angels clubhouse was raided, and the Ap- plicant was inside at the time. The Applicant was convinced to leave the clubhouse peacefully by negotiators. This incident specifically, as well as many other encounters with police, should have alerted the Applicant that something illegal was going on to attract so much police attention. 17 The ID found that the Applicant had knowledge of the Hells Angels criminal activity, and if he did not then he was wilfully blind to it. Thus, the Applicant was found to be inadmissible under subsection 37(1)(a) of the Act.

Statutory Provisions 18 The following provisions of the Act are applicable in this proceeding: Rules of interpretation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, 280 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. [...] Organized criminality 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parlia- ment by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Can- ada, would constitute such an offence, or engaging in activity that is part of such a pattern; [...] Interprétation 33. Les faits — actes ou omissions — mentionnés aux articles 34 a` 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir. [...] Activités de criminalité organisée 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants: a)etre ˆ membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée a` des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétra- tion d’une infraction a` une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer a` des activités faisant partie d’un tel plan; [...]

Issues 19 The Applicant raised the following issues in his written submissions but modified his position somewhat at the review hearing: Chung v. Canada (MCI) James Russell J. 281

a. Is the standard of proof for rebuttal of sworn testimony under sections 34 through 37 of the Act “reasonable grounds to believe” or “a balance of probabilities”? b. If the answer to the first question is “reasonable grounds to believe,” is the answer different under the Canadian Charter of Rights and Freedoms? c. Does the principle established in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.) [Browne v Dunn] apply to the ID’s proceedings? d. Was there a breach of procedural fairness when the ID found that parts of the Applicant’s testimony were not credible despite the fact that the Applicant was not cross-examined on this testimony? 20 The Applicant withdrew his Charter-based argument (issue b.) at the hearing of the application, and asked the Court to focus upon the following issues: a. Did the ID breach a duty of procedural fairness by concluding that the Applicant’s testimony was not credible on material points on which he had not been cross-examined, contrary to the rule stated in Browne v. Dunn? b. Did the ID err by failing to give proper effect to the presumption of credibility of sworn testimony, or by applying the wrong standard of proof to the rebuttal of that presumption?

Standard of Review 21 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. In- stead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 (S.C.C.) at para 48. 22 Past jurisprudence has firmly established that the Board’s determination of inadmissibility on grounds of membership in a criminal organization “is largely an assessment of facts, and is thus to be reviewed on the 282 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

standard of reasonableness”: Lennon v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1122 (F.C.) at para 13; see also M’Bosso c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2011 FC 302 (F.C.) at para 53 [M’Bosso]; Castelly c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2008 FC 788 (F.C.) at paras 10-12; He v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 391 (F.C.) at paras 24-25 [He]; Tang v. Canada (Minister of Citizenship & Immigration), 2009 FC 292 (F.C.) at para 17. This includes the ID’s evaluation of the evidence, including the credibility of witnesses and the weight to be assigned to their testimony: see Mugesera c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 SCC 40 (S.C.C.) at paras 38-42. 23 As others have noted, the application of the reasonableness standard of review in cases relating to inadmissibility under sections 34 to 37 of the Act is affected by the statutory standard of proof that applies to the constituent facts of inadmissibility, namely “reasonable grounds to believe”: see s. 33 of the Act. For clarity, then, the ID had to come to a reasonable conclusion that there are reasonable grounds to believe that: a) Hells Angels is a criminal organization (which is not in dispute here); and b) the Applicant was a “member” of that organization as that term has been defined by the jurisprudence: see Tjiueza v. Canada (Minister of Citizenship & Immigration), 2009 FC 1260 (F.C.) at paras 22-24; Rizwan v. Canada (Minister of Citizenship & Immigration), 2010 FC 781 (F.C.) at para 29; M’Bosso, above, at paras 4, 24. 24 The Applicant’s attempts to separate out subsidiary legal issues regarding the ID’s treatment of the evidence, such as the “standard of proof” applicable to the rebuttal of evidentiary presumptions about credibility, does not affect the standard of review. The ID is entitled to deference in its evaluation of the evidence, including the judgments about witness credibility that this necessarily entails: Mugesera, above. 25 The question of the proper application of the rule from Browne v. Dunn raises an issue of procedural fairness. Specifically, where the rule is applicable and is not properly applied, it could compromise a party’s right to know and fully answer the case to be met, often referred to as the principle of audi alteram partem. Questions of procedural fairness are reviewable on a standard of correctness: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.) at para 100. As the Federal Court of Appeal stated in Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at para 53, “[t]he decision-maker has either complied with the Chung v. Canada (MCI) James Russell J. 283

content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” This is a question on which no deference is due. 26 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at para 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Arguments The Applicant 27 The Hells Angels make concerted efforts to hide the criminality of their organization, and the Applicant submits that one cannot assume that a person who hangs around the group will automatically know of its criminal activities. Section 37 of the Act is specifically designed so that members of criminal organizations who do not know about criminal activities are not deemed inadmissible (Stables v. Canada (Minister of Citizenship & Immigration), 2011 FC 1319 (F.C.) [Stables]). In Stables, the applicant was found to be a member of the Hells Angels, but he was a full patch member of high rank and not a peripheral member like the Applicant. 28 The Applicant says there is no evidence that he had any knowledge of the Hells Angels’ criminal activity. Detective Law also acknowledged that the Hells Angels try to give the impression that they are just a motorcycle club. Only full patch members attend all the meetings of the organization, and hangarounds and prospects do not have the organization’s full trust. The Applicant submits that this type of membership does not, by its very nature, import knowledge of the criminality of the organization. 29 The Minister’s own materials say that a prospect “cannot vote or attend meetings.” A prospect must be actively involved in criminal activities, but he can be involved in these activities on his own. The Appli- cant’s status in the club was not in and of itself enough to demonstrate 284 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

knowledge, and there are no other facts establishing knowledge in this case. 30 The Applicant testified before the ID that he did not know anything about any of the Hells Angels’ criminal activities, and this testimony was not cross-examined. Nor did the Minister suggest in his submissions that the Applicant knew of the criminality of the Hells Angels. The case of Browne v. Dunn, above, says that in order to impeach the credibility of the Applicant he must have been cross-examined, and the Supreme Court of Canada said in R. v. Lyttle, 2004 SCC 5 (S.C.C.) at para 65 [Lyttle] that this remains a sound principle of law. 31 The Applicant says that it is clear from cases such as Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 (S.C.C.) and Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103 (F.C.A.) that a person who is ignorant of the criminal activities of the organization with which they are associated should not be considered a member of that organization for inadmissibility purposes. If this were not the case, then subsection 37(1)(a) would be contrary to the Charter. 32 The ID found at para 41 that there were reasonable grounds to conclude that the Applicant had the requisite knowledge for membership, but the Applicant submits that reasonable grounds is the wrong standard of proof and that the legally correct standard of proof is balance of probabilities. The Applicant says that if this is not the case then the presumption of credibility of testimony would have no operational effect, and it would not matter whether or not an applicant has testified. In order to give meaning to the presumption of credibility, the standard of proof for rebuttal of the presumption must be different from the standard of proof for establishing the underlying facts, absent contrary testimony. 33 The Applicant also points out that the ID found that he was wilfully blind to the criminal activities of the Hells Angels; however, the Appli- cant was never asked whether he made any inquiries or not. The ID reasons that if the Applicant had made inquiries then he would have found out about the criminal nature of the organization, but this reasoning is inconsistent with other parts of the evidence that show that the Hells An- gels are secretive in nature and have an elaborate recruiting process involving many stages whereby only full patch members know the full details of the organization’s activities. 34 Had the Applicant been cross-examined at the hearing on whether he made inquiries, he may have replied that he had. The Applicant submits Chung v. Canada (MCI) James Russell J. 285

that although the ID may not be bound by formal rules of evidence, it is bound by the rule from Browne v. Dunn as a component of the duty of fairness. The Court said that the rule was applicable to an ID proceeding in Bokhari v. Canada (Minister of Citizenship & Immigration), 2011 FC 354 (F.C.). Furthermore, in Lyttle, above, the Supreme Court said that the principle from Browne v. Dunn is a sound principle of general application, not a technical rule of evidence. 35 The ID said that the principle from Browne v. Dunn is not applicable when it is “perfectly clear” that the person concerned “has had full notice beforehand that there is an intention to impeach the credibility of the story he is telling.” The Applicant submits that there was no such notice in this case. Submissions were made on the law and on knowledge, but this is different from an argument that the testimony the Applicant gave on his own knowledge was not credible. The only time the Applicant told his story was at the hearing, so there could be no prior impeachment of the credibility of that story. Thus, the exception to the Browne v. Dunn principle relied on by the ID was not applicable. 36 Further, the Minister knew that the Applicant was planning on testifying that he had no knowledge of the Hells Angels’ criminal activities because it was raised in pre-hearing submissions. The Applicant then testified to this effect and it was unfair to him for the Minister to decline to cross-examine him on this issue, and then afterwards impeach his credibility when he might have been able to address the concerns at the hearing. It is precisely this situation that the rule in Browne v. Dunn was designed to avoid.

The Respondent 37 The Respondent points out that in R. v. Palmer (1979), [1980] 1 S.C.R. 759 (S.C.C.), the Supreme Court held that the rule in Browne v. Dunn is not absolute. If the issue is “foreseen” then it is not necessary to put the witness on notice of every detail. The Respondent submits that this is such a case. As the Applicant’s contention that he did not have knowledge of the Hells Angels’ criminal activity was the basis of his case, it cannot be said that he did not have notice that knowledge was at issue. 38 In addition, while the Applicant was not cross-examined on every detail on his testimony, he was cross-examined at length about his involvement with the Hells Angels. This included questions about his duties within the organization, his rise in the ranks, his length of involvement, 286 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

incidents with the police, why he wanted to become a member, why he wanted to become a full patch member and his friendships with certain members. Thus, the Respondent submits that in the circumstances of this case the duty of fairness was met. 39 The Respondent further submits that the ID’s finding that the Appli- cant had knowledge of the Hells Angels’ criminal activities was reasonable. There was extensive evidence before the ID about the group’s criminal activities, and based on this evidence the ID found that there were reasonable grounds to believe that the Applicant knew about the criminal activities of the Hells Angels with whom he was an active member. 40 As to the wilful blindness finding, the Respondent points out that the Applicant was arrested or stopped by the police on numerous occasions while in the company of Hells Angels members. In fact, one of the Ap- plicant’s reasons for leaving the organization was “too much police har- assment.” He was also in attendance during a police seizure at a clubhouse and continued his membership for more than a year after that. After all this, the ID concluded that if he did not know about the group’s criminal activities it was because he declined to inquire and chose to be wilfully blind. The Respondent submits that this is a reasonable finding on the facts. 41 The Applicant relies on the testimony of Detective Law to argue that the Hells Angels organization attempts to disguise its criminal nature and its members would not have answered the Applicant truthfully had he asked about its criminal activities. However, Detective Law’s testimony does not support this argument. He testified that Hells Angels members will attempt to mislead the public and law enforcement, but that it has “been proven that the Hells Angels are a criminal organization and I found in my experience members involved with the Hells Angels don’t even try to mislead the police any more.” If members do not even bother to mislead the police anymore, it is reasonable to find that they would not mislead a prospect member who has been associated with the organization for 20 years. 42 The Applicant has challenged the standard of proof relied on by the ID, but this argument is without merit because the standard of proof is legislated. Section 33 of the Act provides that in the case of inadmissibility under section 34 to 37 the standard is “reasonable grounds.” Further, the Applicant’s Charter argument is not relevant on these facts because the ID found that the Applicant did have knowledge. Chung v. Canada (MCI) James Russell J. 287

The Applicant’s Reply 43 The Applicant points out that if the ID’s findings of knowledge and wilful blindness were made in a legally erroneous way then the requirements for membership have not been met. 44 As to the standard of proof set out in section 33 of the Act, the Appli- cant replies that this standard refers to the facts that constitute inadmissibility and not to the presumption of credibility. The ID is entitled to make a finding of fact on membership using the standard of reasonable probability, but that statutory provision says nothing about the standard of proof required to rebut the presumption of credibility. The standard of proof for rebutting the presumption of credibility must be higher than the standard of reasonable probability or the presumption would have no meaning. Furthermore, the ID did not even acknowledge that there is a presumption of credibility of the Applicant’s sworn testimony. 45 The Applicant also says that the ID never directly addressed the standard of proof it used in making its finding that the Applicant was wilfully blind. This being so, the Applicant submits that if the ID made the error he suggests on the standard of proof for knowledge, then that same error was committed when addressing wilful blindness. The ID also said that wilful blindness is equivalent to knowledge, which implies it used the same standard of proof for both. 46 Furthermore, the Applicant does not have to persuade the Court that the wrong standard of proof was used; it is sufficient for the Applicant to establish that it was unclear what standard was being used (Alam v. Canada (Minister of Citizenship & Immigration), 2005 FC 4 (F.C.) at para 9). At the very least the ID was unclear about what standard it was using in arriving at the conclusion that the Applicant was wilfully blind. At para 53 of the Decision the ID says that the Applicant’s evidence is “entirely inconsistent with the preponderance of probabilities which rationally emerge out of all the evidence and I do not believe his evidence.” Thus, it would appear the ID used two different standards of proof: preponderance of probabilities and reasonable grounds for believing. 47 As to the rule in Browne v. Dunn, the Applicant states that his concern is not that he did not have notice that knowledge would be an issue, but that there was a detailed attack on his testimony on knowledge in the submissions of the Minister without an opportunity to answer that attack in cross-examination. The Respondent says that the Applicant was exten- sively cross-examined, but that cross-examination focused on other mat- 288 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

ters and not on the Applicant’s knowledge of the criminality of the Hells Angels. The Applicant says that the rule in Browne v. Dunn and the duty of fairness both require a good deal more than just notice of relevant subject matter, and that in this case they required “cross-examination on the substance of the challenge to the credibility of the testimony of the applicant in order to give the applicant an opportunity to answer the concerns raised” (Applicant’s Reply at para 47). 48 The Applicant submits that he was not cross-examined on those matters which went directly to the ID’s adverse credibility finding. In support of that credibility finding the ID found that the Hells Angels are notorious for being a criminal organization, but the Applicant was asked no questions about this notoriety. The ID also found that there must be some other benefit to being a full-patch member besides being able to ride motorcycles with the club, but the Applicant was never asked about what that benefit might be. The Applicant was also not asked about what his friend Shane Kirton told him about the organization. 49 Furthermore, the reasons the Respondent gives for the rule in Browne v. Dunn not being applicable in this case are not the same reasons given by the ID. The ID did not reason that the rule does not require notice of every detail, and the Applicant says that it was apparent to the ID that the Applicant was not given notice of “more than mere detail.” The ID also did not reason that the Applicant was subject to extensive cross-examination which amounted to effective compliance with the rule from Browne v. Dunn. The ID said that the rule from Browne v. Dunn did not apply because the ID is not bound by formal rules of evidence. That is not the reasoning of the Respondent and the Respondent does not try to defend that position. The Respondent says there was cross-examination, but the ID has already admitted there was not. 50 The Applicant also submits that the findings of knowledge and wilful blindness were not reasonable. Detective Law testified that the Hells An- gels do not even try to mislead the police anymore, but that is a reference only to the police. The Applicant is not a member of the police. The Respondent assumes that if the organization does not try to mislead the police then it would not try to mislead others. However, the organization may not try to mislead the police on the assumption that the police already know the nature of the organization, and this does not necessarily mean that the group would not attempt to mislead others who do not know the nature of the organization. In fact, Detective Law testified that “I think it would be fair to say some of the individuals involved with Chung v. Canada (MCI) James Russell J. 289

Hell’s Angels criminal organization might try and mislead you by saying that they simply enjoy riding motorcycles and are not a criminal organization.” 51 The Applicant submits that the ID’s reasoning is internally inconsistent and therefore unreasonable.

The Respondent’s Further Submissions 52 The Respondent points out that there was both documentary and oral evidence before the ID demonstrating the Applicant’s membership in the Hells Angels and his knowledge that it is a criminal organization. The Applicant conceded both the criminal nature of the Hells Angels and Detective Law’s expertise on the subject at the hearing. Detective Law testified that: In the case of the Hell’s Angels, over the course of time a friend may be promoted to the rank of hang around and eventually promoted to the rank of prospect or full patch. I can say that all those individuals, if you’re wearing the vest, you are a member of the criminal organization and you are involved in criminal activities for that organization. 53 The Respondent argues that the “reasonable grounds to believe” standard of proof is applicable to questions of fact in relation to subsection 37(1)(a): Mugesera, above, at para 116. The Respondent acknowledges that knowledge of, or wilful blindness regarding, the organization’s pattern of criminal activity is a requirement for inadmissibility under subsection 37(1)(a) (Amaya, above, at para 30), but argues that whether a person has the requisite knowledge is a question of fact to which the “reasonable grounds to believe” standard of proof is applicable. On review, the ID’s determination that the Applicant did know about the Hells Angels’ criminal activities is entitled to significant deference: He, above, at para 25. 54 The Respondent also argues that the Applicant’s submissions conflate the standard of proof with the weighing of evidence. The standard of proof applicable to each of the factual components of inadmissibility under subsection 37(1)(a) is reasonable grounds to believe, and this does not change simply because there is sworn testimony denying one or more of the disputed factual components. With respect to the weight to be given to the Applicant’s sworn testimony, the standard of proof is not a relevant consideration. 290 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

55 While sworn testimony is presumed to be true in the absence of con- tradiction, the presumption is rebuttable: such testimony can be reasonably rejected if found to be implausible. Such a finding must be rational and clearly expressed, and the basis for the finding must be apparent in the tribunal’s reasons: Rahal v. Canada (Minister of Citizenship & Immi- gration), 2012 FC 319 (F.C.) at para 44. The Respondent argues that the ID member properly stated the determination he was required to make — that is, whether the Applicant was credible when he said he did not know that the Hells Angels is a criminal organization — and stated that he did not believe this evidence. Rather, he found it to be “entirely inconsistent with the preponderance of the probabilities that rationally emerge out of all the evidence in the case.” The reasons for this conclusion were “apparent, rational and clearly expressed” and there is no basis upon which this Court should re-weigh this evidence. The ID member explicitly asked himself whether he was required to accept the Applicant’s testimony as credible, since it was given under affirmation and not seriously challenged on cross-examination, and applied the well-accepted test from Faryna v. Chorny, [1951] B.C.J. No. 152 (B.C. C.A.) to make a finding about the Applicant’s credibility. There is thus no confusion as to the basis upon which this finding was made and no reason the Court should interfere. 56 With respect to the Applicant’s argument concerning procedural fairness and the rule in Browne v. Dunn, the Respondent states that it was clear from the outset of the hearing that “knowledge was the issue that would be determinative.” The Minister presented his case first, and the Applicant was present during Detective Law’s testimony. He was thus aware of the case to be met. The Applicant has not provided any evidence as to what additional evidence he may have given if explicitly challenged on his claimed lack of knowledge. 57 In addition to its previous argument with respect to the Applicant’s Charter argument, the Respondent notes that the Court has previously found subsection 37(1)(a) to be constitutional: Stables, above.

Analysis 58 At the judicial review hearing before me on August 29, 2013, Appli- cant’s counsel informed the Court that the Applicant was withdrawing the Charter-related arguments referred to in written submissions. Coun- sel asked the Court to direct its attention to those aspects of the Decision dealing with the Applicant’s knowledge of the criminal nature of the Chung v. Canada (MCI) James Russell J. 291

Manitoba Chapter of Hells Angels and the ID’s failure to consider and deal with the presumption of credibility that arises from the Applicant’s sworn testimony that he did not know that Hells Angels is a criminal organization. 59 As regards the Applicant’s alleged lack of knowledge of the criminal nature of the organization, the ID acknowledged that a form of mens rea was required, but found that the requirement was satisfied in this case because the Applicant’s evidence that he was unaware of the criminal activity of the Manitoba Chapter was not credible. This evidence was found to be “entirely inconsistent with the preponderance of the probabilities which rationally emerge out of all the evidence in the case and I do not believe his evidence.” Either the Applicant had actual knowledge or he was wilfully blind to the criminal activity of the Mani- toba Chapter, and “[s]ince wilful blindness is equivalent to knowledge, [the Applicant] had knowledge of the illegal activities of the Manitoba Chapter.” The ID concluded that this meant the mens rea ingredient of membership in a criminal organization had been established by the Minister. 60 The Applicant has raised two principal issues with regard to the mens rea or knowledge findings of the ID and, in my view, they are the only arguable issues that he brings before the Court in this application. 61 First of all, the Applicant raises a procedural fairness argument based upon Browne v. Dunn, above. Applicant’s counsel raised this issue in written submissions to the ID, and the ID dealt with it in the following way: [63] In written submissions, counsel pointed out that in direct examination Mr. Chung said that he did not know about any criminal activities committed by the Hells Angels members and that on cross-examination, the Minister did not confront Mr. Chung regarding what knowledge he had of the criminal activities of the Manitoba Chapter. He argues that having failed to put it to Mr. Chung that his evidence on this point was not believable, now the Minister cannot say that Mr. Chung’s evidence on the issue of knowledge of the activities of the Manitoba Chapter is not credible. He relies on Browne v. Dunn (1893), 6 r. 67 (H.L.), at 70-71 in support of his argument. [64] I reject this submission. In the first place by virtue of paragraph 173(c) of the Act, the Immigration Division is not bound by any legal or technical rules of evidence. [65] Secondly, I agree with Minister’s counsel that the last part of the quotation from Browne v. Dunn is applicable to this case “... it seems 292 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.” (my emphasis) [66] Mr. Chung and his counsel had notice that the Minister would be submitting that Mr. Chung would have known that the Hells An- gels and the Manitoba Chapter are criminal organizations. The issue of knowledge as an element of membership in a criminal organization was raised before the hearing and both counsel made submissions on the issue. Mr. Chung’s counsel wrote in his Reply “... the submissions of the Minister at paragraph 15 appear to suggest that the Minister agrees, and that there is only a factual issue whether the applicant knew or was wilfully blind to the pattern of criminal activity of the Hells Angels.” [67] Mr. Chung and his counsel would have known that if he said he had no knowledge of the Manitoba Chapter’s criminal activities that the Minister would submit that this is not believable. The Minister put in his case before Mr. Chung testified. Therefore Brown v. Dunn does not apply. 62 Essentially, the Applicant’s argument is that he testified that he had no knowledge of the criminal activities of the Manitoba Chapter and the Minister failed to cross-examine him on this aspect of his sworn testimony. It was thus, he argues, procedurally unfair for the ID to make findings based upon the preponderance of the probabilities which rationally emerge out of all of the evidence in the case to conclude that the Appli- cant was either lying or was wilfully blind. 63 Browne v. Dunn, above, deals with a point of procedural fairness and reads in relevant part as follows: Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter alto- gether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a wit- Chung v. Canada (MCI) James Russell J. 293

ness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmis- takably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. [Emphasis added] 64 The Supreme Court of Canada in Lyttle, above, at para 65 confirmed that the “rule in Browne v. Dunn remains a sound principle of general application...”. 65 In the present case, the Applicant was well aware that the principal issue at the hearing before the ID would be his knowledge of, or wilful blindness to, the criminal nature of the Manitoba Chapter of Hells An- gels. The Minister had, before the Applicant testified, entered his case, including clear and compelling evidence concerning the Applicant’s long involvement with the Manitoba Chapter and his efforts to work his way up the hierarchy to “full-patch” status. The Applicant never did achieve full-patch, but he did become a “prospect,” the status that immediately precedes full-patch. The evidence shows that it was more than clear that the Minister’s case was that — given the nature of Hells Angels, its notoriety as a criminal organization, its long and arduous recruiting system, the criminal involvement of recruits at different stages in the hierarchy (friend, hang-around, prospect, full-patch), the Applicant’s own involvement and aspirations within the system, and his interaction with police in that context — the Applicant had full knowledge of the criminal nature 294 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

of the Manitoba Chapter and, if he did not, then he was being wilfully blind. This meant that there were reasonable grounds to believe that he was, or had been, a member of a criminal organization in accordance with the governing jurisprudence. 66 The Applicant not only had full notice that there was an intention to impeach anything he might say about being unaware of the criminal nature of the Manitoba Chapter, he also knew, given the case entered against him, that a mere denial of knowledge of criminal activity and an assertion that he just wanted to ride motor bikes would not explain his long involvement with the Manitoba Chapter, his aspirations to achieve full-patch status, his success in achieving prospect status, and his knowledge of the police interaction with the Manitoba Chapter. In other words, before the Applicant gave evidence, he had notice, and had to be fully aware, that the issue he had to answer was not just “Did you know about the criminal activities of the Manitoba Chapter?” but also “Given your long history of involvement with the Manitoba Chapter, how is it possible that you did not know about the criminal activities of the Chapter?” Some explanation on this point was clearly required. 67 Knowing what was at stake, examination in chief by Applicant’s counsel was very brief. On the issue of mens rea, the extent of the evidence offered by the Applicant is as follows: Q. Were you aware of criminal activity of other Hell’s Angels — people who were members of Hell’s Angels? A. No, I don’t. Q. Did they talk to you about it? A. No. 68 Counsel for the Applicant says that it was not his job to cross-examine his own client on this answer. I agree, but I do not think that is the issue before me. When these brief questions were asked, the Applicant and his counsel were fully aware of the evidence on mens rea entered by the Minister. They also knew that these were not criminal proceedings and that the ID would have to weigh all of the evidence from both sides in order to determine whether there were reasonable grounds to believe that the Applicant had the requisite mens rea to render him a member of a criminal organization. Knowing this, they decided not to enter evidence that would explain how, in the full context of the evidence already entered, the Applicant was not aware of the obvious. No real explanation was forthcoming on an issue for which the Applicant had full notice by the time he stood up to testify. He simply denied having any knowledge. Chung v. Canada (MCI) James Russell J. 295

69 The Court cannot speculate as to why no further explanation was offered and, if there were reasons why the Applicant was not aware that the Manitoba Chapter was a criminal organization, the Applicant has chosen not to reveal them to the Court. In any event, the Applicant chose to meet the whole case entered against him on mens rea with a simple denial of any knowledge. As counsel’s submissions to the ID and before this Court reveal, the Applicant chose to enter a simple denial and rely upon the presumption of credibility to persuade the ID that he was not a member of a criminal organization. 70 What I cannot say, however, is that, when the whole sequence of the hearing is examined, there was any procedural unfairness of the kind that the rule in Browne v. Dunn is meant to alleviate. The Applicant had full notice of the case he had to meet — including mens rea and wilful blindness — and he chose not to enter evidence in chief that would explain how he was not aware of the obvious. 71 As the Supreme Court of Canada has made clear, even in criminal proceedings, the rule in Browne v. Dunn does not automatically apply on a failure to cross-examine on a particular point. The effect to be given to the absence or brevity of cross-examination depends upon the circumstances of each case. See R. v. Palmer (1979), [1980] 1 S.C.R. 759 (S.C.C.), pp 780-782. 72 In the present case, the Applicant was also cross-examined by the Minister. Given the extreme brevity of the examination in chief, it is not surprising that cross-examination was not extensive. In my view, however, the questions of Minister’s counsel are directly related to the mens rea issue and the Applicant’s denial of knowledge of criminal activities. The following sequence, for example, obviously goes to the credibility of the Applicant’s assertion of lack of knowledge. Q. So what was your ultimate goal in the organization? A. I just wanted to ride a motorcycle, you know. Q. But you started as a friend and then went to hang around and then became a prospect. A. Mm-hmm. Q. Obviously you’re moving through the ranks, is that correct? A. Yes. Q. In an upwards direction? A. Yes, I am. 296 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Q. We heard some testimony earlier that explained the rank structure of the Hell’s Angels. The next step from prospect would be full patch member. Was that your intention? A. At one time. Q. Why would you want to be a full patch member? A. I just wanted to ride motorcycles with them, that’s about it. Q. Why the Hell’s Angels in particular? A. Because I have a friend that’s a member. Q. And that’s Shane Kirton? A. Yes. Q. Were you ever investigated for any offences by the Winnipeg Police along with Mr. Kirton? A. Not that I recall. 73 The evidence is clear that the Applicant was investigated for offences along with Mr. Kirton. And the other questions about why the Applicant was involved with Hells Angels are obviously related to the mens rea issue. This is because there was direct evidence introduced by the Min- ister that members could not become a “prospect” without becoming involved in criminal activity. This evidence is referred to in para 26 of the Decision. Detective Law had testified that “if you are wearing a vest, you are a member of the criminal organization and you are involved in criminal activities for that organization.” The fact of the Applicant’s status and long association goes directly to the mens rea and knowledge issue. 74 For the reasons given, I cannot accept the Applicant’s submissions on this point. In my view, there was no procedural fairness error. 75 The other principal point raised by the Applicant is that, given his sworn testimony that he had no knowledge of criminal activities, the ID committed a reviewable error by not acknowledging and applying in his favour the presumption of credibility. 76 In my view, however, a reading of the Decision reveals that, although the ID does not use the words “presumption of credibility,” it provides substance and reasons as to why any such presumption cannot prevail in this case: [50] Counsel points out that Mr Chung’s evidence was not seriously challenged in cross-examination. As a result do I have to accept Mr. Chung’s testimony as being credible? No, I do not have to accept his evidence as credible merely because it was given under affirmation and it was not seriously challenged on cross-examination. Chung v. Canada (MCI) James Russell J. 297

[51] In Faryna v. Chorny, [1951] B.C.J. No. 152, the British Colum- bia Court of Appeal in considering the trial judge’s assessment that a witness was not credible wrote: 11 The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its con- sistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a prac- tical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick- minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dan- gerous kind. 12 The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can he tested in the particular case. 13 Mr. Justice Stephen put it another way: He said (Gen- eral View of the Criminal Law, 2nd ed., p. 191) “that the utmost result that can in any case be produced by judicial evidence is a very high degree of probability... The high- est probability at which a court of justice can, under ordinary circumstances arrive is the probability that a witness or a set of witnesses tell the truth when they affirm the existence of a fact”. 298 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[52] Ultimately the Court of Appeal concluded that the evidence of the witness “is entirely inconsistent with the preponderance of the probabilities that rationally emerge out of all the evidence in the case, and therefore the conclusion reached by the learned trial Judge cannot be disturbed.” [53] Such is the case here, although Mr. Chung affirms that he was unaware of criminal activity on the part of the Manitoba Chapter, his evidence is entirely inconsistent with the preponderance of the probabilities which rationally emerge out of all of the evidence in the case and I do not believe his evidence. 77 In other words, the ID makes it clear that, whatever value the Appli- cant’s sworn testimony may attract, it cannot be accepted when balanced against the other evidence adduced. In my view, there is no reviewable error with this approach. The ID gave proper effect to the presumption of credibility and applied the right standard of proof to the rebuttal of that presumption. 78 These are the points emphasized by the Applicant at the judicial review hearing of this application. In effect, they go to the substance of the Decision and I can find nothing unreasonable or procedurally unfair about the way the issues were addressed by the ID. In written submissions, the Applicant raised a number of other points such as standard of proof and clarity issues. I have examined each in turn against the Deci- sion and the governing jurisprudence and find the Applicant’s arguments unconvincing. Hence, I appreciate the fact that Applicant’s counsel chose not to address these issues at the hearing and directed the Court to the Browne v Dunn and presumption of credibility issues.

Certification 79 In post-hearing written submissions allowed by the Court, the Appli- cant has suggested that, in assessing the knowledge requirement under subsection 37(1)(a) of the Act the ID should have considered and applied the principles enunciated by the Supreme Court of Canada in Ezokola c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2013 SCC 40 (S.C.C.), and has submitted the following question for certification: What is the degree of knowledge required for membership in a criminal organization under the Immigration and Refugee Protection Act subsection 37(1)(a), in light of the Ezokola decision in the Supreme Court of Canada [Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40] Chung v. Canada (MCI) James Russell J. 299

80 The issues now raised by the Applicant concerning the relevance of Ezokola to the Decision were not raised before the ID and were not raised in the Applicant’s leave application. Hence, the Applicant is, in effect, asking the Court to assess a new issue and return the matter for reconsideration on the basis of new law and new arguments. 81 As the Applicant points out, the Supreme Court in Ezokola, above, was considering Article 1F(a) of the Refugee Convention, while the present case involved the applications of section 33 and subsection 37(1)(a) of the Act. He argues, however, that the question addressed by the Su- preme Court in Ezokola is concerned with the “degree of knowledge...in a criminal activity [which] justifies excluding secondary actors from refugee protection” and this should be relevant to the question of the degree of knowledge of a criminal organization which justifies a finding of inadmissibility under subsection 37(1)(a) of the Act. 82 The Applicant’s counsel has submitted detailed and able argument on why Ezokola should apply to the present case and, if it is applied, the Decision is unreasonable. After considering these arguments carefully, however, I am not convinced that Ezokola can be applied in the suggested way. I also feel that the Applicant seriously misstates the evidentiary record before the ID in his suggestions regarding the result of any such application. 83 Essentially, I agree with the Respondent that complicity in the crimes of an organization (1F(a)) is very different from membership in an organization (37(1)(a)). Knowledge or mens reas is important under both provisions but, as the Supreme Court points out in Ezokola itself at para 89, complicity under 1F(a) requires that the individual “be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime of criminal purpose.” 84 Under subsection 37(1)(a), the person concerned, as well as being a member in the criminal organization, only needs to have knowledge of the criminal nature of the organization. See Stables, above, at para 37. I see nothing in Ezokola, above, to suggest that the Supreme Court also intended its remarks to apply to subsection 37(1)(a) of the Act or to change the law that was identified and applied in this case. The Appli- cant is arguing that, in his view, Ezokola should be applied to the present situation, but I cannot accept that IF(a) of the Refugee Convention can be equated with 37(1)(a) of the Act, because the two provisions use different language and it seems plain that the knowledge requirements are different. 300 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

85 The ID in the present case applied the jurisprudence applicable to subsection 37(1)(a) and there is nothing in Ezokola, in my view, to render that approach either incorrect or unreasonable. 86 I also feel that, in his application of the Ezokola factors to the present case, the Applicant seriously misstates the evidence before the ID in several important instances. For example, the evidence was not that Hells Angels is a multifaceted organization so that criminality is only one of several principal purposes. Detective Law made it clear that the organization is not “a group of individuals that just likes to get together to ride motorcycles...Anybody involving themselves...are aware that what the Hells Angels do is crime and what they’re involved with is criminal.” The Applicant also suggests that the fact that he has been a “prospect” does not mean he was involved in crime or knew that other members were. As the ID pointed out in its reasons, however, Detective Sergeant Isnor’s evidence was that a “prospect” is someone who “is demonstrating his loyalty and ability to carry out and obey orders. He has been actively involved in criminal activities.” Detective Law also said that “if you’re wearing the vest, you are a member of the criminal organization and you are involved in criminal activities for that organization.” The Applicant also persists in saying that the period of his involvement with the Mani- toba Chapter was “relatively brief,” while the evidence before the ID was that the Applicant was “deeply entrenched in the Hell’s Angels Motorcy- cle Club, and has actively involved himself in the Outlaw Motorcycle Gang lifestyle over the course of past two decades.” 87 Even if the ID was obliged to consider the Ezokola factors, it is my view that, given the evidence before the ID, those factors in dispute were reasonably considered by the ID. 88 Consequently, I do not think the Applicant’s proposed question for certification is a serious question of general importance. This is because I do not think that Ezokola, above, even by way of analogy, can be said to affect the jurisprudence application to subsection 37(1)(a) of the Act as reasonably applied by the ID and that, even if it did, on the evidence before the ID, the relevant aspects of the Ezokola factors were reasonably addressed.

Judgment THIS COURT’S JUDGMENT is that: 1. The application is dismissed. 2. There is no question for certification. Chung v. Canada (MCI) James Russell J. 301

3. The style of cause is amended to remove “The Minister of Public Safety and Emergency Preparedness” as the Respondent and substitute “The Minister of Citizenship and Immigration” as the Respondent. Application dismissed. 302 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[Indexed as: Tursunbayev v. Canada (Minister of Public Safety and Emergency Preparedness)] Rustem Tursunbayev, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-8117-12, IMM-1512-13 2014 FC 5 Richard G. Mosley J. Heard: October 9, 2013 Judgment: January 7, 2014 Immigration and citizenship –––– Enforcement — Arrest and detention — Release from detention — Terms and conditions –––– Applicant was permanent resident of Canada — Interpol issued Red Notice for applicant’s arrest on embezzlement and corruption charges in Kazakhstan — Kazakhstan requested applicant’s extradition — Two reports under s. 44(1) of Immigration and Refu- gee Protection Act were made on basis that applicant was inadmissible to Can- ada — Applicant was arrested and detained — Applicant was released from detention on terms and conditions — Applicant was found to continue to be flight risk — Two decisions were made that partially varied terms and conditions of applicant’s release from detention — Applicant brought application for judicial review — Application dismissed — There was no complete absence of reasons that member’s decisions lacked justification, transparency and intelligibility required of reasonable decision — Member did not make findings without regard to evidence — It was open to member to conclude that flight risk had not abated as result of record of compliance in spite of evidence — Record of compliance established effectiveness of conditions regime and not that applicant should be rewarded for his compliance by loosening release conditions — Member was not required to have considered duration of detention as result of ongoing litigation in making his findings. Cases considered by Richard G. Mosley J.: Almrei, Re (2009), 78 Imm. L.R. (3d) 167, 337 F.T.R. 160 (Eng.), 2009 Car- swellNat 17, 2009 FC 3, [2009] F.C.J. No. 1 (F.C.) — referred to Borowski v. Canada (Attorney General) (1989), [1989] 3 W.W.R. 97, [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, 92 N.R. 110, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 1989 CarswellSask 241, 1989 CarswellSask 465, [1989] S.C.J. No. 14 (S.C.C.) — referred to Canada (Minister of Citizenship & Immigration) v. B046 (2011), 2011 Car- swellNat 2839, 2011 FC 877, 100 Imm. L.R. (3d) 139, 34 Admin. L.R. (5th) Tursunbayev v. Canada (Minister of Public Safety) 303

206, 2011 CarswellNat 3928, 2011 CF 877, 394 F.T.R. 217 (Eng.), [2013] 2 F.C.R. 3 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. B072 (2012), 411 F.T.R. 101 (Eng.), 2012 FC 563, 2012 CarswellNat 1493, 8 Imm. L.R. (4th) 65, 2012 CF 563, 2012 CarswellNat 5126 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Lai (2007), 2007 Car- swellNat 4228, 2007 FC 1252, [2007] F.C.J. No. 1603 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Thanabalasingham (2003), 2003 CarswellNat 4755, 2003 CF 1225, 2003 CarswellNat 3294, 2003 FC 1225, 32 Imm. L.R. (3d) 269, 241 F.T.R. 12, [2004] 3 F.C.R. 523, [2003] F.C.J. No. 1548 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Thanabalasingham (2004), 2004 FCA 4, 2004 CarswellNat 22, 236 D.L.R. (4th) 329, 315 N.R. 91, 247 F.T.R. 159 (note), 10 Admin. L.R. (4th) 285, 38 Imm. L.R. (3d) 1, [2004] 3 F.C.R. 572, 2004 CarswellNat 782, 2004 CAF 4, [2004] F.C.J. No. 15 (F.C.A.) — referred to Canada (Minister of Public Safety & Emergency Preparedness) v. Sittampalam (2009), 2009 CF 863, 2009 CarswellNat 5808, 2009 CarswellNat 2593, 2009 FC 863, 83 Imm. L.R. (3d) 147, 350 F.T.R. 101 (Eng.) (F.C.) — referred to Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 Car- swellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — referred to Harkat, Re (2009), 2009 CarswellNat 600, 2009 FC 241, 339 F.T.R. 104 (Eng.), 2009 CF 241, 2009 CarswellNat 6706, [2009] F.C.J. No. 316 (F.C.) — considered Harkat v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 871, 2007 FC 416, 2007 CF 416, 2007 CarswellNat 3878, (sub nom. Harkat, Re) 312 F.T.R. 50 (Eng.), [2007] F.C.J. No. 540 (F.C.) — referred to Isse v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1184, 2011 FC 405, 2011 CF 405, 387 F.T.R. 280 (Eng.), 2011 CarswellNat 6435, [2011] F.C.J. No. 563 (F.C.) — referred to Jaballah v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 833, 2007 FC 379, (sub nom. Jaballah, Re) 296 F.T.R. 1 (Eng.), 63 Imm. L.R. (3d) 60, 2007 CarswellNat 2484, 2007 CF 379, [2007] A.C.F. No. 518, [2007] F.C.J. No. 518 (F.C.) — referred to Mahjoub, Re (2011), 2011 FC 506, 2011 CarswellNat 2355, 389 F.T.R. 47 (Eng.) (F.C.) — referred to Muhammad v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 CarswellNat 751, 2013 CF 203, 2013 FC 203, 2013 Car- swellNat 417, [2013] F.C.J. No. 207 (F.C.) — referred to 304 IMMIGRATION LAW REPORTER 21 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.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed P.S.A.C. v. Canada Post Corp. (2010), (sub nom. Canada Post Corp. v. PSAC) [2011] 2 F.C.R. 221, 2010 CAF 56, 2010 CarswellNat 3242, (sub nom. PSAC v. Canada Post Corp.) 2010 C.C.L.C. 230-015, 2010 CarswellNat 416, 2010 FCA 56, 15 Admin. L.R. (5th) 157, 70 C.H.R.R. D/302, (sub nom. Canada Post Corp. v. Public Service Alliance of Canada) 399 N.R. 127, [2010] F.C.J. No. 272 (Fed. C.A.) — considered P.S.A.C. v. Canada Post Corp. (2011), (sub nom. Canada Post Corp. v. P.S.A.C.) 339 D.L.R. (4th) 1, 2011 CarswellNat 4581, 2011 CarswellNat 4582, 2011 SCC 57, 73 C.H.R.R. D/52, 27 Admin. L.R. (5th) 1, 2012 C.L.L.C. 230-002, 95 C.C.E.L. (3d) 246, (sub nom. Canada Post Corp. v. Public Service Alliance of Canada) 423 N.R. 117, (sub nom. Public Service Alliance of Canada v. Canada Post Corp.) [2011] 3 S.C.R. 572 (S.C.C.) — referred to R. v. MacLean (April 9, 2010), Doc. 10-044-BR, [2010] O.J. No. 2639 (Ont. S.C.J.) — referred to R. v. Mukpo (2012), 2012 CarswellNS 153, 2012 NSSC 107, 994 A.P.R. 285, 314 N.S.R. (2d) 285, [2012] N.S.J. No. 132 (N.S. S.C.) — referred to Tursunbayev v. Canada (Minister of Public Safety & Emergency Preparedness) (2012), 409 F.T.R. 176 (Eng.), 2012 CarswellNat 1327, 2012 CF 504, 2012 CarswellNat 2262, 2012 FC 504, 41 Admin. L.R. (5th) 1, 11 Imm. L.R. (4th) 121 (F.C.) — referred to Tursunbayev v. Canada (Minister of Public Safety) 305

Vancouver International Airport Authority v. P.S.A.C. (2010), 320 D.L.R. (4th) 733, 2010 CAF 158, 84 C.C.E.L. (3d) 51, 2010 CarswellNat 3247, (sub nom. Vancouver International Airport Authority v. Public Service Alliance of Canada) 403 N.R. 363, (sub nom. Vancouver International Airport Authority v. Public Service Alliance of Canada) [2011] 4 F.C.R. 425, 196 L.A.C. (4th) 1, 9 Admin. L.R. (5th) 79, 2010 FCA 158, 2010 CarswellNat 1700, [2010] F.C.J. No. 809 (F.C.A.) — considered Statutes considered: 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 Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 37(1)(a) — considered s. 37(1)(b) — considered s. 44(1) — referred to s. 55(1) — referred to s. 58 — considered s. 58(1) — considered s. 58(1)(a)-58(1)(e) — referred to s. 58(2) — considered s. 58(3) — considered s. 72(1) — pursuant to Rules considered: Immigration Division Rules, SOR/2002-229 R. 38 — considered R. 38(1) — considered R. 38(2) — considered R. 38(3) — considered R. 49 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 244(a) — considered s. 245 — considered s. 245(d) — considered

APPLICATION for judicial review of decisions which partially varied terms and conditions of applicant’s release from detention.

Lorne Waldman, Tara McElroy, for Applicant 306 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Bernard Assan, Teresa Ramnarine, for Respondent

Richard G. Mosley J.:

1 These reasons concern two applications for judicial review under section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of two decisions which partially varied the terms and conditions of the applicant’s release from detention. 2 The application in Court file IMM-8117-12 concerns a decision made on August 9, 2012. Court file IMM-1512-13 relates to a decision made on February 12, 2013.

Background: 3 Mr. Tursunbayev is a citizen of Kazakhstan and of St. Kitts and Nevis, and a permanent resident of Canada. He and his immediate family landed in Canada on July 17, 2009, and became permanent residents under the federal skilled worker program. On August 26, 2011, Interpol issued a Red Notice calling for Mr. Tursunbayev’s arrest on embezzlement and corruption charges in Kazakhstan. Mr. Tursunbayev is alleged to have misappropriated approximately $20 million USD. 4 On January 4, 2012, Kazakhstan requested Mr. Tursunbayev’s extradition. No extradition proceedings had been commenced to the Court’s knowledge as of the date of hearing. On January 9, 2012, a Canada Bor- der Services Agency (CBSA) officer, prepared two section 44(1) IRPA reports on the basis that Mr. Tursunbayev was inadmissible to Canada under paragraphs 37(1)(a) and (b) of the IRPA. 5 On February 8, 2012, a warrant for Mr. Tursunbayev’s arrest pursuant to subsection 55(1) of the IRPA was issued. He was arrested and detained on February 10, 2012. His detention was reviewed and continued on three occasions following his arrest on the ground that he was unlikely to appear for his admissibility hearing. 6 An application for judicial review of the third detention review decision was granted on May 2, 2012, and the matter was remitted for redetermination:Tursunbayev v. Canada (Minister of Public Safety & Emergency Preparedness), 2012 FC 504 (F.C.). 7 Upon redetermination on May 18, 2012, it was held that although Mr. Tursunbayev was a flight risk, it was appropriate to order his conditional release. He was released from detention on June 1, 2012. The terms and conditions of release provided the following: Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 307

• Mr. Tursunbayev was required to wear an electronic monitoring device; • he could not leave his house, including to go into his backyard, except in the case of a medical emergency or with 48 hours’ notice and prior approval from the CBSA to meet with his lawyer or a medical practitioner; • meetings with legal or medical counsel were limited to twice weekly and for a duration not exceeding four hours per absence; and • Mr. Tursunbayev was required to be in the company of his surety, Mr. Dave Perry, and another investigator anytime he was away from home. 8 On July 9, 2012, Mr. Tursunbayev brought a motion, pursuant to Rule 38 of the Immigration Division Rules, SOR/2002-229, to vary the terms and conditions of his release. Mr. Tursunbayev withdrew his request for an oral hearing and the decision was made on the basis of written submissions as no hearing dates were available prior to the middle of August. 9 In a decision dated August 9, 2012, the Immigration Division held that the applicant’s flight risk was unchanged. However, the application was partially allowed to allow another principal of the security firm hired to supervise the conditional release, Mr. Ron Wretham, to accompany the applicant on outings where Mr. Perry was unavailable. Mr. Wretham was required to post a $50 000 cash bond. The applicant’s request to extend the duration of his meetings with his lawyers at their offices to 7 hours was granted, to account for travel time, but limited to twice a week. This did not limit meetings with the lawyers at his home. The applicant was required to provide the CBSA with at least 48 hours’ notice of meetings with his lawyers. 10 The applicant’s request to attend a doctor without providing the CBSA with a minimum of 48 hours’ notice where the medical visit was not to treat a medical emergency was declined. Requests for family outings and to be able to attend school were also declined. The applicant was permitted to have access to his backyard between sunrise and sunset, under direct supervision, but was not permitted to use the pool or hot tub due to concerns about the effect on transmissions from the electronic bracelet he is required to wear, or to be in the front yard of his residence. 308 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

11 The August 9, 2012 decision is the subject of the application for judicial review in Court file IMM-8117-12. 12 On October 30, 2012, Mr. Tursunbayev filed a further application to vary the terms and conditions of his release order pursuant to Rule 38 of the Immigration Division Rules. Mr. Tursunbayev sought and was granted an oral hearing, which took place December 19, 2012. 13 The application was partially allowed in a decision dated February 12, 2013. The applicant’s request to have the video feed from his house monitored by the on-site security personnel at the house to reduce costs was granted. His requests to go on outings without either of his surety’s present, and to be allowed additional outings, were denied. He was allowed access to his front yard but the bar to use of the pool and hot tub was maintained.

Applicable Legislation: 14 Release - Immigration Section 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 309

and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. [...] Detention — Immigration Division (2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. Conditions (3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions. Immigration and Refugee Protection Regulations, SOR/2002- 227. DETENTION AND RELEASE Factors to be considered 244. For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Min- ister under subsection 44(2) of the Act; [...] Flight risk 245. For the purposes of paragraph 244(a), the factors are the following: (a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament; (b) voluntary compliance with any previous departure order; 310 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

(c) voluntary compliance with any previously required appear- ance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from cus- tody, or any previous attempt to do so; (f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and (g) the existence of strong ties to a community in Canada. Immigration Division Rules, SOR/2002-229. Application to the Division 38. (1) Unless these Rules provide otherwise, an application must follow this rule. Time limit and form of application (2) The application must be made orally or in writing, and as soon as possible or within the time limit provided in the Act or these Rules. Procedure in oral application (3) For an application made orally, the Division determines the applicable procedure. [...] No applicable rule 49. In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter. Mise en liberté par la Section de l’immigration 58. (1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants: a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, a` l’enquête ou au Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 311

renvoi, ou a` la procédure pouvant mener a` la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soup¸conner que le rési- dent permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un etranger´ désigné qui etait´ ag´ˆ e de seize ans ou plus a` la date de l’arrivée visée par la désignation en cause — n’a pas et´´ e prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles a` cette fin, soit ce dernier fait des efforts val- ables pour etablir´ l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un etranger´ désigné et qui etait´ ag´ˆ e de seize ans ou plus a` la date de l’arrivée visée par la désignation en cause n’a pas et´´ e prouvée. [...] Mise en détention par la Section de l’immigration (2) La section peut ordonner la mise en détention du résident permanent ou de l’étranger sur preuve qu’il fait l’objet d’un con- trôle, d’une enquête ou d’une mesure de renvoi et soit qu’il constitue un danger pour la sécurité publique, soit qu’il se soustraira vraisemblablement au contrôle, a` l’enquête ou au renvoi. Conditions (3) Lorsqu’elle ordonne la mise en liberté d’un résident permanent ou d’un etranger,´ la section peut imposer les conditions qu’elle estime nécessaires, notamment la remise d’une garantie d’exécution. 312 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Règlement sur l’immigration et la protection des réfugiés, DORS/2002-227. DETENTION´ ET MISE EN LIBERTE´ Critères 244. Pour l’application de la section 6 de la partie 1 de la Loi, les critères prévus a` la présente partie doivent etreˆ pris en compte lors de l’appréciation: a) du risque que l’intéressé se soustraie vraisemblablement au contrôle, a` l’enquête, au renvoi ou a` une procé- dure pouvant mener a` la prise, par le ministre, d’une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; [...] Risque de fuite 245. Pour l’application de l’alinéa 244a), les critères sont les suivants: a) la qualité de fugitif a` l’égard de la justice d’un pays etranger´ quant a` une infraction qui, si elle etait´ commise au Canada, constituerait une infraction a` une loi fédérale; b) le fait de s’être conformé librement a` une mesure d’interdiction de séjour; c) le fait de s’être conformé librement a` l’obligation de com- paraˆıtre lors d’une instance en immigration ou d’une instance criminelle; d) le fait de s’être conformé aux conditions imposées a` l’égard de son entrée, de sa mise en liberté ou du sursis a` son renvoi; e) le fait de s’être dérobé au contrôle ou de s’être evad´´ e d’un lieu de détention, ou toute tentative a` cet egard;´ f) l’implication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement l’intéressé a` se soustraire aux mesures visées a` l’alinéa 244a) ou le rendrait susceptible d’être incité ou forcé de s’y soustraire par une organisation se livrant a` de telles opérations; g) l’appartenance réelle a` une collectivité au Canada. Règles de la Section de l’immigration, DORS/2002-229. Demande a` la Section 38. (1) Sauf indication contraire des présentes règles, toute demande est faite selon la présente règle. Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 313

Forme de la demande et délai (2) Toute demande peut etreˆ faite oralement ou par ecrit.´ Elle est faite soit le plus tôt possible, soit dans le délai prévu par la Loi ou par les présentes règles. Demande faite oralement (3) La Section etablit´ la marche a` suivre dans le cas de chaque demande faite oralement. [...] Cas non prévus 49. Dans le cas où les présentes règles ne contiennent pas de disposi- tions permettant de régler une question qui survient dans le cadre d’une affaire, la Section peut prendre toute mesure nécessaire pour régler la question.

Issues: 15 A number of issues were raised in the written materials in each application concerning the variation requests. Certain of the requests denied in the August 9, 2012 decision were granted in the February 12, 2013 decision. Others were refused in the first decision and not pursued in the second. I agree with the respondent that the issues arising from the granted requests and those that were not pursued are now moot. The Court should not exercise its discretion to hear the matter unless satisfied that there is a sufficient reason to do so: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14 (S.C.C.). I am not satisfied that there is sufficient reason to consider the matters now moot. 16 A third category of requests were refused in both decisions, such as permission for additional outings to attend school or to spend time with family accompanied by persons other than the applicant’s bondspersons, and use of the hot tub and pool at his home. The applicant submits that there continue to be live issues with respect to the test to be applied, the evidence to be considered and the explanations required in determining whether to vary terms and conditions of release. The respondent agrees that there continues to be a concrete and tangible dispute between the parties with respect to the requests denied in the February 12, 2013 decision. 17 I don’t intend to deal with the specific merits of each of the requests. However, I agree with the applicant that there continue to be live issues between the parties arising from the denial of the requests in the two 314 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

decisions. Those issues can be dealt with together through the following questions: 1. What is the test to be applied in determining whether to vary terms and conditions of release? 2. Did the Member err by providing inadequate reasons? 3. Did the Member err by making findings without regard to the evidence?

Standard of Review: 18 The applicant submits that correctness is the standard of review applicable to the issue of whether the appropriate legal test was applied in determining whether to vary the terms and conditions of release. He acknowledges that the standard applicable to the other issues is reasonableness. 19 I agree with the respondent that variation decisions are inherently fact-based and should therefore, in general, attract deference: Canada (Minister of Citizenship & Immigration) v. Lai, 2007 FC 1252 (F.C.) at para 17, [2007] F.C.J. No. 1603 (F.C.); Isse v. Canada (Minister of Citizenship & Immigration), 2011 FC 405 (F.C.) at para 15, [2011] F.C.J. No. 563 (F.C.). 20 The Immigration Division officers who make variation decisions have considerable expertise. As was stated in Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2003 FC 1225 (F.C.) at para 42, [2003] F.C.J. No. 1548 (F.C.) [Thanabalasingham]; aff’d 2004 FCA 4 (F.C.A.): 42 Like the other two branches of the I.R.B., the Immigration Divi- sion is a tribunal of some expertise. However, unlike the other two branches of the I.R.B., members of the Immigration Division are not Governor in Council appointees. As career civil servants, they are in a position to acquire significant expertise over the years. In fact, with respect to detention reviews, previous adjudicators which have now become members of the Immigration Division have potentially ac- quired numerous years of dealing with similar problems under ss. 103(6) and (6) of the old Act. This relative “institutional expertise” (Dr. Q., supra, at para. 29) suggests some deference. This is especially so when one considers that, with respect to some criteria set out in the Regulations (such as the likely length of time the person will be detained), members of the Immigration Division have defi- nitely better knowledge and expertise than this Court. This expertise Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 315

favors a more differential approach, particularly on questions of facts. 21 There is some support in the jurisprudence for the proposition that questions of law arising in this context should be reviewed on the correctness standard: Canada (Minister of Citizenship & Immigration) v. B046, 2011 FC 877 (F.C.) at para 32. However, the question of the test to be applied is not a matter of central importance to the legal system or one outside the specialized area of expertise of the administrative decision maker: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 55 [Dunsmuir]. 22 Given that detention review decisions are essentially fact- based:Thanabalasingham, above, at para 10, I conclude that the Member is entitled to deference on a reasonableness standard of review. That standard is concerned with the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, above, at paragraph 47.

What is the test to be applied in determining whether to vary terms and conditions of release? 23 Detention under the IRPA engages liberty rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the Charter) and so must be imposed in accordance with the principles of fundamental justice. Its purpose in the immigration context is not to punish, but rather to ensure compliance with the IRPA: Canada (Minister of Citizenship & Immigration) v. B072, 2012 FC 563 (F.C.) at para 33. While the legislation does not set out a specific procedure for assessing motions to vary terms and conditions of release, Rule 49 of the Immigration Division Rules allows for the Immigration Division to “do whatever is necessary to deal with the matter” where there is no applicable rule. 24 The applicant submits that, in the absence of a specific procedure, the Court should look to the principles developed in the context of security certificate detention reviews as set out in decisions such as: Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.); Harkat, Re, 2009 FC 241, [2009] F.C.J. No. 316 (F.C.); Almrei, Re, 2009 FC 3, [2009] F.C.J. No. 1 (F.C.); and Jaballah v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 379, [2007] F.C.J. No. 518 (F.C.). 25 In considering a motion to vary terms and conditions of release where flight risk has been determined to be the most significant factor in impos- 316 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

ing conditions, the applicant submits that the Immigration Officer must first determine whether the individual continues to be a flight risk, and, if so, determine the impact of the proposed variances in the terms and conditions on the risk of flight. As in the certificate proceedings, the applicant argues, the onus to justify the need for specific terms and conditions remains with the Minister, citing Harkat, Re, above, at para 35. An analogy may be drawn with the criminal law context, he submits. As in a criminal detention review proceeding, the Member must ensure that the terms and conditions imposed affect the liberty rights of the individual as little as possible, while ensuring that their purpose is met: Canada (Minister of Public Safety & Emergency Preparedness) v. Sittampalam [2009 CarswellNat 5808 (F.C.)], [2008] IDD no 30; R. v. Mukpo, 2012 NSSC 107, [2012] N.S.J. No. 132 (N.S. S.C.); and R. v. MacLean, [2010] O.J. No. 2639 (Ont. S.C.J.). The terms and conditions of a release order must not be disproportionate to the threat posed by the individual and must be tailored to the individual’s circumstances, given that they are restrictions on liberty: Almrei, Re, 2009 FC 3 (F.C.) at para 282, [2009] F.C.J. No. 1 (F.C.). 26 The respondent submits that while the IRPA is silent on the test to vary terms and conditions of release, the Immigration Division may be guided by the requirement of a material change in circumstances in the security certificate context. In that context, the respondent contends, the Court has indicated that reviews are not meant to drastically overhaul the original conditions, but rather to deal with unanticipated problems: Harkat v. Canada (Minister of Citizenship & Immigration), 2007 FC 416 (F.C.) at para 46, [2007] F.C.J. No. 540 (F.C.). The onus rests on the party seeking relief. 27 The Federal Court of Appeal discussed the detention review process in Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4 (F.C.A.), at paras 9-13, 16, 24 [Thanabalasingham FCA]: 9 The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual. 10 Detention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 317

Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons. 11 Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker’s assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision. 12 The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees. 13 However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. [...] 16 The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie case in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudica- tor presiding [sic] the review. [...] 24 The reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. 318 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

Iozzo’s findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions. 28 In order to justify continued detention of a permanent resident or foreign national under s 58 of the IRPA, the Immigration Division must be satisfied that the grounds set out in paragraphs (1) (a) to (e) have been established by the Minister. In this context, the relevant ground for continued detention of the applicant was that he was unlikely to appear for examination, an admissibility hearing, removal from Canada or a proceeding that could lead to the making of a removal order. In short, a flight risk. The onus to establish that risk rested with the Minister. 29 Where the Division orders the release of the detained individual, it may, under ss 58 (3) impose any conditions that it considers necessary, as it did here. On a request to vary those conditions, the principles set out in Thanabalasingham FCA, above, are applicable. When the individual has been ordered released subject to conditions, his or her liberty interests are still engaged. The onus remains with the Minister to satisfy the Member that the individual continues to be a flight risk. In satisfying that onus, the Minister may rely on previous decisions and the Member must give clear and compelling reasons for departing from those prior decisions. It is not necessary, in my view, for the Member to re-evaluate the applicant’s flight risk on each request for variation before considering whether the proposed change in the conditions would increase that risk. 30 It is not clear to me that it is necessary for the applicant to demonstrate a material change in circumstances in applying for a variation of the terms and conditions of the release order, although such a change may be highly relevant to the application. It may be that with the passage Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 319

of time and evidence of the applicant’s compliance, the Member may be more willing to accept that the purpose of the conditions can be maintained with less rigorous restrictions: Harkat, above, at para 35. A material change in circumstances standard would appear to impose an unnecessary and unreasonable threshold before variations may be considered. 31 However, if the applicant fails to lead sufficient evidence in support of the proposed variations to satisfy the Member that they will not increase the risk, the Member is unable to make the requested change. The effect is to impose both an evidentiary and a persuasive burden on the applicant to demonstrate to the satisfaction of the Member that the conditions in question are no longer necessary to ensure compliance with the Act.

Did the Member err by providing inadequate reasons? 32 With respect to the August 9, 2012 decision, the applicant submits that the Member failed to provide an explanation for why some of the requested changes to the terms and conditions were granted, while others were refused. He submits that the “only possible” explanation is limited to a few sentences, where the Member explained that the applicant’s flight risk is limited when his mobility is limited. This reasoning fails to consider the fact that when the applicant is mobile, he is accompanied by a bondsperson and an investigator, and is also under continuous electronic surveillance. Further, the decision fails to explain why, if the applicant is already permitted biweekly outings, additional pre-approved outings cannot be permitted. 33 Concerning the February 12, 2013 decision, the applicant argues that the Member failed to be consistent in assessing the proposed changes. No explanation was provided as to why some outings were permissible while others were not. The Member further erred, the applicant submits, by failing to explicitly state his findings as to whether or not each proposed change increased the applicant’s flight risk and by failing to provide an explaination for his rejection of the sureties’ evidence as to the applicant’s record of compliance. It was not explained, for example, why additional outings would increase the risk of flight contrary to the sureties’ evidence. The evidence that the security guards would have a clear view of the applicant when he was in the hot tub and pool was not explicitly addressed. 34 The respondent submits that the Member deemed the applicant to be a flight risk and assessed each proposed variation in light of that risk. He 320 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

allowed some variations after concluding that they would not “jeopardize the conditions of release”, which were designed to mitigate the risk of flight. It necessarily follows that proposed variances rejected by the Member would heighten the risk of flight. The respondent argues that given the credible evidence that the applicant - with his resources and desire not to leave Canada - might go ‘underground’ rather than appear for admissibility or removal proceedings, it was open to the Member to maintain release conditions that mitigated the risk of flight while allowing the applicant a measure of liberty and freedom. Those considerations require that the applicant be permitted to meet medical care providers and legal counsel. However, it does not follow that permitting these outings meant that the additional outings should also have been permitted, particularly where the purpose of the additional outings was to so- cialize with family members. A history of compliance, the respondent submits, does not mean that the risk of flight - the Minister’s primary concern - has been attenuated. 35 As discussed by the Federal Court of Appeal in Vancouver International Airport Authority v. P.S.A.C., 2010 FCA 158 (F.C.A.) at paras 11-17, reasons provided by an administrative decision maker must satisfy a number of purposes, including to assure a reviewing Court that the decision meets the standard of “justification, transparency and intelligibility” identified by the Supreme Court in New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.) at para 47. The decision-maker is not required to deal with every matter or issue raised before it: N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) [Newfoundland Nurses] at para 16. 36 Courts have been instructed to avoid an unduly formalistic approach to judicial review, and that perfection is not the standard. We are to ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision”: per Evans J.A. in P.S.A.C. v. Canada Post Corp., 2010 FCA 56, [2011] 2 F.C.R. 221 (Fed. C.A.), at para 164, aff’d 2011 SCC 57 (S.C.C.) and cited with approval in N.L.N.U., above, at para 18. If the reasons 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, the Dunsmuir criteria are met: New- foundland Nurses, above, at para 16. 37 In this instance, it was clear from the entire context of the record before the Member, including the prior decisions, that each request for a Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 321

variation would be assessed in terms of what possible impact it might have, if granted, on the flight risk posed by the applicant. I am satisfied that the Member reviewed the evidence before him before concluding that the risk of flight had not abated, and thereafter considered the requested variations in the terms and conditions of release in light of the risk of flight. The primary consideration in denying the requests for increased outings was the fact that the investigators who would accompany the applicant on those occasions did not have the same vested interest in ensuring compliance as did the sureties and consequently, granting the requests would heighten the risk of flight. 38 While it was not explicitly stated that the concern about the hot tub and pool usage was linked to the correspondence from the electronic bracelet company, it is clear from the record that this was the reason for denying those requests. While the Court may have reached a different conclusion, given the evidence that the pool and hot tub would be at all times directly within the sight of the security guards, it is not its role to reweigh the evidence. 39 The Member could have better explained his reasons for allowing some requests and denying others. However, it cannot be said that there is such a complete absence of reasons that the Member’s decisions lack the justification, transparency and intelligibility required of a reasonable decision.

Did the Member err by making findings without regard to the evidence? 40 The applicant argues that the length of time over which the conditions have been and will be imposed, due to the legal proceedings currently underway challenging his permanent residence status, militates heavily in the favour of the applicant being granted the requested variations of his release order. He contends that there was no basis for the Member to conclude that the proposed terms and conditions would increase the applicant’s flight risk. His record of compliance, as well as the evidence of the sureties, previously found to be credible and reliable, were ignored, he submits. Pursuant to Rule 245(d) of the Immigration and Refugee Protection Regulations, compliance was a factor to be considered in assessing flight risk under the detention review provisions of the Act. 41 The applicant argues that he has not been found to be a danger to the public, nor a threat to national security. He is detained on the sole basis that it was determined that he is a flight risk. Moreover, the applicant 322 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

submits that there have been several Court determinations that cast doubt on the government’s evidence, and on whether the admissibility hearing will be convened. The applicant contends that these factors weigh heavily in favour of relaxing the conditions on which he has been released. 42 I do not accept the applicant’s assertion that the Member made findings without regard to the evidence. The Member acknowledged the surety’s testimony that the applicant was compliant with the terms and conditions of the release order. However, it was open to the Member to conclude that flight risk was not abated as a result of the record of compliance in spite of this evidence. I agree with the respondent’s submission that the record of compliance thus far only established the effectiveness of the conditions regime, not that the applicant should be rewarded for his compliance by loosening the release conditions. See Mahjoub, Re, 2011 FC 506 (F.C.) at para 60. 43 With respect to the decision to deny the request to allow the applicant to travel without his bondspersons, the Member did not ignore the evidence proffered in the surety’s testimony but rather was not persuaded. Similarly, the Member did not ignore the surety’s testimony with regards to the request that the applicant be permitted to use the pool and hot tub. The reasons establish that the Member was concerned by the evidence that the signal strength of the electronic monitoring equipment is dimin- ished under water and that alerts are triggered. Finally, I disagree that the Member should have considered the duration of the detention as a result of the ongoing litigation in making his findings. The case law is clear that this is a “neutral” factor: Muhammad v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 203 (F.C.) at para 14, [2013] F.C.J. No. 207 (F.C.). 44 In the result, I see no reason to interfere with the decisions rendered. No serious questions of general importance were proposed and none will be certified.

Judgment THIS COURT’S JUDGMENT is that: 1. the applications in Court files IMM-8117-12 and IMM-1512-13 are dismissed; 2. no questions are certified; and Tursunbayev v. Canada (Minister of Public Safety) Mosley J. 323

3. these Reasons for Judgment and Judgment shall be placed on both files. Application dismissed. 324 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

[Indexed as: R. v. Omene] EFE Omene, Appellant and The Crown as Represented by the Attorney General of Saskatchewan, Respondent Saskatchewan Court of Queen’s Bench Docket: Regina QBG 1624/12 2014 SKQB 1 B.A. Barrington-Foote J. Judgment: January 7, 2014 Criminal law –––– Offences — Theft and related offences — Theft — Sen- tencing — Adult offenders –––– Immigration and citizenship — Accused was convicted of three counts of theft and was sentenced to suspended sentence of 15 months, including restitution order — Sentence was fully served — Accused alleged that while trial judge was aware that suspended sentence may have immigration consequences, he was not aware that it would have resulted in application of provisions of Immigration and Refugee Protection Act, which would have made accused subject to deportation without any right of appeal — Ac- cused had no prior criminal record and was pillar of African community who provided guidance to other students who came from Nigeria — Accused had two children — Accused brought appeal from sentence — Appeal allowed — Conditional discharge with 15-month probation order was substituted — Objec- tives of personal deterrence and rehabilitation, taking into account accused’s history, personal circumstances and lack of criminal record, which supported conclusion that he was at low risk to reoffend, were best met by probation order and discharge, rather than suspended sentence — It was difficult to see how interests of community would have been served by sentence which might well result in deportation of long-term resident who had otherwise been and had demonstrated potential to continue to be positive and productive member of his community, taking due account of nature of offence and low risk to reoffend — While there were aggravating circumstances, such as theft being planned and deliberate misuse of accused’s position as bouncer, conditional discharge was within range of available sentences on facts. Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal after admission — Deportation –––– Criminal offence — Accused was convicted of three counts of theft and was sentenced to suspended sentence of 15 months, including restitution order — Sentence was fully served — Accused alleged that while trial judge was aware that suspended sentence may have immigration consequences, he was not aware that it would have resulted in application of provisions of Immigration and Refugee Protection Act, R. v. Omene 325 which would have made accused subject to deportation without any right of appeal — Accused had no prior criminal record and was pillar of African community who provided guidance to other students who came from Nigeria — Ac- cused had two children — Accused brought appeal from sentence — Appeal allowed — Conditional discharge with 15-month probation order was substituted — Objectives of personal deterrence and rehabilitation, taking into account accused’s history, personal circumstances and lack of criminal record, which supported conclusion that he was at low risk to reoffend, were best met by probation order and discharge, rather than suspended sentence — It was difficult to see how interests of community would have been served by sentence which might well result in deportation of long-term resident who had otherwise been and had demonstrated potential to continue to be positive and productive member of his community, taking due account of nature of offence and low risk to reoffend — While there were aggravating circumstances, such as theft being planned and deliberate misuse of accused’s position as bouncer, conditional discharge was within range of available sentences on facts. Cases considered by B.A. Barrington-Foote J.: R. v. Anderson (1982), 1982 CarswellSask 642, [1982] S.J. No. 577 (Sask. Q.B.) — followed R. v. Bandesha (2013), 2013 CarswellAlta 1361, 2013 ABCA 255, 556 A.R. 1, 584 W.A.C. 1, [2013] A.J. No. 800 (Alta. C.A.) — considered R. v. Bennett (2006), 2006 CarswellAlta 2522, [2006] A.J. No. 540 (Alta. Prov. Ct.) — considered R. v. Bethke (2013), 2013 SKCA 135, 2013 CarswellSask 857, [2013] S.J. No. 742 (Sask. C.A.) — referred to R. v. Boyko (2003), [2003] 7 W.W.R. 489, 231 Sask. R. 57, 2003 CarswellSask 218, 2003 SKQB 139, [2003] S.J. No. 197 (Sask. Q.B.) — considered R. v. E. (D.) (2000), 2000 CarswellAlta 1206, 2000 ABQB 786, 273 A.R. 368, [2000] A.J. No. 1281 (Alta. Q.B.) — considered R. v. Edmunds (2012), 2012 CarswellNfld 181, 2012 NLCA 26, 1000 A.P.R. 337, 322 Nfld. & P.E.I.R. 337, 288 C.C.C. (3d) 164, [2012] N.J. No. 177 (N.L. C.A.) — considered R. v. Fallofield (1973), 22 C.R.N.S. 342, 13 C.C.C. (2d) 450, 1973 CarswellBC 184, [1973] 6 W.W.R. 472, [1973] B.C.J. No. 559 (B.C. C.A.) — followed R. v. Foianesi (2011), 2011 CarswellMan 194, 2011 MBCA 33, 507 W.A.C. 312, [2011] 7 W.W.R. 70, 262 Man. R. (2d) 312, 277 C.C.C. (3d) 366, [2011] M.J. No. 115 (Man. C.A.) — considered R. v. Glover (2002), 2002 CarswellAlta 747, 2002 ABQB 576, 318 A.R. 370, [2002] A.J. No. 770 (Alta. Q.B.) — considered R. v. Harding (2006), 285 Sask. R. 273, 378 W.A.C. 273, 2006 SKCA 118, 2006 CarswellSask 676, 213 C.C.C. (3d) 543 (Sask. C.A.) — referred to R. v. Howard (May 27, 2013), W.B. Horkins J., [2013] O.J. No. 3843 (Ont. C.J.) — considered 326 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

R. v. Kalonji (2009), 2010 ONCA 111, 2009 CarswellOnt 8654, [2010] O.J. No. 551 (Ont. C.A.) — considered R. v. Lu (2013), 2013 ONCA 324, 2013 CarswellOnt 5866, 307 O.A.C. 40, 17 Imm. L.R. (4th) 191, [2013] O.J. No. 2222 (Ont. C.A.) — followed R. v. McIntosh (2012), 2012 CarswellOnt 4866, 2012 ONCJ 216, [2012] O.J. No. 1772 (Ont. C.J.) — considered R. v. Meneses (1974), 25 C.C.C. (2d) 115, 1974 CarswellOnt 1329, [1974] O.J. No. 736 (Ont. C.A.) — considered R. v. Montgrand (2008), 2008 CarswellSask 225, 2008 SKCA 50, 310 Sask. R. 41, 423 W.A.C. 41 (Sask. C.A.) — followed R. v. Nistor (2009), 2009 SKQB 464, 2009 CarswellSask 846, 347 Sask. R. 36, 259 C.C.C. (3d) 430 (Sask. Q.B.) — considered R. v. Omene (2012), 2012 SKPC 120, 2012 CarswellSask 491, 401 Sask. R. 210, [2012] S.J. No. 460 (Sask. Prov. Ct.) — 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, [2013] 1 S.C.R. 739, 99 C.R. (6th) 219, 357 D.L.R. (4th) 1, (sub nom. R. v. Ly) 544 A.R. 40, (sub nom. R. v. Ly) 567 W.A.C. 40, 2013 CarswellAlta 296, 2013 CarswellAlta 297, 2013 SCC 15, [2013] S.C.J. No. 100, EYB 2013-219399 (S.C.C.) — followed R. v. Roberts (2004), 2004 SKCA 153, 2004 CarswellSask 762, 254 Sask. R. 174, 336 W.A.C. 174, 190 C.C.C. (3d) 504 (Sask. C.A.) — followed 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.) — followed R. v. Sellars (2013), 2013 NSCA 129, 2013 CarswellNS 838, [2013] N.S.J. No. 597 (N.S. C.A.) — considered R. v. Sereke (2013), 2013 CarswellAlta 836, 2013 ABCA 67, 544 A.R. 110, 567 A.R. 110 (Alta. C.A.) — referred to R. v. Sorenson (1994), 1994 CarswellSask 101, 116 Sask. R. 223, 59 W.A.C. 223, [1994] S.J. No. 24 (Sask. C.A.) — considered R. v. Z. (R.R.) (2008), 2008 SKQB 313, 2008 CarswellSask 507, 71 M.V.R. (5th) 177, (sub nom. R. v. R.Z.) 319 Sask. R. 213, [2008] S.J. No. 472 (Sask. Q.B.) — followed Statutes considered: Criminal Code, R.S.C. 1970, c. C-34 s. 662.1 [en. 1972, c. 13, s. 57] — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 334(b) — referred to s. 718 — considered s. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — considered s. 718.2(a)(iii) [en. 1995, c. 22, s. 6] — considered s. 730 — considered s. 730(1) — considered R. v. Omene B.A. Barrington-Foote J. 327

s. 730(3) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 24 — considered s. 25 — considered s. 25.1 [en. 2010, c. 8, s. 5] — considered s. 36(2) — considered s. 36(2)(a) — referred to s. 44(2) — considered

APPEAL by accused from sentence.

Barry Nychuk, for Appellant Drew Gillespie, for Respondent

B.A. Barrington-Foote J.:

1 On July 20, 2012, the appellant, Efe Omene, was convicted of three counts of theft contrary to s. 334(b) of the Criminal Code, R.S.C. 1985, c. C-46 in the Provincial Court of Saskatchewan (reported as R. v. Omene, 2012 SKPC 120, 401 Sask. R. 210 (Sask. Prov. Ct.)). On August 13, 2012, he received a suspended sentence of 15 months, including a restitution order in the amount of $430. The sentence has been fully served, and restitution paid. 2 Mr. Omene has now appealed this sentence. He says that the sentence is demonstrably unfit, as the learned trial judge did not consider mitigating factors, and focused only on aggravating factors. The crux of this appeal, however, is whether the sentence should be varied due to its collateral immigration consequences. Although the learned trial judge was aware that a suspended sentence may have immigration consequences, he was not aware that it would result in the application of provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the IRPA”), which would make Mr. Omene subject to deportation without any right of appeal. Indeed, it is apparent that counsel inadvertently provided incorrect advice to the trial judge as to the immigration consequences of the sentence. 3 It was common ground between the Crown and the defence that it is open to the court on this appeal to consider the collateral immigration 328 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

consequences, and to vary the sentence. I agree. As noted by Wagner J. in R. v. Pham, 2013 SCC 15, 293 C.C.C. (3d) 530 (S.C.C.): 24 An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender’s immigration status, there will be other cases in which it is not appropriate to do so. 4 The question, accordingly, is this: what is the appropriate sentence not only in light of the collateral immigration consequences, but “in light of the facts of the particular case while taking all the relevant factors into account”? More specifically, should Mr. Omene receive a conditional discharge rather than a suspended sentence, thereby avoiding the conviction that could result in his deportation?

Background 5 The offences at issue occurred on March 26 and 27, 2013. Mr. Omene was then employed as the head bouncer at a Regina nightclub known as “the Drink”. All of the victims were patrons at the nightclub. 6 Mr. Omene asked the first victim to show him identification. The victim handed him his wallet. He then followed Mr. Omene to a washroom, where he returned the wallet to the victim. The victim, realizing that $200 was missing from the wallet, demanded the return of his money Mr. Omene reacted in an aggressive manner toward the victim, accused him of being a racist, pushed him out of the washroom and ordered him from the bar. (R. v. Omene, supra, at paras. 7 and 19) 7 The second victim was involved in an altercation in the bar, and was escorted outside by two bouncers, one of whom was Mr. Omene. One of the bouncers asked him for his wallet for identification. When the victim handed it over, the bouncer who was not Mr. Omene spoke to him in a manner that he believed was an attempt to distract him, while Mr. Omene handled the wallet. When his wallet was returned to him, the victim no- ticed that $150 was missing. He attempted to follow the bouncers back R. v. Omene B.A. Barrington-Foote J. 329

into the bar, but was prevented from doing so. (R. v. Omene, supra, at para. 8) 8 The third victim was asked to leave the bar by two people, one of whom was Mr. Omene. He was asked to empty his pockets, the contents of which included four $20 bills folded together. The bills were not returned to him with the other items. He promptly demanded the money back, but it was not returned. He was taken out of the bar, and when he tried to return, was prevented from doing so. He accordingly called 911 and made a complaint. ((R. v. Omene, supra, at paras. 13-14) 9 At trial, Mr. Omene gave evidence, denying that he had taken money from any of the victims. He claimed that he conducted searches for appropriate reasons, and in particular, to search for drugs. The trial judge specifically found that Mr. Omene’s evidence was not credible: see R. v. Omene, supra, at paras. 39 - 42. Mr. Omene has never taken responsibility for or expressed remorse for having committed these offences. 10 Mr. Omene, who is originally from Nigeria, came to Canada in 2004. He is now 39 years old. He has completed a degree in geography at the University of Regina, and intended to continue his education and obtain a Masters degree. When he arrived in Regina, he was employed first as a teacher’s assistant, and thereafter as a janitor at Luther College, a janitor at SaskPower, and a warehouseman. He has also worked a second job as a bouncer at the Drink and at another nightclub while working a day job, continuing to take at least one university course despite working. He worked continuously until he lost his most recent job due to a reorganization. He has applied for but been unsuccessful in getting other jobs, submitting that he has been turned down due to his conviction for these offences. 11 Mr. Omene had no prior criminal record, and there is no evidence, other than that relating to these offences, that he is not of good character. His counsel provided the court with testimonial letters which describe him as a pillar of the African community who has provided guidance to other students who have come to Regina from Nigeria, and as a hard- working, responsible and dedicated man who is respected by family, friends and members of his community. He has two children, two months and six years of age, who live in Regina with their mother. Mr. Omene and the mother of his children do not live together, but have been in a relationship for most of the last seven years. Mr. Omene provides some financial support for his children. Counsel for Mr. Omene noted the po- 330 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

tential disruption of the relationship between Mr. Omene and his children in the event he is deported. 12 Mr. Omene is a foreign national within the meaning of the IRPA. He came to Canada on a student visa, and is now on a work visa. The Crown and the defence submit, and I agree, that if Mr. Omene does not receive a discharge, he will be inadmissible to Canada for criminality pursuant to s. 36(2)(a) of the IRPA. He would then be subject to deportation from Canada pursuant to s. 44(2) of the IRPA, with no right of appeal. 13 It is noted that deportation is not inevitable. It would still be possible for Mr. Omene to stay in Canada if he obtained a temporary resident permit pursuant to s. 24 of the IRPA, and to seek permanent resident status on humanitarian and compassionate grounds pursuant to s. 25 of the IRPA. It would also be open to the Minister to grant permanent resident status on humanitarian and compassionate grounds pursuant to s. 25.1 of the IRPA.

Law: Conditional Discharges 14 The authority to grant a conditional discharge arises pursuant to s. 730(1) of the Criminal Code, which is as follows: 730.(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of con- victing the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). 15 Section 730(3) describes the effect of such a discharge, as follows: 730.(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence that (a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence; (b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and R. v. Omene B.A. Barrington-Foote J. 331

(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence. 16 Accordingly, if Mr. Omene receives a discharge, he will not be inadmissible to Canada on grounds of criminality pursuant to s. 36(2) of the IRPA, as he will be deemed not to have been convicted of these offences. 17 The Crown submitted that the law does not permit the court to grant a discharge in the circumstances of this case. It submitted that on these facts, denunciation and general and specific deterrence are the most important of the sentencing considerations referred to in s. 718 of the Crim- inal Code. It relies on R. v. Foianesi, 2011 MBCA 33, 277 C.C.C. (3d) 366 (Man. C.A.) (at para. 10) for the proposition that a discharge is not available when the primary sentencing consideration is general deterrence, and on R. v. Boyko, 2003 SKQB 139, 231 Sask. R. 57 (Sask. Q.B.) (at para. 9) for the proposition that while the need for specific deterrence does not preclude a discharge, it is a key consideration. It takes the position that specific deterrence is very much at issue in this case, as Mr. Omene has not acknowledged his guilt, taken responsibility or expressed remorse. Indeed, the Crown suggests that a discharge is not in Mr. Omene’s best interests, as he needs rehabilitation. 18 Further, the Crown submits - relying on R. v. Bennett, [2006] A.J. No. 540 (Alta. Prov. Ct.), R. v. E. (D.), 2000 ABQB 786, 273 A.R. 368 (Alta. Q.B.) and R. v. Glover, 2002 ABQB 576, 318 A.R. 370 (Alta. Q.B.) — that the accused was in a position of trust within the meaning of s. 718.2(a)(iii) of the Criminal Code, which provides as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, ... 19 It says that a conditional discharge should never be granted where the offence involves the abuse of a position of trust in relation to the victim. 20 With respect, I do not agree that the court’s discretion is limited to the extent suggested by the Crown. Section 730(1) requires that two condi- 332 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th) tions be met before a discharge is granted: the discharge must be in the best interests of the accused, and not contrary to the public interest. These conditions are described in the leading decision of the British Co- lumbia Court of Appeal in R. v. Fallofield, [1973] 6 W.W.R. 472, 13 C.C.C. (2d) 450 (B.C. C.A.) as “conditions precedent” to the exercise of the court’s jurisdiction. In that case, the court outlined the following principles in relation to s. 662.1 of the Criminal Code (a predecessor section which was, for these purposes, identical to s. 730(1)) at p. 476: From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course, to what I have said above as to the exercise of discretion. (1) The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. (2) The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation. (3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. (4) The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest. (5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. (6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. (7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence. R. v. Omene B.A. Barrington-Foote J. 333

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. [Emphasis in Original] 21 In R. v. Roberts, 2004 SKCA 153, 254 Sask. R. 174 (Sask. C.A.), the court adopts essentially the same approach as Fallofield, including the emphasis on general deterrence when considering the public interest. As the court there comments: [8] In R. v. Elsharawy(M.) (1997), 156 Nfld. & P.E.I.R. 297, 483 A.P.R. 297, 119 C.C.C. (3d) 565 (Nfld. C.A.), at pp. 566-67 [C.C.C.], the Court of Appeal for Newfoundland commented as follows on the prerequisites to a valid discharge: [3] For the Court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the Court must consider that that type of disposition is: (i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public atti- tudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.), and R. v. Waters (1990), 54 C.C.C. (3d) 40 (Sask. Q.B.). 22 The above list of considerations from Fallofield was also cited by Vancise J., as he then was, in R. v. Anderson, [1982] S.J. No. 577 (Sask. Q.B.). In that case, the court also cited the following passage from R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53, [1973] O.J. No. 1903 (Ont. C.A.) with approval at pps. 58-59: ...The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, 334 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence — a standard part of the criteria for sentencing. 23 These cases confirm that a discharge is available for any offence, except those specifically excepted by s. 730. That is not to suggest that discharges should be granted lightly. As noted by Vancise J.A. in R. v. Sorenson (1994), 116 Sask. R. 223, [1994] S.J. No. 24 (Sask. C.A.): [4] ... although such orders should be made sparingly, they should not be reserved exclusively for trivial or unintentional offences. See: R. v. Bram (1982), 30 C.R. (3d) 398 (Alta C.A.); R. v. Fallofield (1973), 22 C.R.N.S. 342 (B.C.C.A.). 24 There is, in particular, no rule that discharges are not an option if the offence involves the abuse of a position of trust or authority in relation to the victim within the meaning of s. 718.2(a)(iii). I note, by way of example, the following decisions: • In R. v. Kalonji (2009), 2010 ONCA 111, [2010] O.J. No. 551 (Ont. C.A.) the court refused the Crown’s appeal of a conditional sentence for fraud over $5,000 involving the offender’s employer. The fight was perpetrated over a period of many months, and involved planned and sophisticated conduct. The offender was a first time offender with a strong record of community service and enjoy the support of his family and community. The trial judge also took account of the offender’s wish to enroll in medical school. • In R. v. Edmunds, 2012 NLCA 26, 322 Nfld. & P.E.I.R. 337 (N.L. C.A.), the court dismissed an appeal against the conditional discharge of a corrections officer who was convicted of stealing from two individuals in the lockup. The offender pled guilty, and suffered from mental illness which was connected to the offences. • In R. v. Sellars, 2013 NSCA 129, [2013] N.S.J. No. 597 (N.S. C.A.) the court granted a conditional discharge to an offender who used her password to fraudulently obtain monies from her employer’s health care plan for her abusive partner. As in Edmunds, supra, the offender had a history of mental illness that contributed to her involvement in the offence. R. v. Omene B.A. Barrington-Foote J. 335

• In R. v. McIntosh, 2012 ONCJ 216, [2012] O.J. No. 1772 (Ont. C.J.) the court granted a conditional discharge to an offender who stole between 12 and 32 blackberry phones from his employer, Research In Motion, during a seven month period. The offender had no prior record, a history of substance abuse and was terminated from his employment. He was under stress at the time of the offences due to his recent bankruptcy and stress from his mother’s illness. The court found the offences were completely out of character. • In R. v. Howard, [2013] O.J. No. 3843 (Ont. C.J.), the court granted a conditional discharge to the principal of an elementary school who misappropriated $29,448 donated by parents. He did not use the funds for his personal benefit, but for unauthorized purchases connected with the school. There was a joint recommendation for a conditional discharge. 25 These cases demonstrate that courts in other provinces have been prepared to grant discharge when there is theft or fraud involving a breach of trust. That is so despite the fact that many courts have repeatedly confirmed that an abuse of a position of trust is a serious aggravating factor, and calls for an increased sentence: see, for example, R. v. Sereke, 2013 ABCA 67, 544 A.R. 110 (Alta. C.A.), R. v. Harding, 2006 SKCA 118, 213 C.C.C. (3d) 543 (Sask. C.A.), at paras. 20-21, and R. v. Bethke, 2013 SKCA 135, [2013] S.J. No. 742 (Sask. C.A.). Indeed, large scale thefts involving a breach of trust generally call for incarceration in the absence of exceptional circumstances. 26 A fit sentence, however, always depends on the facts. Not all breaches of trust are equal. Where the abuse of trust or authority involves theft, the court must consider factors such as the nature of the relationship giving rise to the trust or authority, and the nature and extent of the abuse, including how much was stolen, and over what period of time, and for what reasons. The fundamental principle of sentencing in s. 718.1 of the Criminal Code — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender — always applies. 27 As is noted above, general deterrence is of particular importance in determining whether a discharge is contrary to the public interest. How- ever, just as there is no rule that a discharge cannot be granted where the offence involves a breach of trust, there is no rule that a discharge cannot be granted where there is a need for general deterrence or denunciation. 336 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

In R. v. Meneses (1974), 25 C.C.C. (2d) 115, [1974] O.J. No. 736 (Ont. C.A.) the Ontario Court of Appeal granted a conditional discharge to a 41-year-old widow who supported five children, who had no prior criminal record and who may have been prevented from returning to her profession as a dentist by a conviction for shoplifting. Dubin J.A. there confirms that the public interest includes more than general deterrence, and that the court must consider the circumstances of the offence and the accused when considering a discharge, just as it does when considering other sentencing options. Further, deterrence may be served despite the absence of a conviction. As he notes at pps. 116 - 117: There is no doubt that the offence of shoplifting is a prevalent one, and many Courts have stressed that a sentence for this offence should be such as would be a deterrent to others. However, each case must be considered on its own facts, having regard to the particulars of the offence and of the accused. General principles of punishment must always be pliable enough to accommodate a careful consideration of the effect of punishment on the individual. In this case, we think the paramount considerations are that the appellant is a widow with children, that she has had a good standing in the community, that she has no criminal record, that her misconduct was an isolated one and out of keeping with her past good character, and a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise. ... Consonant with that purpose, we are all of the opinion that having regard to the facts of this case it is appropriate for the Court to have resort to this section of the Criminal Code which provides for an absolute or conditional discharge. The section sets forth the test against which the facts must be measured before resort is taken to it. The offence is one for which a discharge may be imposed. It is certainly in the interests of the accused and, in our opinion, it is in the interest of the public as well, and thus not contrary to the public interest. It is in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family. The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective R. v. Omene B.A. Barrington-Foote J. 337

deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge. 28 I agree with this broader view of the public interest, which is also reflected in R. v. Z. (R.R.), 2008 SKQB 313, 319 Sask. R. 213 (Sask. Q.B.) at para. 57, Boyko, supra, at para. 11, and in the following com- ment by Y.G.K. Wilkinson J.A., as she then was, in R. v. Montgrand, 2008 SKCA 50, 310 Sask. R. 41 (Sask. C.A.): [7] If the “best interests” condition is met, the Court must turn to consider whether granting a discharge would be “contrary to the public interest”. As noted in R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (Ont. C.A.), the public interest aspect requires that attention be given to the need for general deterrence of like-minded offenders, the seriousness of the offence, the risk that the individual may re-offend, and the cultivation of a sense of responsibility in the offender. 29 There is, also, no rule that a conditional discharge cannot be granted where there is a need for specific deterrence or rehabilitation. In my view, the better approach to considering these sentencing objectives — which are relevant in deciding whether a discharge is in the offender’s interests — is demonstrated by R. v. Sanchez-Pino, supra where the court asks whether the need for deterrence and rehabilitation can be achieved through a probation order. That question reflects the fact that interests of the offender, and in particular, what might be required to meet these sentencing goals, depend on the particular circumstances of that offender. One size does not fit all, and for that reason, specific deterrence does not always require a criminal record. On a similar note, Y.G.K. Wilkinson J.A., in R. v. Montgrand, supra, describes the enquiry into the offender’s best interests as follows: [5] On the aspect of an offender’s “best interests”, it is generally necessary to demonstrate that a conviction will have significant repercussions in respect of employment, employability, or career aspirations outside the ordinary consequences of a criminal conviction. Further, if the circumstances indicate a need for specific deterrence, rehabilitation or treatment of the offender, an absolute discharge may not be appropriate.

Law: Collateral Immigration Consequences 30 On this appeal, the issue as to the availability of a discharge arises as a result of the collateral immigration consequences to Mr. Omene. The 338 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th) correct approach to the consideration of those collateral consequences was recently considered by the Supreme Court of Canada in R. v. Pham, supra. In that case, Wagner J. first outlines the principled foundation for the consideration of collateral consequences in the course of sentencing, as follows: 1. Section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the responsibility of the offender. Proportionality is closely tied to denunciation, and promotes justice for victims and public confidence in the justice system. It accordingly serves a limiting or restraining function that ensures justice for the offender, and that a sentence does not ex- ceed what is appropriate given the moral blameworthiness of the offender. (paras. 6-7) 2. The sentencing process is also informed by the principle of parity and the correctional imperative of sentence individualization. The parity principle requires that similar sentences be imposed for similar offences committed by similar offenders in similar circumstances. If the personal circumstances of offenders differ, different sentences will be justified. (para. 9) 3. The sentencing judge must take account of aggravating and mitigating circumstances, as well as objective and subjective factors related to the offender’s personal circumstances. (para. 8) 4. A sentence must be consistent with the fundamental purpose of sentencing described in s. 718 of the Criminal Code, which is to contribute to respect for the law and maintenance of a just, peace- ful and safe society by the imposition of just sanctions which reflect one or more of the sentencing objectives specified in s. 718. (para. 10) 5. The collateral consequences of a sentence are any impacts of the sentence on the particular offender. Those consequences should be taken into account as the offender’s personal circumstances. They are relevant due to the principles of individualization and parity, and may also be relevant to rehabilitation. In some cases, the sentence which better contributes to rehabilitation will be more suita- ble. (para. 11) 6. The weight to be given to collateral consequences depends on the facts of the particular case. The relevant facts include the type and seriousness of the offence, and may include the extent to which R. v. Omene B.A. Barrington-Foote J. 339

the collateral consequences will affect the ability of the offender to be effectively reintegrated into the community. (paras. 12-13) 31 Wagner J. then specifically comments on the application of these principles to the consideration of collateral immigration consequences, as follows: 15 The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will. 16 These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreo- ver, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk. ... 18 It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate. 19 I adopt the position asserted by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 156 and 158: ... the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender ... 32 Pham was applied in R. v. Lu, 2013 ONCA 324, [2013] O.J. No. 2222 (Ont. C.A.) where the court refused an appeal by a foreign national who was inadmissible to Canada because she had been convicted of an offence punishable by indictment. The offence was obstructing a police officer, the appellant having denied knowledge of a motor vehicle accident 340 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

which resulted in the death of a pedestrian despite having been a passenger in the car. The appellant, who had no prior criminal record, eventually turned herself in and pled guilty. The court found that the court below considered the relevant sentencing principles and that was open to the sentencing judge to conclude that a discharge was not a fit sentence and would be contrary to the public interest. 33 This decision, while distinguishable on the facts, demonstrates the discretion vested in the trial judge when faced with collateral immigration consequences. As noted by Wagner J. in Pham: 20 ... the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years’ imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances. 34 It may, in other words, be appropriate to refuse to vary a sentence despite the fact that such consequences may, in a case such as Mr. Omene’s, result in a sentence which appears to offend the principles of parity and proportionality, and which makes it practically impossible to reintegrate the offender into society. The loss of the right to continue residing in Canada, particularly if the offender has built a life in this country, is a very significant impact indeed. However, and as noted by Wagner J., such collateral immigration consequences should not be permitted to dominate the sentencing process or to circumvent the IRPA. 35 I have also considered the other cases cited by counsel, including in particular R. v. Bandesha, 2013 ABCA 255, 556 A.R. 1 (Alta. C.A.), and R. v. Nistor, 2009 SKQB 464, 347 Sask. R. 36 (Sask. Q.B.). Both of those cases are distinguishable on their facts. 36 Finally, counsel did not provide the court with any case law as to the appropriate sentence in this case, leaving aside the collateral immigration consequences. However, the Crown advised the court that it considered the sentence levied by the learned trial judge to be appropriate, while counsel for Mr. Omene took no issue with that sentence. Indeed, he suggested that if the court saw fit to impose a conditional discharge, it may wish to consider imposing additional conditions. R. v. Omene B.A. Barrington-Foote J. 341

Analysis 37 There is, first of all, no doubt but that the sentence imposed by the learned trial judge was, leaving aside for the moment the potential impact of the collateral immigration consequences, a fit and appropriate sentence. As the Crown notes, the only mitigating circumstance in this case is that Mr. Omene has no prior criminal record. Mr. Omene concocted a story which was rejected by the trial judge. He has not acknowledged his crimes, and there is no evidence that explains why he committed these offences — such as evidence of financial pressure or an addiction — which bears on personal responsibility. The fact that he has now paid restitution is not a mitigating circumstance, as it was pursuant to the sentence. 38 There were, on the other hand, aggravating circumstances. This was not a single offence, committed in the heat of the moment. I agree with the Crown’s submission that this was a planned and deliberate misuse by Mr. Omene of his position as a bouncer which constituted an abuse of a position of trust or authority within the meaning of s. 718(a)(iii) of the Criminal Code. He was the head bouncer. As such, he had a degree of authority not only in relation to the victims, but in relation to his work- place and certain of his coworkers. He used that authority to get his hands on his victims’ money. Although there is no evidence that his coworkers were party to his scheme, he also used them to his advantage. That said, I must also keep in mind that the amount stolen was relatively small, and that the offences occurred over a period of only two days. 39 Further, I must respectfully disagree with defence counsel’s suggestion that these offences are comparable for purposes of sentencing to shoplifting, or that the court should consider theft as one of the least serious crimes in the Criminal Code. Theft covers a wide variety of crimes, some of which are very serious indeed. Although Mr. Omene did not use or threaten force, he did misuse his authority. His victims believed that he had the right to demand that they hand over their wallets or the contents of their pockets. When challenged, he became aggressive with one of his victims, accusing him of racism and ejecting him from the nightclub. All of his victims were prevented from reentering the nightclub. 40 There are, notwithstanding these aggravating circumstances, factors that weigh in favour of Mr. Omene. This is Mr. Omene’s first offence. He has been a productive member of his community in all respects since arriving in Canada. He has attended university, consistently supported himself and contributed to the support of his children. He has also acted 342 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

as a volunteer and as a mentor to other students arriving from Nigeria. The evidence supports the conclusion that he is otherwise a person of good character, and that these offences were out of character. 41 Mr. Omene recently lost his job due to a reorganization by his employer. He has been unsuccessful in obtaining new employment. His ability to obtain employment — and thus to continue his education, support himself and contribute to the support of his children - has already been and will continue to be negatively impacted if he has a criminal record. Although there was no evidence on point, it is also reasonable to infer that his plans to continue his education and to advance his career, as well as his ability to contribute to the support of his children, will be seriously disrupted if he is deported. Mr. Omene’s counsel notes that deportation will prevent from maintaining his relationship with his children. 42 On these facts, I agree with the Crown that the sentencing objectives that must be taken into account include general deterrence, denunciation and promoting a sense of responsibility in Mr. Omene. Based on Mr. Omene’s history and demonstrated character, specific deterrence is of limited significance. I also agree with the submission by counsel for Mr. Omene that the court should consider rehabilitation and the effect of a suspended sentence on Mr. Omene’s ability to reintegrate into society. A suspended sentence may prevent Mr. Omene from staying in Canada at all, which would seriously disrupt his education, employment prospects and relationship with his children. The question is whether a conditional discharge, combined with a probation order, better meets these sentencing objectives in relation to these crimes and this offender, and is proportionate to the gravity of the offence and the degree of Mr. Omene’s responsibility. 43 In my view, the disposition that best meets these objectives is a conditional discharge. Although general deterrence is certainly at issue, I have no evidence or case law to suggest that thefts involving an abuse of trust or authority by those who are bouncers or in similar positions are often committed or present a particular risk in the community. Mr. Omene has, as a result of being charged and tried, already suffered the loss of his employment and damage to his reputation in the community. Further, and as noted by his counsel, Mr. Omene has had to face the stress and anxiety associated with the prospect of deportation without a right of appeal. In the circumstances, I find that the fact that Mr. Omene has been charged, tried, and made subject to a probation order for 15 R. v. Omene B.A. Barrington-Foote J. 343

months serves the sentencing objectives of general deterrence and denunciation. 44 I am, in making this decision, mindful of Wagner J.’s caution that collateral immigration consequences should not dominate the sentencing process or skew the sentence. However, that principle does not mean that a collateral immigration consequences can never tip the balance in favor of a conditional discharge. That is apparent from Wagner J.’s recognition (at para. 18 of his judgment) that a sentence may be varied so as to fall outside the range of sentences that would otherwise be appropriate in order to avoid collateral consequences, but still be fit and appropriate. 45 In my view, a conditional discharge was within the range of available sentences on the facts which were before the learned trial judge. Even if I am incorrect in that conclusion, and a conditional discharge is slightly outside the range that would apply in the absence of these collateral consequences, it is appropriate taking account of those consequences. I would reiterate, in particular, the parity principle and the need for sentencing individualization. As noted Wagner J. in R. v. Pham, supra: 8 In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing... 9 As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing, (8th ed. 2012) at §.2.41). 46 As to the two conditions precedent that must be met before a conditional discharge is granted, there is — notwithstanding the Crown’s argument that Mr. Omene’s need for specific deterrence and rehabilitation would be better met by a conviction — no doubt but that a conditional discharge is in Mr. Omene’s best interests. It will offer him a far better prospect of staying in Canada, re-integrating into the community, and continuing to pursuing his plans and meet his obligations to his children. The objectives of personal deterrence and rehabilitation — taking account, among other things, of Mr. Omene’s history, personal circumstances and lack of a criminal record, which support the conclusion that he is at a low risk to re-offend — are best met by a probation order and discharge, rather than a suspended sentence. 344 IMMIGRATION LAW REPORTER 21 Imm. L.R. (4th)

47 Similarly, a discharge is not contrary to the public interest. The need for general deterrence and denunciation will, for the reasons noted above, be met by a conditional discharge, combined with a 15 month probation order. Further, general deterrence is not the only issue, and for the reasons noted above, is not the dominant consideration in this case. It is difficult to see how the interests of the community would be served by a sentence which may well result in the deportation of a long term resident who has otherwise been and has the demonstrated potential to continue to be a positive and productive member of his community, taking due account of the nature of the offence and his low risk to re-offend.

Conclusion 48 I accordingly grant Mr. Omene’s appeal, and substitute a conditional discharge, with a 15 month probation order on the terms imposed by the trial judge. Appeal allowed.