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

IMMIGRATION LAW REPORTER Third Series/Troisi`eme s´erie Recueil de jurisprudence en droit de l’immigration

VOLUME 93 (Cited 93 Imm. L.R. (3d))

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

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

CARSWELL EDITORIAL STAFF/REDACTION´ DE CARSWELL Jeffrey D. Mitchell, B.A., M.A. Director, Information Management and Manufacturing Directeur, service d’édition et de production Graham B. Peddie, LL.B. Product Development Manager Sharon Yale, LL.B., M.A. Julia Fischer, B.A.(HON.), LL.B. Supervisor, Legal Writing Acting Supervisor, Legal Writing Peter Bondy, B.A.(HON.), LL.B. Heather Stone, B.A., LL.B. Lead Legal Writer Lead Legal Writer Sharon Yale, LL.B., M.A Peggy Gibbons, B.A.(HON.), LL.B. Lead Legal Writer Senior Legal Writer Molly Grindley, B.SC. (HON.), LL.B., LL.M. Stephanie Hanna, B.A., M.A., LL.B. Senior Legal Writer Senior Legal Writer Amanda Stewart, B.A.(HON.), LL.B. Katherine Chin Quee, B.COMM, J.D., Senior Legal Writer LL.M Legal Writer Martin-Fran¸cois Parent, LL.B., LL.M., DEA (PARIS II) Bilingual Legal Writer Erin McIntosh, B.A.(HON.) Content Editor IMMIGRATION LAW REPORTER, a national series of topical law reports, Recueil de jurisprudence en droit de l’immigration, une série nationale de is published twelve times per year. Subscription rate $361 per bound volume recueils de jurisprudence spécialisée, est publié 12 fois par anneé. including parts. Indexed: Carswell’s Index to Canadian Legal Literature. L’abonnement est de 361 $ par volume relié incluant les fascicules. Indexa- tion : Index a` la documentation juridique au Canada de Carswell.

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

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

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

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

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

ISSN 0835-3808 ISBN 978-0-7798-0883-0 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email Sapru v. Canada 167

[Indexed as: Sapru v. Canada (Minister of Citizenship & Immigration)] Vithal Sapru; Amita Sapru Radika Sapru; Rishi Sapru, Appellants and The Minister of Citizenship and Immigration, Respondent Federal Court of Appeal Eleanor R. Dawson, Carolyn Layden-Stevenson, David Stratas JJ.A. Heard: December 14, 2010 Judgment: February 1, 2011 Docket: A-115-10, 2011 FCA 35 Cecil Rotenberg, Q.C., Mario Bellissimo, for Appellants Lorne McClenaghan, for Respondent Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Reasons of medical examiner — Applicant’s child was developmentally delayed and required special education and therapy — Immigration officer rejected permanent resident application on ground that child’s health condition might reasonably be expected to cause excessive demand on social services — Child’s mother was doctor and took issue with seriousness of condition set out in fairness letter and what she characterized as non-individualized assessment — Applicant unsuccessfully applied for judicial review — Federal judge found that medical officer’s failure to provide sufficient reasons for decision was saved by detailed reasons of immigration officer — Applicant appealed — Appeal allowed — Regarding first question, judge was correct for reasons he gave; medical officer is not obligated to seek out information about applicant’s ability to mitigate excessive demands on social services — Second question asked if medical officer is under duty to provide adequate reasons for finding that person is inadmissible on health grounds — When assessing whether applicant’s health condition might reasonably be expected to cause excessive demand, medical officer must provide sufficient information to allow immigration officer to be satisfied that opinion is reasonable — Federal judge erred in concluding that inadequacies of medical officer’s reasons were overcome by reasons of immigration officer — Immigration officer was under obligation to assess reasonableness of medical officer’s opinion and no meaningful assessment could be performed on basis of inadequate reasons of medical officer — Immigration officers were not independent of medical opinion, and without proper medical opinion it was premature for immigration officer to assess adequacy of applicant’s plan. Cases considered by Eleanor R. Dawson J.A.: Ahir v. Canada (Minister of Employment & Immigration) (1983), 1983 CarswellNat 73F, 49 N.R. 185, 2 D.L.R. (4th) 163, [1984] 1 F.C. 1098, 1983 CarswellNat 73 (Fed. C.A.) — followed Bola v. Canada (Minister of Employment & Immigration) (1990), 1990 CarswellNat 37, 11 Imm. L.R. (2d) 14, 107 N.R. 311, [1990] F.C.J. No. 441 (Fed. C.A.) — followed Colaco v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 2909, 2007 FCA 282, 64 Imm. L.R. (3d) 161, 370 N.R. 333, 2007 CAF 282, 2007 CarswellNat 5526, [2007] F.C.J. No. 1172 (F.C.A.) — considered 168 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Deol v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 1, 145 N.R. 156, 1992 CarswellNat 67, [1992] F.C.J. No. 1072 (Fed. C.A.) — followed Gao v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 59, 18 Imm. L.R. (2d) 306, 61 F.T.R. 65, 14 Admin. L.R. (2d) 233, [1993] F.C.J. No. 114 (Fed. T.D.) — referred to Hilewitz v. Canada (Minister of Citizenship & Immigration) (2005), 50 Imm. L.R. (3d) 40, 2005 SCC 57, 2005 CarswellNat 3234, 2005 CarswellNat 3235, 340 N.R. 102, 259 D.L.R. (4th) 244, 33 Admin. L.R. (4th) 1, [2005] 2 S.C.R. 706, [2005] S.C.J. No. 58 (S.C.C.) — considered Hiramen v. Canada (Minister of Employment & Immigration) (1986), 1986 CarswellNat 842, 65 N.R. 67 (Fed. C.A.) — followed Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CAF 255, 2008 CarswellNat 5505, 82 Admin. L.R. (4th) 243, 2008 FCA 255, 2008 CarswellNat 3231, 297 D.L.R. (4th) 651, [2009] 2 F.C.R. 576, 382 N.R. 2 (F.C.A.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — followed Telfer v. Canada (Revenue Agency) (2009), [2009] D.T.C. 5046, 2009 CarswellNat 655, (sub nom. CRA v. Telfer) 2009 D.T.C. 5046 (Eng.), [2009] 4 C.T.C. 123, 386 N.R. 212, 2009 CarswellNat 5698, 2009 CAF 23, 2009 FCA 23, [2009] F.C.J. No. 71 (F.C.A.) — followed Statutes considered: Immigration Act, R.S.C. 1985, c. I-2 Generally — referred to s. 19(1)(a)(ii) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 38(1)(c) — pursuant to s. 42 — considered Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 22 — referred to Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 1(1) “excessive demand” — considered s. 1(1) “fardeau excessif” — considered s. 20 — considered s. 30(1)(a) — considered s. 30(4) — considered Sapru v. Canada Eleanor R. Dawson J.A. 169

s. 34 — considered

APPEAL by applicant from judgment, reported at Sapru v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 240, 2010 CarswellNat 2131, 2010 FC 240, 2010 CarswellNat 455, 364 F.T.R. 273 (Eng.), [2010] F.C.J. No. 270 (F.C.), dismissing application for judicial review of immigration officer’s decision finding applicant inadmissible on health grounds.

Eleanor R. Dawson J.A.:

1 This appeal raises important questions concerning the responsibility of a medical officer when considering medical admissibility under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“Act”) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (“Regulations”). Specifically, in considering an applicant’s ability and intent to mitigate excessive demand on social services, what inquiries must a medical officer make and when? Thereaf- ter, must a medical officer provide an immigration officer with adequate reasons for the medical officer’s opinion that a foreign national’s health condition might reasonably be expected to cause excessive demand on social services in Canada? 2 The questions arise on an appeal from a decision of the Federal Court: 2010 FC 240 (F.C.). The Judge of the Federal Court certified as serious questions of general importance the following two questions: a. When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Of- ficer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Of- ficer to provide a Fairness Letter and rely on the applicants’ response to that letter? b. Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer’s duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?

1. Factual Background 3 Mr. Vithal Sapru, an engineer by profession, applied for status as a permanent resident in Canada as a member of the Skilled Worker class. Included in his application were his wife Amita, a pediatrician, and their children Radika and Rishi. Mr. Sapru and his family members were each required to submit to a medical examination. 4 A medical officer reviewed the results of the medical examinations. She completed a Medical Notification (IMM 5365) in which she diagnosed Rishi as suffering from an intellectual disability. Based on her review of the results of the 170 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

medical examination and all the reports she had received, the medical officer concluded that Rishi “has a health condition that might reasonably be expected to cause excessive demand on social services” in Canada. More particularly, the officer wrote: This 8 year old applicant, born Oct 18, 2001, has Developmental Delay. He has psychomotor delay and delay in speech development secondary to per- inatal hypoxia. His MRI shows reduction in the volume of white matter with delayed myelination. His mental Age on the Binet-Simon-Indian adaptation, is 4 years with an Intelligence Quotient of 60-65. He is currently dependent on his family for most of the activities of daily living and is delayed in most adaptive skills. The consultant states that Rishi is a special child who will require special care and special education. In the Canadian context this applicant and his family would require a comprehensive assessment and review by a multi-disciplinary developmental team to establish and then implement an appropriate intervention program to deal with his medical issues and address his adaptive skills deficiencies. He, and his supporting family, as appropriate, will likely require a variety of social services, in particular, special education until the age of 21 years, speech therapy, and other services promoting relative independence that focus on acquisition of basic living skills and autonomy to the greatest degree possible. Training and support will likely be needed for communication, self care, functional academics, home living, social and community skills and health and safety. Those services will also include access to a spectrum of supervised settings, parent/family relief programs and respite care for care givers. His requirement for the above mentioned multi-disciplinary services and for special education extending through his teenage years is costly. Based upon my review of the results of this medical examination and all the reports I have received with respect to the applicant’s health condition, I conclude that he has a health condition that might reasonably be expected to cause excessive demand on social services. Specifically, this health condition might reasonably be expected to require services, the costs of which would likely exceed the average Canadian per capita costs over 5 years. The applicant is therefore inadmissible under Section 38(1)(c) of the Immigration and Refugee Protection Act. 5 The medical officer went on to provide a detailed list of the social services she believed would be required by Rishi and their costs. 6 In reaching this opinion, the medical officer did not conduct an individualized assessment of Rishi’s likely demand for social services (as opposed to his eligibility for such services). This individualized assessment of likely demand was mandated by the Supreme Court of Canada in Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 (S.C.C.). The medical officer did not conduct the required individualized assessment because, until the decision of this Court in Colaco v. Canada (Minister of Citizenship & Immigration), 2007 FCA 282 (F.C.A.), Citizenship and Immigration Canada Sapru v. Canada Eleanor R. Dawson J.A. 171

took the view that Hilewitz did not apply to applications for permanent residence made in the Skilled Worker class. See: Citizenship and Immigration Canada, Operational Bulletin 063. 7 After a designated immigration officer (immigration officer) received the Medical Notification, he wrote to Mr. Sapru advising of the concern that Rishi was a person whose health condition might reasonably be expected to cause excessive demand on health or social services in Canada (Fairness Letter). The Fairness Letter repeated verbatim from the Medical Notification the diagnosis and particulars of the medical condition that Rishi was said to suffer from and the social services he was said to require. The Fairness Letter invited Mr. Sapru to submit additional information that addressed any or all of the following items: • the medical condition identified in the Fairness Letter • the social services likely to be required in Canada as identified in the Fairness Letter • the family’s individualized plan to ensure that no excessive demand would be imposed on Canadian social services for a five-year period accompanied by a signed “Declaration of Ability and Intent” form. 8 The Fairness Letter instructed that: In order to demonstrate that your family member will not place an excessive demand on social services, if permitted to immigrate to Canada, you must establish to the satisfaction of the assessing officer that you have a reasonable and workable plan, along with the financial means and intent to implement this plan, in order to offset the excessive demand that you would otherwise impose on social services, after immigration to Canada. 9 A response (Fairness Response) was provided to the Fairness Letter. Dr. Sapru, Rishi’s mother, acknowledged that her son was “developmentally delayed” but, based on “the two letters which I enclose herewith and which represent the advice you were given as to his general state” she took issue with the seriousness of the condition. 10 Dr. Sapru also took issue with the level of social services it was said Rishi would require in Canada and with what she characterized as the “generic” non- individualized assessment. She advised that in Canada Rishi would be sent to a private school at the family’s expense and that she would also home school him because she would be unable to pursue her profession in Canada. An indemnity agreement signed by Mr. Sapru, his wife, and also Mr. Sapru’s brother and sis- ter-in-law who reside in Ontario was provided. This agreement purported to in- demnify the Ontario Ministers of Education and Health for a period of five years in the event Rishi went to public school or sought physiotherapy services paid for by the Province of Ontario. No completed “Declaration of Ability and In- tent” form was provided. 172 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

11 As well, Mr. Sapru’s brother-in-law in Canada provided an affidavit in which he swore, among other things, that he would provide the use of a home in Ontario to his brother and his family upon their arrival in Canada. 12 The Fairness Response was sent to the medical officer for review and consideration. A Procedural Fairness assessment was then completed by the medical officer and sent to the immigration officer. In the Procedural Fairness assessment the medical officer listed the additional documents she had reviewed in the Fairness Response. She then wrote: I have reviewed our medical file for the above-named Foreign National along with the additional material listed above and it is my opinion that no information has been provided which would indicate that the original immigration medical assessment was incorrect. Therefore there is insufficient evidence to support a change or re-evaluation of this Foreign National’s medical assessment at this time. Hence remains M5. 13 The tribunal record contains no letter, note, e-mail or other writing that explains how the medical officer analysed the information provided in the Fairness Response or her basis for concluding that the Fairness Response contained no information that would lead the medical officer to the view that her original assessment was incorrect. 14 By letter dated June 11, 2009 (Decision Letter), the immigration officer advised Mr. Sapru that he did not meet the requirements for permanent residence in Canada because Rishi was inadmissible on health grounds. In the Decision Letter the immigration officer repeated verbatim the information concerning the diagnosis and condition as described in both the Medical Notification and the Fairness Letter. He then wrote: By letter dated December 9, 2008 you were advised that you may submit additional information relating to this medical condition or diagnosis. Addi- tional information and documents provided by you were forwarded to our medical officer. After review, the medical officer concluded that there are no changes in the medical assessments and confirmed the finding of inadmissibility. I am satisfied that the medical officer’s opinion about your family member’s (Rishi Sapru) inadmissibility on health grounds is reasonable. Accordingly, your accompanying family member, Rishi Sapru, is inadmissible pursuant to section 38(1)(c) in that your accompanying family member’s condition might reasonably be expected to cause excessive demand on health or social services. [emphasis added] 15 The Computer Assisted Immigration Processing System (CAIPS) notes show the immigration officer’s acceptance of the opinion of the medical officer that Rishi remained inadmissible on health grounds. 16 The CAIPS notes also record the immigration officer’s concerns that Mr. Sapru had not provided a credible plan for offsetting the excessive demand Rishi Sapru v. Canada Eleanor R. Dawson J.A. 173

would place on social services. For example, the immigration officer was not satisfied that Dr. Sapru would stay at home to care for Rishi (because she had worked continuously since 1992), he found the offer of a family home made by the brother-in-law was not credible, and, because Rishi sees specialists in India, the immigration officer was of the view Rishi would likely continue to see medical specialists in Canada. In his view, the indemnity agreement was not sufficient to establish that Rishi would not impose an excessive demand on Canadian social services.

2. Decision of the Federal Court 17 After setting out the factual background, the decisions of the medical and immigration officers and the issues before the Federal Court, the Judge began his analysis. He began by considering the standard of review. The Judge noted that the applicants alleged that the medical officer had failed to comply with the obligations explained by the Supreme Court in Hilewitz. The Judge found this to be an issue of law which should be reviewed on the standard of correctness. The medical and non-medical conclusions of the officers were to be reviewed on the standard of reasonableness. 18 The Judge went on to reach the following conclusions which are relevant to this appeal: Page: 9 i. It is the obligation of the medical officer to perform a complete analysis of all of the medical and non-medical factors relevant to the issue of excessive demand on social services. The immigration officer must then review the medical officer’s decision to ensure that all relevant factors were considered by a medical officer (paragraphs 23-26). ii. The Judge relied upon an affidavit sworn by the medical officer in the application for judicial review to conclude that the medical officer had considered the non-medical evidence concerning the ability and intent of the family to offset any excessive demand on social services (paragraphs 27-30 and 34). iii. At the time she made her initial assessment the medical officer was not required to make any inquiries into the applicants’ ability and intent to offset any excessive demand. The applicants were in the best position to provide evidence of their ability and intent, and the Fairness Letter gave them a fair opportunity to do so (paragraph 35). iv. The reasons of the medical officer were inadequate because they did not explain how she analysed the Fairness Response or how she reached her decision. However, the inadequacy of the medical officer’s reasons was saved by the detailed reasons of the immigration officer. This was because Operational Bulletin 063 requires the immigration and medical officers to collaborate throughout the decision-making process. This allows the immigration officer to seek clarification from the medical officer at 174 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

any time if concerned about the reasonableness or the completeness of the medical officer’s decision. Further, the reasons of the immigration officer were sufficient to allow the applicants to understand why their application for permanent residence was refused. The applicants received a fair and transparent decision-making process (paragraphs 37-42).

3. Legislative Framework 19 The provision of the Act of most relevance to this appeal is paragraph 38(1)(c) which provides that a foreign national is inadmissible if their health condition “might reasonably be expected to cause excessive demand on health or social services.” Section 42 of the Act extends this inadmissibility to other family members: 42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or (b) they are an accompanying family member of an inadmissible person. 42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants: a) l’interdiction de territoire frappant tout membre de sa famille qui l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas; b) accompagner, pour un membre de sa famille, un interdit de territoire. 20 The Regulations amplify these provisions as follows. First, the term “excessive demand” is defined in subsection 1(1) of the Regulations as follows: “excessive demand” means (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or (b) a demand on health services or social services that would add to ex- isting waiting lists and would increase the rate of mortality and mor- bidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents. « fardeau excessif » Se dit: a) de toute charge pour les services sociaux ou les services de santé dont le coût prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour les services de santé et pour les services sociaux sur une période de cinq années consécutives suivant la plus récente visite médicale exigée par le présent règlement ou, s’il y a lieu de Sapru v. Canada Eleanor R. Dawson J.A. 175

croire que des dépenses importantes devront probablement etreˆ faites après cette période, sur une période d’au plus dix années consécutives; b) de toute charge pour les services sociaux ou les services de santé qui viendrait allonger les listes d’attente actuelles et qui augmenterait le taux de mortalité et de morbidité au Canada vu l’impossibilité d’offrir en temps voulu ces services aux citoyens canadiens ou aux résidents permanents. 21 Next, paragraph 30(1)(a) requires foreign nationals applying for permanent residence and their family members to submit to a medical examination. There- after, subsection 30(4) of the Regulations requires: 30. (4) Every foreign national referred to in subsection (1) who seeks to enter Canada must hold a medical certificate, based on the most recent medical examination to which they were required to submit under that subsection within the previous 12 months, that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand. [emphasis added] 30. (4) L’étranger visé au paragraphe (1) qui cherche a` entrer au Canada doit etreˆ titulaire d’un certificat médical attestant, sur le fondement de la plus récente visite médicale a` laquelle il a et´´ e requis de se soumettre aux termes de ce paragraphe dans les douze mois qui précèdent, que son etat´ de santé ne constitue vraisemblablement pas un danger pour la santé ou la sécurité publiques et, sauf si le paragraphe 38(2) de la Loi s’applique, ne risque pas d’entraˆıner un fardeau excessif. [Non souligné dans l’original.] 22 Section 34 the Regulations then directs the medical officer considering the foreign national’s health condition as follows: 34. Before concluding whether a foreign national’s health condition might reasonably be expected to cause excessive demand, an officer who is assessing the foreign national’s health condition shall consider (a) any reports made by a health practitioner or medical laboratory with respect to the foreign national; and (b) any condition identified by the medical examination. 34. Pour décider si l’état de santé de l’étranger risque d’entraˆıner un fardeau excessif, l’agent tient compte de ce qui suit: a) tout rapport etabli´ par un spécialiste de la santé ou par un laboratoire médical concernant l’étranger; b) toute maladie détectée lors de la visite médicale. 176 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

23 Finally, section 20 the Regulations dictates the following to the immigration officer: 20. An officer shall determine that a foreign national is inadmissible on health grounds if an assessment of their health condition has been made by an officer who is responsible for the application of sections 29 to 34 and the officer concluded that the foreign national’s health condition is likely to be a danger to public health safety or might reasonably be expected to cause excessive demand. 20. L’agent chargé du contrôle conclut a` l’interdiction de territoire de l’étranger pour motifs sanitaires si, a` l’issue d’une evaluation,´ l’agent chargé de l’application des articles 29 a` 34 a conclu que l’état de santé de l’étranger constitue vraisemblablement un danger pour la santé ou la sécurité publiques or public ou risque d’entraˆıner un fardeau excessif.

4. Issues and Analysis a. Standard of Review 24 I agree with the respondent’s submission that on appeal from a decision of the Federal Court on an application for judicial review the standard of appellate review is whether the Judge of the Federal Court selected the appropriate standard of review and then applied it correctly. See: Telfer v. Canada (Revenue Agency), 2009 FCA 23, [2009] 4 C.T.C. 123 (F.C.A.). 25 With respect to the selection of the standard of review by the Judge in this case, at paragraph 16 of his reasons the Judge wrote: In the case at bar, the applicants allege that the Medical Officer failed to comply with her obligations as set down in Hilewitz. That is an issue of law which should be reviewed on a standard of correctness. The applicants also raise issues of procedural fairness which should be reviewed on a correctness standard: Canadian Union of Public Employees v. Ontario (Minister of La- bour), [2003] 1 S.C.R. 539. 26 The first certified question asks whether a medical officer is obliged by the Act and the decision of the Supreme Court in Hilewitz to actively seek relevant information from the outset of the medical officer’s inquiry. In my view, the Judge correctly characterized this as a question of law reviewable on the correctness standard. 27 The second certified question asks whether a medical officer is under a duty to provide adequate reasons. Again, I agree with the Judge that this is a question of what is required by the principles of procedural fairness. No deference is owed by the Court on such questions. See: Sketchley v. Canada (Attorney Gen- eral), 2005 FCA 404 (F.C.A.) at paragraph 53. Sapru v. Canada Eleanor R. Dawson J.A. 177

b. The First Certified Question 28 For ease of reference I repeat the first certified question: When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants’ response to that letter? 29 The appellants submit that a medical officer’s initial assessment must be made with a view to providing the medical certificate. It follows, they submit, that in preparing the initial medical opinion a medical officer must be cognizant of the ultimate goal: to conduct an individualized assessment of the social services an applicant will require, whether those services will cause an excessive demand on social services in Canada, and whether it is possible for the applicant to offset or attenuate any excessive demand by personal contribution. To do so, the appellants say that a medical officer must seek out from the outset as much information as possible in order to make the necessary findings. 30 The Judge dealt with this submission at paragraph 35 of his reasons where he wrote: [...] The applicants are in the best position to provide evidence of their ability and intent, and they are given a fair opportunity to do so in the Fairness Letter. There is no reason that a Medical Officer should have to make an inquiry at an earlier stage, as long as she considers any Fairness Response carefully and with an open mind. 31 In my view the Judge was correct, for the reasons that he gave. I would add one cautionary note. The Judge’s conclusion was premised on the basis that the Fairness Letter gives an applicant “a fair opportunity” to respond to any concerns. This requires the Fairness Letter to set out clearly all of the relevant concerns so that an applicant knows the case to be met and has a true opportunity to meaningfully respond to all of the concerns of the medical officer. 32 It follows that I would answer the first certified question as follows: A medical officer is not obligated to seek out information about the applicants’ ability and intent to mitigate excessive demands on social services from the outset of the inquiry. It is sufficient for the medical officer to provide a Fairness Letter that clearly sets out all of the relevant concerns and provides a true opportunity to meaningfully respond to all of the concerns of the medical officer.

c. The Second Certified Question 33 The second question asks: Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer’s duty to 178 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate? 34 The Judge dealt with this question as follows: 37 The second question is the extent to which the Medical Officer must provide reasons for her decision. The applicants assert that her reasons with respect to the non-medical evidence were inadequate. All she said was that she had considered every document contained in the Fairness Response and found that it did not change her original assessment. 38 I have no hesitation in finding these reasons inadequate. They do not explain how the Medical Officer analysed the Fairness Response or how she reached her conclusions. However, the Visa Officer did provide detailed reasons for finding that the applicants do not have ability and intent. The question is whether this saves the Medical Officer’s reasons. 39 The applicants submit that it does not, for two reasons. First, the Visa Officer must review the Medical Officer’s decision and requires sufficient reasons from the Medical Officer to do so. Second, since the Medical Officer is the actual decision-maker, the applicants require her own reasons in order to understand why their application was refused. 40 With respect to the applicants’ first argument, the Visa Officer is not in the position of a court on an application for judicial review, whose review must focus on the written reasons. According to Operational Bulletin 063, the Visa Officer and the Medical Officer should collaborate throughout the decision-making process. The Visa Officer may seek clarification from the Medical Officer at any time if concerned about the reasonableness or completeness of her decision. Thus, the Visa Officer does not require extensive reasons to review the Medical Officer’s decision. 41 With respect to the applicants’ second argument, it was recognized by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 that reasons can be provided by a person other than the actual decision-maker. According to the Supreme Court at paragraph 44 of Baker, this may be [...] part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, above, when courts evaluate the requirements of the duty of fairness with recognition of the day-today realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. 42 In the circumstances of this case, I am satisfied that the reasons provided by the Visa Officer are sufficient to allow the applicants to understand why their application for permanent residence was refused. The applicants received a fair and transparent decision-making process. This ground of judicial review cannot succeed. Sapru v. Canada Eleanor R. Dawson J.A. 179

[emphasis added] 35 To properly consider the second certified question, I begin by considering the respective roles of immigration officers and medical officers when assessing medical inadmissibility. 36 The Judge, relying upon Hilewitz and subsection 30(4) of the Regulations, concluded that when considering the existence of excessive demand a medical officer must assess the likely demands to be made by an applicant upon social services. The Judge further found that when conducting this assessment the medical officer must take into account both medical and non-medical factors. I agree. To this I would add that the medical officer must provide the immigration officer with a medical opinion about any health condition an applicant has and the likely cost of treating the condition. When an applicant submits a plan for managing the condition, the medical officer must consider and advise the immigration officer about things such as the feasibility and availability of the plan. In every case, what is required of a medical officer will reflect the information before the medical officer. Therefore, this is not intended to be an exhaustive list of what is required of a medical officer in every case. 37 As to the role of the immigration officer, the parties agree that an immigration officer must rely upon the opinion of a medical officer about medical matters, including the medical condition of an applicant, the likely cost of treating the medical condition and whether the applicant’s health might reasonably be expected to cause excessive demand on social services. They also agree that before reliance can be placed on the opinion of a medical officer an immigration officer is required to ensure that the opinion provided by the medical officer is reasonable. 38 In the submission of counsel for the Minister: 35. This Court, in jurisprudence dating back to some seminal decisions from the 1980s and 1990s, confirmed there is a duty of the visa officer to ensure that the medical opinion is reasonable. A medical opinion that is inconsistent to the point of incoherence, or which is expressed in terms of possibility rather than probability will be deficient. See, for example: Ahir v. Canada (Minister of Employment & Immigration) (1983), [1984] 1 F.C. 1098 (Fed. C.A.) Bola v. Canada (Minister of Employment & Immigration) (1990), 107 N.R. 311 (Fed. C.A.) Hiramen v. Canada (M.E.I.) (1986), 65 N.R. 67 (C.A.) Deol v. Canada (Minister of Employment & Immigration) (1992), 145 N.R. 156 (Fed. C.A.) 39 I agree that this principle is well-established in the jurisprudence. For example, in Hilewitz the Supreme Court found, at paragraph 70, that the immigration officers in the two cases before the Court had “erred by confirming the medical officers’ refusal to account for the potential impact of the families’ willingness 180 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

to assist.” While the jurisprudence cited by the parties developed under the now repealed Immigration Act, R.S.C. 1985, c. I-2 (former Act), I am satisfied that the former Act and its associated regulations are sufficiently similar to the current legislative regime to make this case law applicable. I specifically note that just as section 20 of the Regulations requires an immigration officer to find a foreign national to be inadmissible when a medical officer has found that the foreign national’s health condition might reasonably be expected to cause excessive demand, subparagraph 19(1)(a)(ii) of the former Act provided: 19. (1) No person shall be granted admission who is a member of any of the following classes: (a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer, [...] (ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services; [emphasis added] 19. (1) Les personnes suivantes appartiennent a` une catégorie non admissible: a) celles qui souffrent d’une maladie ou d’une invalidité dont la nature, la gravité ou la durée probable sont telles qu’un médecin agréé, dont l’avis est confirmé par au moins un autre médecin agréé, conclut: ... (ii) soit que leur admission entraˆınerait ou risquerait d’entraˆıner un fardeau excessif pour les services sociaux ou de santé; [Non souligné dans l’original.] 40 The jurisprudence developed under the former Act established that a medical officer’s opinion was not reasonable where, for example, a medical officer failed to conduct an individualized assessment as required by Hilewitz, or failed to consider all of the relevant information, or based his or her opinion on insufficient information, or provided an opinion that was incomplete, inconsistent or incoherent. The reasonableness of a medical opinion was to be assessed as at the time it was given and also as at the time it was relied upon by the immigration officer. See, for example, Gao v. Canada (Minister of Employment & Immigra- tion) (1993), 61 F.T.R. 65 (Fed. T.D.). 41 Having reviewed the respective roles of the immigration and medical officers, it follows from the obligation placed on an immigration officer to review the reasonableness of a medical officer’s opinion that a medical officer must provide the immigration officer with sufficient information to enable the immigration officer to be satisfied that the medical officer’s opinion is reasonable. Sapru v. Canada Eleanor R. Dawson J.A. 181

42 The particular circumstances of each case will dictate what is required for the immigration officer to be able to assess the reasonableness of the medical officer’s opinion. For example, admissions by a foreign national contained in the Fairness Response, without more, would likely obviate the need for detailed reasons from the medical officer on that point. Further, a medical officer may impart sufficient information to the immigration officer in a number of ways. For example, a medical officer may provide adequate reasons in a report to the immigration officer. However, adequate reasons could also be provided orally if the immigration officer records the oral advice in the CAIPS notes, or in a combination of written and oral communications where the oral advice is recorded in the CAIPS notes. Thus, a medical officer might transmit his or her notes reflecting the medical officer’s review and assessment of all of the relevant information, or an immigration officer might record in the CAIPS notes the relevant observations and conclusions of a medical officer made during the course of the collaborative process between the officers contemplated by Operational Bulletin 063. In every case, an immigration officer may seek clarification from a medical officer and record the response of the medical officer in the CAIPS notes. The reasons of a medical officer may be conveyed to an immigration officer by a combination of these or other methods. 43 What is important is that at the time the immigration officer makes his or her decision on admissibility, the immigration officer must have sufficient information from the medical officer to allow the immigration officer to be satisfied that the medical officer’s opinion is reasonable. 44 It follows from this that I would answer the second certified question as follows: When assessing whether a foreign national’s health condition might reasonably be expected to cause excessive demand, a medical officer is under a duty to provide sufficient information to an immigration officer to allow the immigration officer to be satisfied that the medical officer’s opinion is reasonable.

d. Application of these principles to the present case 45 The Judge found the reasons of the medical officer to be inadequate. I agree. No challenge is made on this appeal to the Judge’s characterization of the reasons of the medical officer as inadequate. 46 The Judge went on to hold, however, that the inadequacy of the medical officer’s reasons was “saved” by the detailed reasons of the immigration officer. The Judge’s reasons for that conclusion are found in paragraphs 39 to 42 of his reasons, which are quoted above at paragraph 34. 47 For the following reasons I respectfully disagree with the Judge’s conclusion that the inadequacies of the medical officer’s reasons were overcome by the reasons of the immigration officer. 182 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

48 First, the immigration officer was under an obligation to assess the reasonableness of the medical officer’s opinion. No meaningful assessment could be performed on the basis of the inadequate reasons of the medical officer. On the facts of this case it is especially relevant to recall that the immigration officer must be presumed to have known that, pursuant to Citizenship and Immigration Canada policy, the medical officer’s initial assessment which led to the Fairness Letter was not the individualized assessment mandated by Hilewitz. This was underscored in the Fairness Response, where Dr. Sapru complained of the generic nature of the medical officer’s assessment. With knowledge of that defect in the initial assessment it was particularly important for the immigration officer to satisfy himself that the medical officer had performed the requisite individualized assessment. There was nothing before the immigration officer that could reasonably have led him to that conclusion. 49 Second, the Judge relied upon Operational Bulletin 063 which states that “[i]mmigration and medical officers should work closely together during the process [of assessing excessive demand on social services] and document this collaboration.” However, there is no documentation of such a collaborative process in the certified tribunal record in the present case. The sole reference to any communication between the officers is an entry in the CAIPS notes that records a conversation between the two officers prior to receipt of the Fairness Response. 50 Finally, the Judge’s conclusion may well have been influenced by his prior finding that the medical officer “considered the non-medical evidence in this case as she was required to do”. The Judge’s finding was based upon the statement in the medical officer’s reasons that the medical officer had read the Fair- ness Response and also upon the affidavit of the medical officer filed in the application for judicial review. In that affidavit the medical officer stated that she had considered the applicants’ ability and intent to manage Rishi’s needs. 51 As the Judge recognized, the medical officer’s statement in her reasons to the effect that she had read the Fairness Response was insufficient to render her reasons adequate. Little weight can be given to such a generic statement that is silent about what the medical officer did, and whether the principles articulated in Hilewitz were applied. 52 With respect to the affidavit of the medical officer, in my view the Judge’s reliance upon this affidavit was problematic in two respects. First, the information contained in the affidavit was not before the immigration officer when he was assessing the reasonableness of the medical officer’s opinion. It was the duty of the immigration officer to assess the reasonableness of the medical opinion. Second, as candidly acknowledged by counsel for the Minister in oral argument, an affidavit cannot be used to bolster the reasons of a decision-maker on judicial review. In this Court, Justice Pelletier wrote for the majority in Sapru v. Canada Eleanor R. Dawson J.A. 183

Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 255 (F.C.A.): 45 The application judge may have been lead to that conclusion by the nature of the affidavit filed by the Minister’s delegate. While the letter setting out the reasons for the refusal of Mr. Sellathurai’s request deals only with the evidence of the legitimacy of the source of the seized funds, the Minister’s delegate filed an affidavit in which he restated and reviewed the grounds for suspicion identified by the customs officer, and indicated why he believed they remained unanswered. In my view, this form of affidavit is inappropriate and ought not to have been given any weight at all. 46 The judges of the Federal Court have previously stated that a tribunal or a decision-maker cannot improve upon the reasons given to the applicant by means of the affidavit filed in the judicial review proceedings. In Simmonds v. Canada (Minister of National Revenue), 2006 FC 130, 289 F.T.R. 15, Dawson J. wrote at paragraph 22 of her reasons: I observe the transparency in decision-making is not promoted by allowing decision-makers to supplement their reasons after the fact in affidavits. 47 See to the same effect Kalra v. Canada (Minister of Citizenship and Im- migration), 2003 FC 941, 29 Imm. L.R. (3d) 208, at para. 15; Yue v. Canada (Minister of Citizenship and Immigration), 2006 FC 717, [2006] F.C.J. No. 914, at para. 3; bin Abdullah v. Canada (Minister of Citizenship and Immi- gration), 2006 FC 1185, [2006] F.C.J. No. 1482, at para. 13. Any other approach to this issue allows tribunals to remedy a defect in their decision by filing further and better reasons in the form of an affidavit. In those circumstances, an applicant for judicial review is being asked to hit a moving target. [emphasis added] 53 No weight should have been given to the affidavit of the medical officer to the extent the officer sought to explain or bolster her reasons. 54 To conclude on this issue, when considering the inadequacy of the reasons of a medical officer the primary concern is not whether at the end of the day the appellants received adequate reasons. The concern is whether the inadequacy of the reasons prevented the immigration officer from assessing the reasonableness of the medical officer’s opinion. 55 One further issue must be considered. The respondent argued forcefully that on the facts of this case the inadequacy of the medical officer’s reasons was not material because the immigration officer’s reasons were not dependent on the reasons of the medical officer. Specifically, the respondent argued that the appellants acknowledged in the Fairness Response the existence of Rishi’s special needs, but then failed to provide a proper plan for attenuating the demands flow- ing from the special needs. In short, the respondent argued that the immigration officer made his decision based upon non-medical factors because reasons were not provided concerning the medical factors. 184 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

56 Despite Mr. McClenaghan’s articulate submissions, I have not been persuaded that the immigration officer’s reasons were independent of the medical opinion. I begin by noting that in the Decision Letter sent to the appellants, no reference was made to the Fairness Response or to any admission made therein. The contents of the Decision Letter are described at paragraph 14 above. The immigration officer stated in the Decision Letter that he was satisfied that the medical officer’s decision was reasonable. 57 The immigration officer did refer to the Fairness Response in the CAIPS notes when setting out more detailed reasons for his decision. There, he wrote: PI’s spouse, who is a paediatrician, states, in her un-dated letter, that our medical assessment is generic and not individualised. At the same time she states that she does not dispute that Rishi has developmental delay. PI did not provide any medical info which may suggest he has any issues with the medical assessments of the dep. We requested him to provide a declaration of ability and intent. He failed to submit the declaration. I am not satisfied that his supporting plan is credible because of the following reasons: [...] Based on the medical assessments and the info provided by the applicant in response to the procedural fairness letter I am satisfied that the medical officer’s opinion about PI family member’s inadmissibility on health grounds is reasonable. Accordingly, he is inadmissible pursuant to A38(1)(c) in that PI’s above-stated accompanying family member’s condition might reasonably be expected to cause excessive demand on health or social services. [emphasis added] 58 It can be seen from the latter passage that the immigration officer did have regard to the medical assessments. 59 Equally important to the consideration of the immigration officer’s reasons is that in the first paragraph of the CAIPS notes quoted above, the immigration officer erred when he stated that the applicants did not provide any medical information that suggested they had any issue with the medical assessment of Rishi. 60 As explained above, Dr. Sapru, while acknowledging the existence of some developmental delay, did take issue with the medical assessment. She wrote: Your opinion makes it look as if my son’s condition is far more serious than it really is. His actual condition is mild as described from the two letters which I enclose herewith and which represent the advice you were given as to his general state. 61 The two letters referred to appear to be a reference to reports found at pages 640 and 641 of the Appeal Book, Volume II. The first report was prepared by an Epileptologist and Child Neurologist who certified Rishi to have “microcephaly with mild learning difficulty.” He went on to say that Rishi “has gained milestones with a good catchup and goes to normal school and takes part in all activ- Sapru v. Canada Eleanor R. Dawson J.A. 185

ities. He has low normal intelligence and may be able to continue [and] cope with routines of normal school.” The second report was prepared by a “Consult- ant Developmental Paediatrician” together with an “Honorary Professor & Di- rector, Dept. of Pediatrics & Neonatology” at a hospital for children with special needs. In their joint opinion, Rishi has “mild developmental delay, microcephaly and mild concentration issues.” They said that he “is currently going to a main stream school” and felt that with consistent effort he would make good progress. 62 This is to be contrasted with the Medical Notification, which described Rishi’s condition to include being “currently dependent on his family for most of the activities of daily living” and therefore to require special care and special education. The relevant portion of the Medical Notification is found at paragraph 4 above. 63 The issue as to the seriousness of Rishi’s disability was one that the immigration officer was not qualified to decide. It was for the medical officer to assess the totality of the evidence and then give valid reasons for her views as to the seriousness of any disability, what if any special needs would flow from that disability and the likely cost of meeting those needs. The immigration officer’s reasons were not independent of the medical opinion, such as it was. Without a proper medical opinion as to Rishi’s condition and any resultant special needs it was premature for the immigration officer to assess the adequacy of the appellants’ plan.

5. Conclusion and Costs 64 For these reasons, I would allow the appeal and set aside the decision of the Federal Court. Pronouncing the judgment the Federal Court should have given, I would set aside the decision of the immigration officer and remit the matter to another immigration officer to be redetermined on the basis of a valid medical opinion prepared by a different medical officer. I would answer the certified questions as follows: Q. When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Of- ficer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Of- ficer to provide a Fairness Letter and rely on the applicants’ response to that letter? A. A medical officer is not obligated to seek out information about the applicants’ ability and intent to mitigate excessive demands on social services from the outset of the inquiry. It is sufficient for the medical officer to provide a Fairness Letter that clearly sets out all of the relevant concerns and provides a true opportunity to meaningfully respond to all of the concerns of the medical officer. 186 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Q. Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer’s duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate? A. When assessing whether a foreign national’s health condition might reasonably be expected to cause excessive demand, a medical officer is under a duty to provide sufficient information to an immigration officer to allow the immigration officer to be satisfied that the medical officer’s opinion is reasonable. 65 The appellants seek costs, arguing that special reasons exist to justify such an award. However, the appellants did not seek costs in their notice of appeal or in their memorandum of fact and law. While this is a sufficient basis for denying costs, I would add that I see no special reasons for awarding costs. In my view, nothing in the conduct of the respondent merits an award of costs. In the scheme of Rule 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, a mere error on the part of a decision-maker is insufficient to warrant an award of costs. Appeal allowed.

Carolyn Layden-Stevenson J.A.:

I agree.

David Stratas J.A.:

I agree. Sapru : Landmark Decision in Medical Inadmissibility Law 187

Sapru: Landmark Decision in Medical Inadmissibility Law Mario D. Bellissimo

Introduction The recent Federal Court of Appeal decision of Sapru1 provided important clarity in the area of Canadian medical inadmissibility law following the Supreme Court of Canada decision in Hilewitz2 nearly six years earlier. The appeal concerned the administration of the Immigration and Refugee Protection Act (the Act) and the procedures followed by the respondent Ministry in determining whether an applicant’s health condition may cause excessive demand on health and social services in Canada. The issue is whether the procedures in place for making such a determination presently conform to the Supreme Court’s interpretation of the legislation in Hilewitz, which calls for individualized assessments. The questions certified by the learned judge provided the Court with the opportunity to clarify the roles and responsibilities of the medical and immigration officers by affirming that the Supreme Court’s directive to conduct individualized assessments applies to medical officers at the outset of their assessments. Bringing much-needed clarity to the medical officer’s role will ensure that medical officers understand their function, which is to solicit the medical and non- medical evidence necessary to conduct an individualized assessment of whether an applicant’s health condition may cause excessive demand and whether the applicant has the ability and intent to attenuate the excessive demand. This decision assists in bringing the actual administration of the Act into conformity with the requirements set down by the Supreme Court in Hilewitz. The appellants placed squarely before the Court that the immigration officer’s task of determining the reasonableness of the medical officer’s decision is all the more difficult where, as here, the medical officer provided inadequate reasons, which did not demonstrate that the appellant’s evidence was properly considered by the appropriate person. The appellants contended that it was beyond the immigration officer’s expertise and jurisdiction to cure the defects that flow from a medical officer’s failure to discharge her duties under the Act. Accordingly, this issue also provided the Court with the opportunity to clarify the roles and responsibilities of medical and immigration officers in assessing medical inadmissibility.

1Sapru v. Canada (Minister of Citizenship & Immigration), 2011 FCA 35 (F.C.A.), reported ante p. 167. 2Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57 (S.C.C.). 188 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Facts The appellants are a relatively wealthy middle-class family from India. Mr. Sapru is an engineer and his wife is a pediatrician. They have a strong support system in Canada, including an extended family that has agreed to let them stay in one of their homes indefinitely. The family would have become permanent residents in Canada, but for their young son who has a developmental delay. Collectively, the Saprus and their extended family are prepared to offer considerable emotional and financial support in Canada.3 Various medical reports were filed that indicated the child had demonstrated tremendous improvement and that it was difficult to label the child “retarded” but positively a slow learner. The neurologist report similarly stated that the child has a mild learning difficulty and has low normal intelligence but may be able to continue to cope with routines of normal school. The pediatrician indicated that there were no concerns with respect to his speech development aside from some clarity issues.4

The Medical Officer’s Opinion The narrative portion of the medical officer’s notification indicated that the child has a mental age of 4 years old and will require special care and education. The narrative continued to enumerate the myriad of social services the medical officer believed he would require, inclusive of comprehensive assessment and review by a multi-disciplinary developmental team ($2,500–$3,000 for a psychological assessment and $2,000–$2,500 for speech and language support assessment); special education until the age of 21 years ($17,909–$23,142 per year above the funding provided for base instruction); social worker/medical co- ordinator; physiotherapy; pediatric care; audiologist; and a spectrum of supervised services and respite care.5 Based on the medical officer’s assessment, the child was found to have developmental delay that would require a catalogue of services that would be expected to cause excessive demand. The medical officer admitted that, at the time of the initial assessment, pursuant to departmental policy, she did not believe the Su- preme Court decision in Hilewitz applied to her assessment. In other words, the initial assessment was not individualized, but was a categorical exclusion based on the child’s condition. It was, in essence, a statement of the contemplated social services which may be needed by an applicant with a developmental delay

3Sapru v. Canada (Minister of Citizenship & Immigration), 2010 FC 240 (F.C.), at paras. 2–10, 18, 46–49, 54–59. 4Ibid. 5Ibid. Sapru : Landmark Decision in Medical Inadmissibility Law 189 and is based on the premise that an applicant will make use of every eligible service. In short, eligibility, not individualized need, was the guiding principle.6 Stated succinctly, the medical officer did not conduct an individualized assessment and did not consider whether the appellants could attenuate the apparent excessive demand his health condition may place on social services in Canada.

The Fairness Letter The medical evidence remained with the medical officer, who forwarded her opinion to the immigration officer. Upon receipt of the medical opinion, the immigration officer sent out the Excessive Demand Social Services procedural fairness letter (the Fairness Letter). This form letter informed the family that it had been determined that the child is a person who would cause excessive demand on social services. The Sapru family was invited to tender additional information to address the medical condition, the social services required in Can- ada, and an individualized plan to ensure that no excessive demand will be imposed on Canadian social services. Attached to the form was a declaration of ability and intent, which the appellants were invited to sign. The declaration reads: I hereby declare that I will assume responsibility for arranging the provision of the required social services in Canada and that I am including a detailed plan of how these social services will be provided, along with appropriate financial documents that represent a true picture of my financial situation over the entire duration of the required social services.7

The Fairness Response In their response to the Fairness Letter (the Fairness Response) the appellants contested the medical diagnosis as well as the determination that he in fact required certain social services. They provided medical evidence contradicting certain determinations of the medical officer and insisted that a multi-party assessment was not necessary. Dr. Sapru, the child’s mother and a qualified pediatrician, raised reasonable concerns with the medical officer’s final diagnosis. She also chastised the medical officer for assuming that respite care would be needed.8 The Fairness Response also indicated that he was enrolled in private school and that preliminary investigations were done in Canada to find him a suitable

6Ibid. 7Ibid., at paras. 46–49, 52. 8Ibid., at paras. 54, 59. 190 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) school. The appellants also indicated that Dr. Sapru, would be able to provide a number of services and did not intend on working in Canada but was instead committed to providing for her son’s developmental needs. There was also evidence of the Sapru family’s assets to offset costs. Finally, the Fairness Response contained an indemnity agreement indicating the appellants’ willingness to cover the costs of any social services that may be required. This was provided instead of the declaration of ability and intent, which the appellants did not wish to sign because they disagreed with the medical officer’s initial assessment.9

The Medical Officer’s Subsequent Opinion The immigration officer received the response to the Fairness Letter and forwarded the information to the medical officer for consideration. The medical officer concluded as follows: I have reviewed our medical file for the above named Foreign National along with the additional material listed above and it is my opinion that no information has been provided which would indicate that the original immigration medical assessment was incorrect. Therefore there is insufficient evidence to support a change or re-evaluation of this Foreign National’s medical assessment at this time. (M2)10 It was argued by the appellants that the reasons by the immigration officer provided no assuance that the additional evidence was considered beyond the medical officer’s statement that they were. Further, there was no explanation as to why the information tendered by the appellants was insufficient to warrant a change or even a re-evaluation of the initial medical assessment. The medical officer did not even set out the appellants’ submissions before reaching her conclusion. It was submitted that the medical officer, therefore, did not discharge her obligation to provide adequate reasons.11 Justice Mosley concurred and found the medical officer’s reasons to be wholly inadequate. They were, however, “saved”, as it were, by the consideration of the immigration officer.12

9Ibid. 10Ibid. 11Northwestern Utilities Ltd., Re, [1979] 1 S.C.R. 684 (S.C.C.), at p. 706; VIA Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25 (Fed. C.A.), at paras. 21–22. 12Sapru (F.C.), supra, at paras. 38–42. Sapru : Landmark Decision in Medical Inadmissibility Law 191

The Immigration Officer’s Decision The immigration officer was satisfied that the medical officer’s opinion was reasonable and accepted as medical fact that the child would require the social services discussed by the medical officer. He found Dr. Sapru’s assertion that the medical opinion was generic to be unsubstantiated because, in the immigration officer’s opinion, Dr. Sapru provided no medical information to suggest she has any issues with the assessments.13 It was argued by the appellants, accepting the medical opinion as factual and reasonable, the immigration officer went on to perform the medical officer’s job, namely, considering the appellants’ ability and intent to attenuate any excessive demand. Before the Federal Court, Justice Mosley determined that these subsequent reasons, which are contained in the Computer Assisted Immigration Processing System (CAIPS) notes, ostensibly addressed and rectified the inadequacy of the medical officer’s reasons.14 The question that followed was whether the medical opinion can be accepted as fact by the immigration officer, thereby discharged the medical officer’s duty to consider medical and non-medical evidence with respect to excessive demand?

The Decision of Justice Mosley of the Federal Court In light of Hilewitz, Justice Mosley held that it was the medical officer’s obligation to perform a complete analysis of both medical and non-medical evidence in assessing the demand an applicant may place on social services and whether they have the ability and intent to attenuate such demand. According to Justice Mosley, once this is done, the immigration officer must then review the medical officer’s decision to ensure that all relevant factors were considered.15 Justice Mosley further found that the medical officer’s statement that she considered non-medical factors only when evaluating the Fairness Response was sufficient to discharge her duty to perform a complete analysis. However, it does raise the question of whether the medical officer considered Dr. Sapru’s submissions, which directly related to the medical evidence. In other words, it appears as though the medical officer left it to the immigration officer to consider the submissions in the Fairness Response that pertained to her medical conclusions. In any event, Justice Mosley felt that as a matter of practice, where a medical officer considers non-medical evidence as being prima facie authentic, the medical officer takes into account all relevant factors and evidence, as Hilewitz re-

13Ibid., at paras. 46–49. 14Ibid., at paras. 38–42. 15Ibid., at para. 24. 192 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) quires. Two further questions then arose, which would go on to become the two questions certified by the learned judge. The first question relates to the extent to which a medical officer must inquire into an applicant’s ability and intent; the question is whether a medical officer needs to actively seek out this information when making the original assessment. Justice Mosley held that there is no such need, so long as the medical officer considers the Fairness Response carefully and with an open mind. The Court may note, of course, that there was no actual evidence that this was done. The second question relates to the extent to which a medical officer must provide reasons for her decision. Justice Mosley expressed no hesitation in finding the medical officer’s reasons wholly inadequate. However, he was satisfied that the reasons provided by the immigration officer were sufficient to allow the appellants to understand why their application for permanent residence was refused.16 The obvious question, then, posited by the appellants, is how could Jus- tice Mosley, in light of the inadequacy of the medical officer’s reasons, be satisfied that the medical officer carefully considered the Fairness Response with an open mind? Another question arising from Justice Mosley’s conclusion is how he could determine that the immigration officer was able to discharge his duty to assess the reasonableness of the medical opinion in the absence of the medical evidence upon which it was based? As noted, the medical officer diagnosed the child with a condition more severe than the medical reports indicated. It was argued that none of the reasons — neither the medical officer’s or the immigration officer’s — demonstrate that the submissions contained in the Fair- ness Response relating to the child’s actual condition were considered by anyone at any stage of the process. Justice Mosley, having the benefit of the medical records, explicitly carried out the immigration officer’s duty and found the medical officer’s opinion to be reasonable. Justice Mosley also rejected the appellants’ submission that the Fairness Letter suggests that a decision had been made and stated that the Fairness Letter made it clear that the appellants were given a full opportunity to make submissions on the medical opinion and non-medical factors such as ability and intent. In dismissing the application for judicial review, Justice Mosley certified the following questions, which this Court will address in the present appeal: When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it

16Ibid., at paras. 38–42. Sapru : Landmark Decision in Medical Inadmissibility Law 193

sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants’ response to that letter? Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Immigration Officer’s duty to provide reasons and which is therefore not satisfied by the Immigra- tion Officer providing reasons that are clearly adequate?17

Judicial Consideration of the Decision-making Procedure Envisioned by the Immigration and Refugee Protection Act Pursuant to the the Act, a foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the Immigration and Refugee Protection Regulations (the Regulations). The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Officers are empowered to carry out necessary examinations. The most relevant examination for permanent residents is a medical examination, which determines whether foreign nationals are inadmissible on health grounds.18 Foreign nationals are deemed inadmissible on health grounds if their health condition (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services.19 Consequently, applicants for permanent residence are requested to submit, and must submit, to a medical examination to determine their health admissibility, which includes any or all of the following: (a) physical examination; (b) mental examination; (c) review of past medical history; (d) laboratory test; (e) diagnostic test; and (f) medical assessment of records re- specting the applicant.20 Procedurally, the medical examination is carried out by a designated medical professional (DMP). The DMP Handbook governs the operations of the DMP and prohibits DMPs from discussing their findings, the results of laboratory examinations and other conclusions with the applicant who pays for them unless something inherently dangerous is discovered. The DMP’s medical report is then forwarded to the medical officer for consideration. The medical officer reviews the medical report(s) and then obtains requisite facts and evidence through furtherances and directions to other medical professionals. If after re-

17Ibid., at para. 72. 18Immigration and Refugee Protection Act, ss. 11(1), 15, 16(2)(b), 20(1). 19Ibid., s. 38. 20Ibid., s. 16(2)(b); Immigration and Refugee Protection Regulations (IRPR), ss. 29, 30. 194 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) viewing all of the evidence, the medical officer is satisfied that the applicant is not inadmissible, they will issue a medical certificate. Subsection 30(4) of the Regulations discusses the medical certificate, possession of which is a prerequi- site for entry into Canada: (4) Every foreign national referred to in subsection (1) who seeks to enter Canada must hold a medical certificate, based on the most recent medical examination to which they were required to submit under that subsection within the previous 12 months, that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand.21 Procedural fairness requires that applicants be made aware of a negative determination and given a meaningful opportunity to submit further relevant evidence for consideration before a final decision is made. Consequently, where the medical officer is of the opinion that the health condition of an applicant, or the applicant’s family member, might reasonably be expected to cause an excessive demand on social services, the officer itemizes the social services needs for that individual in Canada with an indication of the cost implication of these services. Historically, the assessments were based on eligibility for social services based upon the categorization of an applicant’s medical condition. Upon receipt of this information, the immigration officer sends out what is now known as the Fairness Letter, which contains the medical opinion and invites applicants to submit additional information challenging the medical opinion. Following Hilewitz applicants are invited to complete and submit the Declara- tion of Ability and Intent to offset excessive demand on social services. The immigration officer then sends a copy of the complete submissions contained in the Fairness Response to the medical officer for review of the inadmissibility opinion, at which point the medical officer could change the initial medical opinion with respect to the health condition, could change the opinion with respect to excessive demand, or could maintain that no change to the initial decision is warranted. The roles and responsibilities of the respective officers are circumscribed by Op- erational Bulletins, which are published from time to time by the respondent Ministry. According to the respondent Ministry’s Operational Bulletins, the immigration officer then reviews the medical opinion and records the process in CAIPS. If the immigration officer believes that the medical opinion is unreasonable, incomplete or based on insufficient information, the officer should seek clarification from the medical officer. For cases where the medical officer has formed the opinion that the proposed plan, if followed as indicated, would offset

21IRPR, s. 30(4). Sapru : Landmark Decision in Medical Inadmissibility Law 195 the excessive demand on social services, the immigration officer reviews the medical opinion in conjunction with the Fairness Response and determines, on a balance of probabilities, whether the applicant will follow through on the com- mitment made.22

Judicial Consideration: Individualized Assessment as Opposed to Categorical Classification As mentioned, the departmental policy of the respondent Ministry has historically been one that values administrative efficiency and, therefore, interpreted the legislation restrictively and employed a generic and categorical approach to assessing medical inadmissibility. Regardless of whether a person would actually cause excess demands on social services, applicants with health conditions that make them eligible for certain services would be assumed to need such services and would therefore be excluded. This approach was consistent with the Federal Court of Appeal’s reasons in Hilewitz. There, Justice Evans wrote a unanimous decision that limited the role of medical officers to include only an assessment of medical reports, the identification of the health and social services an applicant is likely to require given the nature of their medical condition, and a determination of whether this will cause excessive demand as a result of the cost or scarcity of services required. Anything more, the Court stated, would be too impractical, burdensome and inefficient and was not what the legislation intended: 74 Legislation creating a public programme is presumptively to be interpreted in a manner that facilitates the effective and efficient administration of the statutory scheme. Thus, in the absence of clear indications to the contrary, unduly burdensome duties should not be imposed on officials by implication. It would impose a heavy burden on a medical officer, before concluding an excessive demands opinion, to have to conduct the kind of inquiry that would be needed if a family’s resources and willingness to pay for social services had to be considered. Moreover, it is not a task for which a medical qualification is particularly relevant. In addition, if the task were to be performed properly, it would require a more elaborate decision-making procedure than that envisaged by the Act.23 The Federal Court of Appeal’s paradigm of administrative efficiency, which required medical officers to consider the need for social services based only on the classification of the impairment rather than on its particular manifestation, ran afoul of the Supreme Court’s interpretation of the legislation. The Supreme

22See OB 063, not printed at the time of decision. 23Hilewitz v. Canada (Minister of Citizenship & Immigration), 2003 FCA 420 (F.C.A.). 196 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Court criticized this approach for replacing the purpose of the legislation with a cookie-cutter methodology: Interpreting the legislation in this way may be more efficient, but an efficiency argument is not a valid rebuttal to justify avoiding the requirements of the legislation. The Act calls for individual assessments. This means that the individual, not administrative convenience, is the interpretive focus.24 The Supreme Court’s decision in Hilewitz (and the Federal Court of Appeal’s decision in Colaco)25 signalled the ascendancy of what Justice Cullen called in Poste assessing the circumstances of applicants “in their uniqueness”.26 The Su- preme Court affirmed a legislative intention to shift from an approach based on categorical exclusion to one calling for individualized assessments27. “The wording of the provision”, wrote the Court, “shows that medical officers must assess likely demands on social services, not mere eligibility for them”28. To do so, “medical officers must necessarily take into account both medical and non- medical factors”, “along with the willingness and ability of the applicant or his or her family to pay for the services”29.

Role Definition Medical and immigration officers are encouraged to collaborate to arrive at a conclusion, though the medical officer’s evidence in the present case suggests that this rarely occurs. Instead, medical officers assess health conditions and the demand they might place on health and social services, and immigration officers scrutinize the reasonableness of the medical officer’s decision and, where necessary, questions and confirms the viability of an applicant’s plan to attenuate excessive demand. Having said all this, the fact remains that the roles of the respective officers remain ill-defined. What follows is a presentation of the roles and responsibilities of immigration and medical officers contemplated by the legislation and by the Supreme Court. As immigration officers do not have the expertise required to question the correctness of the medical diagnosis made by the medical officer, their role is limited to assessing the reasonableness of the medical opinion. This is no small task, since it is the medical officer’s opinion with respect to excessive demand

24Ibid., at para. 57. 25Colaco v. Canada (Minister of Citizenship & Immigration), 2007 FCA 282 (F.C.A.). 26Poste v. Canada (Minister of Citizenship & Immigration), 1997 CarswellNat 2463 (Fed. T.D.). 27Hilewitz (F.C.A.), at para. 53. 28Ibid., at para. 54. 29Ibid., at para. 55. Sapru : Landmark Decision in Medical Inadmissibility Law 197 that forms the basis for a finding of inadmissibility on health grounds. Put another way, medical officers’ diagnoses are taken as fact, but their opinions with respect to excessive demand — including even their opinions with respect to which services are required — is subject to the review of the immigration officer (and the Federal Court). For this reason, Courts have stressed that medical officers’ opinions must be firmly grounded in the evidentiary record.30 The complexity of the immigration officer’s duty to scrutinize the medical opinion is heightened when an applicant responds to the Fairness Response by challenging the medical officer’s opinion regarding excessive demand, offering a plan to attenuate excessive demand, or both. In short, since medical opinions are at the centre of these types of applications, and since an immigration officer has a duty to assess the reasonableness of the opinion, it is essential that medical officers understand their role and provide opinions that are well-grounded in the evidentiary medical record.

Seeking Medical and Non-medical Information The function of a medical officer is to gather information and provide an expert opinion that can be relied upon by an immigration officer who ultimately determines whether an applicant is inadmissible on health or social services grounds. Their opinion is based on evidence that the medical officer gathers from Desig- nated Medical Officers (DMOs) and other medical professionals, and medical officers are also able to make furtherances for any more information they feel is required to issue their medical opinion. This last point is of particular note; the medical officer is permitted, indeed required, to provide medical or non-medical clarifications such as are required to complete its opinion pursuant to section 30.4 of the Regulations by way of furtherance requests. In accordance with Hilewitz, the medical officer is expected to carry out an individualized assessment of the applicant’s health condition and the resultant demand the applicant — not the condition — may place on social services. Where the medical officer makes a preliminary finding of excessive demand, the officer must list the services required as well as their costs. The medical officer must also consider medical and non-medical evidence to form an opinion as to

30See, especially: Rabang v. Canada (Minister of Citizenship & Immigration) (2000), 8 Imm. L.R. (3d) 233 (Fed. T.D.), at paras. 17–21; Mohamed v. Canada (Minister of Employment & Immigration), [1986] 3 F.C. 90 (Fed. C.A.); Ahir v. Canada (Minister of Employment & Immigration), [1984] 1 F.C. 1098 (Fed. C.A.); Ma v. Canada (Minister of Citizenship & Immigration) (1998), 140 F.T.R. 311 (Fed. T.D.); Fei v. Canada (Minister of Citizenship & Immigration) (1997), [1998] 1 F.C. 274 (Fed. T.D.); Fong v. Canada (Minister of Citizenship & Immigration) (1997), 126 F.T.R. 235 (Fed. T.D.); Gao v. Canada (Minister of Employment & Immigration) (1993), 61 F.T.R. 65 (Fed. T.D.). 198 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) whether the applicants may be able to offset the excessive demand through their own contributions. The appellants argued this would be the perfect opportunity for the medical officer to solicit further relevant information through furtherances, for not only medical information but non-medical information as well. The point is that the medical officer ought to have, and ought to solicit, as much information as necessary to discharge her duties with the utmost care. Only after the medical officer has sufficient information can she then prepare her medical opinion for the immigration officer. Once the medical opinion is prepared, the medical officer will forward the opinion to the immigration officer. Ideally, the opinion would be accompanied by the evidence upon which it is grounded. This would allow the immigration officer the opportunity to scrutinize the opinion and seek clarification where necessary before taking the next step in the process. The next step is to provide the applicants with the Fairness Letter, which, as discussed earlier, advises the applicants of the negative opinion and solicits further relevant information. It should be stressed that the legislation requires an individualized assessment throughout the process, which suggests that the Fair- ness Letter alone does not constitute the requisite individualization, but rather, represents an important step in a process guided by the principle of individualization. Thus, the Fairness Letter ought to be sent only after a preliminary decision is made that takes into account the medical and non-medical evidence with respect to an applicant’s health condition and a preliminary determination with respect to (excessive) demand on health and/or social services. Again, the Fairness Letter, it was argued, would ideally contain both the medical officer’s opinion, as well as the evidence upon which it is based. This would allow the applicants to address the medical officer’s opinion directly by procur- ing relevant evidence to submit for consideration. In short, this process would allow for a more careful, thorough, and ultimately accurate individualized assessment. Unfortunately, the current practice of the respondent Ministry is for the medical officer to keep the evidence.

Reasons Upon receipt of the Fairness Response, the medical officer is duty bound to review the information and to determine whether the evidence effectively addresses earlier concerns and to decide whether the initial medical opinion should be changed. One would assume that this reconsideration should be adequately explained to the immigration officer in the form of reasons. However, Justice Mosley was of the opinion in the present case that this is not necessary; the medical officer discharges her duty, said Justice Mosley, so long as she considers the information in the Fairness Response carefully and with an open mind. Sapru : Landmark Decision in Medical Inadmissibility Law 199

Of course, this begs the question as to how a medical officer demonstrates such consideration. The appellants submit that this could only be achieved through subsequent reasons that are adequate, that is, reasons that address the appellants’ submissions and is properly grounded in the evidence. Such a process conforms to the requirements of Hilewitz and of the legislation. The need for adequate reasons is all the more acute in cases such as this one, where the Fairness Response calls into question both the severity of the inadmissible applicant’s health condition and the necessity of the enumerated social services. Reconsidering the initial medical opinion is not only within the expertise of the medical officer, it is her job and duty under the legislation. It behooves the medical officer, at the very least, to comment on the submissions in the Fair- ness Response in order to provide something for the immigration officer to scrutinize. Adequate reasons for not changing the initial opinion would preclude the need for the immigration officer to discharge the medical officer’s responsibilities by providing adequate reasons for a decision that was not really the medical officer’s decision. The following summarizes the procedure envisioned by the appellants. 1. An applicant submits to medical examinations by DMOs, the results of which are forwarded to a medical officer (“MO”). 2. The DMOs themselves will ideally be asked to provide an individualized assessment that contemplates the demand the applicant might place on social services. 3. The MO will then assess the information with a view to issuing the medical certificate contemplated in section 30(4) of the Regulations. This is an individualized assessment that takes into account both medical and non-medical factors and will contemplate the applicant’s ability to attenuate any excessive demand on social services. 4. The assessment will likely require more information, which can be obtained through a furtherance sent to the appropriate party, including the applicant. Information requested may be medical or non-medical. 5. The MO will then prepare a medical opinion, which will be forwarded along with copies of the evidence upon which it is based to the immigration officer (“IO”), who will provide a cursory review of the opinion before preparing a Fairness Letter for the applicant. 6. The Fairness Letter would set out not only the medical opinion and the central conclusions of the MO, but would either mention or include the evidence upon which the medical opinion is based. 7. Upon receipt, the IO will forward the Fairness Response to the MO for consideration. The MO will prima facie accept the applicant’s plan to attenuate the cost of social services as credible. 200 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

8. The MO will then provide the IO with a decision with respect to whether the Fairness Response has led to a new medical opinion. The MO’s decision must be accompanied by adequate reasons that address the submissions of the applicant found in the Fairness Response. 9. The IO will then scrutinize the MO’s medical opinion and answer to the Fairness Response. 10. Where the MO’s opinion is unchanged, there will be little for the IO to do. The IO will ensure that the MO’s opinion is properly grounded in the evidence and will send a letter refusing the application on health grounds. 11. Where the MO now believes the applicant is willing and able to attenuate excessive demand on social services, the IO will scrutinize the applicant’s plan and assess whether it is credible, that is, whether it is likely that the applicant will be able to follow through on their plan. 12. If the applicant’s plan is not credible or feasible, the IO will inform them of such and will provide reasons for refusing the application. 13. If the plan is credible and feasible, the application will be allowed.

Certified Questions

Question 1 The first issue was rephrased by the appellants as follows: Following the Supreme Court’s decision in Hilewitz, should a Medical Of- ficer actively pursue an enquiry leading to the medical conclusion contemplated by s. 30(4) of the Regulations by seeking out all medical and non- medical facts relevant to the decision? It was submitted in order to satisfy the requirements of the Act and the directives of the Supreme Court, a medical officer’s initial assessment must be made with a view to providing the medical certificate. This means that in preparing their initial medical opinion, medical officers must be cognizant of the ultimate goals, namely, conducting an individualized assessment of the social services an applicant will require, whether those services will cause an excessive demand on social services in Canada, and finally, whether it is possible for the applicant to offset or attenuate excessive demand through their own personal contributions. Justice Mosley did not agree; however, the appellants respectfully submits this position cannot be reconciled with his comments at paragraph 24: In light of Hilewitz, I agree with the applicants that it is the Medical Officer’s obligation to perform a complete analysis of all factors, medical and non- Sapru : Landmark Decision in Medical Inadmissibility Law 201

medical. The Visa Officer must then review the Medical Officer’s decision to ensure that all relevant factors were considered.31 Nonetheless, Justice Mosley did not agree with the appellants’ position and felt that the Fairness Letter and its response were sufficient to satisfy the requirement that medical officers conduct individualized assessments: This application raises two additional questions about the Medical Officer’s responsibilities. The first is the extent to which she must inquire into the applicants’ ability and intent. The applicants say that she should have actively sought this information when making her original medical assessment, the same way that she would seek medical information by conducting an examination or issuing a “furtherance.” With respect, I am not persuaded that this is necessary. The applicants are in the best position to provide evidence of their ability and intent, and they are given a fair opportunity to do so in the Fairness Letter. There is no reason that a Medical Officer should have to make an inquiry at an earlier stage, as long as she considers any Fairness Response carefully and with an open mind.32 Justice Mosley distinguished this case from Justice Kelen’s decision in Abdul33 based on the fact that the particular Fairness Letter in Abdul did not make a clear inquiry to elicit adequate information to conduct an individualized assessment of the applicant. However, Abdul was an application for judicial review of an IAD appeal, wherein the IAD determined that the determination of the medical officer was too general and that the visa officer could not reasonably rely on same. The IAD’s conclusions are equally applicable to the present case: The medical officer’s failure to inquire into the appellant family’s intention, ability and willingness to pay for the social services likely to be used by Khatib and the resulting failure to meaningfully individualize the relevant assessment of Khatib made it impossible for the medical officer to determine realistically what “demands” will be made as a result of his medical condition on social services. Indeed, the medical officer’s finding that his medial condition might reasonably be expected to cause excessive demands on social services was based on mere conjecture and speculation, and more likely than not was derived inter alia from an unsupported conclusion based on Khatib’s mere eligibility for social services.34 The appellants submit that any meaningfully individualized assessment will, at the outset, seek out as much information to make the necessary determinations. Sending out at times generic and/or confusing Fairness Letters is but one of many ways in which the respondent Ministry fails to discharge their duty. The

31Sapru (F.C.), supra, at para. 24. 32Ibid., at para. 35. 33Canada (Minister of Citizenship & Immigration) v. Abdul, 2009 FC 967 (F.C.). 34Ibid., at para. 26. 202 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) present appeal presents another more general failure, namely, the medical officer’s admission that her initial assessment was inconsistent with the Court’s directions in Hilewitz. This error is only further compounded by the inadequacy of the medical officer’s reasons, which did not demonstrate that the Fairness Response was considered, as Justice Mosley puts it, carefully or with an open mind. In addition, the appellants suggest that when medical officers solicit further relevant information from the outset, the medical officer’s initial opinion will be considerably more individualized and have a much better grounding in the evidentiary record. The appellants submit that the procedures followed presently by the respondent Ministry are obtuse; they attempt to substitute an individualized assessment with a Fairness Procedure that, for reasons discussed above, is itself wholly inadequate. Accordingly, the appellants ask that this Court clearly outline the roles and responsibilities of both the medical and immigration officer and clearly affirm that medical assessments must be carried out, from the outset, in accordance with the Supreme Court’s decision in Hilewitz. As noted, the procedure outlined above would provide a foundation for considering what procedures may be implemented to satisfy these requirements. On the present facts, the appellants submitted that the medical officer had to go beyond the cookie-cutter inquiry initially carried out and could not rely on the Fairness Procedure or immigration officer to discharge her duties. Medical officers must begin their assessments with individualization in mind, otherwise the medical and immigration officers — who do not communicate much at the best of times — will not be on the same page. This occurred here where the cookie-cutter approach allowed the medical officer to conclude that certain services were “required” based on condition and eligibility. This conclusion was made in the face of evidence in the medical file indicating that such services would not necessarily be required. However, this was unknown to the immigration officer, who did not have the evidence before him and who accepted as fact and referred to them as such in the Fairness Letter. The Sapru family, too, was unaware of the contents of the medical file, and so no one was aware that the medical officer failed to conduct an individualized assessment. This is clearly an error or law. The Federal Court of Appeal disagreed and Madame Justice Dawson, delivering the reasons for the Court, held: The First Certified Question [28] For ease of reference I repeat the first certified question: When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social Sapru : Landmark Decision in Medical Inadmissibility Law 203

services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants’ response to that letter? [29] The appellants submit that a medical officer’s initial assessment must be made with a view to providing the medical certificate. It follows, they submit, that in preparing the initial medical opinion a medical officer must be cognizant of the ultimate goal: to conduct an individualized assessment of the social services an applicant will require, whether those services will cause an excessive demand on social services in Canada, and whether it is possible for the applicant to offset or attenuate any excessive demand by personal contribution. To do so, the appellants say that a medical officer must seek out from the outset as much information as possible in order to make the necessary findings. [30] The Judge dealt with this submission at paragraph 35 of his reasons where he wrote: [. . .] The applicants are in the best position to provide evidence of their ability and intent, and they are given a fair opportunity to do so in the Fairness Letter. There is no reason that a Medical Officer should have to make an inquiry at an earlier stage, as long as she considers any Fairness Response carefully and with an open mind. [31] In my view the Judge was correct, for the reasons that he gave. I would add one cautionary note. The Judge’s conclusion was premised on the basis that the Fairness Letter gives an applicant “a fair opportunity” to respond to any concerns. This requires the Fairness Letter to set out clearly all of the relevant concerns so that an applicant knows the case to be met and has a true opportunity to meaningfully respond to all of the concerns of the medical officer. [32] It follows that I would answer the first certified question as follows: A medical officer is not obligated to seek out information about the applicants’ ability and intent to mitigate excessive demands on social services from the outset of the inquiry. It is sufficient for the medical officer to provide a Fairness Letter that clearly sets out all of the relevant concerns and provides a true opportunity to meaningfully respond to all of the concerns of the medical officer.35 Thus the Court squarely placed the responsibility on the appellants to provide the necessary information to properly respond to concerns raised by the respondent Ministry. The Court of Appeal did rule that the Fairness Letter must allow for a meaningful opportunity to respond with a clear listing of concerns. So al-

35Sapru (F.C.A.), supra, paras. 28–32. 204 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) though the Court did not go as far as requiring a more active exchange between an applicant and the Department at an earlier stage in the process, it did clearly hold that Fairness Letters must in essence “be fair” and, failing which, any subsequent opinions by medical officers and ultimate decisions by immigration officers will likely not be upheld.

Question 2 Issue two, as rephrased by the appellants, asked the following: Must the record before a Immigration Officer discharging the duty to review the determination of a Medical Officer that an applicant is medically inadmissible under section 38(1)(c) of the Act include adequate reasons substan- tiating the Medical Officer’s opinion, and the medical information upon which the Medical Officer based his or her opinion? The appellants submitted that as a matter of both procedural fairness and common sense medical officers must provide immigration officers with adequate reasons for determining that the Fairness Response did or did not affect the initial medical opinion. Without reasons, an immigration officer cannot discharge his duty to scrutinize the medical officer’s opinion or discern why the Fairness Response failed to displace any of the medical officer’s previous conclusions? The same submission is equally applicable with respect to the evidentiary record upon which the medical officer bases her opinions; an immigration officer cannot affirm that a medical opinion is supported by the evidence without being able to see such evidence. The resulting lack of transparency and justification for the decisions is a clear denial of procedural fairness; applicants have no way of knowing that their evidence has been considered by the proper parties. The need for such assurances is particularly pressing where, as here, applicants need to know that challenges with respect to the severity of the medical condition have been considered, which they were not by either officer. Similarly, here, the appellants also needed to know that the medical officer considered the evidence with respect to private school and the considerable amount of money that the family is willing to commit to care. This information was submitted for the medical officer to consider, and the record does not demonstrate that this was done. Therefore, the appellants submitted that Justice Mosley’s position that the immigration officer’s reasons were sufficient conflates the roles of the two officers and was incorrect in law. The Federal Court of Appeal held: [41] Having reviewed the respective roles of the immigration and medical officers, it follows from the obligation placed on an immigration officer to review the reasonableness of a medical officer’s opinion that a medical officer must provide the immigration officer with sufficient information to en- Sapru : Landmark Decision in Medical Inadmissibility Law 205

able the immigration officer to be satisfied that the medical officer’s opinion is reasonable. [42] The particular circumstances of each case will dictate what is required for the immigration officer to be able to assess the reasonableness of the medical officer’s opinion. For example, admissions by a foreign national contained in the Fairness Response, without more, would likely obviate the need for detailed reasons from the medical officer on that point. Further, a medical officer may impart sufficient information to the immigration officer in a number of ways. For example, a medical officer may provide adequate reasons in a report to the immigration officer. However, adequate reasons could also be provided orally if the immigration officer records the oral advice in the CAIPS notes, or in a combination of written and oral communications where the oral advice is recorded in the CAIPS notes. Thus, a medical officer might transmit his or her notes reflecting the medical officer’s review and assessment of all of the relevant information, or an immigration officer might record in the CAIPS notes the relevant observations and conclusions of a medical officer made during the course of the collaborative process between the officers contemplated by Operational Bulletin 063. In every case, an immigration officer may seek clarification from a medical officer and record the response of the medical officer in the CAIPS notes. The reasons of a medical officer may be conveyed to an immigration officer by a combination of these or other methods. [43] What is important is that at the time the immigration officer makes his or her decision on admissibility, the immigration officer must have sufficient information from the medical officer to allow the immigration officer to be satisfied that the medical officer’s opinion is reasonable. [44] It follows from this that I would answer the second certified question as follows: When assessing whether a foreign national’s health condition might reasonably be expected to cause excessive demand, a medical officer is under a duty to provide sufficient information to an immigration officer to allow the immigration officer to be satisfied that the medical officer’s opinion is reasonable.36 The Court went on to consider the particular facts of the case and concluded there was little, if any, evidence of collaboration between the medical and Immi- gration Officer and that a post-decision affidavit could not save inadequate reasons: [46] The Judge went on to hold, however, that the inadequacy of the medical officer’s reasons was “saved” by the detailed reasons of the immigration officer. The Judge’s reasons for that conclusion are found in paragraphs 39 to 42 of his reasons, which are quoted above at paragraph 34.

36Ibid., paras. 41–44. 206 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

[47] For the following reasons I respectfully disagree with the Judge’s conclusion that the inadequacies of the medical officer’s reasons were overcome by the reasons of the immigration officer. [48] First, the immigration officer was under an obligation to assess the reasonableness of the medical officer’s opinion. No meaningful assessment could be performed on the basis of the inadequate reasons of the medical officer. On the facts of this case it is especially relevant to recall that the immigration officer must be presumed to have known that, pursuant to Citi- zenship and Immigration Canada policy, the medical officer’s initial assessment which led to the Fairness Letter was not the individualized assessment mandated by Hilewitz. This was underscored in the Fairness Response, where Dr. Sapru complained of the generic nature of the medical officer’s assessment. With knowledge of that defect in the initial assessment it was particularly important for the immigration officer to satisfy himself that the medical officer had performed the requisite individualized assessment. There was nothing before the immigration officer that could reasonably have led him to that conclusion. [49] Second, the Judge relied upon Operational Bulletin 063 which states that “[i]mmigration and medical officers should work closely together during the process [of assessing excessive demand on social services] and document this collaboration.” However, there is no documentation of such a collaborative process in the certified tribunal record in the present case. The sole reference to any communication between the officers is an entry in the CAIPS notes that records a conversation between the two officers prior to receipt of the Fairness Response. [50] Finally, the Judge’s conclusion may well have been influenced by his prior finding that the medical officer “considered the non-medical evidence in this case as she was required to do”. The Judge’s finding was based upon the statement in the medical officer’s reasons that the medical officer had read the Fairness Response and also upon the affidavit of the medical officer filed in the application for judicial review. In that affidavit the medical officer stated that she had considered the applicants’ ability and intent to manage Rishi’s needs. [51] As the Judge recognized, the medical officer’s statement in her reasons to the effect that she had read the Fairness Response was insufficient to render her reasons adequate. Little weight can be given to such a generic statement that is silent about what the medical officer did, and whether the principles articulated in Hilewitz were applied. [52] With respect to the affidavit of the medical officer, in my view the Judge’s reliance upon this affidavit was problematic in two respects. First, the information contained in the affidavit was not before the immigration officer when he was assessing the reasonableness of the medical officer’s opinion. It was the duty of the immigration officer to assess the reasonableness of the medical opinion. Second, as candidly acknowledged by counsel for the Minister in oral argument, an affidavit cannot be used to bolster the Sapru : Landmark Decision in Medical Inadmissibility Law 207

reasons of a decision-maker on judicial review. In this Court, Justice Pelle- tier wrote for the majority in Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 255 (F.C.A.): 45 The application judge may have been lead to that conclusion by the nature of the affidavit filed by the Minister’s delegate. While the letter setting out the reasons for the refusal of Mr. Sellathurai’s request deals only with the evidence of the legitimacy of the source of the seized funds, the Minister’s delegate filed an affidavit in which he restated and reviewed the grounds for suspicion identified by the customs officer, and indicated why he believed they remained unanswered. In my view, this form of affidavit is inappropriate and ought not to have been given any weight at all. 46 The judges of the Federal Court have previously stated that a tribunal or a decision-maker cannot improve upon the reasons given to the applicant by means of the affidavit filed in the judicial review proceedings. In Simmonds v. Minister of National Revenue, 2006 FC 130, 289 F.T.R. 15 (F.C.), Dawson J. wrote at paragraph 22 of her reasons: I observe the transparency in decision-making is not promoted by allowing decision-makers to supplement their reasons after the fact in affidavits. 47 See to the same effect Kalra v. Canada (Minister of Citizenship & Immigration), 2003 CF 941, 29 Imm. L.R. (3d) 208 (F.C.) at para. 15; Yue v. Canada (Minister of Citizenship & Immigration), 2006 FC 717, 2006 CarswellNat 1600, 2006 Car- swellNat 4607 (F.C.) at para. 3; Abdullah v. Canada (Minister of Citizenship & Immigration), 2006 FC 1185, 2006 CarswellNat 3096, 2006 CarswellNat 4768 (F.C.) at para. 13. Any other approach to this issue allows tribunals to remedy a defect in their decision by filing further and better reasons in the form of an affidavit. In those circumstances, an applicant for judicial review is being asked to hit a moving target. [emphasis added] [53] No weight should have been given to the affidavit of the medical officer to the extent the officer sought to explain or bolster her reasons.37

Conclusion The heart of the matter that was reinforced by the Federal Court of Appeal is that it is for the medical officer to consider all medical and non-medical fact based upon a personalized assessment with the provision of clear reasons based

37Ibid., paras. 46–53. 208 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) upon a concise and meaningful Fairness Letter. In short, since medical opinions are at the centre of these types of applications, and since an immigration officer has a duty to assess the reasonableness of the opinion, it is essential that medical officers understand their role and provide opinions that are well-grounded in the evidentiary medical record. In this case, accepting the medical opinion as factual and reasonable, the immigration officer went on to perform the medical officer’s job, namely, considering the appellants’ ability and intent to attenuate any excessive demand the child may place on social services. The Federal Court of Appeal ultimately resolved the distinct yet interdependent roles of both officers in carrying out an individualized assessment. An important decision that will impact all medical admissibility cases going forward. Canada (Minister of Citizenship & Immigration) v. X 209

[Indexed as: Canada (Minister of Citizenship & Immigration) v. X] The Minister of Citizenship and Immigration, Applicant and XXXX, Respondent Federal Court Michael L. Phelan J. Heard: October 21, 2010 Judgment: November 5, 2010 Docket: IMM-5427-10, 2010 FC 1095 Ms Banafsheh Sokhansanj, for Applicant Mr. Douglas Cannon, Ms Kamaljit Lehal, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Initiating claim — General –––– Applicant and three children arrived in Canada on boat from Sri Lanka — Applicant claimed Convention refugee status, but had no identifying documents at all for herself or children — Applicant was ordered detained — On third detention hearing, applicant was ordered released as it was board found Minister had not made “reasonable efforts” to determine applicant’s identity — Minister brought application for judicial review — Application granted — Board erred by failing to recognize that obligation to establish one’s identity rests with claimants — Minister’s obligation is to make reasonable efforts to establish identity, but both parties must contribute to exercise — Board paid too little attention to claimant’s efforts to establish her identity — Claimant failed to provide any contact information for her brother and her suggestion that they call her other brother in Sri Lanka was useless as he had already moved to France — Claimant had counsel and while she was in detention she could use telephone, send mail and engage assistance of her community to help establish her identity and she did not make enough efforts — Board failed to address whether Min- ister’s actions were rationally connected to purpose of s. 58(1)(d) of Immigration and Refugee Protection Act, and if claimant’s actions had potential to uncover evidence about identity — Board failed to consider relevant issues and evidence — Under s. 58 both parties have obligations which are influenced by each other and board failed to consider reciprocal legal obligation — Board erred by focussing on what should have been done rather than reasonableness of what actually was done — Board made unreasonable and incorrect findings and failed to consider claimant’s actions and their impact on Minister’s efforts — Board erred by ordering claimant’s release — Claimant was without identification documents and had not proved her identity and entered Canada on ship that was suspected of being involved in human trafficking — Board erred by allowing release on minimal terms and conditions — Board erred by failing to consider competing factors of whether decision is balanced with regard to situation and whether conditions imposed were disproportionate response and risks inherent in releasing unidentified person — Re- lease of unidentified individual with three children with only once per month reporting requirement was too lenient and outside range of acceptable results in circumstances. 210 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Cases considered by Michael L. Phelan J.: Canada (Minister of Citizenship & Immigration) v. Singh (2004), 2004 CarswellNat 4215, 2004 FC 1634, 263 F.T.R. 106, 2004 CarswellNat 5904, 2004 CF 1634 (F.C.) — followed Canada (Minister of Citizenship & Immigration) v. X (2010), 2010 FC 112, 2010 Car- swellNat 198, 2010 CarswellNat 729, 2010 CF 112, 2 Admin. L.R. (5th) 229 (F.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 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 Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 58 — considered s. 58(1)(c) — referred to s. 58(1)(d) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 247 — considered Words and phrases considered: reasonable steps The determination of “reasonable efforts” is conditioned to some extent by the efforts of a claimant. This is over and above the obligation to not obstruct and to cooperate. It requires the Member to make a qualitative evaluation of the efforts on the part of both parties. In Ocean Lady, above, Justice Barnes determined that in considering “necessary steps” under s. 58(1)(c), one examines whether there is a rational connection between the steps being taken and the purposes of the inquiry as to admissibility (the potential to uncover relevant evidence) and whether the Minister is acting in good faith. Those two criteria are an appropriate starting point for s. 58(1)(d) as well. The term “reasonable steps” in s. 58(1)(d) connotes a broader range of actions than “necessary

APPLICATION for judicial review of release order for unidentified refugee claimant.

Michael L. Phelan J.: I. Introduction 1 This is an application for judicial review by the Minister of Citizenship and Immigration (Minister) challenging a decision of the member of the Immigration Canada (Minister of Citizenship & Immigration) v. X Michael L. Phelan J. 211

and Refugee Board (Member) made September 16, 2010 in which he ordered the release of the Respondent from detention upon terms. 2 The Member found that the Minister had not made “reasonable efforts” to determine the Respondent’s identity. This is, apparently, the Court’s first consideration of s. 58(1)(d) of the Immigration and Refugee Protection Act (IRPA). Justice Barnes’ decision in Canada (Minister of Citizenship & Immigration) v. X, 2010 FC 112 (F.C.) (a different respondent) dealt with s. 58(1)(c). 3 The Respondent’s identity has been protected by Court Order.

II. Factual Background 4 The Respondent arrived in Canada on August 13, 2010 aboard the MV Sun Sea along with 491 others, all of whom were initially detained for purposes of identification and admissibility. She was accompanied by three children whom she claims are hers. 5 The Respondent had no identification documents for either herself or the children. She claimed that her passport was taken away by the “agent” who had organized the voyage and that her other identification documents had been left in Sri Lanka. 6 The Respondent has had three detention hearings. The 48-hour review was held August 18, 2010; the 7-day review on August 25, 2010; and the 30-day review on September 16, 2010. 7 The first two detention reviews resulted in continued detention because the Respondent’s identity had not been established. At the conclusion of the Sep- tember 16th hearing, the Member concluded that the Minister had not made “reasonable efforts” to establish the Respondent’s identity and released her on terms which included reporting to Canada Border Services Agency (CBSA) once a month. 8 The decision under review was made by a Board member whose name is strikingly similar to this judge but is not in any way connected — Member Michael McPhalen. 9 The Member made a number of comments critical of the Minister’s efforts. These include: (a) that the Respondent had reasonably cooperated with the Minister/CBSA. (b) that despite filling out a form giving the mother’s address and being interviewed twice, CBSA only learned of the address on September 8 and as of the hearing date (September 16) had not written a letter to the mother. The mother is alleged to have the Respondent’s identity documents. (c) that CBSA did try to contact the Respondent’s brother in Sri Lanka (the one with the telephone) without success, possibly because he was moving to France. 212 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

(d) that, while the Respondent had no contact information for another brother in Toronto, CBSA had made no effort to contact that brother. (e) that the Minister’s counsel could not inform the Member when UNHCR had been contacted (presumably to confirm that the Respondent had been in a refugee camp as she claimed). 10 The Member, having concluded that the Minister had not taken reasonable steps to determine the Respondent’s identity, then ordered her release on the following terms: (a) to report to CBSA on the second Monday of each month; (b) to report changes of address in person; and (c) to cooperate with CBSA in obtaining identity documents. 11 The Member did acknowledge the strained circumstances under which the Minister was operating dealing with a sudden and large influx of unknown im- migrants. He also recognized the particular challenge posed by the Respondent’s complete absence of identity documents. 12 Despite the Member’s decision, the Respondent has not been released. Jus- tice Bedard stayed the release until this judicial review was determined.

III. Issues 13 The Member’s decision was made pursuant to s. 58 of IRPA which reads: 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 or for violating human or international rights; or (d) the Minister is of the opinion that the identity of the foreign national 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. (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 Canada (Minister of Citizenship & Immigration) v. X Michael L. Phelan J. 213

or is unlikely to appear for examination, an admissibility hearing or removal from Canada. (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. 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 renvoi, ou a` la pro- cédure 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 résident permanent ou l’étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux; d) dans le cas où le ministre estime que l’identité de l’étranger n’a pas et´´ e prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournis- sant au ministre des renseignements utiles a` cette fin, soit ce dernier fait des efforts valables pour etablir´ l’identité de l’étranger. (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 contrôle, d’une en- quête 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. (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. [Emphasis added] 14 In considering whether to order release, the Board is required to consider s. 247 of the Immigration and Refugee Protection Regulations: 247. (1)For the purposes of paragraph 244(c), the factors are the following: (a) the foreign national’s cooperation in providing evidence of their identity, or assisting the Department in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father or providing detailed information on the itinerary they fol- 214 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

lowed in travelling to Canada or in completing an application for a travel document; (b) in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence; (c) the destruction of identity or travel documents, or the use of fraudulent documents in order to mislead the Department, and the circumstances under which the foreign national acted; (d) the provision of contradictory information with respect to identity at the time of an application to the Department; and (e) the existence of documents that contradict information provided by the foreign national with respect to their identity. (2) Consideration of the factors set out in paragraph (1)(a) shall not have an adverse impact with respect to minor children referred to in section 249. 247. (1)Pour l’application de l’alinéa 244c), les critères sont les suivants: a) la collaboration de l’intéressé, a` savoir s’il a justifié de son identité, s’il a aidé le ministère a` obtenir cette justification, s’il a communiqué des renseignements détaillés sur son itinéraire, sur ses date et lieu de naissance et sur le nom de ses parents ou s’il a rempli une demande de titres de voyage; b) dans le cas du demandeur d’asile, la possibilité d’obtenir des renseignements sur son identité sans avoir a` divulguer de renseignements personnels aux représentants du gouverne- ment du pays dont il a la nationalité ou, s’il n’a pas de na- tionalité, du pays de sa résidence habituelle; c) la destruction, par l’étranger, de ses pièces d’identité ou de ses titres de voyage, ou l’utilisation de documents frauduleux afin de tromper le ministère, et les circonstances dans lesquelles il s’est livré a` ces agissements; d) la communication, par l’étranger, de renseignements con- tradictoires quant a` son identité pendant le traitement d’une demande le concernant par le ministère; e) l’existence de documents contredisant les renseignements fournis par l’étranger quant a` son identité. (2) La prise en considération du critère prévu a` l’alinéa (1)a) ne peut avoir d’incidence défavorable a` l’égard des mineurs visés a` l’article 249. 15 There are three issues raised in this judicial review: Canada (Minister of Citizenship & Immigration) v. X Michael L. Phelan J. 215

(1) Did the Member err in assessing whether the Minister was “making reasonable efforts” pursuant to s. 58(1)(d) to establish identity? (2) Did the Member err in failing to consider other grounds for detention? (3) Did the Member err in imposing the terms and conditions of release?

IV. Analysis A. Preliminary Matters 16 There was some issue raised by the Respondent that the Applicant’s Memo- randum was interspersed with references to evidence that was not before the Member. There has been no clear identification of all of this so-called evidence but two matters stand out. 17 The first is that the Minister had in fact written to the Respondent’s mother at least a day before the hearing and seven days after becoming aware of her address. The Minister’s counsel was not aware of this circumstance at the time of the September 16th hearing. 18 It is obviously something the Member cannot be criticized for not considering. However, it goes directly to a critical factor that the Member considered showed that the Minister had not made “reasonable efforts”. It also shows the “rough and ready” nature of the detention hearings and the real-time atmosphere in which all are working. It speaks to the need for caution in criticizing the Min- ister’s officials and in concluding that reasonable efforts have not been made. 19 The second is that the Minister had in fact contacted UNHCR to determine if the Respondent had been at a camp which would assist in establishing her identity. That apparently is the usual protocol except that the Respondent was not in a UNHCR camp — a matter which was not known to the Minister. 20 This evidence is important to the rationale underlying the Member’s decision and ought, given the unique circumstances of these detention reviews, be admitted for the reasons discussed in paragraph 18.

B. Standard of Review 21 The Applicant has described the issues in this matter as questions of law and jurisdiction. To the extent that the issues relate to the legal test and the constitu- ent elements thereof, the Applicant is correct in arguing that the standard of review is correctness (Canada (Minister of Citizenship & Immigration) v. X, 2010 FC 112 (F.C.) (Ocean Lady); Canada (Minister of Citizenship & Immigration) v. Singh, 2004 FC 1634 (F.C.)). 22 However, there are elements of this matter of interpretation and application of s. 58(1)(d) which involved mixed law and fact. That analysis is subject to the reasonableness standard of review (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.)). 216 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

C. Issue 1: Error in Interpretation and Application of S. 58(1)(d) 23 Identity is a virtual sine qua non of immigration law. Identity is the spring- board for such issues as admissibility, eligibility for refugee status and determination of the need for protection. It is also critical to an assessment of potential danger to the public, threat to security and flight risk, to name but a few of the issues for which identity is an essential component. 24 The Member erred in not recognizing that the obligation to establish one’s identity rests first and always with the claimant. The Minister’s obligation is to make reasonable efforts. Neither has the complete onus of proof, neither can sit back and do nothing. 25 The Court is advised that even though the Respondent was in detention, she had available to her the capacity to use the mail, to make long distance telephone calls and to engage the assistance of the Tamil-Canadian community in contacting relatives and friends. She had counsel available as well. 26 In assessing the Minister’s efforts, the Member paid scant, if any, attention to efforts of the Respondent other than to note that she was cooperating with the CBSA by listing her mother and brothers as people to contact. 27 The determination of “reasonable efforts” is conditioned to some extent by the efforts of a claimant. This is over and above the obligation to not obstruct and to cooperate. It requires the Member to make a qualitative evaluation of the efforts on the part of both parties. 28 In Ocean Lady, above, Justice Barnes determined that in considering “necessary steps” under s. 58(1)(c), one examines whether there is a rational connection between the steps being taken and the purposes of the inquiry as to admissibility (the potential to uncover relevant evidence) and whether the Minister is acting in good faith. 29 Those two criteria are an appropriate starting point for s. 58(1)(d) as well. The term “reasonable steps” in s. 58(1)(d) connotes a broader range of actions than “necessary steps” but the analytical framework is essentially the same. 30 In the present case the Member did not address whether what the Minister had done, was doing and intended to do was rationally connected to the purpose of the provision — that the steps had the potential to uncover evidence. 31 More appropriate than the Applicant’s submission that the Member trans- ferred the onus of proving identity on to the Minister, the Member in reality failed to consider relevant issues and evidence. Under s. 58 both parties have obligations and the fulfillment of one party’s obligations, in this case the Min- ister’s, is influenced by the other party’s conduct. The Member failed to consider this reciprocal and reciprocating legal obligation. 32 In addition to not considering relevant issues in the “reasonable efforts” analysis, the Member focused on what he thought should have been done rather than on the “reasonableness” of what had been done and was intended to be Canada (Minister of Citizenship & Immigration) v. X Michael L. Phelan J. 217

done in the future. Courts of Appeal remind trial courts that in determining whether a decision under review is reasonable, courts are not to substitute its view of what the Court would do for a consideration of whether what was done was reasonable. The Member made that type of error. 33 The Member also made unreasonable and plainly incorrect findings. The finding regarding the failure to contact the Respondent’s mother, through no fault of the Respondent, was factually wrong. 34 In examining the Minister’s efforts, the Member, while acknowledging the absence of any identification documents, did not consider the Respondent’s actions and their impact on the Applicant’s efforts. 35 The Respondent, knowing she was coming to Canada where she had a brother, provided no contact information or location other than saying that he was in Toronto. She had nothing but an area address for her mother. Further, she suggested to CBSA that the most useful contact was her brother in Sri Lanka who had a telephone. After repeated attempts by CBSA to contact him, she suggested that he might have finally completed his move to France; an eventuality of which she was aware but had not disclosed. 36 It was not reasonable in these circumstances where the Respondent directs CBSA as to the likely source of her identity documents to fail to consider the impact that her direction had on the Minister’s officials and the focus of their efforts.

D. Issue 2: Failure to Consider Other Grounds 37 The Applicant has argued that the Member failed to consider other grounds for detention. These include the potential flight risk, the potential of coercion imposed by the smugglers, and the potential of the Respondent to go “under- ground” and disappear. 38 These were not argued before the Member and therefore the Member’s reasons cannot be criticized for failure to consider these other factors. 39 They are, however, factors which might more properly be considered in the terms and conditions of release.

E. Issue 3: Terms and Conditions of Release 40 The issue of terms and conditions of release, assuming release itself is sustainable in law (which it is not) must be assessed on a reasonableness standard with deference owed to the Member who has a broad discretion in this area. 41 The evidence in this case is that identity is still properly in doubt; that the ship and its human cargo were part of human smuggling/organized crime activity; that the Respondent’s brother in Sri Lanka/France had the resources to pay for the Respondent’s voyage; that the Respondent had no documents for either herself or the accompanying children claimed to be hers. 218 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

42 The Member accepted that the Respondent’s release was a close call, done with considerable reluctance; however, the Member permitted the release on the most minimal of terms and conditions. 43 In assessing the reasonableness of a decision, it is appropriate to consider whether the decision is balanced in view of all of the facts and whether the terms and conditions were a disproportionate response to the frailties of the Respon- dent’s position and the risks inherent in releasing an unidentified individual. 44 The Member erred in not considering these competing factors and therefore reached an unreasonable conclusion. The release of an unidentified individual and three children with no more than a once a month reporting requirement is not within the range of acceptable outcomes in these circumstances.

V. Conclusion 45 In granting this judicial review, the Court is mindful of the hot house environment in which all parties including Board members operate, the strained resources and the strains on people and their patience. 46 However, for all of the above reasons, this judicial review will be granted. 47 Prior to issuing a formal Order, the parties shall have seven (7) days to make their submissions on whether there is a question(s) which ought to be certified. Application granted. Sellathurai v. Canada 219

[Indexed as: Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness)] Chanthirakumar Sellathurai, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Judith A. Snider J. Heard: October 20, 2010 Judgment: November 3, 2010 Docket: IMM-152-09, 2010 FC 1082 Barbara Jackman, for Applicant Jamie Todd, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — General principles –––– Inadvertent disclosure of privileged documents — Applicant was granted leave to bring judicial review of admissibility hearing before Immigration Division of Immigration and Refugee Board — Applicant was sent fairness disclosure package from border services agency containing documents relating to pending ministerial relief application — Minister of Public Safety and Emergency Preparedness learned that classified information was inadvertently disclosed and sent request for return of package — Documents released could significantly injure national security — Minister brought motion for order of non-disclosure of portions of disputed documents and return of unredacted disputed documents — Motion granted — Federal court had jurisdiction to apply s. 87 of Immigration and Refugee Protection Act to release of inadvertently disclosed documents — State was permitted to protect inadvertently disclosed information that could be injurious to national security — Section 38 of Canada Evidence Act applied as complete code where no statutory scheme existed to deal with non-disclosure of documents subject to national security privilege — Documents formed part of substance of adjourned judicial review motion, as well as ministerial relief application, so s. 87 of IRPA was applicable — Considerations of fairness and natural justice did not require appointment of special advocate for applicant under s. 87.1 of IRPA. Evidence –––– Documentary evidence — Privilege as to documents — Crown privilege –––– Applicant was granted leave to bring judicial review of admissibility hearing before Immigration Division of Immigration and Refugee Board — Applicant was sent fairness disclosure package from border services agency containing documents relating to pending ministerial relief application — Minister of Public Safety and Emergency Preparedness learned that classified information was inadvertently disclosed and sent request for return of package — Documents released could significantly injure national security — Minister brought motion for order of non-disclosure of portions of disputed documents and return of unredacted disputed documents — Motion granted — Redacted portions of disputed documents were subject of national security privilege — Inadvertent disclosure of privileged information did not amount to waiver — National security privilege is clear exception to open court principle. 220 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Cases considered by Judith A. Snider J.: Abou-Elmaati v. Canada (Attorney General) (2010), 101 O.R. (3d) 424, 208 C.R.R. (2d) 336, 318 D.L.R. (4th) 459, 93 C.P.C. (6th) 24, 2010 ONSC 2055, 2010 CarswellOnt 2075, 255 C.C.C. (3d) 177 (Ont. S.C.J.) — considered Almrei v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FCA 54, 2005 CarswellNat 319, 330 N.R. 73, 45 Imm. L.R. (3d) 163, [2005] 3 F.C.R. 142, 2005 CAF 54, 2005 CarswellNat 869, 251 D.L.R. (4th) 13, [2005] F.C.J. No. 213 (F.C.A.) — considered Babcock v. Canada (Attorney General) (2002), 2002 SCC 57, 2002 CarswellBC 1576, 2002 CarswellBC 1577, [2002] 8 W.W.R. 585, 214 D.L.R. (4th) 193, 3 B.C.L.R. (4th) 1, [2002] 3 S.C.R. 3, 3 C.R. (6th) 1, 289 N.R. 341, 168 B.C.A.C. 50, 275 W.A.C. 50, [2002] S.C.J. No. 58, REJB 2002-32276 (S.C.C.) — referred to Canada v. Chapelstone Developments Inc. (2004), 2004 NBCA 96, 2004 CarswellNB 581, 2004 CarswellNB 582, 277 N.B.R. (2d) 350, 727 A.P.R. 350, (sub nom. Chapelstone Developments Inc. v. R.) 2005 G.T.C. 1338 (Eng.), (sub nom. R. v. Chapelstone Developments Inc.) 191 C.C.C. (3d) 152, [2004] G.S.T.C. 162, [2004] N.B.J. No. 450 (N.B. C.A.) — considered Canada (Attorney General) v. Khawaja (2007), 47 C.R. (6th) 346, 2007 FC 490, 2007 CF 490, 219 C.C.C. (3d) 305, 2007 CarswellNat 1129, 2007 CarswellNat 2337, 312 F.T.R. 217 (Eng.), [2008] 1 F.C.R. 547, [2007] F.C.J. No. 622 (F.C.) — considered 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 CarswellNat 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.) — considered Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 CarswellNat 18, 1992 CarswellNat 653, EYB 1992-67215, [1992] S.C.J. No. 27 (S.C.C.) — referred to Communities Economic Development Fund v. Canadian Pickles Corp. (1991), [1992] 1 W.W.R. 193, [1991] 3 S.C.R. 388, 85 D.L.R. (4th) 88, 76 Man. R. (2d) 1, 131 N.R. 81, 10 W.A.C. 1, 8 C.B.R. (3d) 121, 1991 CarswellMan 402, 1991 CarswellMan 25, EYB 1991-67199, [1991] S.C.J. No. 89 (S.C.C.) — considered Farkhondehfall v. Canada (Minister of Citizenship & Immigration) (2009), 2 Admin. L.R. (5th) 240, 2009 CarswellNat 3344, 2009 FC 1064, [2009] F.C.J. No. 1323 (F.C.) — considered Henrie v. Canada (Security Intelligence Review Committee) (1988), 1988 CarswellNat 160, 1988 CarswellNat 160F, 53 D.L.R. (4th) 568, 24 F.T.R. 24, [1989] 2 F.C. 229, [1988] F.C.J. No. 965 (Fed. T.D.) — considered Jahazi v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 3027, 2010 CF 242, 363 F.T.R. 278 (Eng.), 2010 FC 242, 2010 CarswellNat 454 (F.C.) — considered Kanyamibwa v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 360 F.T.R. 173 (Eng.), 2010 CF 66, 2010 FC 66, 2010 CarswellNat 97, 2010 Car- swellNat 1520, 87 Imm. L.R. (3d) 86, [2010] F.C.J. No. 59 (F.C.) — considered Sellathurai v. Canada 221

Khadr v. Canada (Attorney General) (2008), 2008 CarswellNat 5532, 2008 CF 549, 329 F.T.R. 80 (Eng.), 2008 CarswellNat 1462, 2008 FC 549, [2008] F.C.J. No. 770 (F.C.) — considered Mohammed v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1310, 2006 CarswellNat 3485, 57 Imm. L.R. (3d) 105, 2006 CF 1310, 302 F.T.R. 184 (Eng.), 2006 CarswellNat 5341, [2007] 4 F.C.R. 300, [2006] A.C.F. No. 1630, [2006] F.C.J. No. 1630 (F.C.) — referred to Rajadurai v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 785, 2009 CF 119, 340 F.T.R. 179 (Eng.), 2009 CarswellNat 286, 2009 FC 119, [2009] F.C.J. No. 147 (F.C.) — followed Ruby v. Canada (Solicitor General) (2002), 2002 SCC 75, 2002 CarswellNat 3225, 2002 CarswellNat 3226, 99 C.R.R. (2d) 324, 219 D.L.R. (4th) 385, 295 N.R. 353, 7 C.R. (6th) 88, 22 C.P.R. (4th) 289, 49 Admin. L.R. (3d) 1, [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, REJB 2002-35620 (S.C.C.) — referred to Segasayo v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 3456, 2007 CF 585, 66 Imm. L.R. (3d) 111, 2007 CarswellNat 1497, 2007 FC 585, 313 F.T.R. 106 (Eng.), [2007] A.C.F. No. 792, [2007] F.C.J. No. 792 (F.C.) — referred to Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness) (December 7, 2009), Doc. IMM-152-09 (F.C.) — referred to Sierra Club of Canada v. Canada (Minister of Finance) (2002), 287 N.R. 203, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 18 C.P.R. (4th) 1, 44 C.E.L.R. (N.S.) 161, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Can- ada) 211 D.L.R. (4th) 193, 223 F.T.R. 137 (note), 20 C.P.C. (5th) 1, 40 Admin. L.R. (3d) 1, 2002 SCC 41, 2002 CarswellNat 822, 2002 CarswellNat 823, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 93 C.R.R. (2d) 219, [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, REJB 2002-30902 (S.C.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Ad- min. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 CarswellNat 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 Ugbazghi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1651, 2008 FC 694, 2008 CarswellNat 2672, 73 Imm. L.R. (3d) 27, [2009] 1 F.C.R. 454, 2008 CF 694 (F.C.) — followed Varela v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FCA 145, 2009 CarswellNat 2726, 2009 CAF 145, 80 Imm. L.R. (3d) 1, [2010] 1 F.C.R. 129, 2009 CarswellNat 1228, 391 N.R. 366, [2009] F.C.J. No. 549 (F.C.A.) — considered Statutes considered: Canada Evidence Act, R.S.C. 1985, c. C-5 Generally — referred to s. 38 — considered s. 38.06(2) [en. 2001, c. 41, s. 43] — considered Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — referred to 222 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 34(1) — referred to s. 34(2) — referred to s. 77-87.1 — referred to s. 87 — considered s. 87.1 [en. 2008, c. 3, s. 4] — considered Rules considered: Federal Courts Rules, SOR/98-106 Generally — referred to R. 4 — considered

MOTION by Minister of Emergency Preparedness and Public Safety for order of non- disclosure of privileged documents and return of unredacted disputed documents.

Judith A. Snider J.: I. Introduction 1 In this motion, the Minister of Emergency Preparedness and Public Safety (the Minister) seeks the return of material inadvertently forwarded to counsel for Mr. Chanthirakumar Sellathurai (the Applicant). The Minister maintains that three unredacted confidential documents (the Disputed Documents) attract national security privilege, that certain portions of the Disputed Documents should not have been disclosed, and that the inadvertent disclosure of the Disputed Documents did not waive the claimed privilege. 2 The Minister requests an order of non-disclosure of the relevant portions of the Disputed Documents and an order requiring the Applicant to return the unredacted Disputed Documents to the Minister. 3 This motion raises unique issues in the context of an already complicated set of proceedings. For the reasons that follow, I have concluded that the motion of the Minister should be granted.

II. Issues 4 As I would frame them, the issues and sub-issues in this motion are the following: 1. Does the Federal Court have jurisdiction to determine this motion and grant the relief sought by the Minister pursuant to s. 87 of the Immigra- tion and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)? 2. Should the Minister’s motion to recall the Disputed Documents succeed? (a) Are these documents the subject of national security privilege? (b) Did the Minister waive national security privilege on the Dis- puted Documents? Sellathurai v. Canada Judith A. Snider J. 223

(c) Is national security privilege an exception to the “open court principle”? 3. Should the Court designate a special advocate, pursuant to s. 87.1 of IRPA, to advance the interests of the Applicant?

III. Background 5 The context of Court File IMM-152-09 is an admissibility hearing before the Immigration Division of the Immigration and Refugee Board (the ID). The admissibility hearing would determine the Applicant’s admissibility to Canada pursuant to s. 34(1) of IRPA. In an interlocutory decision dated December 29, 2008, the ID refused to stay the s. 34(1) hearing pending the outcome of the Applicant’s 2002 application made under s. 34(2) of IRPA (the Ministerial Re- lief Application). The Applicant filed an Application for Leave and Judicial Re- view of the interlocutory decision of the ID, and brought a motion before the Court seeking a stay pending a determination of the Ministerial Relief Applica- tion. The Federal Court granted the Applicant’s motion for a stay pending the disposition of the Application for Leave and Judicial Review (Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness) (December 7, 2009), Doc. IMM-152-09 (F.C.) per Mosley J)). 6 Leave was granted in the underlying judicial review application, and a hearing date was set for February 23, 2010. Justice Roger Hughes adjourned the judicial review hearing sine die, as he concluded that judicial economy favoured a practical resolution of the Ministerial Relief Application before a judicial review of the ID proceeding should be heard. 7 The key milestones leading to the motion now before me are as follows: • On July 12, 2010, officers with Canada Border Services Agency (CBSA) provided the Applicant with a fairness disclosure package relating to the Ministerial Relief Application. This package contained the unredacted Disputed Documents. • On August 12, 2010, after becoming aware, on August 11, 2010, of the inadvertent disclosure, counsel for the Minister wrote to the Applicant’s counsel to inform her that classified information was inadvertently disclosed. The Minister’s counsel requested that the entire package of documents be sealed and returned. A second request was sent on August 16, 2010. • In a letter dated August 19, 2010, Applicant’s counsel advised the Min- ister’s counsel that the Disputed Documents had been pulled from the disclosure package and put in a sealed envelope. Applicant’s counsel requested that redacted versions of the Disputed Documents be sent to her. 224 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

• On August 30, 2010, counsel for the Minister wrote to the Court seeking direction regarding the inadvertent disclosure of the Disputed Docu- ments. The Applicant responded to this letter on September 2, 2010. 8 Following this sequence of events, on September 2, 2010, Justice Hughes issued the following Direction in this matter: • Applicant’s counsel was to place the Disputed Documents in a sealed envelope and file it with the Court by September 8, 2010; • The Minister’s counsel was to provide the Applicant’s counsel with the redacted versions of the Disputed Documents by September 8, 2010; and • The Minister was to file a motion on or about September 8, 2010 “to be heard by a designated Judge, if required as to the further manner in which said documents are to be dealt”. These directions were followed.

IV. Analysis A. Issue 1: Does the Federal Court have jurisdiction to determine this motion pursuant to s. 87 of IRPA? 9 After hearing oral argument from both the Applicant and the Respondent, it is apparent that neither party is seriously asserting that the Federal Court does not have jurisdiction to determine this motion. However, the disputed issue is whether this motion should be heard and determined pursuant to s. 87 of IRPA, or pursuant to s. 38 of the Canada Evidence Act, R.S.C., 1985 c. C-5 (CEA). 10 The Minister acknowledges that neither IRPA nor the Federal Courts Rules, SOR/98-106 provide an explicit statutory procedure for issues of inadvertent disclosure in the IRPA context. However, the Minister points to the fact that the Federal Court has been expressly tasked by Parliament to protect information in the IRPA context where disclosure would be injurious to national security or endanger the safety of any person (IRPA, s.77 to 87.1). The Minister further argues that this Court has plenary supervisory jurisdiction over the statutory scheme of IRPA which would allow this motion to be heard pursuant to s. 87 of IRPA, combined with the “gap rule” in s. 4 of the Federal Courts Rules. 11 The Applicant, on the other hand, argues that this motion cannot be heard pursuant to s. 87 of IRPA because the inadvertent disclosure “has nothing to do” with any current judicial review application. The Applicant argues that the only vehicle for the Federal Court to determine this motion is s. 38 of CEA. The Applicant further submits that it is in the interests of justice to apply s. 38 of CEA, because this section, and not s. 87 of IRPA, allows for the proper balancing of the interests for and against disclosure. 12 For the reasons that follow, I find the position of the Minister to be preferable. Specifically, I conclude that this Court has jurisdiction to apply s. 87 of IRPA to the Disputed Documents. Sellathurai v. Canada Judith A. Snider J. 225

13 The importance of preventing (and, therefore, in my view, recalling) the release of inadvertently disclosed documents has been specifically addressed by this Court. In Jahazi v. Canada (Minister of Citizenship & Immigration), 2010 FC 242, 363 F.T.R. 278 (Eng.) (F.C.) (Jahazi) at paragraph 21 (citing Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 (S.C.C.) at para.42-43) Justice Yves de Montigny stated: In [Ruby], the Supreme Court acknowledged that the state has a legitimate interest in preserving Canada’s supply of intelligence information received from foreign sources and noted that the inadvertent release of such information would significantly injure national security. [Emphasis added] 14 The state has an important interest in protecting national security and the security of its intelligence services. Inadvertent disclosure of confidential information goes to the heart of what the state has an interest in protecting. There will always be a competing interest between the public’s right to an open system and the state’s need to protect information that could be injurious to the public as a whole. 15 The Supreme Court has recognized the importance of both the state’s and society’s interest in national security. Both of these reasons have been found to be sufficient to rationalize limiting the disclosure of materials to individuals affected by the non-disclosure (see, Jahazi, above, citing Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.) at para. 58; Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289 (S.C.C.) at p. 744; Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.) (Suresh), at para. 122; Ruby v. Canada (Solicitor General), above, at paras. 38 - 44). 16 A natural extension of these principles is the state’s interest in recalling documents that have been inadvertently disclosed with the objective of regaining protection of information that is properly the subject of national security. It would be illogical to prevent the recalling of inadvertently disclosed documents only because the documents have been disclosed, if putting the information into the hands of an “informed reader” would be injurious to national security. Therefore, the principles should apply to documents that are properly the subject of national security privilege, regardless of whether they were inadvertently disclosed documents or the subject of a non-disclosure order. 17 Neither the Applicant nor the Minister argues before me that the state should not protect information that is properly the subject of national security privilege. The thrust of the arguments relates to “how” and “whether” the state should protect the information inadvertently disclosed in the Disputed Documents. 18 The Applicant argues that the only vehicle for the Federal Court to determine this motion is by way of s. 38 of CEA. I do not agree. 226 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

19 Under s. 38 of CEA, an application may be made to the Federal Court for a disclosure order pursuant to s. 37.06(2). The purpose of s. 38 of CEA is “to protect information where disclosure could be injurious to national defence or international relations” and to provide “for judicial oversight of government claims of confidentiality for such information” (Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547 (F.C.) (Khawaja) at paras. 87-88). Further, in Almrei v. Canada (Minister of Citizenship & Immigration), 2005 FCA 54, [2005] 3 F.C.R. 142 (F.C.A.), the Federal Court of Appeal stated that s. 38 of CEA seeks to prevent the public release of information relating to or potentially injurious to national security in the course of a proceeding before a court (para. 74). 20 The Applicant argues that s. 38 of CEA provides a complete code that out- lines the procedures to be taken into account when the release of sensitive information is at issue. Specifically s. 38.06(2) mandates a balancing of the public interest in disclosure, against the public interest in non-disclosure (Khawaja, above, at para. 89). The Applicant argues that s.38 of CEA is the only vehicle to deal with the Disputed Documents in this case. 21 It is apparent that s. 38 of CEA is meant to be applied as a complete code to proceedings where there is no statutory scheme in place to deal with the non- disclosure of documents that are the subject of national security privilege. This is not the case at bar. IRPA contains a statutory scheme specifically designed to deal with the non-disclosure of information within the immigration context. An application of CEA to this motion, rather than IRPA, would arguably run contrary to the presumption against redundancy, a principle of statutory interpretation. 22 It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose (Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 158). 23 The same principle was expressed by Iacobucci J. in Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388, [1991] S.C.J. No. 89 (S.C.C.) at paragraph 36: It is a principle of statutory interpretation that every word of a statute must be given meaning: “A construction which would leave without effect any part of the language of a statute will normally be rejected” (Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 36). 24 The presumption against redundancy would prevent this Court from applying s. 38 of CEA to this case. If Parliament intended this Court to utilize s. 38 every time a non-disclosure issue arose in the immigration context then s. 87 of IRPA would be redundant. Taking into consideration the statement by Justice Sellathurai v. Canada Judith A. Snider J. 227

Iacobucci that every word of a statute must be given meaning, this could not have been the intent of Parliament. 25 Having determined that s. 38 of CEA is not the proper vehicle for dealing with the subject matter of this motion, I now turn to the application of s. 87 of IRPA and its principles. 26 The Federal Court has been expressly tasked by Parliament to protect information in the IRPA context where disclosure would be injurious to national security or endanger the safety of any person if disclosed (IRPA, s.77 to 87.1). Section 87 of IRPA states: The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications. Le ministre peut, dans le cadre d’un contrôle judiciaire, demander l’interdiction de la divulgation de renseignements et autres el´´ ements de preuve. L’article 83 s’applique a` l’instance, avec les adaptations nécessaires, sauf quant a` l’obligation de nommer un avocat spécial et de fournir un résumé. 27 The Applicant argues that s. 87 cannot apply to this motion because s. 87 of IRPA limits the application to “during a judicial review”; in the Applicant’s view, this motion “has nothing to do with a judicial review”. I disagree. The Applicant’s own action, in seeking a stay of the ID hearing and an adjournment of the judicial review, has inextricably linked the Ministerial Relief Application and the judicial review of the ID’s interlocutory decision. As a result, there is little question in my mind that documents disclosed in the context of the Minis- terial Relief Application would have relevance to the judicial review application when, and if, it is heard. It follows that, although the Disputed Documents were disclosed pursuant to the Ministerial Relief Application, this disclosure forms part of the substance of the judicial review motion that currently stands adjourned sine die. 28 Even if it is possible to conclude that the Disputed Documents do not directly fall within the judicial review currently adjourned and, hence, are not within the explicit words of s. 87, the result would be the same. The Disputed Documents were clearly sent for the purposes of a matter within IRPA — specifically s. 34(2). The unique facts of this case and the close relationship of the s. 34(1) proceeding and the Ministerial Relief Application lead me to conclude that Rule 4 of the Federal Courts Rules can be relied on to bridge the gap (Segasayo v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 585, 313 F.T.R. 106 (Eng.) (F.C.) (Segasayo); Mohammed v. Canada (Minister of Citizenship & Immigration), 2006 FC 1310, [2007] 4 F.C.R. 300 (F.C.)). Adopting, by analogy, the well-established procedure of s. 87 of IRPA for the purposes of this motion would secure the just, most expeditious and least expen- sive determination of this motion (Rule 3, Federal Courts Rules). 228 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

29 In summary, I find that the Federal Court has jurisdiction to consider this motion either directly or by analogy pursuant to s. 87 of IRPA.

B. Issue 2: Should the Minister’s motion to recall the documents succeed? (1) Are these documents the subject of national security privilege? 30 The Minister argues that the documents are properly the subject of national security privilege. 31 The Supreme Court of Canada confirmed that a broad and flexible approach to national security issues should attract a deferential standard of review, provided that “... the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, Courts should not interfere with the Minister’s decision.” (Suresh, above, at para. 85). 32 The Minister refers to the considerations that were outlined by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee) (1988), [1989] 2 F.C. 229, [1988] F.C.J. No. 965 (Fed. T.D.) at paragraphs 27 and 28 for determining what information might prove to be injurious to national security: In considering whether the release of any particular information might prove injurious to national security and in estimating the possible extent of any such injury, one must bear in mind that the fundamental purpose of and indeed the raison d’ˆetre of a national security intelligence investigation is quite different and distinct from one pertaining to criminal law enforcement, where there generally exists a completed offence providing a framework within the perimeters of which investigations must take place and can readily be confined. Their purpose is the obtaining of legally admissible evidence for criminal prosecutions. Security investigations on the other hand are carried out in order to gather information and intelligence and are generally directed towards predicting future events by identifying patterns in both past and present events. There are few limits upon the kinds of security information, often obtained on a long-term basis, which may prove useful in identifying a threat. The latter might relate to any field of our national activities and it might be an immediate one or deliberately planned for some time in the relatively distant future. An item of information, which by itself might appear to be rather innocuous, will often, when considered with other information, prove ex- tremely useful and even vital in identifying a threat. The very nature and source of the information more often than not renders it completely inadmissible as evidence in any court of law. Some of the information comes from exchanges of intelligence information between friendly countries of the western world and the source or method by which it is obtained is seldom revealed by the informing country. [Emphasis added] 33 The Applicant, on the other hand, submits that the Minister bears the burden of establishing that the disclosure was inadvertent and that a failure to recall Sellathurai v. Canada Judith A. Snider J. 229

these documents would be injurious to national security. The Applicant argues that the affidavit of Ms. Barrette (provided as part of the motion record) does not indicate why the release of the unredacted Disputed Documents would jeopard- ize national security. In addition, the Applicant argues that the issue is whether a valid national security claim can be maintained, given that the documents have already been disclosed. 34 For the reasons that follow, I conclude that the redacted portions of the Dis- puted Documents are properly the subject of national security privilege. 35 The Applicant refers to portions of the redacted Disputed Documents that appear not to be of importance to ‘national security’ (i.e. names, addresses). However, as discussed in the recent decision of Rajadurai v. Canada (Minister of Citizenship & Immigration), 2009 FC 119, 340 F.T.R. 179 (Eng.) (F.C.) (Rajadurai), while a document alone may appear to be innocuous, from the perspective of an “informed reader”, it may impinge on national security. At paragraph 16 Justice de Montigny observed: It is of some importance to realize than an “informed reader”, that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typo- graphic and teleprinter systems employed by C.S.I.S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation. 36 From the perspective of an “informed reader” and as a designated judge, I have reviewed the Disputed Documents, the proposed redactions and the testimony of the affiant who swore the secret affidavit provided to me. My review was informed by the above comments of Justice de Montigny in Rajadurai and the recommendations of Justice Eleanor Dawson in Ugbazghi v. Canada (Minister of Citizenship & Immigration), 2008 FC 694, [2009] 1 F.C.R. 454 (F.C.). The secret affidavit was not a mere assertion of conclusions, but detailed the evidence and the reasoning as to why, in the opinion of the affiant, each redaction was necessary in order to protect national security or the safety of any person. Having undertaken this serious obligation to review the material, I agree with the Minister that the redacted portions of the Disputed Documents should be the subject of national security privilege. 230 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

(2) Did the Respondent waive the national security privilege on the documents? 37 The Minister argues that the disclosure of the Disputed Documents was inadvertent and was not intended to waive the national security privilege attached to these documents. The Applicant, on the other hand, argues that even if national security privilege had originally attached, the Minister has waived that privilege by disclosing the Disputed Documents to the Applicant’s counsel. 38 Canadian courts have established that inadvertent disclosure of privileged information does not automatically amount to waiver, and privileged information relating to Canada’s national security is not an exception (Alan W. Bryant, Sydney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd edition (Toronto: LexisNexis Canada Inc., 2009)). Further, public interest immunity cannot, in any ordinary sense, be waived (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 (S.C.C.) at para 32). 39 The Court in Abou-Elmaati v. Canada (Attorney General), 2010 ONSC 2055, 101 O.R. (3d) 424 (Ont. S.C.J.), considering s. 38 of CEA, stated that inadvertent disclosure does not oust the Federal Court’s jurisdiction to protect national security documents on the basis of waiver. In my view, this also applies to s. 87 of IRPA. Justice Richard Mosley, in Khawaja, above, referred to the decision in Canada v. Chapelstone Developments Inc., 2004 NBCA 96, 277 N.B.R. (2d) 350 (N.B. C.A.), where the New Brunswick Court of Appeal held that inadvertent disclosure of privileged information does not automatically result in a loss of privilege, and more is required before the privileged communication will be admissible (Khawaja, above, at para. 109; Chapelstone, above, at para. 55). 40 The Court in Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80 (Eng.) (F.C.) (Khadr), considered the scenario of if and when inadvertent disclosure could waive national security privilege. The Court concluded that the approach to determine if a document should not be disclosed to the public is the same for all documents whether or not the information was released inadvertently. 41 I agree with the assertion of the Applicant that a case-by-case determination of privilege must be made when documents are inadvertently disclosed (Khawaja, above, at para. 109). 42 Having considered the unique circumstances of this motion, I conclude that the claim to national security privilege over the portions of the Disputed Docu- ments at issue was not lost by the inadvertent disclosure of them. While the Minister acknowledges that unredacted copies of the Disputed Documents should never have been sent to the Applicant’s counsel, it was not done inten- tionally, and there is nothing before me that would give rise to the ‘circumstances’ discussed in Khawaja and Khadr that would necessitate the waiver of privilege to the Disputed Documents. The importance of protecting national se- Sellathurai v. Canada Judith A. Snider J. 231

curity does not end when a mistake is made which results in inadvertent disclosure of information. It is in the interest of the public to ensure that natural security information is kept confidential and that, in the event of an ‘inadvertent’ error, there are procedures in place to restore that confidentiality.

(3) Is national security privilege an exception to the open court principle? 43 The Applicant argues that national security privilege is contrary to the “open court principle” requiring “public openness, both in the proceedings of the dispute, and in the material that is relevant to its resolution” (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (S.C.C.) at para. 1). 44 There are clear exceptions to the “open court principle,” and national security privilege is one such exception (Ugbazghi, above, at paras. 24-28).

C. Issue 3: Should the Court designate a Special Advocate to advance the interests of the Applicant? 45 The Applicant argues that if there is to be evidence led and submissions made in camera and ex parte, the Court should appoint a special advocate to the Applicant pursuant to s. 87.1 of IRPA. 46 The Applicant is aware that the appointment of a special advocate is discre- tionary. However, the Applicant asserts that the discretion ought to be exercised positively where considerations of fairness require it. The Applicant submits that, in this case, considerations of fairness require the appointment of a special advocate. 47 The Applicant argues that his rights pursuant to s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter) are engaged, in that this is part of the overall decision which could lead to his removal to face persecution and torture in Sri Lanka. The Applicant refers to the decision of Charkaoui, Re, above, where the Supreme Court specifically emphasized that non-disclosure and breach of fairness in a proceeding that could lead to removal to harm would violate an individual’s Charter rights. 48 Section 87.1 of IRPA states: If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications” Si le juge, dans le cadre du contrôle judiciaire, ou le tribunal qui entend l’appel de la décision du juge est d’avis que les considérations d’équité et de justice naturelle requièrent la nomination d’un avocat spécial en vue de la 232 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

défense des intérêts du résident permanent ou de l’étranger, il nomme, parmi les personnes figurant sur la liste dressée au titre du paragraphe 85(1), celle qui agira a` ce titre dans le cadre de l’instance. Les articles 85.1 a` 85.5 s’appliquent alors a` celle-ci avec les adaptations nécessaires. 49 As noted in Farkhondehfall v. Canada (Minister of Citizenship & Immigra- tion), 2009 FC 1064, [2009] F.C.J. No. 1323 (F.C.) at paragraph 29, the appointment of a special advocate is within the discretion of the designated judge: While the amendments made to IRPA in the wake of the Charkaoui, Re decision made the appointment of special advocates mandatory in security certificate proceedings, the appointment of special advocates in other types of cases under the Act is left to the discretion of the designated judge. 50 Recently, Justice de Montigny, in Kanyamibwa v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 66, 360 F.T.R. 173 (Eng.) (F.C.), at paras. 43-56 canvassed the requirements that a Court should consider when determining whether the appointment of a special advocate is necessary in a non-security certificate case. In that case, Justice de Montigny concluded that a special advocate was not necessary to assist in the s. 87 non-disclosure motion. In reaching this conclusion, Justice de Montigny considered a number of factors: 1. Injury: Would disclosure be injurious to national security or endanger the safety of any person? 2. Immediate Impact: Would the Minister’s decision have a limited immediate impact on the Applicant’s life, liberty and security interests? 3. Convention Refugee: Has the Applicant already been found to be a Con- vention refugee? 4. Type of Application: Is this a denial of a ministerial relief application or a security certificate? 5. Extent of non-disclosure: Is the extent of the non-disclosure limited? 6. Materiality: What is the materiality or probity of the information in question? 51 In the motion before me, almost all of the factors weigh against the appointment of a special advocate. As noted above, I have concluded that disclosure of the unredacted Disputed Documents would be injurious to national security. Secondly, a judicial review of a denial of ministerial relief under subsection 34(2) differs substantially from both a judicial determination concerning the reasonableness of a security certificate and a judicial review of the detention of a person subject to a security certificate (Segasayo, above, at para. 28). Further, in this case, a determination has not been made as to whether the Applicant will be denied ministerial relief. In my view, the information sought to be protected is minimal. At this stage, it is uncertain whether this information will be relied upon by the Minister in the Ministerial Relief Application. Finally, the Appli- cant is not facing imminent removal and is not being detained. Sellathurai v. Canada Judith A. Snider J. 233

52 Considering all of the factors above, I conclude that the considerations of fairness and natural justice do not require that a special advocate be appointed to protect the interests of the Applicant.

V. Conclusion 53 In conclusion, I am satisfied that the motion of the Minister should be granted. As I understand the situation, the parties have complied with the order of Justice Hughes. There is no need to repeat, in my order, those matters that have already been addressed. 54 Given that the context of this motion is under the provisions of IRPA, I asked counsel at the end of oral submissions whether there was a question for certification. I declined a request to defer that issue until after my reasons were released. As observed by the Court of Appeal in Varela v. Canada (Minister of Citizenship & Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 (F.C.A.), “a serious question of general importance arises from the issues in the case and not from the judge’s reasons” (para. 29). I gave the Applicant until Friday, October 22, 2010 and the Minister until Tuesday, October 26, 2010 to provide submissions on any proposed certified question. 55 Applicant’s counsel’s submissions were not received until October 25, 2010. Her reasons for filing late were totally inadequate. The Court does not set dead- lines so that they may be ignored. However, in any event, although the late-filed letter contained some musings, the letter concluded by stating that: “So at this point there are no issues for which certification is being sought.” 56 In responding submissions (that were delayed due to the lateness of the Ap- plicant’s counsel’s submissions), counsel for the Minister indicated that it might be premature to certify a question but that “it may be prudent to certify a question pertaining to the appropriate or preferable procedure to follow in the circumstances.” The vagueness of this request does not assist the Court. 57 Given the unique circumstances that arise on this motion, I am satisfied that there is no question of general importance for certification.

Order THIS COURT ORDERS, DECLARES AND DIRECTS that: 1. the Order of Justice Hughes, dated September 2, 2010, is confirmed; 2. the national security claim of privilege over those portions of the Dis- puted Documents, as asserted by the Minister, is upheld; 3. to the extent that any of the following steps have not been taken, the Court orders that: • the Applicant seal and return to the Minister, through his counsel, any paper copy of the unredacted Disputed Documents; 234 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

• the Applicant destroy any electronic copy of the unredacted Dis- puted Documents in the control or possession of the Applicant or his counsel; and • the Applicant and his counsel destroy any notes in their possession or control relating to the redacted portions of the Disputed Documents. 4. The unredacted Disputed Documents, that currently are in a sealed envelope filed with the Court and that form part of this Court File, are to be returned by the Registry to the Minister’s counsel; and 5. no question of general importance is certified. Motion granted. Singh v. Canada 235

[Indexed as: Singh v. Canada (Minister of Citizenship & Immigration)] Ravinder Singh, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court Michel Beaudry J. Heard: November 4, 2010 Judgment: November 9, 2010 Docket: IMM-983-10, 2010 FC 1111 David Orman, for Applicant Kristina Dragaitis, for Respondent Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Powers and duties of visa or immigration officer –––– Indian citizen applied for temporary resident visa, to engage in exploratory visit to Quebec to become permanent resident as investor under Quebec Investor Program — Visa officer refused request on grounds he was not satisfied that applicant would leave Canada at end of authorized period — Applicant brought application for judicial review of decision — Application granted — Matter was remitted to different officer for reconsideration — Of- ficer did not provide reasons for finding that applicant’s lack of travel to Europe, UK or North America was negative factor — Officer did not refer to or analyze document provided by applicant relating to investor program — Officer erred in balancing factors which might prompt applicant to stay in Canada with those suggesting he would return to India — Officer found applicant had close family ties in Canada, but ought to have considered family in India as well. Cases considered by Michel Beaudry 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 Bruns- wick) 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 Obeng v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 754, 330 F.T.R. 196 (Eng.), 2008 FC 754, 2008 CarswellNat 4241, 2008 CarswellNat 1978, [2008] F.C.J. No. 957 (F.C.) — distinguished Paramasivam v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 811, 2010 CarswellNat 3413, 91 Imm. L.R. (3d) 29, 2010 CarswellNat 2690, 2010 FC 811, [2010] F.C.J. No. 988 (F.C.) — referred to 236 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to

APPLICATION for judicial review of decision of visa officer refusing to grant temporary resident visa.

Michel Beaudry J.:

1 This is an application for judicial review brought under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an visa officer (the officer), dated December 17, 2009, refusing Ravinder Singh (the applicant) a temporary resident visa (TRV). 2 The application for judicial review shall be allowed for the following reasons. 3 The officer was not satisfied that the applicant, a 42 year old citizen of India would leave Canada at the end of the requested TRV. The purpose of applying for a TRV was among other things, for the applicant, to engage in an exploratory visit to the province of Quebec to become a permanent resident as an investor under the Quebec Investor Program. 4 The applicant had previously applied and been rejected under the Quebec Investor Program in 2007 because the visa officer was of the opinion that most of the applicant’s assets were in the name of his father. The applicant’s father passed away in 2008, and the applicant has stated that these assets are now in his own name. 5 The officer’s CAIPS’ notes to (Computer Assisted Immigration Processing System) constitute his reasons (Tribunal’s record, page 3): PA IS A 42 YR OLD FARMER. HAS A FEW DAYS TRAVEL IN SE- ASIA IN 2006-07. NO TRAVEL TO EUR, UK OR NORTH AMERICA EVER. HAS CLOSE FAMILY TIES IN CDA AND PROVIDES NO SAT- ISFACTORY PROOF OF HIS ELIGIBILITY OR INVITE FROM THE QUEBEC INVESTOR PROGRAM. CANNOT ESTABLISH HIS FLU- ENCY IN ENGLISH/FRENCH THAT WILL ENABLE HIM TO MAKE A FRUITFUL VISIT EVEN IF HE WERE A POTENTIAL INVESTOR. I AM NOT SATISFIED THAT THE APPLICANT WILL DEPART CANADA AT THE END OF THE PERIOD AUTHORIZED FOR STAY. REFUSED. 6 I agree with both parties that the applicable standard of review in similar matters is reasonableness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47). 7 The defendant argues that the applicant’s travel experience was considered as a neutral factor by the officer. I do not agree. While the applicant traveled in 2006- 2007 to Southeast Asia, the officer gave no reasons why the absence of travel to EUR, UK or North America should be held against the applicant. I find Singh v. Canada Michel Beaudry J. 237

that the decision read as a whole clearly indicates that it was considered as a negative factor without reasonable explanations. This case can be distinguished from Obeng v. Canada (Minister of Citizenship & Immigration), 2008 FC 754 (F.C.) at para 13, [2008] F.C.J. No. 957 (F.C.) cited by the respondent. 8 Also, in my view, the officer made no reference or analyzed an important document from Robert Varin (Déclaration du courtier ou de la Société de fiducie relative aux vérifications de l’identité et aux démarches effectuées sur la prove- nance et l’origine de l’avoir du candidat investisseur) provided by the applicant (Tribunal’s record, page 16). 9 The document was attached to the cover letter (Tribunal’s record, pages 8 and 9) from the immigration consultant who explained the purpose of the application for a TRV. 10 The applicant wanted a TRV for an “exploratory visit to Montréal. Applicant intends to visit for about a two weeks period where he will stay in Montréal for 7 days to have a meeting with the officer of Quebec Immigration and to meet out the IRPA & its attendant Regulations requirements of 7 days stay in Mon- tréal ...” (Tribunal’s record, page 9) [emphasis in the original]. 11 Finally, I agree with the applicant’s argument that the officer erred in his balancing of the factors which might prompt the applicant to stay in Canada as opposed to those factors which suggest he would return to India. The officer mentioned that the applicant has close family ties in Canada (mother and brother) but ought to have considered his family (wife and daughters) and pro- perty he has in India (Paramasivam v. Canada (Minister of Citizenship & Immi- gration), 2010 FC 811, [2010] F.C.J. No. 988 (F.C.)). 12 While I am mindful that deference should be owed to the officer’s apprecia- tion of the evidence, I am of the opinion that the Court’s intervention is warranted here. 13 No question for certification was proposed and none arise.

Judgment THIS COURT ORDERS that the application for judicial review be granted. The matter is remitted back to a different officer for reconsideration. No question is certified. Application granted; matter remitted for reconsideration. 238 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

[Indexed as: Canada (Minister of Citizenship & Immigration) v. B479] The Minister of Citizenship and Immigration, Applicant and B479, Respondent Federal Court Russel W. Zinn J. Heard: November 25, 2010 Judgment: December 3, 2010 Docket: IMM-6660-10, 2010 FC 1227 Caroline Christiaens, for Applicant Douglas R. Cannon, for Respondent Immigration and citizenship –––– Enforcement — Arrest and detention — Grounds — Person suspected as member of inadmissible class –––– Respondent was citizen of Sri Lanka who arrived in Canada aboard ship with 490 other illegal immi- grants — Respondent held in detention for security purposes pending identification — At review, Immigration Division (ID) found continued detention was not warranted, as Min- ister had not made reasonable efforts to identify respondent — ID expressed concern at delay but agreed to maintain detention and encouraged Minister to make determination rapidly — At hearing one month later, Minister sought to continue detention on basis of security concern regarding respondent’s possible ties to terrorist organization — ID was not satisfied steps taken by Minister to address suspicions about security risk posed by respondent and ordered that continued detention was not warranted — ID ordered respondent be released — Minister applied for leave for judicial review and for stay of respondent’s release — Application granted — Minister established more than one serious issue to be tried and had arguable case with possibility of success with respect to issues — Minister established irreparable harm would occur if stay were not granted arising from security concern and there was serious possibility that respondent’s release would defeat purpose of s. 58(1)(c) of Immigration and Refugee Protection Act — Respondent would continue with regular detention reviews and if Minister’s suspicion was satisfactorily addressed, respondent would be released — Stay granted until earlier of determination of Minister’s application for judicial review on merits or order releasing respondent from detention following detention review hearing. Cases considered by Russel W. Zinn J.: Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 596, 2009 FCA 81, 387 N.R. 278, 79 Imm. L.R. (3d) 157, [2010] 2 F.C.R. 311, 2009 CAF 81, 2009 CarswellNat 5135, 309 D.L.R. (4th) 411, [2009] F.C.J. No. 314 (F.C.A.) — considered Canada (Minister of Citizenship & Immigration) v. X (2010), 2010 FC 112, 2010 Car- swellNat 198, 2010 CarswellNat 729, 2010 CF 112, 2 Admin. L.R. (5th) 229 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. B479 Russel W. Zinn J. 239

Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832 (1987), (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) 38 D.L.R. (4th) 321, 73 N.R. 341, 46 Man. R. (2d) 241, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) 87 C.L.L.C. 14,015, 18 C.P.C. (2d) 273, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) [1987] 3 W.W.R. 1, 1987 CarswellMan 176, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores Ltd.) [1987] 1 S.C.R. 110, 1987 Car- swellMan 272, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (M.T.S.) Ltd.) 25 Admin. L.R. 20, [1987] D.L.Q. 235, EYB 1987-67148, [1987] S.C.J. No. 6 (S.C.C.) — followed 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] S.C.J. No. 17 (S.C.C.) — followed Wang v. Canada (Minister of Citizenship & Immigration) (2001), 13 Imm. L.R. (3d) 289, 2001 CarswellNat 2626, [2001] 3 F.C. 682, 2001 FCT 148, 2001 CarswellNat 406, 204 F.T.R. 5, [2001] F.C.J. No. 295 (Fed. T.D.) — distinguished Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 58(1)(c) — considered s. 58(1)(d) — considered

APPLICATION by Minister for leave to judicially review decision of Immigration Divi- sion releasing respondent from detention and for order to stay detention temporarily.

Russel W. Zinn J.:

1 On November 26, 2010, I granted the Minister’s motion and stayed the respondent’s release from immigration detention until the earlier of either the determination of the Minister’s application for judicial review on the merits or an order of a Member of the Immigration Division releasing the respondent from detention following a statutorily required detention review hearing. I also granted the Minister’s application for leave to judicially review the decision of the Member releasing the respondent and ordered that it be heard on an expe- dited basis. The following are my reasons for so doing. 2 The respondent is a Sri Lankan national who arrived in Canada aboard the Sun Sea, with some 490 other illegal migrants, on August 13, 2010. 3 The record before the Court establishes that the respondent has undergone many interviews (August 27, 2010, October 2, 2010, October 18, 2010 and No- vember 5, 2010) and has had five detention review hearings as mandated by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (August 19, 2010, 240 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

August 25, 2010, September 13, 2010, October 16, 2010, and November 10, 2010). 4 At first, the Minister argued for the respondent’s continued detention on the basis of identity (s. 58(1)(d) of the Act). Until the detention review held on Oc- tober 16, 2010, the respondent’s detention was continued by the Board on the basis of identity. However, since October 16, 2010, the Minister has sought continued detention because of a suspicion that the respondent is inadmissible on grounds of security (s. 58(1)(c) of the Act). That section reads as follows: 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 ... (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; ... 5 At the review on October 16, 2010, the Member found that the Minister had not made reasonable efforts to establish the respondent’s identity and held that continued detention on that basis was not warranted. The Minister submitted that there was a reasonable suspicion that the respondent was inadmissible on security grounds. The Member found that the Minister’s suspicion that the respondent was inadmissible “on grounds of security” as provided for in s. 58(1)(c) was “reasonable” as is required under that section. 6 The Member then turned his attention to whether the “Minister is taking the necessary steps to inquire into that suspicion.” The Member had concerns regarding the investigative process the Minister was following: Which brings me to looking at whether the Minister is taking the necessary steps to inquire into that suspicion. This is one part of the equation that I find difficult, in a way, to analyse. The suspicion is reasonable. There are steps that the Minister can take in order to continue to try to verify that suspicion. However, the Minister also had on file a number of documents that would have probably helped to sort of answer the questions, with respect to that suspicion, and those steps weren’t taken, so that’s really troubling to me. However, I bear in mind the jurisprudence from the Federal Court, namely the case that came out last year with respect to the Ocean Lady and my supervisory role in that respect is fairly limited. Is the Ministry taking the necessary steps? Is the investigation of the Minister in good faith? Although I do find fault with it, I can’t say that it goes — that it’s done in bad faith. There are necessary steps that are open to the Minister and that should lead in a way for the Minister to either decide whether the security concerns are warranted or not. So given that, I will maintain detention. However, I will simply mention for the record, that I would expect the Minister to move fairly fast on this case. First, there are documents on file that go towards this issue, therefore the Canada (Minister of Citizenship & Immigration) v. B479 Russel W. Zinn J. 241

steps should be taken with respect to these documents. In addition, the Min- ister should make every effort to, once they receive those Court documents, to take action on them and determine rapidly whether the suspicion is warranted or not. So for today, I maintain detention. However I think, should nothing be done by the next detention review, another Member may be a little bit more stricter than I am today. In maintaining the detention and in looking at the security issue, I do take into account the fact of this within the context of a mass arrival and therefore that gives some lenience to the Minister. 7 The Member said that he was examining whether the “Minister is taking the necessary steps to inquire into that suspicion” [emphasis added]. The use of the word “the” by the Member suggests that a Member has authority to adjudicate on the appropriateness, sufficiency and timing of the steps and not merely whether the step or steps being taken are necessary ones. This may be an error in interpreting the jurisdiction of the Board when exercising its supervisory jurisdiction under s. 58(1)(c) of the Act. In my view, the Member whose decision is under review interpreted his role in the same manner as his predecessor. 8 At the next detention review on November 10, 2010, the Minister sought to continue detention to permit him to continue to take necessary steps to inquire into his reasonable suspicion that the respondent is inadmissible on security grounds. The Member decided that continued detention was not warranted. The Member was not satisfied with the steps the Minister had taken to address his suspicions about the security risk the respondent posed. He admonished the Minister for the investigation undertaken to date, which he described as “woefully inadequate,” and he refused to accept the volume of work faced by the Minister as a consequence of some 500 illegal migrants landing in B.C as any justification. He wrote: In my opinion, the Minister is not conducting this investigation in good faith. It is piecemeal. It lacks co-ordination. It shows scrambling and an impromptu activity in the face of an upcoming detention review. It appears insincere and lacking a co-ordination. Further detention cannot be justified on this ground. 9 The Minister’s suspicions relating to security appear to have been based on two facts: (1) the respondent had been arrested in Sri Lanka as a suspected LTTE member and been detained there for nearly four years; and (2) there was a suspicion as to the source of the funds he paid to travel to Canada. The respondent informed the Minister on his arrival of the fact of his earlier detention in Sri Lanka and claimed that he was not a member or supporter of the LTTE although he had attended meetings held by the Tigers at a stadium in Mannar but did not talk to them. He also told the Minister that after his release from prison he had married and then travelled to Thailand with his wife. He said that while in Thai- land his mother-in-law supported his family by sending 15,000 rupees per month 242 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

and that she also paid for his travel to Canada. His wife returned to Sri Lanka with their child. He informed the Minister that his wife was aware that he had travelled to Canada. Immediately following the October detention review, the Minister re-interviewed the respondent and spoke to his wife and mother-in-law. 10 The evidence before the Member on November 10, 2010, established that the Minister had taken the following steps since the last detention review: (i) The respondent had been interviewed for the fourth time on October 18, 2010. (ii) Following the respondent’s interview, the Minister had a telephone conversation with the respondent’s wife and mother-in-law in Sri Lanka to confirm the information the respondent had provided. Contrary to his evidence, they denied knowing that he had left for Canada, denied knowledge of the cost of the trip, and denied having provided him with the funds to travel to Canada. They both stated that they were poor and could not have funded the respondent’s travel, as he had claimed. (iii) The Minister had another interview with the respondent on November 5, 2010, to confront him with these contradictions. During the interview, the Minister called the respondent’s wife and mother-in-law. The mother-in-law stated that she had sent the respondent 15,000 rupees in total to Thailand, a sum significantly less than the 15,000 rupees per month the respondent had claimed, and that she did not send him money to go to Canada. Subsequently, the Minister was told that she and her daughter were lying as they were unsure if they were speaking to the Sri Lankan CID. The Minister concluded that “it will be necessary to have another conversation with subjects [sic] wife and mother in law.” (iv) The Minister had translated four of the documents the respondent brought with him being: (1) submissions from the respondent to the UNHCR in Thailand, (2) submissions from the respondent’s wife to the UNHCR in Thailand, (3) a complaint to the police about his brother’s death; and (4) a one sentence document that read: “On suspicion of having a bomb close by he was taken into custody on 2005 [redacted], the case was heard in [redacted] Magistrate court case [redacted] and 2009 [redacted] he was released, issued at your request.” Parts of this last document have been redacted in this Order to prevent identification of the respondent. (v) On November 10, 2010, CBSA sent letters to UNHCR and the Interna- tional Committee of the Red Cross asking for all information they may have concerning the respondent. 11 At the detention review hearing on November 10, 2010, the Minster submitted that the following further steps he was taking were necessary steps: Canada (Minister of Citizenship & Immigration) v. B479 Russel W. Zinn J. 243

(i) Conduct another interview with the respondent’s family to clear up the contradictory information they had given; (ii) Question the family about the time the respondent had spent in detention in Sri Lanka; (iii) Await the information requested from the UNHCR and International Red Cross about the time the respondent spent in detention; (iv) Follow-up with the lawyer who had represented the respondent when he was in detention in Sri Lanka; and (v) Await receipt of the documents relating to the respondent’s detention and trial in Sri Lanka that the respondent’s wife had sent at the end of October. 12 The Member at the November 10, 2010 detention review discounted the contradictions between the respondent and his wife and mother-in-law. He stated that “none of this related at all to the security issue” and stated that it related solely to credibility. With respect to the Member, it is evident that there is a potential relevance to the security issue. One of the Minister’s concerns is that the respondent may be a member of the LTTE and that it paid for his travel to Canada. If the wife and mother-in-law were believed, then the source of the respondent’s funds to enter Canada was unexplained. 13 With respect to the steps the Minister submitted were necessary, the Member stated as follows: So the Minister has described the following steps as those necessary. The first step described is to interview the family again regarding the contradictory information, that the Minister asserts was provided, and regarding the time he spent in prison. What isn’t clear to me is whether there were any questions asked of the family when they were interviewed on the 5th of No- vember about the time that [respondent] spent in prison. The test regarding necessary steps is whether it has the potential to uncover relevant evidence bearing on the Minister’s suspicion. The Minister needs to approach these kinds of investigations thoroughly. So when the Minister has the family on the telephone on the 5th of November, five days before the next detention review, the Minister needs to address specifically the information it requires in respect of its reasonable suspicion. Now, the Minister has indicated that they’ve had [respondent] sign Red Cross and UNHCR waivers. I specifically asked what was anticipated that would be received from the Red Cross to the UNHCR, and the Minister advised that they may have information why he was in detention and whether there was any mention of any security concerns. With respect to the UNHCR where [respondent] had registered in Thailand, the Minister wondered whether they might have information in the same regard. This seems a very indirect method of investigation when so many direct avenues have been provided. And I return to the fact that the person concerned brought a docu- 244 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

ment that set out the case number and the Minister has been in possession of that since he arrived, but only had it translated on the 5th of November. With respect to this Red Cross and UNHCR waiver, the question of the good faith of this so-called necessary step is highlighted by the admission by the Minister, on questioning, that these waivers were signed only today, which indicates to me that the Minister was scrambling to demonstrate the steps were being taken. The Minister advised as well that another step would be the intention to speak with the person’s lawyer in Sri Lanka, but they don’t have the name of the lawyer. [Respondent], however, advised that he told them the name of the lawyer. He indicated that the lawyer is now a judge in the local area. He was not asked for his telephone number, but I can’t imagine he would know it. The Minister indicated that when the mother-in-law and wife were interviewed, that they committed to sending an additional document related to the court case and [respondent] indicated that he believes that that document was sent sometime after the 20th of October, and it’s reasonable to assume that it’s about to arrive. So the member at the last hearing had concerns about the Minister’s steps being taken. I have similar concerns. I appreciate that the Minister’s resources are strained by the sheer number of persons who arrived on the MV Sun Sea. But the person advised very soon after arrival that he had spent this time in jail on suspicion of LTTE involvement and he was never convicted of a crime and released when, and this is his language, after they felt he was innocent. Had the Minister taken a direct route of translating the document that the person concerned had brought with him, that included the court file number, by now the Minister could probably have confirmed the veracity of [respondent’s] history. If they had obtained from him the name of his lawyer at an earlier date and made attempts to contact him using their contacts in Colombo, this matter could have been probably cleared up by now. Detention is not something to be taken lightly. It concerns me that the Min- ister throws around the ground of security in the case where the person de- scribes how they were prosecuted for something and found not guilty, and provides this information voluntarily. Then the Minister takes indirect routes to investigate the truth of the story. The only justification for the woefully inadequate investigation here is the sheer volume of work faced by the Minister. The Federal Court indicates that the Immigration Division has a supervisory jurisdiction and is limited to examining whether the proposed steps have the potential to uncover relevant evidence bearing on the Minister’s suspicion and to ensure that the Minister is conducting an ongoing investigation in good faith. In my opinion, the Minister is not conducting this investigation in good faith. It is piecemeal. It lacks coordination. It shows scrambling and an impromptu activity in the face of an upcoming detention review. It appears insincere and lacking a co-ordination. Further detention cannot be justified on this ground. Canada (Minister of Citizenship & Immigration) v. B479 Russel W. Zinn J. 245

In general, it is not difficult for the Minister to establish a reasonable suspicion, and in general, it is not difficult for the Minister to establish that it is taking necessary steps. But as far as I’m concerned, since the last detention review, the investigation has proceeded in fits and starts and could have been concluded by now had someone taken initiative and examined the matter as a whole. All of the pieces have been sitting on the Minister’s file since August. And while I appreciate that the Minister has been doing mostly identity investigations, this information was on the Minister’s file as far back as the 27th of August and the Minister has failed to act on this information. So I’m not satisfied that detention can be continued on these grounds. While the Minister has a suspicion, it should have been addressed and alleviated by now, or otherwise, if the necessary steps had been taken. They were not taken. 14 The Member appears to have engaged in an analysis of how the investigation ought to have been conducted without ever addressing the question of whether the steps proposed by the Minister have the potential to uncover relevant evidence bearing on the Minister’s suspicion which would make them necessary steps within the meaning of the Act. The latter is the question that the Member was required to address. I am of the view that an issue is raised as to whether the Member properly interpreted and applied s. 58(1)(c) of the Act. 15 The Member also appears to have considered that a piecemeal and poorly co-ordinated investigation coupled with an appearance of insincerity proves that the investigation was done dishonestly or with male fides. This raises an issue as to whether the Member applied the correct test in assessing whether the Min- ister’s investigation had been done in good faith. 16 While detention is not taken lightly, those who arrive en masse should expect that this extraordinary occurrence will require significant resources and that it will take some significant time to resolve the public interest concerns of the country upon whose shores they have landed. The Board should also be cognizant of this reality when assessing the measures taken by the Minister. Although the Member said that he had taken into account the extraordinary circumstance of so many illegal migrants landing at once, it is not evident to me that he gave it more than lip service. While it may be appropriate to expect that the Minister will take a coordinated and focused approach when faced with one illegal immigrant landing at Vancouver Airport, it is hardly surprising that when 500 land at a B.C. port the steps taken may appear to lack co-ordination and to be piecemeal. They probably are. Issues of the identity of these persons of necessity must be dealt with first before any other issues are explored. 17 In short, I find that the Minister has established at least two issues that require further examination. Are these serious issues? 18 There are recent Orders of this Court in which it has been held that there is an elevated threshold for “serious issue” when considering a motion to stay an order releasing a person from immigration detention. I am concerned whether 246 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

the imposition of the higher threshold in such cases accords with the jurisprudence in this Court and the Court of Appeal. 19 In his September 17, 2010 Order in Canada (Minister of Citizenship and Immigration) v. XXXX, Court Dockets IMM-5368-10 and IMM-5359-10, IMM- 5360-10, and IMM-5361-10 Justice de Montigny wrote: “Following the decision of the Court of Appeal in Baron v. Canada (Minister of Public Safety & Emer- gency Preparedness) 2009 FCA 81, it is now settled law that an elevated standard of review applies when determining whether a serious issue has been raised with respect to a stay motion that, if granted, would effectively grant the relief sought in the underlying judicial review application. ... [I]f the stay were granted the Minister would, for all intents and purposes, be granted the remedy that he is seeking in the underlying application for judicial review.” 20 With the greatest of respect, granting a stay of an order releasing a person from immigration detention does not effectively grant the Minister the relief sought in the underlying judicial review application challenging the order to release. It merely preserves the status quo. 21 The Federal Court of Appeal in Baron v. Canada (Minister of Public Safety & Emergency Preparedness) [2009 CarswellNat 596 (F.C.A.)] endorsed the view of Justice Pelletier, as he then was, in Wang v. Canada (Minister of Citizenship & Immigration), 2001 FCT 148 (Fed. T.D.) where he held, on the facts before him, that when considering the motion to stay an order for removal the Court ought not merely consider whether the applicant had raised an issue that was not frivolous or vexatious but “go further and closely examine the merits of the underlying application.” The fundamental reason why Justice Pelletier so held was because the decision underlying the application for judicial review was not the order for removal, but was a decision of a removal officer refusing to defer removal. 22 Justice Pelletier noted that there were two different situations that may give rise to motions to stay removal. The first situation is where the motion to stay the removal order is brought within an application for judicial review that challenges the removal order itself. The second situation is where the motion to stay the removal order is brought within an application for judicial review that challenges the refusal of an officer to defer removal. Wang was an example of the second situation. Mr. Wang’s refugee claim had been dismissed and thus he was subject to removal. When he was informed that he was to be removed to China, he asked the officer to defer his removal pending the disposition of his recently filed H&C application. The officer refused and it was the officer’s refusal to defer that was challenged in the judicial review application; it was not the earlier order for removal. 23 Justice Pelletier held that where an application challenging the validity of the removal order itself was the underlying application, then the “not frivolous or vexatious” test for serious issue was appropriate and applicable because staying Canada (Minister of Citizenship & Immigration) v. B479 Russel W. Zinn J. 247

the implementation of the removal order “did not effectively grant the relief sought in the underlying judicial review application because it was in relation to another decision [namely, the removal order].” However, where what was challenged in the underlying judicial review application is the decision refusing to defer enforcement of the removal order, then granting a stay of enforcement “gives the applicant that which the removal officer refused.” A stay granted by the Court on an application to review the refusal to defer removal grants the applicant exactly the remedy he or she sought from the officer and grants it before the merits of the application are heard. As Justice Pelletier observed, “It is in this sense that one can say that the disposition of the motion for a stay of execution decides the underlying application for judicial review.” 24 The situation here is not parallel to that in Wang. Here the decision subject to the judicial review application is the decision of the Board releasing B479 from immigration detention. The Minister is challenging the legality of that decision in the underlying application. A stay of that decision pending a hearing on the merits does not decide the underlying application and it does not, in the sense described in Wang, give the Minister the relief sought before the merits of his application are determined. Wang would only be parallel to the situation facing B479 if there was some mechanism available by which the Minister could seek a deferral from the Board of the release and, if refused, seek judicial review of that refusal. In that case, a stay of release from detention pending the Court’s determination of the refusal to defer release would grant the Minister exactly the remedy he sought but had been denied. 25 Admittedly, a stay of release from detention does grant the Minister that which was sought at the hearing - the continued detention of B479; however, that is no different a situation than that which arises in every stay application which, by definition, seeks to maintain the status quo pending a decision on the merits. 26 For these reasons, I am of the view that the serious issue test is to be mea- sured on the standard set out by the Supreme Court of Canada in Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832, [1987] 1 S.C.R. 110 (S.C.C.) and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.), namely whether “there is a serious question to be tried as opposed to a frivolous or vexatious claim.” 27 In this case, I am satisfied that the applicant has established that there is more than one serious issue to be tried. Further, I am satisfied that the applicant has an arguable case in which there is a possibility of success with respect to these issues and thus shall grant leave to judicially review the decision, as requested. 28 I am also satisfied that the applicant has established that irreparable harm will occur if the stay is not granted. The irreparable harm arises from the fact that the Minister has a security concern related to the respondent and there is a 248 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

serious possibility that his release would defeat the purpose that underlies s. 58(1)(c) of the Act. As was recently noted by Justice Barnes in Canada (Minister of Citizenship & Immigration) v. X, 2010 FC 112 (F.C.) at para 21 “While the importance of not unduly detaining such persons cannot be forgotten, the protection of Canadians and Canada’s pressing interest in securing its bor- ders are also worthy considerations.” 29 Lastly, the balance of convenience rests with the Minister. The respondent shall continue to have his regular detention reviews and the Minister will continue his investigation. If the Minister’s suspicion is satisfactorily addressed, the respondent shall be released from detention. 30 The applicant asks that the stay be in effect until the application for judicial review is determined on its merits. Some recent Orders of the Court have issued stays in these circumstances until the earlier of either the determination of the application for judicial review on the merits or the respondent’s next statutorily required detention review. The applicant expressed a concern that the latter wording might mean that the release order becomes effective after the next review, even if the next review orders continued detention. On the other hand, the former wording has apparently led some Members to find that all detention reviews are stayed until the judicial review application is determined on its merits. In my view, the respondent is entitled to the detention reviews every 30 days whether or not a stay of a release order is granted by this Court. In order to make that clear, the stay shall be granted until the earlier of either the determination of the Minister’s application for judicial review on the merits or an order of a Member of the Immigration Division releasing the respondent from detention following a statutorily required detention review hearing. Application granted. Canada (Minister of Citizenship & Immigration) v. Xu 249

[Indexed as: Canada (Minister of Citizenship & Immigration) v. Xu] The Minister of Citizenship and Immigration, Applicant and Bao Sheng Xu, Respondent Federal Court Michael L. Phelan J. Heard: October 26, 2010 Judgment: November 16, 2010 Docket: IMM-2365-10, 2010 FC 1145 Ms Helen Park, for Applicant Mr. Robert Kincaid, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board –––– Applicant was citizen of China who applied for refugee protection on basis of religious persecution — Applicant was practising Christian and, as result, was required to report monthly to police — Applicant was fired from employment due to police involvement and could not find another job as result — Through friends, applicant obtained work as seaman aboard ship — On fourth trip to Canada, applicant left ship and applied for refugee protection status — Despite several inconsistencies in applicant’s evidence, claim was ap- proved by Immigration and Refugee Board (IRB) — Minister applied for judicial review of decision — Application granted — IRB failed to analyse credibility and identification concerns of Minister and impact on truthfulness — IRB failed to address compelling and contradictory evidence before them in reasons — Taken as whole, IRB’s reasons were inadequate — Decision set aside and remitted to differently constituted panel for redetermination. Cases considered by Michael L. Phelan J.: Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Koriagin (2003), 2003 Car- swellNat 3308, 2003 CF 1210, 2003 FC 1210, 2003 CarswellNat 5127, [2003] F.C.J. No. 1534 (F.C.) — considered Thanabalasingham v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 342, 2005 FC 172, 250 D.L.R. (4th) 33, 269 F.T.R. 273, 46 Imm. L.R. (3d) 131, 2005 CF 172, 2005 CarswellNat 4313, [2005] F.C.J. No. 185 (F.C.) — considered

APPLICATION by Minister of Citizenship and Immigration for judicial review from decision of Immigration and Refugee Board granting respondent’s refugee claim. 250 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Michael L. Phelan J.: I. Introduction 1 This is a judicial review filed by the Minister of Citizenship and Immigration in respect of a “ship jumper” from China. The Immigration and Refugee Board (Board) granted his refugee claim.

II. Background 2 Xu claimed to have been persecuted because of his Christian faith. In 2004 the police alleged that Xu was engaged in illegal Christian activity and he was required to report to the police monthly. When his employer learned of the police involvement, he was fired and he claimed that no one would hire him. 3 Xu apparently got a job as a seaman through family connections. He obtained a passport despite his problems with the police and left China on a ship in April 2005. 4 The Respondent admits that he came to Canada four times before he jumped ship. He had also gone to the U.S., South Korea and even China - although re- availment was not pleaded. 5 Having arrived in Canada in 2005, it was not until April 2007 that he filed for refugee status and was baptized a Christian. 6 There was a litany of inconsistencies in his evidence but the Board found him to be credible. His refugee claim was granted.

III. Analysis 7 The issues raised were a) whether the Board had failed to provide adequate reasons; and b) whether the Board erred in making unreasonable findings on key issues. 8 As the Court finds that the reasons were inadequate, there is no need to answer the second issue although the Court has reservations concerning this issue as well. 9 The issue of adequacy of reasons is a matter of procedural fairness and as such is subject to the correctness standard of review. With respect to the second issue, the standard as it relates to findings of fact based on credibility is reasonableness overlayed with deference owed to the Board. 10 The judicial policy basis for the requirement of adequate reasons includes allowing the parties to know the underlying rationale for the decision, to determine whether to take further steps in the case, and to maintain a level of transparency and intelligibility sufficient to ensure jurisdiction, fairness and legality. Canada (Minister of Citizenship & Immigration) v. Xu Michael L. Phelan J. 251

Justice Lemieux in Thanabalasingham v. Canada (Minister of Citizenship & Im- migration), 2005 FC 172 (F.C.), at para. 81, held: 81 This is the way Justice Hugessen, then a member of the Federal Court of Appeal, expressed himself in Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545: Subsection 69.1(11) of the Immigration Act [R.S.C. 1985, c. 1- 2.] requires that the Refugee Division “give written reasons” for any decision against the claimant. If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary. ... See also Canada (Ministre de la Citoyennet´e & de l’Immigration) c. Koriagin, 2003 FC 1210 (F.C.), at para. 5: 5 To fulfil the obligation under paragraph 69.1(11)(b) of the Act, the reasons must be sufficiently clear, precise and intelligible to allow the Minister or the person making the claim to understand the grounds on which the decision is based and, where applicable should the decision be appealed, to allow the Court to satisfy itself that the Refugee Division exercised its jurisdiction in accordance with the Act.. See inter alia: Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.) (QL); Min- ister of Citizenship and Immigration v. Roitman, [2001] F.C.J. No. 718 (F.C.T.D.) (QL); Zannat v. Minister of Citizenship and Immigration (2000), 188 F.T.R. 148; Zoga v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1253 (F.C.T.D.) (QL); Khan v. Minister of Citizenship and Immi- gration, [1998] F.C.J. No. 1187 (F.C.T.D.) (QL). 11 The benefit of the rule is as applicable to an applicant for refugee status as it is to the Minister. This is not a one way right. 12 The determination of adequacy of reasons depends on the particular facts of the case and must be assessed in light of the entire record. The requirement is for “adequate” not “perfect” reasons. 13 In this instance the reasons are deficient and lacking in analysis. The reasons fail to address any of the compelling and contradictory evidence before the Board. The following are merely examples of the problems with this decision. 14 The Board failed to analyse the credibility and identity concerns of the Min- ister and their impact on the finding of truthfulness. These can be summarized as the failure to address significant discrepancies between the CIC interview, the Respondent’s PIF and the hearing testimony. 15 The Board reached inconsistent conclusions as to Xu’s fate upon return to China. First, the Board held that he would be arrested and then it held that it was unclear whether he would be arrested. 252 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

16 The Board held that Xu was a Convention refugee in part because of his political opinion and then concluded that it was unclear whether he would be considered a political opponent. 17 The Board merely said “the documents make it clear ...”, with respect to the police potentially arresting, detaining and torturing Xu without due process, but did not refer to any of the contradictory evidence within the same documents. 18 There is no analysis of the IFA finding but simply a conclusionary statement that IFA was not available. There was no attempt to address the fact that it was only the local police who had posed a problem; the absence of evidence that the police were likely to pursue him; the failure to consider that Xu had returned to China at least once with no problem and that he had never tried to relocate to another part of China before he signed on as a sailor. 19 Taken as a whole and without microscopic examination, the Board’s reasons are inadequate.

IV. Conclusion 20 Therefore this judicial review is allowed, the Board’s decision is set aside and the matter is to be referred back to the Board for a new determination by a differently constituted panel. 21 There is no question for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the Board’s decision is set aside and the matter is referred back to the Board for a new determination by a differently constituted panel. Application granted. Guo v. Canada 253

[Indexed as: Guo v. Canada (Minister of Public Safety & Emergency Preparedness)] Guo Qunying, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Fran¸cois Lemieux J. Heard: December 6, 2010 Judgment: December 8, 2010 Docket: IMM-7088-10, 2010 FC 1256 Pandora Du, for Applicant Nina Chandy, for Respondent Immigration and citizenship –––– Exclusion and removal — Removal from Can- ada — Appeals and judicial review — Judicial review — Miscellaneous issues –––– Applicant was citizen of China who married and had child with permanent resident of Canada — Applicant’s wife had become permanent resident through first marriage to Ca- nadian citizen — Following applicant’s marriage, his wife sponsored his application for permanent residency — One year later, applicant’s wife was accused of misrepresenta- tion regarding her first marriage — Wife’s first marriage was determined to be for immigration purposes and wife was issued exclusion order; wife appealed decision — Wife’s loss of permanent residence status nullified her ability to sponsor applicant and removal order was issued for applicant — Applicant applied for deferral pending outcome of wife’s appeal, which was denied by Enforcement Officer — Applicant applied for judicial review — Application granted — Removal deferred pending review of Enforcement Officer’s decision; deferral could not be tied to wife’s appeal — Applicant succeeded in establishing serious issue to be tried, that Enforcement Officer misunderstood fundamental reason applicant sought deferral — Family would suffer irreparable harm, as they faced possible separation for period of years — Having established serious issue to be tried and irreparable harm, balance of convenience favoured applicant. Cases considered by Fran¸cois Lemieux J.: Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 596, 2009 FCA 81, 387 N.R. 278, 79 Imm. L.R. (3d) 157, [2010] 2 F.C.R. 311, 2009 CAF 81, 2009 CarswellNat 5135, 309 D.L.R. (4th) 411, [2009] F.C.J. No. 314 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 44 — referred to

APPLICATION for judicial review of decision of Enforcement Officer refusing to defer applicant’s removal pending outcome of wife’s hearing. 254 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Fran¸cois Lemieux J.: I. Facts 1 On December 6th, 2010, I issued a stay of Mr. Guo’s removal to China scheduled for yesterday. Here are my reasons for doing so; 2 The underlying issue to which this application is grafted is a decision of an Enforcement Officer dated December 1st, 2010 supplemented by additional reasons dated December 2nd, 2010 when she considered additional materials submitted by the applicant. 3 The crux of this matter is the following. Mr. Guo, a citizen of China, married Lu Chen, also a citizen of China in December 2005, Ms. Chen had been a permanent resident in Canada since February 19, 2004 after being sponsored by her first husband Luan Tu, a Canadian citizen, whom she married on March 11, 2003 but from whom she separated on June 21, 2004 and divorced effective December 2, 2005. Mr. Guo and Ms. Chen are parents of a three year old child born in Canada. 4 Mr. Guo came to Canada in 1999 on a student visa; he went back to China after completing his studies but returned to Canada in January, 2003 making a refugee claim. Mr. Guo’s claim was refused as well as leave from that decision. He was offered a PRRA application in August, 2006 which was denied on De- cember 14, 2006. After Mr. Guo married Ms. Chen, she sponsored his application for permanent residence in Canada under the Spouse or Common law Part- ner in Canada class on February 14th, 2006. 5 On January 11, 2007, a Section 44 report was issued on Ms. Chen for mis- representation in respect of her first marriage. An investigation was conducted whether Ms Chen had entered in a marriage of convenience. It was determined that her marriage to Mr. Guo was a legitimate one but her first marriage to Mr. Tu was for immigration purposes. On April 22nd, 2008, after an inadmissibility hearing was held, Ms. Chen was issued an exclusion order by a member of the Immigration Division and the appeal from that exclusion was dismissed by the Immigration and Appeal Division (IAD) on May 17, 2010. 6 It was the IAD’s decision which had the effect of Ms. Chen losing her permanent residence status in Canada and her ability to sponsor Mr. Guo. That sponsorship application was refused on June 2nd, 2010 as a consequence. 7 Ms. Chen filed on June 10th, 2010, an application for leave and judicial review in this Court challenging the IAD’s decision. Leave was granted by a Judge of this Court on November 3rd, 2010. The hearing before a judge of this Court is set for February 1st, 2011. 8 On November 18, 2010, the applicant sought a deferral of his removal “until the decision of the Federal Court whether Ms. Chen was inadmissible and no longer a permanent resident of Canada”. It was pointed out that Mr. Guo’s sponsored application for permanent residence in Canada was dependant on Mr. Guo v. Canada Fran¸cois Lemieux J. 255

Chen’s status. It was stressed that if his judicial review application is successful and she regains her permanent status, Mr. Guo’s application for permanent residence should be processed from within Canada. Submissions were also made on the impact Mr. Guo’s removal would have on his child and on his employment in Canada; he has been with the same company for 5 years on temporary work permits. He is the sole financial resource to the family with Ms. Chen and their daughter dependant on him. Ms. Chen’s English is very poor and it was submitted his removal will cause irreparable harm.

II. The Enforcement Officer’s decision 9 I need not detail the Enforcement Officer’s reasons for refusing to defer because in my view only one error justifies the grant of a stay. 10 In her notes to file, the Enforcement Officer wrote: “It is important to note that Mr. Guo’s application, namely the spousal sponsorship, was refused on 02 June 2010 due to Ms. Chen’s loss of her permanent residence status. That being said, I note that should Ms. Chen regain her Permanent Residence status, a new spousal application would need to be submitted and processed. And further noted: ...I also note that it has not been demonstrated in the deferral request that Ms. Chen would be unable to sponsor Mr. Guo from overseas, should she regain her Permanent resident status after his removal from Canada. (my emphasis)

III. Conclusion 11 The law is clear that to obtain a stay from a decision of an Enforcement Officer not to defer, the applicant must establish the existence of:

1. A serious issue to be tried. 12 The Federal Court of Appeal teaches us in Baron v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FCA 81 (F.C.A.) that the test for making out a serious issue in the case of a refusal to defer is the demonstra- tion of a strong case. The single serious issue in this case was that the Enforce- ment Officer has misunderstood the fundamental reason the applicant was seeking a stay. 13 His argument is simple. His wife has a strong case against the IAD’s decision causing the loss of her permanent resident status and consequent inability to sponsor him. In these circumstances, his deportation should be stayed until her case is heard and determined by the Federal Court which is in the matter of a few months. If she is successful, her ability to regain her permanent resident status is enhanced and her ability to continue his sponsorship within Canada can continue. The Enforcement Officer did not appreciate that if she was successful 256 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

on her judicial review and the applicant was deported, her sponsorship within Canada becomes moot; he would have to be sponsored from outside Canada which adds a significant length of time to the sponsorship process.

2. Irreparable Harm 14 Irreparable harm is made out because the family separation is not a matter of months but years.

3. Balance of Convenience 15 Having made out serious issue and irreparable harm, the balance of convenience favours the applicant. 16 As I explained at the hearing however, I cannot stay his deportation until the Federal Court decides Ms. Chen’s case. The stay of deportation here must be related to his leave and judicial review application against the Enforcement Of- ficer’s decision. I can only order his stay until leave is decided on his application to review the Enforcement Officer’s decision not to defer and if leave is granted until then judicial review is decided. I have so ordered. Application granted. Silva Fuentes v. Canada 257

[Indexed as: Silva Fuentes v. Canada (Minister of Citizenship & Immigration)] Rolando Angel Silva Fuentes, Orlando Silva Fuentes, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Yvon Pinard J. Heard: October 14, 2010 Judgment: November 17, 2010 Docket: IMM-997-10, 2010 FC 1115 Ms Aviva Basman, for Applicants Ms Prathima Prashad, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Applicants were police officers and citizens of Mexico — Principal applicant R angered high-ranking member of Mexican criminal organization through his police work — R was approached repeatedly to join cartel and refused; R’s life was threatened several times — Applicant O was abducted by cartel members and questioned about R; O was assaulted and threatened — Following abduction, O and R both went into hiding for several months while R’s common-law wife and children immigrated to Texas — R did not accompany his family, as cartel members operated in Texas as well — Applicants came to Canada and claimed refugee status — Despite recommendation of tribunal officer that claim be allowed, Immigration and Refugee Board (Board) denied claim — Applicants applied for judicial review of decision — Application granted — Board’s decision finding adequate state protection was unreasonable in light of fact that it cited only evidence from six years earlier — Evidence cited by applicants from more recent reports contradicted Boards’ findings and was not addressed — Board set onus on applicants to disprove presumption of state protection too high — Decision of Board was unreasonable; decision set aside and returned back for redetermination by newly constituted board. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Applicants were police officers and citizens of Mexico — Principal applicant R angered high-ranking member of Mexican criminal organization through his police work — R was approached repeatedly to join cartel and refused; R’s life was threatened several times — Applicant O was abducted by cartel members and questioned about R; O was assaulted and threatened — Following abduction, O and R both went into hiding for several months while R’s common-law wife and children immigrated to Texas — R did not accompany his family, as cartel members operated in Texas as well — Applicants came to Canada and claimed refugee status — Despite recommendation of tribunal officer that claim be allowed, Immigration and Refugee Board (Board) denied claim — Applicants applied for judicial review of decision — Application granted — Board’s finding of internal flight alternative was unreasonable in light of its failure to address evidence con- 258 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) cerning growing reach of criminal organization — Applicant’s personal history of standing up to cartel and testimony regarding reach of organization constituted actual and concrete evidence that Board did not address in reasons — Decision of Board was unreasonable; decision set aside and returned back for redetermination by newly constituted board. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Miscellaneous issues –––– Applicants were police officers and citizens of Mexico — Principal applicant R angered high-ranking member of Mexican criminal organization through his police work — R was approached repeatedly to join cartel and refused; R’s life was threatened several times — Applicant O was abducted by cartel members and questioned about R; O was assaulted and threatened — Following abduction, O and R both went into hiding for several months while R’s common-law wife and children immigrated to Texas — R did not accompany his family, as cartel members operated in Texas as well — Applicants came to Canada and claimed refugee status — Despite recommendation of tribunal officer that claim be allowed, Im- migration and Refugee Board (Board) denied claim — Applicants applied for judicial review of decision — Application granted — Board’s decision finding adequate state protection was unreasonable in light of fact that it cited only evidence from six years earlier — Evidence cited by applicants from more recent reports contradicted Boards’ findings and was not addressed — Board’s finding of internal flight alternative was unreasonable in light of its failure to address evidence concerning growing reach of criminal organization — Applicant’s personal history of standing up to cartel and testimony regarding reach of organization constituted actual and concrete evidence that Board did not address in reasons — Decision of Board was unreasonable; decision set aside and returned back for redetermination by newly constituted board. Cases considered by Yvon Pinard J.: Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2006), 2006 Car- swellNat 635, 2006 CF 359, 2006 FC 359, 2006 CarswellNat 4738, (sub nom. Avila v. Canada (Minister of Citizenship and Immigration)) 295 F.T.R. 35 (Eng.), [2006] F.C.J. No. 439, [2006] A.C.F. No. 439 (F.C.) — considered Bautista v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 126, 2010 CarswellNat 1440, 2010 CarswellNat 260, 2010 FC 126, [2010] F.C.J. No. 153 (F.C.) — considered Capitaine v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 98, 2008 CarswellNat 256, 2008 CF 98, 2008 CarswellNat 4524, [2008] F.C.J. No. 181 (F.C.) — referred to Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered De Leon v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1307, 2007 CarswellNat 5332, 2007 CarswellNat 4389, 68 Imm. L.R. (3d) 53, 2007 CF 1307, [2007] F.C.J. No. 1684 (F.C.) — considered Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A- 1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — considered Silva Fuentes v. Canada Yvon Pinard J. 259

Gilvaja v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 598, 2009 CarswellNat 1725, 2009 CarswellNat 4051, 2009 CF 598, 81 Imm. L.R. (3d) 165 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Palomares v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 6559 (F.C.) — considered Perez Mendoza v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2882, 2010 CF 119, 2010 CarswellNat 221, 2010 FC 119, 88 Imm. L.R. (3d) 81, [2010] F.C.J. No. 132 (F.C.) — considered Qi v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 195, 2009 Car- swellNat 505, 79 Imm. L.R. (3d) 229, (sub nom. Xiao v. Canada (Minister of Citizenship & Immigration)) [2009] 4 F.C.R. 510, 2009 CarswellNat 1115, 2009 CF 195, (sub nom. Xiao v. Canada (Minister of Citizenship & Immigration)) 341 F.T.R. 217 (Eng.), [2009] F.C.J. No. 264, [2009] A.C.F. No. 264 (F.C.) — considered Ranganathan v. Canada (Minister of Citizenship & Immigration) (2000), 11 Imm. L.R. (3d) 142, 193 F.T.R. 320 (note), 2000 CarswellNat 3134, [2001] 2 F.C. 164, 266 N.R. 380, 2000 CarswellNat 3459, [2000] F.C.J. No. 2118 (Fed. C.A.) — considered Zepeda v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 2671, 2008 FC 491, 2008 CarswellNat 1084, 2008 CF 491, [2009] 1 F.C.R. 237, [2008] F.C.J. No. 625 (F.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — referred to s. 97 — referred to

APPLICATION for judicial review of decision of Immigration and Refugee Board determining applicants were neither Convention refugees or persons in need of protection.

Yvon Pinard J.:

1 This is an application for judicial review of a decision of a member of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1) of the Immigration and Refugee Protec- tion Act, S.C. 2001, c. 27, (the “Act”) by Rolando Angel Silva Fuentes and Or- lando Silva Fuentes (the “applicants”). The Board determined that the applicants were neither Convention refugees nor persons in need of protection under sections 96 and 97 of the Act. 260 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

..... 2 The applicants are Mexican citizens, from a border town in the north of Mexico. Both were police officers prior to their departure from Mexico. 3 The principal applicant, Rolando, became a traffic police officer in 2001. In the summer of that year, as part of a drug investigation, he prevented a vehicle from entering the investigation area. The vehicle was driven by members of Los Zetas, a well-known criminal organization. This action angered a gang member known as Balderas, who was present. Two months later, a car owned by Los Zetas was being held and searched, and Balderas telephoned the station demand- ing the release of the car. When his demand was refused, he came to the station and, upon recognizing the principal applicant, threatened to kill him. 4 Balderas went to the south of Mexico for several years, and in the meantime the principal applicant became a member of the tourist police. The principal applicant was approached several times over the years to join the cartel, but refused each time. In mid-2006, the applicant heard from a friend that Balderas had returned to the north, and had risen in the ranks of Los Zetas. The friend informed the applicant that Balderas wanted to kill him. 5 In October 2006, the other applicant, Orlando, was abducted by cartel members, questioned about the principal applicant’s involvement with military intelligence and US authorities, and assaulted and threatened. Following his release, both applicants went into hiding for several months. The principal applicant’s common-law wife and children went to Texas, but the principal applicant alleges that he did not follow them because of his knowledge that cartel members operate in Texas as well. The applicants came to Canada on June 1, 2007, and claimed refugee status on June 15, 2007. 6 The refugee hearing was held on December 11, 2009. The principal applicant testified, and the other applicant relied on the principal applicant’s testimony. At the conclusion of the hearing, the Tribunal Officer recommended that the applicants’ claim be allowed. The Board’s negative decision was rendered January 12, 2010, and received by the applicants on February 1, 2010...... 7 The Board found that the determinative issues in this case were the existence of an internal flight alternative in Mexico City, and in the alternative, the existence of adequate state protection in Mexico.

A. Internal flight alternative 8 The applicants submit that the Board ignored evidence that they would be pursued to Mexico City by Balderas. The applicants note that the principal applicant’s Personal Information Form states that prior to 2006, Balderas did not have sufficient authority within Los Zetas to order the death of the applicant, but that by 2006, upon his return to the north, he had risen in the organization’s Silva Fuentes v. Canada Yvon Pinard J. 261

ranks, and did have this authority. The applicants argue therefore that the Board’s statement that Balderas was unlikely to pursue them because he had not done so in the intervening years was made without reference to this testimony. The applicants also argue that the Board reached its decision without reference to the extensive power of Los Zetas, which could be used to pursue the applicants in Mexico City. The applicants cite Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.), at paragraph 17, for the proposition that the Board errs where it ignores relevant evidence contradicting its conclusion and fails to explain why this evidence was not accepted. Here, the Board made no reference to this portion of the evidence at all. The applicants note that they were clearly being pursued in 2006, following Balderas’ return to the north, as it was at this point that the principal applicant learned of the threat against him, and that the secondary applicant was interro- gated and assaulted. The principal applicant also submits that his personal history of refusing to join Los Zetas is relevant, and was ignored by the Board. 9 The respondent maintains that the Board’s conclusion on an internal flight alternative in Mexico City was within the range of possible acceptable outcomes mandated by New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.). The respondent argues that the applicants must provide “actual and concrete evidence” of the existence of dangerous conditions in Mex- ico City, as per Ranganathan v. Canada (Minister of Citizenship & Immigra- tion) (2000), [2001] 2 F.C. 164 (Fed. C.A.), at paragraph 15. The respondent also submits that the Board is presumed to have taken into account all of the evidence, whether or not it says it has done so, as per Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.), paragraph 1, and that the reasons given here demonstrate that the Board did consider the totality of the evidence. 10 The applicants accept the general presumption articulated in Florea, supra, but counter that this presumption does not cure the failure to refer to evidence that was highly relevant and directly contradicted the Board’s conclusions, namely the testimony and documentation on the power of Los Zetas. 11 The applicants argue that the Board’s decision on the existence of an internal flight alternative was also unreasonable given the documentary and testimonial evidence of corruption and infiltration of the Mexican state authorities by the drug cartels. The applicants cite several documents within the documentary package that describe the levels of corruption and cartel infiltration within federal, state and local law enforcement. The applicants note that the Board did not refer to any of this evidence, which contradicts its conclusion that the applicants would be safe in Mexico City. They submit that the Board again failed to assess the contradictory evidence and justify its exclusion, and they point not only to the documentary evidence but to the principal applicant’s testimony that the applicants could be tracked down via the social security number database. The Board discussed the voter registration system, but not the social security 262 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

database, and the applicants submit that the fact that the system is not meant to be accessible to outsiders, as the Board stated in its reasons, is a meaningless conclusion in the face of evidence of extensive corruption. 12 In my opinion, the Board’s finding of an internal flight alternative was unreasonable in light of its failure to address the evidence concerning the growing reach of Balderas and of Los Zetas. I agree with the applicants that the Board’s reasoning that Balderas would not pursue them to Mexico City because he had not pursued them between 2001 and 2006 was unreasonable given the evidence presented, and the fact that he clearly had pursued them subsequent to his return in 2006. In my opinion, the applicants’ personal history of standing up to the cartel and their testimony (the credibility of which was not put into question) regarding the reach of Balderas and Los Zetas constituted “actual and concrete evidence” that should have been dealt with by the Board in its reasons. As the Board did not do so, I find its decision unreasonable. 13 The respondent also submits that the Board’s decision was reasonable in light of the fact that there was no evidence that Balderas had attempted to use the voter registry to track the applicants, nor that he had attempted to track the principal applicant’s family in Texas. I agree with the applicants that this submission cannot be accepted, as the Board member made no such finding in his decision. According to Qi v. Canada (Minister of Citizenship & Immigration), [2009] 4 F.C.R. 510 (F.C.), at paragraph 35, “it is trite law that counsel for the respondent cannot supplement the reasons given by the decision maker”.

B. State protection 14 The applicants also argue that the Board’s conclusion on state protection was unreasonable. The applicants submit that again the Board failed to refer to contradictory evidence and to address the rejection of such evidence. The applicants cite Bautista v. Canada (Minister of Citizenship & Immigration), 2010 FC 126 (F.C.), where Justice Michel Beaudry held: [10] I believe that the Board erred on two grounds in coming to its finding. First of all, it weighed the evidence of criticisms of the effectiveness of the legislation against evidence on the efforts made to address the problems of domestic violence. This is not enough to ground a finding of state protection; regard must be given to what is actually happening and not what the state is endeavoring to put in place ... [11] Secondly, although the Board does acknowledge the contradictory evidence, it does not truly address the reasons why it considers it to be irrelevant ... 15 The applicants submit that the Board did the same thing in the present case. They point to numerous excerpts from the documentary evidence before the Board that make mention of widespread corruption and state that despite government efforts in the war against drug cartels, violence is increasing and security is deteriorating. Silva Fuentes v. Canada Yvon Pinard J. 263

16 Furthermore, the applicants contend that the Board’s conclusion that Mexico is a democracy, and therefore that the claimant’s onus to disprove the presumption of state protection is higher, was unreasonable in light of jurisprudence of this Court that has called Mexico a “developing democracy” and stated that “the presumption can be more easily overturned” (De Leon v. Canada (Minister of Citizenship & Immigration), 2007 FC 1307 (F.C.), paragraph 28; see also Gilvaja v. Canada (Minister of Citizenship & Immigration), 2009 FC 598 (F.C.), paragraph 43, and Capitaine v. Canada (Minister of Citizenship & Immigration), 2008 FC 98 (F.C.), paragraphs 20 to 22). 17 The applicants also cite Gilvaja, supra, at paragraph 38: ... the Board had a duty to explain why it preferred the evidence of the efforts the state is taking over the evidence that corruption and impunity continue to be a widespread and pervasive reality in Mexico.... 18 The respondent argues that the excerpts of the documentary evidence cited by the applicants show that corruption exists and that state protection is not always effective or perfect, but that these conclusions were alluded to by the Board, and they do not necessarily contradict the Board’s ultimate conclusion that the state would be reasonably forthcoming with serious efforts to protect the applicants. The respondent submits that the Board weighed the evidence of criminality and corruption against the serious efforts of the Mexican government to combat these elements, and that it is not enough for the applicants to “refer to documentary evidence that, admittedly, paints a mixed picture about the state response”, as per my colleague Justice Elizabeth Heneghan in Palomares v. Canada (Minister of Citizenship & Immigration) [2006 CarswellNat 6559 (F.C.)] (June 7, 2006), IMM-5447-05, at paragraph 12. 19 The applicants argue that the Board’s weighing of the documentary evidence was nevertheless unreasonable, as it relied exclusively on reports published in 2004 in order to make its finding regarding the state’s “serious efforts”, without adequate reference to more recent documents containing evidence of further corruption and the Mexican state’s failed efforts to curb it. The applicants cite in particular a 2008 U.S. Department of State report stating: Corruption continued to be a problem, as many police, particularly at the state and local level, were involved in kidnapping, extortion, or providing protection for, or acting directly on behalf of, organized crime and drug trafficking. Impunity was pervasive and contributed to the continued reluctance of many victims to file complaints. 20 The applicants also note that the Board listed several non-police organiza- tions that it suggested could provide redress to the applicants. The applicants argue that the Board’s reliance on these agencies was not supported by evidence demonstrating these agencies’ effectiveness, contrary to Avila c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2006 FC 359 (F.C.), paragraph 33, and Perez Mendoza v. Canada (Minister of Citizenship & Immigration), 2010 FC 119 (F.C.), paragraph 33. Furthermore, as the applicants note, the very 264 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

institutions listed by the Board in its reasons were all rejected as constituting adequate state protection in Zepeda v. Canada (Minister of Citizenship & Immi- gration) (2008), [2009] 1 F.C.R. 237 (F.C.), where Justice Dani`ele Tremblay- Lamer stated: [25] I am of the view that these alternate institutions do not constitute avenues of protection per se; unless there is evidence to the contrary, the police force is the only institution mandated with the protection of a nation’s citizens and in possession of enforcement powers commensurate with this man- date. For example, the documentary evidence explicitly states that the Na- tional Human Rights Commission has no legal power of enforcement ... In light of this case, the existence of these agencies does not provide an alternative basis on which the Board could have founded its conclusion regarding state protection. 21 On balance, in my opinion the Board’s decision regarding the existence of state protection was unreasonable in light of the fact that it cited only evidence from 2004. While it is true that the Board stated that it had canvassed all of the evidence, and that it acknowledged that corruption continued to be a problem, in my opinion the Board set the onus on the applicants to disprove the presumption of state protection too high, and furthermore I find that the evidence cited by the applicants from the more recent reports contradicts the Board’s findings to such a point that it should have been addressed. I find the above-cited excerpt from Gilvaja to be on point in this case...... 22 For the above-mentioned reasons, the application for judicial review is allowed and the matter is referred back for redetermination by a newly constituted Board. No question is certified.

Judgment The application for judicial review is allowed. The decision of the Refugee Protection Division of the Immigration and Refugee Board, dated January 12, 2010, is set aside and the matter is referred back for redetermination by a newly constituted Board. Application granted. Park v. Canada 265

[Indexed as: Park v. Canada (Minister of Citizenship & Immigration)] Insun Park (a.k.a. in Sun Park), Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court John A. O’Keefe J. Heard: November 25, 2010 Judgment: December 9, 2010 Docket: IMM-1944-10, 2010 FC 1269 Angus Grant, for Applicant Tamrat Gebeyehu, for Respondent Immigration and citizenship –––– Refugee protection — Credibility –––– Applicant was citizen of South Korea — Applicant alleged her abusive husband was affiliated with gang and that even after divorce, he would return to assault her — Husband allegedly discovered applicant’s new relationship with Y, living in Canada, and became very violent — On trip to Canada to visit Y, applicant was stopped by Canada Border Services Agency and claimed refugee protection — Refugee Protection Division of Immigration and Refugee Board determined that applicant was not Convention refugee, based on credibility concerns and in alternative, finding of adequate state protection — Applicant applied for judicial review — Application granted — Board’s misconstruction of evidence influenced credibility finding — Board based its finding that applicant was not assaulted by ex-husband in 2007 in large part on its belief that she was in Australia at time, but evidence indicated that trip to Australia was in 1997 instead — Board found that applicant was misleading as to relationship with Y, given description in point of entry (POE) interview as common law partner and later testimony she did not know that term — Board’s finding was unreasonable as there was no record of what applicant or translator said in Korean at time of POE interview — Contrary to Board’s finding, applicant was consistent in stating that husband was involved with gang — Since Canadian doctor considered objective factors of scarring as well as applicant’s allegations, Board should not have rejected medical report on basis of its credibility finding — Board erred in its negative credibility finding that applicant was not abused by former husband. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection –––– Applicant was citizen of South Korea — Applicant alleged her abusive husband was affiliated with gang and that even after divorce, he would return to assault her — Husband allegedly discovered applicant’s new relationship with Y, living in Canada, and became very violent — On trip to Canada to visit Y, applicant was stopped by Canada Border Services Agency and claimed refugee protection — Refugee Protection Division of Immigration and Refugee Board determined that applicant was not Convention refugee, based on credibility concerns and in alternative, finding of adequate state protection — Applicant applied for judicial review — Application granted — Board erred in its 266 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) negative credibility finding that applicant was not abused by former husband — South Korea was highly functioning democracy presumed to be capable of protecting its citizens, and applicant never approached state for protection from husband — Board accepted that domestic violence was serious problem in South Korea, but focused much of analysis on legislation addressing domestic violence rather than on practical enforcement of that legislation — Significant amount of documentary evidence before board addressed actual response and conduct of police in South Korea, including rarity of police intervening or charging men with domestic violence and tendency to blame victims — Board’s failure to address this evidence amounted to reviewable error. Cases considered by John A. O’Keefe J.: Ameir v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 876, 2005 CarswellNat 1722, 47 Imm. L.R. (3d) 169, 2005 CF 876, 2005 CarswellNat 4711, [2005] F.C.J. No. 1094 (F.C.) — considered Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A- 1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — referred to Franklyn v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1249, 2005 CarswellNat 2794, 2005 CarswellNat 5718, 2005 CF 1249, [2005] F.C.J. No. 1508 (F.C.) — considered Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 Car- swellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — considered Jabbour v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 831, 2009 CarswellNat 4150, 2009 FC 831, 2009 CarswellNat 2435, 83 Imm. L.R. (3d) 219, [2009] F.C.J. No. 961 (F.C.) — referred to Kadenko v. Canada (Solicitor General) (1996), 1996 CarswellNat 2216, (sub nom. Kadenko v. Canada (Solliciteur général)) 206 N.R. 272, (sub nom. Kadenko v. Canada (Solliciteur général)) 124 F.T.R. 160 (note), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376, [1996] A.C.F. No. 1376 (Fed. C.A.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — followed Mushtaq v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FC 1066, 2003 CarswellNat 2867, 33 Imm. L.R. (3d) 123, 2003 CarswellNat 3895, 2003 CF 1066 (F.C.) — referred to Neto v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CarswellNat 1030, 2004 FC 565, 2004 CF 565, 2004 CarswellNat 2149, [2004] F.C.J. No. 682 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- Park v. Canada John A. O’Keefe J. 267

wick) 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 Sheikh v. Canada (Minister of Employment & Immigration) (1990), 1990 CarswellNat 42, 1990 CarswellNat 695, 11 Imm. L.R. (2d) 81, [1990] 3 F.C. 238, 71 D.L.R. (4th) 604, 112 N.R. 61, [1990] F.C.J. No. 604 (Fed. C.A.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 CarswellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Zaatreh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 2170, 2010 CF 211, 2010 CarswellNat 403, 2010 FC 211 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — referred to s. 96 “r´efugi´e” — referred to s. 97 — referred to s. 97(1) — referred to

APPLICATION for judicial review of determination that applicant was not Convention refugee.

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 9, 2010, wherein the applicant was determined not to be a Convention refugee or a person in need of protection under sections 96 and 97 of the Act. This conclusion was based on the Board’s negative credibility finding and a finding that state protection was available to the applicant. 2 The applicant requests that the decision of the Board be set aside and the claim remitted for re-determination by a differently constituted panel of the Board.

Background 3 Insun Park (the applicant) was born on July 25, 1966 and is a citizen of the Democratic Republic of Korea (South Korea). 4 In October 1988, the applicant married Mr. Mooyong Kim and shortly after he became violent with her. The applicant described several incidents of vio- 268 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

lence in her Personal Information Form (PIF) which resulted in her being hospitalized. The applicant claims that she also feared her husband because he was affiliated with a gang. 5 The couple divorced in 2003, although the applicant states that this was a sham divorce orchestrated by her husband to protect their house from seizure by creditors. Her husband moved out of the house, but the applicant stated that he would return occasionally and physically and sexually assault her. 6 In 2004, the applicant began an email-based relationship with a Korean man, Mr. Yeon, who was living without status in Canada. In August 2007, the applicant states that her husband found a letter from Mr. Yeon and consequently became very violent with her. In March 2008, the applicant travelled to Canada to visit Mr. Yeon. The applicant’s husband was, she attests, furious that she had gone to visit Mr. Yeon and told her that he and his ‘henchmen’ would kill her and Mr. Yeon. 7 When the applicant returned to Canada in May 2008, she was stopped by Canada Border Services Agency (CBSA). While being interviewed, the applicant became paralyzed in her hands and feet and was hospitalized in a psychiat- ric ward. The following day she returned for further questioning and claimed refugee protection in Canada.

Board’s Decision 8 Applying the Guidelines on Women Refugee Applicants Fearing Gender-Re- lated Persecution (the Gender Guidelines), the applicant’s refugee hearing was heard by a female Board member, tribunal officer and interpreter. The Board agreed for the applicant’s counsel to begin questioning the applicant. 9 The Board found that the applicant was not a Convention refugee or person in need of protection. This was based on credibility concerns regarding the applicant’s subjective fear of persecution as a victim of domestic assault. As a result of these credibility concerns, the Board concluded that the applicant was not physically abused by her former husband. In the alternative, the Board also found that adequate state protection exists for the applicant in South Korea. 10 The Board found that the applicant inconsistently described the assault of 2007. The applicant had difficulty remembering this event without leading from counsel and she described the violence in her PIF differently than in her oral testimony. The applicant further testified that she had been out of the country when her husband found a letter from Mr. Yeon, which contradicted her PIF and earlier testimony. She later stated that her husband was immediately violent after finding the letter. The Board found that the applicant was in Australia when her former husband found the letter and concluded that the assault was fabricated. 11 In its decision, the Board was further concerned with the applicant’s omission from her PIF of her husband’s senior role in the gang and the name of the gang. The applicant testified about overhearing gang members say they would Park v. Canada John A. O’Keefe J. 269

bury someone. When asked about whether she reported this, she responded she did not take it seriously because they were just joking. The Board drew a negative inference from this response as to her credibility. 12 The Board also found the applicant’s descriptions of her relationship with Mr. Yeon to bbe inconsistent. In oral testimony, she said Mr. Yeon was a friend that she had known at school. In her PIF she said she had never met him in person. In her Port of Entry (POE) interview with CBSA, she stated that she was in a common-law relationship with Mr. Yeon but at the hearing stated that she had not used the term common-law and did not know the meaning of it despite having indicated that she understood the translation during the POE interview. The Board found this explanation implausible given the number of times the term appears in the POE notes. 13 Finally, the Board drew a negative inference from the applicant’s testimony that her husband had threatened to kill her mother and yet the applicant knew few details of what happened and could not explain why she did not ask her mother what had happened. 14 Applying Sheikh v. Canada (Minister of Employment & Immigration) (1990), 71 D.L.R. (4th) 604, [1990] F.C.J. No. 604 (Fed. C.A.), due to numerous contradictions and inconsistencies between the applicant’s oral testimony, PIF, Citizenship and Immigration Canada (CIC) declaration and interview with CBSA, the Board rejected all of the applicant’s evidence as not credible. 15 The Board gave no evidentiary weight to the verification of hospitalization form from August 20, 2007 because the Board had found that the assault did not occur. Similarly, the Board assigned no weight to a letter from a Canadian doctor stating that applicant’s body had scarring consistent with the type of abuse outlined in her PIF as the letter was based on the applicant’s story of abuse which the Board had rejected as not credible. Finally, the Board assigned no weight to a psychological report because it was produced in one session with no referral for follow-up care. 16 The Board concluded that the applicant was not abused by her husband. 17 In the alternative, the Board found that there was adequate state protection available for the applicant in South Korea. 18 The Board found that the applicant had never approached the South Korean authorities for protection from her husband. It noted her explanation that she thought her husband would be more abusive and that she saw on television and the internet that the police do not assist victims of abuse. The burden was on the applicant to provide clear and convincing evidence that the state was unable to protect her. This burden is proportional to the level of democracy in a country and South Korea is a constitutional democracy in control of its security forces. The Board concluded that South Korea takes domestic violence seriously and has enacted several laws to combat and respond to domestic violence. 270 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

19 The Board considered the report from Dr. Clifton Emery on domestic violence in South Korea, but found that it was not persuasive that South Korea could not protect the applicant. 20 The Board concluded that the applicant had not rebutted the presumption of state protection in South Korea and denied the refugee claim.

Issues 21 The applicant submitted the following issues for consideration: 1. Did the Board member fail to adequately consider the totality of the evidence in determining that the applicant had not been abused? 2. Was the Board member overzealous in making credibility findings? Did she misconstrue the evidence in doing so? Did she make negative credibility findings based on peripheral issues? 3. Did the Board member ignore the Guidelines on Women Refugee Appli- cants Fearing Gender-Related Persecution by failing to consider the specific cultural and psychological factors that kept the applicant from reporting her abuse? 4. Did the Board member selectively read and misconstrue the documentary evidence? 22 I would rephrase the issues as follows: 1. What is the appropriate standard of review? 2. Did the Board err in assessing the applicant’s credibility? 3. Did the Board err in its analysis of state protection?

Applicant’s Written Submissions 23 The applicant submits that the Board misconstrued the evidence before it in making its negative credibility findings. 24 The Board found that the applicant was not assaulted in 2007 because she was in Australia when the alleged assault occurred. However, it is clear from both the oral testimony and her PIF that the applicant was not in Australia and did not testify that she was. 25 The Board found that the applicant was inconsistent about her relationship with Mr. Yeon because she described the relationship as common-law in her POE interview and then testified that she had never heard the term common law. The Board’s conclusion was unreasonable because there is no record of what the applicant or translator said in Korean during the POE interview. It was further a misconstruction for the Board to find that the applicant’s evidence of her husband’s gang affiliation was inconsistent because she mentioned that her husband had men and underlings in her POE and referred to his henchmen in her PIF. Park v. Canada John A. O’Keefe J. 271

26 The Board erred in law by ignoring the extrinsic evidence of the 2007 hospital report from South Korea and the Canadian medical report regarding the applicant’s scarring. The Board was not permitted to ignore extrinsic evidence on the basis that applicant’s oral testimony lacked credibility. 27 The remainder of the Board’s credibility findings were based on peripheral issues. The applicant submits that whether she met Mr. Yeon through a friend or on the internet, whether she used the term common law to describe their relationship and how and when her husband found the letter from Mr. Yeon are all irrelevant to the issue of whether she was severely beaten by her husband and hospitalized on numerous occasions and whether she would remains at risk if returned to South Korea. It was a reviewable error for the Board to focus on the details and not the substance of the applicant’s claim. 28 The applicant submits that the Board ignored the Gender Guidelines by not considering what were the psychological and cultural factors preventing the applicant from reporting abuse and how they prevented her from seeking police protection. The Board was obliged to consider the particular social and cultural circumstances of the applicant according to the Gender Guidelines. 29 Finally, the applicant submits that the Board erred in its assessment of state protection. The Board selectively relied on the documentary evidence. It focused on the enactment and content of legislation to address domestic violence and not on whether the legislation is adequately enforced. The Board ignored evidence that police responses to domestic violence in Korea are unsatisfactory and that police blame victims and are reluctant to make arrests putting victims at heightened risk. 30 The Board’s credibility and state protection findings were both unreasonable and the judicial review should be allowed.

Respondent’s Written Submissions 31 The respondent submits that the Board’s credibility findings were reasonable. The Board is in a better position to assess credibility than this Court as this is at the heart of its specialized jurisdiction. The Board found numerous inconsistencies and implausibilities in the applicant’s testimony, specifically that: • the applicant was unable to answer questions about the assault in 2007 without leading questions and her description of the event differed from her PIF; • she provided inconsistent and contradictory information about her whereabouts when her husband discovered the letter from Mr. Yeon; • her allegations about her husband’s gang membership evolved over the course of questioning and this information was omitted from her PIF; and 272 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

• she provided inconsistent and unreasonable responses regarding her relationship with Mr. Yeon and the circumstance of their meeting. 32 The Board properly considered the extrinsic evidence and it acknowledged the evidence of injury but reasonably concluded that it was not clear that the injuries had been incurred in the manner described by the applicant. 33 The Board reasonably determined that the applicant had not rebutted the presumption of state protection. The Board reviewed that documentary evidence and acknowledged that domestic abuse is a serious societal issue in South Korea and that state protection is not always perfect. However, South Korea is a functioning democracy and the applicant was required to make reasonable efforts to pursue domestic avenues of state protection before seeking protection abroad. The applicant did not approach the South Korean authorities and the Board’s conclusion that she failed to rebut the presumption was reasonable. 34 The judicial review should be dismissed.

Analysis and Decision Issue 1 What is the appropriate standard of review? 35 This Court need not undergo a standard of review analysis in every case. Where previous jurisprudence has determined the standard of review applicable to a particular issue, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 36 Credibility findings lie at the heart of the Board’s expertise in determining the plausibility of testimony and drawing inferences from the evidence. Assess- ments of credibility are essentially pure findings of fact and it was Parliament’s express intention that administrative fact finding would command this high degree of deference and will be reviewable on the reasonableness standard (see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 46). 37 Assessments of the adequacy of state protection raise questions of mixed fact and law and are also reviewable against a standard of reasonableness (see Hinzman, Re, 2007 FCA 171 (F.C.A.) at paragraph 38). 38 In reviewing the Board’s decision using a standard of reasonableness, the Court should not intervene on judicial review unless the Board has come to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; Khosa above, at paragraph 59). Park v. Canada John A. O’Keefe J. 273

Issue 2 Did the Board err in assessing the applicant’s credibility? 39 The applicant submits that the Board misstated the facts of the applicant’s case and misconstrued the evidence when making its negative credibility finding. I agree. 40 First, the Board based its finding that the applicant was not assaulted by her former husband in 2007, in large part, on its belief that she was in Australia at the time. The Board stated: The Panel has found on a balance of probabilities that the assault did not occur because the applicant had testified that she was in Australia when her former husband discovered the letter. 41 The Board also stated that the applicant declared in her PIF that in the summer of 2007, she was in Australia for a week. These findings are incorrect. The applicant stated in her PIF that she was in Australia in 1997, not 2007. Similarly, while at one point in the hearing the applicant testified that she was out of the country when her husband found the letter from Mr. Yeon, she never testified that she was in Australia (tribunal record, page 399). 42 I agree with the applicant that the Board’s own misconstruction of the evidence influenced its credibility finding (see Mushtaq v. Canada (Minister of Citizenship & Immigration), 2003 FC 1066, 33 Imm. L.R. (3d) 123 (F.C.) at paragraph 6). If this were the only error, it might not be fatal to the Board’s decision, as the applicant’s evidence was somewhat inconsistent on how and when she was assaulted by her husband in 2007. However, other errors were present in the credibility finding. 43 The Board found that the applicant was misleading about her relationship with Mr. Yeon. In her POE interview, the applicant described Mr. Yeon as a common law partner, whereas she testified at the refugee hearing that she had never heard the term common law. The Board found it implausible that she did not use the word common law in the POE interview, given the number of times it appears in the POE notes. In Neto v. Canada (Minister of Citizenship & Immi- gration), 2004 FC 565 (F.C.), Mr. Justice Douglas Campbell held that: 6 In my opinion, the IRB statement just quoted forms a patently unreasonable basis for discounting the Applicant’s evidence since it cannot be known what was said by the Applicant to the interpreter, or what was said by the interpreter to the Applicant, since both sides of the conversation occurred in Portuguese. As the translation which forms the port of entry notes is not ap- pended to an affidavit or other declaration of accuracy, and since the identity of the interpreter is not known, and since the qualifications of the interpreter are not known, I find it is a reviewable error for the IRB to make an assumption that the translation is accurate, particularly in the face of the objection as to it’s accuracy voiced by the Applicant. 274 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

44 I agree with the applicant that based on Neto above, the Board’s finding was unreasonable since there is no record of what the applicant or translator said in Korean at the time of the POE interview. 45 The Board found that the applicant’s evidence on the fact of her former husband belonging to a gang was unreliable in part because she did not mention the gang name in the POE interview or her PIF and she did not indicate her husband’s level in the gang. The Board did acknowledge in the refugee hearing that the applicant mentions the gang in her PIF. I agree with the applicant that the language used in the POE and PIF also indicate her husband’s level in the gang. In the POE, she stated that her husband was involved in organized crime and in her PIF she refers to his henchmen. This was consistent with her later testimony on her husband’s membership and role in a gang. 46 Finally, the Board gave no weight to a Canadian medical report indicating that the applicant had scars of injuries consistent with her PIF statement. The Board found that the doctor made his assessment based on the applicant’s allegations in the PIF which the Board found to be untrustworthy and therefore the medical report was not persuasive. In Ameir v. Canada (Minister of Citizenship & Immigration), 2005 FC 876, 47 Imm. L.R. (3d) 169 (F.C.), Mr. Justice Ed- mond Blanchard considered similar reasoning of the Board and held at paragraph 27 that: It is open to the Board to afford no probative value to a medical report if that report is founded essentially on a applicant’s story which is disbelieved by the Board. However, there may be instances where reports are also based on clinical observations that can be drawn independently of the applicant’s credibility. In the instant case, Dr. Hirsz’s medical report is based, at least in part, on independent and objective testing. In such cases, expert reports may serve as corroborative evidence in determining a applicant’s credibility and should be dealt with accordingly before being rejected. The Board here, however, rejected the two reports based solely on its finding that the Applicant was generally not credible. Given my determination that the Board erred in its general credibility finding, it follows that its finding in respect to these reports is not sustainable. 47 While the Board relied on Sheikh above, for the proposition that it could reject the medical reports since it found the applicant not to be credible, it is clear from Ameir and Sheikh above, that the Board may only reject evidence emanating directly from the applicant. Since the doctor considered objective factors of scarring as well as the applicant’s allegations, the Board ought not to have rejected the medical report on the basis of its credibility finding. 48 Based on the cumulative factors above, I consider the Board to have erred in its negative credibility finding that the applicant was not abused by her former husband. 49 The Board also undertook an independent state protection analysis in the alternative to its credibility findings. The applicant must demonstrate that both Park v. Canada John A. O’Keefe J. 275

the credibility and state protection findings contain errors for the ultimate refugee determination to be considered unreasonable.

Issue 3 Did the Board err in its analysis of state protection? 50 Refugee protection is a form of surrogate protection available only where the applicant’s own state cannot offer protection (see Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (S.C.C.) at paragraph 25). 51 South Korea is a highly functioning democracy which is presumed to be capable of protecting its citizens. Where the state is a functioning democracy, the presence of democratic institutions will increase the burden on the applicant to prove that she exhausted all courses of action open to her (see Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532, [1996] F.C.J. No. 1376 (Fed. C.A.) at paragraph 5). 52 The Board reasonably found that the applicant never approached the South Korean state for protection from her husband’s abuse. As such, she had to present clear and convincing evidence of similarly situated individuals demonstrating that state protection would not have been forthcoming (see Ward above, at paragraph 57). 53 The applicant submits that she in fact did present such evidence, but that the Board selectively read or misconstrued the documentary evidence in analyzing state protection. 54 While Board members are presumed to have considered all the evidence before them, where there is important material evidence that contradicts a factual finding of the Board, it must provide reasons why the contradictory evidence was not considered relevant or trustworthy (see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (Fed. T.D.) at paragraph 17; Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.)). 55 The Board accepted that domestic violence is a serious problem in South Korea and noted that there is criticism of the protection afforded victims of domestic violence in South Korea. However, much of the Board’s analysis focused on the enactment and content of legislation addressing domestic violence in South Korea, rather than on the practical enforcement of that legislation. 56 This Court has held that democracy and legislation alone does not ensure adequate state protection and the Board is required to consider any practical or operational inadequacies of state protection (see Zaatreh v. Canada (Minister of Citizenship & Immigration), 2010 FC 211 (F.C.) at paragraph 55; Jabbour v. Canada (Minister of Citizenship & Immigration), 2009 FC 831, 83 Imm. L.R. (3d) 219 (F.C.) at paragraph 42). As Mr. Justice Yves de Montingy held in 276 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Franklyn v. Canada (Minister of Citizenship & Immigration), 2005 FC 1249 (F.C.) at paragraph 24: ... the mere fact that the government took steps to eradicate the problem of domestic violence does not mean that the fate of battered women has improved. 57 The applicant pointed to a significant amount of documentary evidence before the Board which addressed the actual response and conduct of the police in South Korea. This evidence discussed a lack of intervention by police in domestic violence due to the belief that it was a family problem, it noted that police often blame victims and expose them to physical danger, it mentioned the rarity of men being taken into custody or charged with domestic violence, as well as the lack of understanding and awareness in the police of the serious nature of domestic violence. This evidence on the practical reality of state protection in South Korea, which emanated from a variety of sources, was not addressed by the Board. This amounted to a reviewable error. 58 Given the errors in the credibility findings and the analysis on state protection, the judicial review will be allowed. 59 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment 60 IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination. Application granted.

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 72.(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. 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 Park v. Canada John A. O’Keefe J. 277

(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. 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 stan- dards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. 72.(1) Le contrôle judiciaire par la Cour fédérale de toute mesure — déci- sion, ordonnance, question ou affaire — prise dans le cadre de la présente loi est subordonné au dépôt d’une demande d’autorisation. 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 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 nation- alité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Convention contre la torture; 278 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

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 interna- tionales — 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. Garcia Perez v. Canada 279

[Indexed as: Garcia Perez v. Canada (Minister of Citizenship & Immigration)] Jose Santos Garcia Perez, Juana Solano Nunez, Diego Santos Garcia Solano, Juan Eduardo Garcia Solano, German Antonio Garcia Solano, Paola Carolina Garcia Solano, Applicants and Minister of Citizenship and Immigration, Respondent Federal Court James Russell J. Heard: November 30, 2010 Judgment: December 10, 2010 Docket: IMM-1649-10, 2010 FC 1275 Patricia Wells, for Applicants A. Leena Jaakkimainen, for Respondent Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Ap- plicants were citizens of Mexico — Principal applicant backed out of parking space at hardware store and accidentally struck young man, recognizable as member of local gang — Young man was not injured but he and two friends attacked applicant — Appli- cant was attacked again at same store one month later by same individuals and three additional adults — Applicant suffered head wound and police at hospital took him to police station to make statement, but statement was later lost and he was not allowed to make another — Applicant’s friend informed him that she witnessed young men from hardware store drinking with judicial police officers who were her neighbours — Appli- cant and family continued to receive threats at their home, and then at applicant’s parents home in different town, and were shot at by people in police vehicle upon returning home — Threats continued until applicant left Mexico for Canada and applied for refugee status, with his wife and children following shortly afterward — Applicant retained services of law students, who were not able to appear in December due to exams and so adjournment was requested and denied — Applicant had no representation at hearing and application was denied by Refugee Protection Division (RPD) — Applicant applied for judicial review — Application granted — RPD did not properly consider adjournment request and did not seem concerned with fairness and justice issues — Refusal resulted in procedural unfairness — Decision of RPD was quashed and matter returned for reconsideration by different panel. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Adjournments –––– Applicants were citizens of Mexico — Principal applicant backed out of parking space at hardware store and accidentally struck young man, recognizable as member of local gang — Young man was not injured but he and two friends attacked applicant — Applicant was attacked again at same store one month later by same individuals and three additional adults — Applicant suffered head wound and police at hospital took him to police station to make statement, 280 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) but statement was later lost and he was not allowed to make another — Applicant’s friend informed him that she witnessed young men from hardware store drinking with judicial police officers who were her neighbours — Applicant and family continued to receive threats at their home, and then at applicant’s parents home in different town, and were shot at by people in police vehicle upon returning home — Threats continued until applicant left Mexico for Canada and applied for refugee status, with his wife and children following shortly afterward — Applicant retained services of law students, who were not able to appear in December due to exams and so adjournment was requested and denied — Applicant had no representation at hearing and application was denied by Ref- ugee Protection Division (RPD) — Applicant applied for judicial review — Application granted — RPD did not properly consider adjournment request and did not seem concerned with fairness and justice issues — Refusal resulted in procedural unfairness — Decision of RPD was quashed and matter returned for reconsideration by different panel. Cases considered by James Russell J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — referred to Aguirre v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CarswellNat 1367, 2008 FC 571, [2008] F.C.J. No. 732 (F.C.) — referred to Amaniampong v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 161, 1989 CarswellNat 735, [1989] F.C.J. No. 443 (Fed. C.A.) — distinguished Attakora v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 168, 1989 CarswellNat 736, [1989] F.C.J. No. 444 (Fed. C.A.) — considered 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 Golbom v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CarswellNat 2014, 2010 FC 640, 2010 CarswellNat 3407, 2010 CF 640 (F.C.) — considered Mathews v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 1387, 2003 CarswellNat 4203, 2003 CarswellNat 3819, 2003 FC 1387, 36 Imm. L.R. (3d) 86, [2003] F.C.J. No. 1777 (F.C.) — referred to Modeste v. Canada (Minister of Citizenship & Immigration) (2006), 299 F.T.R. 95 (Eng.), 2006 CarswellNat 6513, 60 Admin. L.R. (4th) 200, 2006 CF 1027, 2006 Car- swellNat 2597, 2006 FC 1027, [2006] F.C.J. No. 1290 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Bruns- wick) 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 Sandy v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CF 1468, 2004 CarswellNat 5110, 2004 FC 1468, 2004 CarswellNat 3724, 41 Imm. L.R. (3d) 123, 260 F.T.R. 1 (Eng.), [2004] F.C.J. No. 1770 (F.C.) — considered Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat Garcia Perez v. Canada James Russell J. 281

4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 162(2) — considered Rules considered: Refugee Protection Division Rules, SOR/2002-228 R. 48 — considered R. 48(4) — considered

APPLICATION for judicial review of decision of Refugee Protection Division dismissing application for convention refugee or persons in need of protection status.

James Russell J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 2 March 2010 (Decision), which refused the Applicants’ application to be deemed Convention refugees or persons in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicants are citizens of Mexico. Jose Santos Garcia Perez (Principal Applicant) and his wife and minor children (Applicants) resided in the city of Celaya in the state of Guanajuato. On 17 September 2008 the Principal Appli- cant was backing out of a parking space at a hardware store when he accidentally struck a young man with his car. The Principal Applicant recognized the young man as one of a gang that habitually loitered outside the hardware store. The young man was not injured, but he and two of his friends attacked the Prin- cipal Applicant. A friend of the Principal Applicant, Gabriela, and her husband saw the altercation from inside the hardware store and rushed to break it up. 3 The Principal Applicant claims that about a month later, on 15 October 2008, he returned to the same hardware store and was attacked by two of the three young men involved in the earlier altercation, as well as by three adult men. He suffered a head wound and was taken by his wife to a hospital for stitches. A police officer on duty at the hospital took him to the local police station where he made a statement about the beating. As instructed, he returned to the local police station two days later to get a copy of the statement but, upon 282 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

arriving, was told that there was no record of his complaint and that, since 48 hours had passed since the incident, it was now too late for him to report it. 4 The Principal Applicant then went to the judicial police to report the incident and complain about the service he had received at the local police station. A staff person there informed him that it was too late for him to make a complaint but that an officer would visit the hardware store to investigate. The manager of the hardware store told the Principal Applicant that he wanted no trouble with the police and he refused to discuss the parking lot altercation. The Principal Applicant heard nothing more regarding the police investigation of the altercation. 5 Two or three weeks later, the Principal Applicant’s friend Gabriela told him that she had seen some of the young men from the first hardware store beating, drinking with adults whom she knew to be judicial police officers as they were her neighbours. This led the Principal Applicant to suspect that the three adult men who had participated in his second beating were judicial police officers, not only because such officers had been seen associating with the young men but also because the adult men were well-dressed and had a distinctive manner of speaking. Consequently, the Principal Applicant became too fearful to continue pursuing his complaint with the police. 6 The Principal Applicant claims that, a few weeks later, a group of men gath- ered outside his family home in the middle of the night, breaking bottles, calling to the Principal Applicant by name and taunting him with comments such as “You see, it was useless to go to the police.” They returned on three other nights. The Principal Applicant reported the harassment to the police and, twice, the police came to investigate; however, on both occasions, the men disappeared before the police arrived and returned when they left. The police accused the Principal Applicant of making false reports and refused to attend any more. 7 In December 2008 the Principal Applicant and his family moved temporarily to the home of his parents in Apaseo el Alto to escape the harassment. However, in mid-January 2009 he saw one of the young men from the hardware store and an adult (who appeared to be a judicial police officer) hanging around and watching his parents’ house. The Principal Applicant says that he and his wife left the children in the care of his parents and returned to their own home for fear of endangering the other family members. One week after their return, they were approaching their house by car when people in a police vehicle waiting near the family home shouted to the Principal Applicant that he was going to die and then began shooting at his car. The Principal Applicant sped away. 8 After more threats and intimidation the Principal Applicant left Mexico, in- tending to stay away for 3-6 months until the problem died down. However, his wife told him that the men had returned and were making threats against him, and it was decided that the whole family would leave Mexico. The Principal Applicant speculated that the police were targeting him because they mistakenly Garcia Perez v. Canada James Russell J. 283

believed that he had information regarding their criminal involvement with the young men and that he had reported it to the authorities. 9 The Principal Applicant arrived in Canada on 26 February 2009 and made a refugee claim on 6 March 2009. The rest of the family arrived on 24 April 2009 and made refugee claims on the same day. The Principal Applicant was assisted in preparing his Personal Information Form (PIF) by the FCJ Refugee Centre in Toronto. 10 By letter dated 4 November 2009 the Applicants were advised that the RPD hearing had been scheduled for 7 December 2009. They could not afford to retain counsel. By 18 November 2009, however, the Principal Applicant had ar- ranged to be represented by law students from the Community and Legal Aid Services Program at York University (CLASP). The students could not work or attend a hearing during December because of exams and vacation, and they needed time in January to prepare for the Applicants’ hearing. 11 On 18 November 2009, the Applicant wrote to the RPD, requesting that the hearing be rescheduled for February to accommodate the representatives’ needs. This request was denied. 12 The hearing commenced on 7 December 2009. An interpreter was present. At this hearing, the Applicants again requested a postponement. The RPD denied the request on the ground that the Applicants had had sufficient time to retain counsel, and the hearing proceeded with the Applicants unrepresented. The hearing did not finish on that date and was adjourned until 29 January 2010, at which time the Applicants advised the RPD that the student representatives were requesting a postponement. The RPD refused, again ruling that the Appli- cants had had sufficient time to retain counsel. 13 The RPD rejected the Principal Applicant’s refugee claim on two grounds: he was not credible generally; and he had failed to produce any credible or trustworthy evidence on which a favourable decision could be made. In the absence of a credible basis for the claim, the RPD found that the Principal Applicant was neither a Convention refugee nor a person in need of protection. The claims of the remaining Applicants were found to be derivative of the Principal Appli- cant’s claim and were similarly refused. This is the Decision under review.

Decision under Review 14 The RPD affirmed its determination, made upon the two different hearing days, that the hearing should proceed without representation for the Applicants. The RPD held that the Applicants had been advised of the hearing process and had had sufficient time to retain counsel. 15 The RPD found that the Principal Applicant was generally not credible. While it believed that the initial altercation in the parking lot had occurred, it concluded that the Applicants had fabricated the remainder of the story, exag- 284 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

gerating and extemporizing on the initial altercation to bolster the refugee claims. 16 The RPD based its credibility findings on what it identified as problems in the Principal Applicant’s evidence. For example, his explanations regarding how he knew the adults involved in the second and subsequent attacks and harassment were police officers, and how many times and by whom he was attacked, were, in the RPD’s view, “vague, confusing, incoherent, and inconsistent with common sense and rationality.” His claim that the adult men were police officers was “at best” mere speculation and “at worst he was making up the story.” The RPD did not believe that the police told the Principal Applicant that they had no record of his statement being taken because “it was the police that took him to the police station in the first place.” Moreover, there would at least have been a hospital record of the Principal Applicant’s injuries “which could be ref- erenced if needed in support of the facts of his allegation.” 17 The RPD found no reliable evidence that the youths who attacked the Princi- pal Applicant were linked with the police or that the young men and the police were harassing the Principal Applicant because they suspected that he had information on their criminal activities. 18 The RPD also found that the Principal Applicant had “serious problems with speaking the truth,” citing as an example his response when asked at the hearing if his family had lived with him when he lived in the U.S. from 2002-2007. The Principal Applicant first said no, then later explained that he had begun living in the U.S. in 2002 but his family did not join him until 2004. This discrepancy, though perhaps immaterial to the central elements of the claim, went to the “general trustworthiness” of the Principal Applicant’s oral evidence and his overall credibility. The RPD relied on Amaniampong v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 443 (Fed. C.A.) (Amaniampong) in concluding that, where a claimant lacks credibility, the RPD can find that there is no subjective fear to ground the claim. 19 Having found, on a balance of probabilities, that the Principal Applicant had fabricated all of the significant events of his claim, the RPD refused his section 96 and section 97 claims as well as the derivative claims of the other Applicants.

Issues 20 The Applicants raise the following issues: a. Whether the RPD erred in its credibility findings; b. Whether the RPD breached the principles of natural justice and procedural fairness in failing to allow the Applicants to have counsel present at the hearing. Garcia Perez v. Canada James Russell J. 285

Statutory Provisions 21 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 stan- dards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. [...] Procedure 162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 286 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nation- alité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Convention contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes interna- tionales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. [...] Fonctionnement 162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Garcia Perez v. Canada James Russell J. 287

22 The following provisions of the Refugee Protection Division Rules (SOR/2002-228) are applicable in these proceedings: Application to change the date or time of a proceeding 48. (1) A party may make an application to the Division to change the date or time of a proceeding. Form and content of application (2) The party must (a) follow rule 44, but is not required to give evidence in an affidavit or statutory declaration; and (b) give at least six dates, within the period specified by the Division, on which the party is available to start or continue the proceeding. If proceeding is two working days or less away (3) If the party wants to make an application two working days or less before the proceeding, the party must appear at the proceeding and make the application orally. Factors (4) In deciding the application, the Division must consider any relevant factors, including (a) in the case of a date and time that was fixed after the Division con- sulted or tried to consult the party, any exceptional circumstances for allowing the application; (b) when the party made the application; (c) the time the party has had to prepare for the proceeding; (d) the efforts made by the party to be ready to start or continue the proceeding; (e) in the case of a party who wants more time to obtain information in support of the party’s arguments, the ability of the Division to proceed in the absence of that information without causing an injustice; (f) whether the party has counsel; (g) the knowledge and experience of any counsel who represents the party; (h) any previous delays and the reasons for them; (i) whether the date and time fixed were peremptory; (j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and (k) the nature and complexity of the matter to be heard. Duty to appear at the proceeding (5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the date and time fixed and be ready to start or continue the proceeding. 288 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Demande de changement de la date ou de l’heure d’une procédure 48. (1) Toute partie peut demander a` la Section de changer la date ou l’heure d’une procédure. Forme et contenu de la demande (2) La partie: a) fait sa demande selon la règle 44, mais n’a pas a` y joindre d’affidavit ou de déclaration solennelle; b) indique dans sa demande au moins six dates, comprises dans la péri- ode fixée par la Section, auxquelles elle est disponible pour commencer ou poursuivre la procédure. Procédure dans deux jours ouvrables ou moins (3) Si la partie veut faire sa demande deux jours ouvrables ou moins avant la procédure, elle se présente a` la procédure et fait sa demande oralement. El´´ ements a` considérer (4) Pour statuer sur la demande, la Section prend en considération tout el´´ e- ment pertinent. Elle examine notamment: a) dans le cas où elle a fixé la date et l’heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance ex- ceptionnelle qui justifie le changement; b) le moment auquel la demande a et´´ e faite; c) le temps dont la partie a disposé pour se préparer; d) les efforts qu’elle a faits pour etreˆ prête a` commencer ou a` poursuivre la procédure; e) dans le cas où la partie a besoin d’un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d’aller de l’avant en l’absence de ces renseignements sans causer une injustice; f) si la partie est représentée; g) dans le cas où la partie est représentée, les connaissances et l’expérience de son conseil; h) tout report antérieur et sa justification; i) si la date et l’heure qui avaient et´´ e fixées etaient´ péremptoires; j) si le fait d’accueillir la demande ralentirait l’affaire de manière dér- aisonnable ou causerait vraisemblablement une injustice; k) la nature et la complexité de l’affaire. Obligation de se présenter aux date et heure fixées (5) Sauf si elle re¸coit une décision accueillant sa demande, la partie doit se présenter a` la date et a` l’heure qui avaient et´´ e fixées et etreˆ prête a` commencer ou a` poursuivre la procédure. Garcia Perez v. Canada James Russell J. 289

Standard of Review 23 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 24 The first issue concerns the credibility findings. Credibility is a matter within the RPD’s expertise. It is reviewable on a standard of reasonableness. See Aguirre v. Canada (Minister of Citizenship & Immigration), 2008 FC 571 (F.C.) at paragraph 14. 25 The second issue concerns the Applicants’ right to natural justice and procedural fairness, for which the standard of review is correctness. See Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 111..

Argument The Applicants Applicants Denied Their Right to Counsel 26 By letter dated 4 November 2009, the RPD advised the Applicants that their hearing was scheduled for 7 December 2009. The Applicants secured a commit- ment of assistance from CLASP and immediately advised the RPD by letter dated 18 November 2009 that the student representatives were not available until February. They requested a postponement to accommodate counsel. The RPD denied the request, stating that the Applicants had “had sufficient time to retain counsel.” 27 The hearing began on 7 December 2009 without counsel for the Applicants being present. Even when a resumption date was required, the RPD choose 29 January 2010 although the Applicants again requested a date in February so that they could have representation on the second hearing day. 28 The Applicants argue that their request for a hearing date that would allow counsel to be present was refused simply to accommodate the RPD’s administrative needs, and that this does not justify violation of the Applicants’ right to fairness and natural justice. 29 Rule 48 of the Refugee Protection Division Rules allows the RPD to grant requests for postponement, taking into consideration “any previous delays and the reasons for them” and “whether allowing the application would unreasonably delay the proceedings.” Neither of these considerations was at play here. 30 The Applicants further argue that the RPD may have mistakenly believed that the Applicants were requesting a postponement in order to retain counsel, 290 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

rather than to accommodate the counsel they already had. They contend that the RPD’s decision on postponement might well have been different had it correctly understood the situation. Moreover, with counsel present, some of the evidentiary problems that later arose during the hearing, and which are discussed be- low, could have been avoided. The Applicant, at paragraph 7 of his affidavit dated 22 April 2010, particularly noted the problems related to the interpretation from Spanish to English, problems he did not notice during the hearing because counsel was not present to alert him to them and because his understanding of English is limited.

Credibility Findings Based on Errors of Fact 31 The Applicants state that the Decision was based entirely on the RPD’s negative credibility findings. The RPD failed to address state protection or internal flight alternative (IFA). 32 They further argue that the RPD based its credibility findings on errors of fact and ignored relevant evidence. It viewed the Principal Applicant with unwarranted suspicion and undue scepticism, expressing doubt about his testimony even on the most basic points, such as what the federal police force is called in Mexico and whether 066 is that country’s emergency telephone number. 33 The RPD based its negative credibility finding in part on its conclusion that the Principal Applicant lied about whether his family was with him in the U.S. The RPD’s understanding here was incorrect. The Principal Applicant indicated in his PIF that his family was with him in the U.S. That was the truth and he had no reason to hide it. The interpreter at the hearing asked him in Spanish whether his wife and children had gone with him to the U.S., not whether they lived with him in the U.S. He therefore answered “no” because that was the truthful answer: he had gone to the U.S. alone first and the family joined him later. Given that this was the example chosen by the RPD to illustrate the Principal Appli- cant’s “serious problems with speaking the truth,” and given that it was based on a mistake of interpretation, the RPD’s negative credibility finding should not stand. 34 The Applicants argue that the RPD placed undue weight on apparent contradictions that have reasonable explanations. The Principal Applicant testified that he was attacked on one occasion but later said that it was on two occasions, a contradiction described by the RPD as “vague, confusing, incoherent and inconsistent with common sense and rationality.” The Principal Applicant has stated that he was not frightened by the first attack, namely the altercation in the parking lot. It was only the second attack, when the adults became involved, that was significant to the claim. Moreover, the Principal Applicant swears in his affidavit that when he answered that he had been attacked once, he was responding to the question “How many times were you attacked by adult men?” He answered truthfully — once. Garcia Perez v. Canada James Russell J. 291

35 Similarly, the RPD rejected as “speculation” the Principal Applicant’s evidence that the adult men who persecuted him were federal police officers, even though this was based on known facts: that Gabriela had seen the very youths who had attacked him the first time drinking with men she knew to be police officers because they were her long-time neighbours; that the police officers were visually identifiable as such to the Principal Applicant; and that a vehicle known to be the kind of vehicle driven by police officers was used to attack him. This was not speculation but rather a reasonable assumption, and it should not have been used as grounds to impugn the Principal Applicant’s overall credibility. 36 The Principal Applicant further argues that the RPD ignored corroborating documentary evidence, including a photograph of the Principal Applicant’s head injuries, and reports confirming police corruption in Mexico generally and in the city of Celaya specifically. The latter evidence was supported by the National Documentation Package and by the 2008 United States Department of State (U.S. DOS) Report. The country conditions evidence shows that alliances between criminals and police are common in Mexico and that there is nothing implausible about the Applicants’ claim. Consideration of such evidence would have affected the RPD’s credibility findings. 37 The Principal Applicant’s wife also gave oral evidence regarding the persecution of the family. This was ignored by the RPD, and no finding of any sort was made as to the wife’s credibility. The wife’s evidence, if it had been assessed, could have affected and even rehabilitated the RPD’s assessment of the Principal Applicant’s credibility, but no mention was made of it, or even of the fact that she testified. The only mention of the wife’s story in the Decision was taken from the Principal Applicant’s PIF and was not a reference to the wife’s oral evidence. The RPD also ignored the wife’s PIF, which went into some detail about incidents that happened to her independently and her attempts to seek state protection.

The Respondent Proceeding Without Applicants’ Counsel Not a Breach of Natural Justice 38 The Respondent argues that the right to counsel in immigration proceedings is not absolute. The “lengthy” adjournment sought by the Applicants was due to a desire to delay, to indifference or to inattention. 39 Under section 162(2) of the Act, the RPD is required to deal with proceedings as informally and quickly as circumstances and fairness and natural justice permit. The Respondent argues that the Applicants were provided with sufficient time to contact and retain counsel: “The RPD is not obliged to withhold the scheduling of refugee claims to accommodate with [sic] the schedule of students at the student legal clinic at Osgoode Hall Law School.” 292 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

40 The Respondent submits that it is unclear whether the Applicants had actually retained the student advocates, or whether they had simply made inquiries and been told that the students would not be available until February. It is “odd,” the Respondent argues, that if the students or other counsel were actually retained that there is no affidavit evidence to this effect. There is also no evidence that the Applicants attempted to retain any other counsel after learning that the students would be unavailable for the scheduled date.

RPD’s Assessment of the Principal Applicant’s Credibility Was Reasonable 41 The Respondent argues that the RPD’s assessment of facts, and particularly credibility findings based on plausibility concerns, are within the “heartland” of the RPD’s jurisdiction. See Aguebor v. Canada (Minister of Employment & Im- migration) (1993), 160 N.R. 315 (Fed. C.A.). The RPD, as the trier of fact, does not have to accept a claimant’s uncontradicted evidence and may reject evidence that is improbable. See Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.). 42 The Respondent submits that the RPD’s negative credibility finding based on the Principal Applicant’s oral evidence concerning the time he and his family spent living in the U.S. is reasonable. The Applicants’ after-the-fact challenge based on poor translation is unsupported by any independent assessment. 43 Ultimately, the Respondent contends that the Applicants simply take issue with the manner in which the RPD weighed the oral and documentary evidence, particularly the photograph offered as evidence of the Principal Applicant’s head injury, the connection between the young men who assaulted him and the police officers, and the documentary evidence of police corruption in his home city. The Applicants have no specific documentary evidence corroborating their alleged experiences; they rely entirely on evidence of general country conditions to support their claims. The Respondent relies on Mathews v. Canada (Minister of Citizenship & Immigration), 2003 FC 1387 (F.C.) at paragraph 8, to argue that, in these circumstances, the RPD was not obliged to consider the documentary evidence if it disbelieved the claimant’s oral evidence. Having no belief in the Principal Applicant’s oral evidence, the RPD found that he had no subjective fear of persecution, notwithstanding the documentary evidence of police corruption and criminality in Mexico.

Applicants’ Reply 44 The Applicants contend that the adjournment they sought was not “lengthy,” contrary to the Respondent’s submissions. When, on 7 December 2009, the RPD was required to continue the hearing for a second day, the first available date was at the end of January, which was very near the date the Applicants originally requested. It is evident from the RPD’s own scheduling timetable that a Garcia Perez v. Canada James Russell J. 293

delay of two months is normal, not “lengthy.” Moreover, the Applicants had never sought an adjournment before. 45 The Respondent has no evidence to support its statement that the request for adjournment was “made for the purpose of delay or by reason of indifference or inattention.” On the contrary, the Applicants acted diligently to find counsel, and they communicated with the RPD in a timely and respectful manner to explain their circumstances, even though their command of English is limited. The Re- spondent has no reason to impugn the Applicants’ motives. Even if the RPD did believe the delay was unwarranted, it still could have protected the Applicants’ right to counsel by granting an adjournment with conditions and making it peremptory. 46 Had the Applicants had access to counsel, they might have been able to present medical evidence of the Principal Applicant’s head injury, rather than just a photograph. 47 The Applicants argue that the RPD failed to assess this refugee claim in a quasi-judicial manner, particularly with respect to the credibility findings. As the Principal Applicant states in his affidavit, the RPD displayed a lack of attention to his story and a scepticism regarding uncontroversial matters, such as the emergency telephone number for Mexico. In Attakora v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 168 (Fed. C.A.) at page 200, Jus- tice James Hugesson of the Federal Court of Appeal warned the board against being “over-vigilant in its microscopic examination of the evidence of persons who ... testify through an interpreter.” 48 The Applicant also submits that the Respondent’s reliance on Amaniampong, above, is misplaced. In that case, the board took careful notice of the country conditions evidence and its usefulness to the board’s deliberations. That is dis- tinguishable from the instant case in which the RPD failed to make a single mention of country conditions.

Analysis 49 Counsel for the Respondent has done a thorough job in alerting the Court to those aspects of the record which show that the Applicants were given full notification of the process they faced and the need to have counsel ready to proceed on the 7 December 2009 date set for the hearing. However, in my view, that is not really the issue before the Court. 50 When I review the Decision and the record, I cannot be satisfied that the RPD appropriately considered the adjournment request. The reasons in the Deci- sion are clear that the request was refused because “the claimant has had sufficient time to retain counsel.” There is no indication that the RPD considered the factors enumerated in section 48(4) of the Refugee Protection Division Rules or the applicable case law. 294 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

51 Justice O’Keefe had the following to say on point in Sandy v. Canada (Minister of Citizenship & Immigration), 2004 FC 1468 (F.C.) at paragraph 54: 54 I have reviewed the transcript of the hearing and I cannot determine that the Board member gave consideration to all of the factors listed above. Fur- ther, there are no written reasons or notes to show how the Board member came to a decision to deny the adjournment. The only factors considered by the Board were that the hearing date was set on a peremptory basis and the conduct of counsel. The Board did not consider the other factors. Based on the facts of this case, this was an error on the part of the Board. I am of the view that this error constituted a breach of the duty of procedural fairness owed to the applicant (see Dias v. Canada (Minister of Citizenship and Im- migration) [2003] F.C.J. No. 125 (QL) F.C.). 52 The same point has been made in numerous other cases of this Court. For example, in Modeste v. Canada (Minister of Citizenship & Immigration), 2006 FC 1027 (F.C.), Justice Kelen had the following to say at paragraph 21: 21 In my decision Antypov v. Canada (Minister of Citizenship and Immigra- tion) (2004), [2004] F.C.J. No. 1931, 135 A.C.W.S. (3d) 300, (F.C.), I considered whether the denial of an adjournment by the Board so that the Appli- cant could obtain counsel constituted a breach of the rules of natural justice. In that case, and in much of the jurisprudence where the denial of an adjournment for this purpose was not considered a breach of the rules of natural justice, the Applicant had demonstrated a pattern of delaying the proceedings and had already been granted adjournments on previous occasions. In the case at bar, this is the first time the Applicant has sought an adjournment. While the Applicant had ample time to make arrangements for counsel and was negligent in doing so the Board is still obliged to consider and weigh these other factors. 53 In the recent case of Golbom v. Canada (Minister of Citizenship & Immigra- tion), 2010 FC 640 (F.C.), Justice Mosley provided a helpful summary of the jurisprudence on this issue at paragraphs 11 and 13: 11 While the right to counsel is not absolute in immigration matters and tribunals are masters of their own procedures, administrative tribunals have to respect procedural fairness when deciding an adjournment request based on the absence of counsel: Austria v. Canada (Minister of Citizenship and Immigration), 2006 FC 423, [2006] F.C.J. No. 597, at para. 6; Siloch v. Can- ada (Minister of Employment and Immigration), (1993) A.C.W.S. (3d) 570, [1993] F.C.J. No. 10 (F.C.A.); Prassad v. Canada (Minister of Employment and Immigration) [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, at 568-269. [...] 13 In addition to these factors, other considerations have been identified as relevant in the jurisprudence, such as the effort made by an applicant to be represented and whether the applicant can be faulted for not being ready: Siloch, supra; Modeste v. Canada (Minister of Citizenship and Immigration), 2006 FC 1027, [2007] F.C.J. No. 1290, at para.15; Sandy v. Canada (Min- ister of Citizenship and Immigration), 2004 FC 1468, [2004] F.C.J. No. Garcia Perez v. Canada James Russell J. 295

1770, at para.52. The failure to regard all of the relevant factors, whether negative or positive, in deciding upon an adjournment in the absence of counsel has been held to constitute a breach of natural justice: Sandy, supra, at para. 54; Modeste, supra, at paras.18-19; Siloch, supra. 54 In the present case, there had been no previous request for an adjournment and no delays, and the RPD does not seem to have concerned itself with fairness and justice issues. This is particularly apparent when it is borne in mind that the RPD re-scheduled a second hearing day on January 30, 2010 for other reasons. An adjournment to a day early in February 2010, as the Applicants requested, could have had little impact on timing, quite apart from the other factors that were not taken into account. 55 The refusal has resulted in a procedural unfairness in this case. The matter must be returned for this reason alone. There is no need to consider other issues raised by the Applicants.

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 different RPD member. 2. There is no question for certification. Application granted. 296 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

[Indexed as: Awolaja v. Canada (Minister of Citizenship & Immigration)] Caroline Ajoke Awolaja, Applicant and Minister of Citizenship and Immigration, Respondent Federal Court James Russell J. Heard: October 26, 2010 Judgment: December 7, 2010 Docket: IMM-714-10, 2010 FC 1240 Ms Stella Iriah Anaele, for Applicant Mr. Kevin Doyle, for Respondent Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative. Immigration and citizenship –––– Refugee protection — Credibility. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Evidence — General principles. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Powers and duties of court –––– Applicant, citizen of Nigeria, came to Canada in 2007 — Applicant alleged subjective fear of community members due to her husband’s involvement with Democratic Alternative Party prior to his disappearance in 2004 — Applicant brought unsuccessful application to be deemed Convention refugee or person in need of protection under ss. 96 and 97 of Immigration and Refugee Protection Act — Refugee Protection Division (RPD) made general finding that pivotal aspects of applicant’s claims were neither credible nor supported by documentary evidence — Applicant applied for judicial review — Application granted — Ap- plicant cited examples of where RPD ignored material evidence, misrepresented applicant’s responses to questions put to her at hearing and other evidence, and ignored explanations provided by applicant — While all of applicant’s objections were not accepted, there were sufficient errors to render decision unreasonable as regards RPD’s credibility and subjective fear findings — In circumstances, there was no duty on RPD to put to applicant contradiction in applicant’s evidence regarding date husband joined political party, and it was not unreasonable for RPD not to do so — However, this significant contradiction had to be weighed against other instances where RPD made unreasonable findings — There were too many instances of RPD coming to negative conclusions on basis of evidence that it said was evasive or contradictory, but which was not. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Well-founded fear –––– Applicant, citizen of Ni- geria, fled to England in 2004 following her husband’s disappearance — Applicant returned to Nigeria for one month in 2005, then returned to England — Applicant arrived in Canada in 2007, alleging subjective fear of community members due to her husband’s Awolaja v. Canada 297 political activities prior to his disappearance — Applicant brought unsuccessful application to be deemed Convention refugee or person in need of protection under ss. 96 and 97 of Immigration and Refugee Protection Act — In addition to making negative credibility findings, Refugee Protection Division (RPD) gave substantial weight to applicant’s failure to establish well-founded subjective fear of persecution — RPD concluded that, if applicant was in fear, she would not have returned to Nigeria for one month — RPD found applicant’s answers regarding certain activities while visiting Nigeria were evasive and vague — Applicant applied for judicial review — Application granted — There were sufficient errors to render decision unreasonable as regards RPD’s credibility and subjective fear findings — Review of transcript revealed that there was nothing evasive or vague in applicant’s testimony about why she was able to return to Nigeria — There was concern with decision as whole — There were too many instances of RPD coming to negative conclusions on basis of evidence that it said was evasive or contradictory, but which was not. Cases considered by James Russell J.: Ayodele v. Canada (Minister of Citizenship & Immigration) (1997), 1997 CarswellNat 2497, [1997] F.C.J. No. 1833 (Fed. T.D.) — considered Bogus v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 603, 71 F.T.R. 260, [1993] F.C.J. No. 1455 (Fed. T.D.) — referred to Bogus v. Canada (Minister of Employment & Immigration) (1996), 1996 CarswellNat 1557, [1996] F.C.J. No. 1220 (Fed. C.A.) — referred to Brar v. Canada (Minister of Employment & Immigration) (1986), 1986 CarswellNat 1379, 1986 CarswellNat 1380, [1986] F.C.J. No. 346 (Fed. C.A.) — referred to Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A- 1307-91, [1993] F.C.J. No. 598 (Fed. C.A.) — referred to Fouchong v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 200, 88 F.T.R. 37, 1994 CarswellNat 192, [1994] F.C.J. No. 1727 (Fed. T.D.) — referred to Gracielome v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 237, 1989 CarswellNat 100, [1989] F.C.J. No. 463 (Fed. C.A.) — considered Hassan v. Canada (Minister of Employment & Immigration) (1992), 147 N.R. 317, 1992 CarswellNat 562, [1992] F.C.J. No. 946 (Fed. C.A.) — referred to Heer v. Canada (Minister of Employment & Immigration) (April 13, 1988), Doc. A-474- 87, [1988] F.C.J. No. 330 (Fed. C.A.) — referred to Huerta v. Canada (Minister of Employment & Immigration) (1993), 1993 CarswellNat 297, (sub nom. Huerta v. Ministre de l’Emploi & de l’Immigration) 157 N.R. 225, [1993] F.C.J. No. 271 (Fed. C.A.) — 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 Bruns- wick) 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 Ngongo c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (1999), 1999 Car- swellNat 2842, 1999 CarswellNat 2406, [1999] F.C.J. No. 1627 (Fed. T.D.) — considered 298 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Radulescu v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 2169, [1993] F.C.J. No. 589 (Fed. T.D.) — 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.) — referred to Tanase v. Canada (Minister of Citizenship & Immigration) (2000), 2000 CarswellNat 48, 3 Imm. L.R. (3d) 308, 181 F.T.R. 111, [2000] F.C.J. No. 32 (Fed. T.D.) — considered Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 160, 1993 CarswellNat 1351, 22 Imm. L.R. (2d) 241, 109 D.L.R. (4th) 682, [1994] 1 F.C. 589, 163 N.R. 232, [1993] F.C.J. No. 1172 (Fed. C.A.) — referred to Ye v. Canada (Minister of Employment & Immigration) (1994), 1994 CarswellNat 2834, [1994] F.C.J. No. 1233 (Fed. C.A.) — referred to Zhou v. Canada (Minister of Employment & Immigration) (1994), 1994 CarswellNat 2489, [1994] F.C.J. No. 1087 (Fed. C.A.) — referred to Zvonov v. Canada (Minister of Employment & Immigration) (1994), 83 F.T.R. 138, 28 Imm. L.R. (2d) 23, 1994 CarswellNat 244, [1994] F.C.J. No. 1089 (Fed. T.D.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered

APPLICATION for judicial review of decision of Refugee Protection Division refusing applicant’s claim for refugee status.

James Russell J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, R.S.C. 1985, C. 1-2 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refu- gee Board, dated 7 January 2010 (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 citizen of Nigeria. She, her husband and their children lived in the city of Ikorodu in Lagos State, where she was employed as a registered nurse. The Applicant alleges that her husband became a member of the Democratic Alternative Party, which frequently clashed with the more popular Advance Party. Awolaja v. Canada James Russell J. 299

3 According to the Applicant, her husband disappeared in March 2004 after “community heads” accused him of involvement in political election violence and of murdering a well-known person in the community. The Applicant says that she was approached by community people, who believed she knew her husband’s whereabouts. Feeling threatened, she hid her children and travelled alone to England the following month. 4 The Applicant visited Nigeria in October 2005 upon the death of her son due to food poisoning. While there, she officially resigned from her position at the hospital where she had formerly been employed. One month later, she returned to England. The Applicant did not claim asylum in England. She remained there until May 2007, when she entered Canada under a false passport and claimed protection as a Convention refugee or a person in need of protection. 5 The Applicant appeared before the RPD in November 2009. Her claim was based on: (a) a well-founded fear of persecution as the wife of a politically active man; (b) the likelihood that she would face a risk of cruel and unusual treatment or a risk to her life if she were to return to Nigeria; and (c) an inability to live safely in another part of Nigeria. 6 The RPD rejected her claim in its Decision of 7 January 2010. This is the decision that is subject to judicial review.

Decision Under Review 7 In its Decision of 7 January 2010, the RPD made a general finding that pivotal aspects of the Applicant’s claims were neither credible nor supported by the documentary evidence. 8 Specifically, the RPD found that the Applicant had failed to establish, on a balance of probabilities, that her husband was targeted because of his political affiliations and that, by extension, she was targeted as his wife. The RPD identified four inconsistencies in the Applicant’s evidence. 9 First, the Applicant said in her Port of Entry (POE) interview that she left Nigeria because she feared community members. At the hearing, however, she added that she feared the repercussions of her husband’s political activities. The only explanation she could offer for this change of position is that she did not think to mention her husband’s political involvement in the POE interview. The RPD drew a negative credibility inference from this omission because “the nexus of the claim is that her husband was a member of a political party involved in election violence.” Given the Applicant’s education and what the RPD considered her “high level of professional status,” it was unreasonable and evasive for the Applicant to respond to questions about the source of her fear by simply repeating that she felt threatened by the community members who had accused her husband of murder. The RPD expected that the Applicant should “be able to, at a minimum, speak of her husband’s political activities coherently.” The RPD claimed that it took into account the Chairperson’s Guidelines 300 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

on Women Refugee Claimants Fearing Gender-related Persecution in assessing the credibility of the Applicant’s testimony. 10 Second, in her Personal Information Form (PIF), the Applicant said that her husband joined the Democratic Alternative Party in 1991, whereas at the hearing she said that he joined between 2000 and 2001. She could offer no explanation for these inconsistent dates. 11 Third, in her PIF, the Applicant said that community members came to her house looking for her husband on one occasion, in March 2004. At the hearing, the Applicant said they came to the house three times. The RPD found that, at the hearing, the Applicant embellished this aspect of her claim. It found no credible evidence that anyone came looking for her husband or that he abandoned the family because he felt he had to flee the community or because he was being pursued by community members. 12 Fourth, at the hearing, the Applicant asserted that community members mur- dered her son because of her husband’s political involvement. However, the Ap- plicant had not mentioned this in her POE interview. Moreover, there is no credible evidence that her son’s poisoning was in any way related to her husband’s political affiliations, or that it demonstrated that she needed protection. 13 In addition to the negative credibility findings, the RPD gave “substantial weight” to the Applicant’s failure to establish, on a balance of probabilities, that she had a subjective fear of persecution that was well-founded “when objec- tively assessed in the context of country conditions.” This is what is required under section 96 of the Act. The RPD concluded that, if the Applicant was in fear, she would not have returned to Nigeria for a month. It rejected her testimony that she was “in hiding” in Nigeria: a person in hiding would not “tak[e] care of business matters” such as officially resigning from her job. Her answers regarding her other activities while visiting Nigeria were “evasive and vague.” 14 Also, the Applicant could not establish a “serious possibility” that she would be persecuted if she returned to Nigeria. She could not explain why community members would want to harm her, given that her husband had been gone for six years and that her daughters and her husband’s parents had all been living safely in Nigeria. Alternatively, even if the RPD were to accept the Applicant’s testimony to be credible, it concluded that she still had a reasonable IFA. The onus was on the Applicant to provide “clear and convincing evidence” that there was a serious possibility that she would be persecuted if she returned to a new location in Nigeria. Any problem that the Applicant might have in Nigeria is local- ized to one part of Lagos. Therefore she could reasonably relocate to another part, particularly given her education and work experience. 15 Finally, the RPD drew a negative inference from the Applicant’s failure to seek asylum at the earliest opportunity while she was living in England. Her explanation that her passport was stolen, that she was unable to obtain another Awolaja v. Canada James Russell J. 301

and that she was focused only on getting her children to England was not accepted. 16 In the RPD’s view, the death of the Applicant’s son, her separation from her daughters and the disappearance of her husband, all of which were discussed in the psychological reports before the RPD, could certainly explain why she was depressed and “psychologically fragile.” However, such misfortunes do not constitute torture under section 96 or section 97 of the Act. 17 Therefore, based on a general negative credibility finding as well as her failure to meet the criteria of sections 96 and 97 of the Act, the RPD rejected the Applicant’s claim.

Issues 18 The issues are as follows: a. Whether the RPD based its decision on an erroneous finding of fact, which was made in a perverse or capricious manner or without regard to the material before it; b. Whether the RPD breached the principles of natural justice in reaching its negative decision.

Statutory Provisions 19 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 302 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

(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 stan- dards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nation- alité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Convention contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, Awolaja v. Canada James Russell J. 303

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

Standard of Review 20 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.) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well- settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 21 The issue of whether the RPD based its decision on an erroneous finding of fact is a factual issue. Accordingly, it will be reviewed on a standard of reasonableness. See Dunsmuir, above, at paragraph 64. 22 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 Dunsmuir, above, at paragraph 47. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 23 The Applicant also alleges that the RPD breached principles of natural justice. A standard of correctness is the appropriate standard for the review of issues involving procedural fairness and natural justice. See Sketchley v. Canada (Attorney General), 2005 FCA 404, 263 D.L.R. (4th) 113 (F.C.A.) at paragraph 46; and Dunsmuir, above, at paragraphs 126 and 129. Therefore, correctness is the standard to be used when considering whether the RPD breached procedural fairness in making this decision. 304 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

Arguments The Applicant RPD Made Erroneous and Perverse Findings of Fact 24 The Applicant submits that the RPD erred and acted in a perverse manner by accepting that the Applicant’s spouse disappeared and that her son died while, at the same time, refusing to accept her explanation of the circumstances surrounding those events — that is, that her husband fled for political reasons and that her child was deliberately poisoned by community members. The RPD had no reason to disbelieve her explanation and there was no evidence to contradict her. 25 The RPD’s finding that the Applicant returned to Nigeria in 2005 to resign from her nursing position was directly contrary to the Applicant’s own evidence. 26 The RPD failed to acknowledge the documentary evidence concerning the abuse of women and the violence against women in Nigeria. 27 The RPD erred when it attached little weight to the psychological report, particularly given its conclusion that the Applicant might be emotionally trau- matized. The RPD attributed her emotional torture and trauma to physical torture and trauma. 28 The RPD erred in concluding that the Applicant was evasive during the hearing. Had the RPD applied the Gender Guidelines, instead of refusing to do so, the RPD would have understood the Applicant’s demeanour and responses as indicating emotional trauma and not evasiveness. The RPD also erred in focus- ing on the Applicant’s education and professional achievements in its assessment of her emotional state of mind. 29 The Applicant submits that the RPD erred and acted in a perverse manner by concluding that the Applicant did not tell the POE immigration officers about the way her son was killed.

RPD Breached the Principles of Natural Justice 30 The RPD breached the principles of natural justice in concluding that the Applicant has a viable IFA. The Applicant is a trained nurse. If she were to work as a nurse in Nigeria, she would have to work in a public place and her identity would be revealed on her name tag. Consequently, it would be easy for those seeking her to find her. 31 The RPD acted unfairly by attaching little weight to the psychological report, even though the RPD acknowledged that the Applicant was emotionally depressed and psychologically fragile. The RPD was also unfair in concluding that the Applicant’s responses were evasive when, in fact, they were consistent with and caused by her psychological trauma. Awolaja v. Canada James Russell J. 305

32 The RPD acted unfairly when it concluded that the Applicant does not have a well-founded fear of persecution, even though it accepted that the Applicant’s “son and husband situation (sic) were credible.” 33 The panel acted unfairly by contradicting the Applicant’s testimony regarding the period during which she returned to her country of origin and the situation regarding her resignation.

The Respondent RPD Considered All Evidence 34 The Respondent submits that this Court must assume that the RPD has weighed and considered all evidence, unless the Applicant can rebut that presumption. In the instant case, the Applicant has not done so. See Florea v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 598 (Fed. C.A.). That the RPD failed to mention very document entered into evidence is no indication that those documents were disregarded. See Hassan v. Canada (Minister of Employment & Immigration) (1992), 147 N.R. 317 (Fed. C.A.), at 318.

RPD Is Entitled to Weigh Evidence 35 The RPD decides what weight to give to the evidence and is permitted to prefer documentary evidence over the Applicant’s oral evidence. See Zvonov v. Canada (Minister of Employment & Immigration) (1994), 83 F.T.R. 138 (Fed. T.D.), at 141; Zhou v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No. 1087 (Fed. C.A.). In the instant case, the Applicant has failed to prove that the RPD ignored or misconstrued evidence or that it made its findings of fact in a capricious or perverse manner. The Respondent submits that the Applicant simply disagrees with the RPD’s Decision and that, in reality, there is no arguable issue upon which this judicial review can succeed. Brar v. Canada (Minister of Employment & Immigration), [1986] F.C.J. No. 346 (Fed. C.A.); Ye v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No. 1233 (Fed. C.A.).

Applicant Had No Subjective Fear of Persecution 36 The Respondent submits that it is reasonable for the RPD to take into account the Applicant’s failure to claim asylum in England when assessing the credibility of the Applicant’s refugee claim in Canada and her subjective fear of persecution should she return to Nigeria. See Huerta v. Canada (Minister of Employment & Immigration) (1993), 157 N.R. 225 (Fed. C.A.), at 225; Heer v. Canada (Minister of Employment & Immigration), [1988] F.C.J. No. 330 (Fed. C.A.); Radulescu v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 589 (Fed. T.D.); Bogus v. Canada (Minister of Employment & Immi- 306 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

gration) (1993), 71 F.T.R. 260 (Fed. T.D.), at 262, aff’d [1996] F.C.J. No. 1220 (Fed. C.A.).

RPD Considered the Gender Guidelines 37 The Respondent submits that the Gender Guidelines are not binding on the RPD. The Guidelines do not relieve the Applicant of the burden of establishing her claim with credible evidence, and they do not create a new ground for finding a person to be a victim of persecution. However, they are to be considered in appropriate cases, and they were considered in the instant case. The Guidelines require the RPD to be sensitive to identified factors, which may explain the reac- tions and behaviours of women in relation to certain events, particularly domestic abuse. However, they cannot cure an otherwise deficient claim. See Fouchong v. Canada (Secretary of State), [1994] F.C.J. No. 1727 (Fed. T.D.) at paragraph 10.

Analysis Credibility and Subjective Fear 38 At the hearing of this matter in Toronto on 26 October 2010 counsel for the Applicant took the Court very carefully through the record and cited examples of where the RPD has, in its Decision, ignored material evidence, misrepresented the Applicant’s responses to questions put to her at the hearing and other evidence, and ignored explanations provided by the Applicant. While I do not accept all of the Applicant’s objections to the Decision, I do think that there are sufficient errors to render the Decision unreasonable as regards the RPD’s credibility and subjective fear findings. 39 It is unnecessary to recite here every error that occurs, but I think a few significant examples will suffice to show the nature of the problem. 40 In the Decision at paragraph 8, the RPD says that the “claimant’s sworn evidence at the Port of Entry (POE) was that she was afraid of community members with no mention of any political parties.” It is true that the Applicant did not mention specific political parties but she made it clear that the threat she faced did have a political dimension. She said at the POE “It’s a political problem in the community in Ikorodu, where we live,” and in her declaration she connected her coming to Canada to a community problem in her husband’s vil- lage where the husband was accused, along with others, “of killing of one of the villagers (sic), during the community political crisis (2004) ....” Also, in her PIF narrative, the Applicant had explained that when her community was preparing for the local government election in March 2004, “our community in Ikorodu was in chaos and serious violence. Opposition party members were involved in fights, injuries and killings.” The RPD appears to have ignored the evidence that at the POE the Applicant did connect her fears to political violence. Awolaja v. Canada James Russell J. 307

41 On the other hand, there are certainly instances where the Applicant provides contradictory evidence. An example occurs when the RPD says in paragraph 8 that the Applicant [t]estified at the hearing that, sometime between 2000 and 2001, her husband joined the DAP and that he went to meetings every month. However, in her Personal Information Form (PIF) narrative she states that her husband joined the DAP around 1991. The claimant had no explanation with regards to the contradictory dates between her PIF narrative and her oral testimony. 42 The Applicant argues that her answer was that she could not remember when her husband joined the DAP. However, at page 372 of the Tribunal Record the following exchange occurs: i. [Your husband is an] [a]ctive member of what? C. The party. The Democratic Alternative. That is the name of the party. M. What’s the name of the party? C. Democratic Alternative. M. What kind of party is that? C. AD is a party. M. I know it’s a party. I’m asking you what is it? What kind of party is it? Is it a party? ... C. It’s a political party. M. Is it a federal party or is it a local party? C. It’s a federal party. M. So, in 2000, he became a member. C. Yeah, he became a member. 43 In her PIF narrative, at paragraphs 6, 7 and 8, it seems clear to me that the Applicant did indicate that her husband became involved in politics with the Democratic Alternative in the early ’90s, so the discrepancy does exist. The Ap- plicant says that this discrepancy in her evidence was not put to her and she was not given an opportunity to provide an explanation. 44 Justice Muldoon said in Tanase v. Canada (Minister of Citizenship & Immi- gration), [2000] F.C.J. No. 32 (Fed. T.D.), that the law surrounding the duty of a panel to provide an applicant with notice of its concerns and an opportunity to explain “has yet to be settled by this Court.” Based upon my review of the jurisprudence, I agree. Nevertheless, the Court is not exactly divided. 45 While it is true that some decisions say there is a duty and others say there is not, it seems to me that most judges recognize expressly that their analysis is dependent on the facts of the matter before them. My review of the jurispru- 308 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

dence suggests that most judges believe there will arise situations in which the RPD should put contradictions to the applicant because, in the particular circumstances, that is the fair thing to do. 46 The Court appears to be reluctant to describe this as the RPD’s “duty,” however. Justice Muldoon said at paragraph 12 in Tanase, above: “[I]t should never be forgotten that federal adjudicative panels, such as the CRDD, are in the ‘business’ of fairness and justice.” 47 On the other hand, Justice Gibson indicated in Ayodele v. Canada (Minister of Citizenship & Immigration), [1997] F.C.J. No. 1833 (Fed. T.D.) at paragraph 17, that the Court does not want to place an “unwarranted burden” on such panels with respect to how they do their job. However, if in doing that job a panel chooses not to put contradictions to the applicant, then a court may find that it has acted unreasonably. 48 Cases that find a duty to put contradictions to a claimant and to provide an opportunity for an explanation typically rely on the Federal Court of Appeal decision in Gracielome v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 463 (Fed. C.A.). In Gracielome, Justice Hugessen observed: In support of its finding that the applicants were not to be believed, the majority of the Board relied on three alleged contradictions in the evidence given by them. Although this Court is not generally empowered to intervene in questions that involve weighing the evidence, it is otherwise when that process is itself based on errors of law or findings of fact that are manifestly in error: and that is the case here.... 49 Justice Hugessen took each “alleged contradiction” in turn and found that the first two were not actually contradictions — the panel had misconstrued the applicants’ evidence. The third alleged contradiction (concerning the spelling of a name) was found not to be the fault of the witness, who was illiterate and who gave evidence through an interpreter. Justice Hugessen then made his now oft- quoted observation: It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority [of the panel] after the fact from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than is this Court. 50 Although claimants have used this case as authority to argue that the panel must put contradictions to the applicant, Justice Muldoon’s comments on Gracielome in Tanase, above, are illuminating. He says, beginning at paragraph 13: 13 As for Gracielome ..., this has often been relied on for the propositions advanced by the applicant. See for instance Nadesu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1381, (IMM-4606-96, Octo- ber 21, 1997) (F.C.T.D.) and Vorobieva v. Canada (Solicitor General), Awolaja v. Canada James Russell J. 309

[1994] F.C.J. No. 1193, (IMM-4863-93, August 15, 1994) (F.C.T.D.). Un- fortunately, Gracielome, supra has been misinterpreted time and again by counsel. 51 Justice Muldoon quotes Justice Hugessen’s well-known passage and then states as follows: 14 This passage [from Gracielome] stands for the proposition that, where a claimant is not confronted by a panel with alleged contradictions or asked for explanations prior to a decision on credibility being made, the reasons for showing deference to the panel are severely diminished as it is in no better position to weigh the contradictions than is this Court. This proposition does not imply, however, that the duty of fairness requires a panel to alert a claimant to a potentially adverse credibility finding in every case or in matters of trivial importance. The duty is strong here. Though neither party submitted the case of Kahandani v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1769, (IMM-2742-98, November 17, 1999) (F.C.T.D.), this Court notes that in it, Pinard J. reaches a similar conclusion. Also of note is Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833, (IMM-4812-96, December 30, 1997) (F.C.T.D.). 52 Justice Muldoon’s interpretation of Gracielome finds no duty; rather, it ob- serves that, in the absence of further questioning of an applicant regarding his or her contradictions, the legitimacy of a panel’s decision is “severely diminished” because the panel has not made a point of fleshing out the applicant’s story. It has abandoned an opportunity to become better informed about the applicant’s claim. 53 Even the Court’s most firm statements against finding a duty to put contradictions to the applicant are usually tempered by the phrase “on the facts.” The decision relied upon by the Respondent in the instant case is no different. In Ayodele, above, Justice Gibsondealt with the issue as follows: 16 With great respect, at least on the facts of matters such as this, I am not satisfied that Gracielome goes as far as counsel for the applicant would have me find. In that decision, Mr. Justice Hugessen wrote: It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority after the fact, from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than is this Court. 17 On the face of the material before me there is nothing that would indicate that here the contradictions were uncovered by a “painstaking analysis of the transcripts of the evidence.” The hearing of this matter took place in one, apparently rather brief, sitting. I was not able to find anything in the certified tribunal record to indicate that the panel members relied on a transcript. Fur- ther, the applicant was represented by counsel. I think it is fair to assume that 310 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

any contradictions in the applicant’s testimony would have been as apparent to counsel as to the CRDD members. In such specific circumstances, to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. To reiterate, the Applicant was represented. Presumably, counsel was attentive to the testimony. It was open to counsel to examine or reexamine his or her client on any perceived inconstencies (sic) without coaching from the CRDD members. [my emphasis] 54 In Ngongo c. Canada (Ministre de la Citoyennet´e & de l’Immigration), [1999] F.C.J. No. 1627 (Fed. T.D.), Justice Tremblay-Lamer provides a summary of the jurisprudence as well as guidelines for determining whether the RPD has erred in failing to put a contradiction to the applicant: 13 I note that in its decision, the panel relied on Mr. Justice Gibson’s recent decision in Ayodele v. Canada (M.C.I.). That decision limits the scope of Gracielome v. Canada (M.E.I.) and holds that failing to put a contradiction to a claimant is not in itself an error of law: I think it is fair to assume that any contradictions in the applicant’s testimony would have been as apparent to counsel as to the CRDD members. In such specific circumstances, to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. To reiterate, the Applicant was represented. Presumably, counsel was attentive to the testimony. It was open to counsel to examine or reexamine his or her client on any perceived inconsistencies without coaching from the CRDD members. 14 More recently in Matarage v. M.C.I., Mr. Justice Lutfy used the same reasoning. 15 Mr. Justice Lutfy stated that there may still be circumstances, however, where a discrepancy should be brought to the attention of a refugee claimant. On this point, he cited Guo v. Canada (M.C.I.). 16 In my view, regard should be had in each case to the fact situation, the applicable legislation and the nature of the contradictions noted. The following factors may serve as guidelines: 1. Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious? 2. Was it in answer to a direct question from the panel? 3. Was it an actual contradiction or just a slip? 4. Was the applicant represented by counsel, in which case counsel could have questioned him on any contradiction? Awolaja v. Canada James Russell J. 311

5. Was the applicant communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely. 6. Is the panel’s decision based on a single contradiction or on a number of contradictions or implausibilities? 17 Having regard to these factors, I am of the view that in the case at bar, the panel was not required to confront the claimant. This matter is proceeding in the context of the new legislation. The contradiction was obvious and in answer to a direct question from the panel. It did not stem from a careful analysis by a panel seeking to justify an adverse credibility finding. It admittedly escaped the panel’s notice such that the applicant was never directly confronted over the contradiction. However, he was represented by counsel. In my view, as in Ayodele, the contradiction was as apparent to counsel as to the CRDD members, such that counsel could have reexamined his client on that point. 55 Taking this jurisprudence into account, I think that I have to conclude on the facts before me, and for much the same reasons cited by Justice Tremplay- Lamer in Ngongo, that there was no duty on the RPD to put this particular contradiction to the Applicant and it was not unreasonable for the RPD not to do so. However, this significant contradiction has to be weighed against other instances where, it appears to me, the RPD has made unreasonable findings. 56 In paragraph 9, the RPD refers to the Applicant’s “evasive answers with regards to what is the core of her fear of returning to Nigeria” and her inability to “speak of her husband’s political activities coherently.” Reading the transcript, it is hard to see how the Applicant was evasive. She gave a clear explanation that, because she is a woman, her husband would not be culturally disposed to tell her in any detail about what he was doing politically. When she was asked what she knew about the Democratic Alternative Party, the Applicant explained these cultural issues in the following way: I don’t know much more because I know it’s a party. There are different party people join. Because when you have to vote, you vote with the party you supported. I’m more like at the house taking care of that things and my work, but he’s more involved than me because he goes to meeting. He doesn’t — he doesn’t even discuss much, you know. No, ma’am, they don’t discuss much about what they are doing. Even if I say, “Oh, what is this?” What is my business sometimes — 57 The RPD omitted to take into account these important cultural nuances when assessing the Applicant’s credibility on this point. 58 Another discrepancy concerns the number of times that community members and the police came to the house looking for her husband. The Applicant had omitted in her PIF to specify the number of times community members searched for her husband. At the hearing she said that they came three times. The RPD 312 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

determined that “the claimant embellished her viva voce testimony and that there is no credible evidence anyone ever came looking for her husband.” 59 At page 377 of the transcript, when the RPD raises the issue of how many times they came, the Applicant explains that in her PIF she was talking about the first time they came but, all in all, they came three times. When the PIF is read, there is no necessary reading that she said they came only once. She simply said that she was afraid for her husband’s safety but was surprised to see some of the community heads come to my house to ask for my spouse and accused him of being involved in the fights and that he was responsible for killing a well known person in the community. She does not say that they only came once. There is no necessary discrepancy here and, because the RPD does not put the issue squarely to the Applicant at the hearing, she would not even know that the RPD might regard the matter as a discrepancy, and so would not know that further explanation was required. In this instance, then, I think the RPD was unreasonable not to specifically address this issue with the Applicant. 60 At paragraph 11, the RPD says that the Applicant “did not state at the POE that she believed her son was killed.” However, the Applicant’s POE declaration says: “Since they can kill my son I am afraid of my life too ....” This kind of oversight creates the impression that the RPD is overlooking important evidence and relying upon discrepancies that are just not there. 61 In dealing with subjective fear, the RPD refers in paragraph 12 to the Appli- cant’s return to Nigeria for a month in 2005 when her son died. The Applicant testified that it was during this trip that she officially resigned from her job. The RPD says that the Applicant’s testimony about this one-month period was evasive and vague and that “the claimant’s behaviour of taking care of business matters is not in line with someone in hiding”: The panel finds the claimant’s return to Nigeria for a month demonstrates a lack of subjective fear and that there is no credible evidence she was in hiding, if she went to resign from her work at the hospital. 62 A review of the transcript reveals that there is nothing evasive or vague in the Applicant’s testimony about why she was able to return for a month: i. Did anybody from your husband’s community try to contact you? C. They didn’t even know I was there. I didn’t even get near there. No- body knew I was around, except as my friend that they knew I was coming and they sneaked the children — they show — they bring the children for me. 63 So the Applicant never went near the husband’s community. And when it came to resigning her job, the Applicant’s evidence was that, to stay in hiding, she had to “resign through paper (sic).” It is not readily apparent to me why resigning in writing is in any way inconsistent with staying in hiding. Once again, the RPD is not really dealing with the evidence before it. Awolaja v. Canada James Russell J. 313

64 At paragraph 17, the RPD says that the Applicant “could not provide a reasonable explanation of why the community members would want her after almost six years, taking into account that her daughters have been living in Nige- ria without being persecuted.” The Applicant, in fact, explained that she was still a target because the community members are still looking for her husband: i. So, it’s been five years since 2004, where you say you were threatened. Why would they be looking for you now? It’s been five years. C. Yes, it was five years. M. The risk has to be — in a refugee — is what you would be afraid of going back to now, not what necessarily what happened before. So, why, after five years would they be looking for you now? C. Oh, because they are still looking for my husband. My husband has not appear. And the children tell me this, what is going on at home. Even my friend that was there, sometimes he tell me what is going on, that they are still talking about it. They are still looking for the money, still hearing the rumour and, according to one of my children, communicate with me with letter and on the phone. It made me scared and afraid. 65 The Applicant also explained as follows: i. But they’re after your husband, ma’am. C. In Nigeria, if they don’t see the husband, the next target is the wife. 66 The Applicant also explained as follows: C. Because the problem is still on. The problem is still on. It doesn’t die away, especially it involve life. They don’t forget things like (inaudible). They will revenge. It’s they will reven — they don’t forget anything that — this — involve life, human being. And this man, this party, this man, (inaudible) is a big man. He has so many political talks (inaudible). It involve life. Anything that involve life, they, they want to revenge. 67 When it came to the Applicant’s daughters, the Applicant explained that in Nigeria there are cultural reasons why the girls would not be targeted: C. No. No, they are not really after girls, you know. They know that the girls does (inaudible) they get married and they — they would go away. They don’t keep the family name. The girls, they don’t value much about girls. Not that they are even going, they are changing. So, they don’t (inaudible) scared. They don’t go to that environment at all. They don’t know where they are. 68 The Applicant had also explained in her PIF that girls are not valued in Ni- geria. They are not important enough to target. 69 None of this is vague or evasive, and it is certainly not unreasonable. The RPD is simply leaving out of account what the Applicant has said. 314 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

70 There are other problems along the same lines, but this is enough to con- vince me that, as regards the RPD’s credibility and subjective fear findings the Decision is unreasonable. I say this even though there were obviously some problems with the Applicant’s evidence that were not explained and where the RPD’s negative findings cannot be said to be unreasonable. My concern is with the Decision as a whole. There are just too many instances of the RPD coming to negative conclusions on the basis of evidence that it says was neither evasive or contradictory, but which was not. 71 The only other issue is whether the IFA finding is reasonable and whether it can stand alone and cure the other problems in the Decision referred to above. The Respondent says it can because, even if the Applicant’s testimony is believed, the risks she faces are community-based and local. She can avoid them by going to one of the alternative centres mentioned in the Decision. 72 The Applicant does, however, provide evidence that she is afraid of a national political organization and of the Nigerian police, all of whom are looking for her. This aspect of her evidence is not dealt with in the Decision and, in any event, I do not see how the RPD could reasonably deal with IFA when it has not reasonably assessed the risks that she allegedly faces. See Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 589 (Fed. C.A.). 73 All in all, I think that it would be unsafe to allow this Decision to stand. It has to go back for reconsideration.

Judgment THIS COURT ORDERS AND ADJUDGES that 1. The application is allowed. The Decision is quashed and returned for reconsideration by a differently constituted RPD; 2. There is no question for certification. Application granted. Albarahmeh v. Canada 315

[Indexed as: Albarahmeh v. Canada (Minister of Citizenship & Immigration)] Ibrahim Hasan Albarahmeh Basima Ahmad Ahmad (a.k.a. Basima Ahmad AB Ahmad) Omar Albarahmeh Aeh Albarahmeh (a.k.a. Aeh Ibrahim has Al-Brahmeh), Applicants and The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, Respondents Federal Court Michael L. Phelan J. Heard: November 16, 2010 Judgment: November 17, 2010 Docket: IMM-1504-10, 2010 FC 1153 Mr. Randal Montgomery, for Applicants Ms Prathima Prashad, for Respondents Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Family of four were all citizens of Jordan who applied for refugee protection — Claims were joined for purposes of evidence and argument but father’s claim was excluded from consideration during hearing process due to membership in organization responsible for crimes against humanity — Family had two hearings and were scheduled for third to hear further testimony — Third hearing was cancelled due to illness of Board member and set to be rescheduled — Before new date was set, parties received negative decision of Board — Applicants appealed decision — Appeal allowed — Administration of justice required decisions be complete and express true and whole intent of decision maker — Father had legitimate expectation that no decision would be made until all evidence was in on all issues, including exclusion issue — Failure to complete hearing before rendering judgment was fatal to totality of inclusion finding — Decision quashed in it’s entirety; matter remitted for new determination before another panel. Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Human and international rights violations –––– Family of four were all citizens of Jor- dan who applied for refugee protection — Claims were joined for purposes of evidence and argument but father’s claim was excluded from consideration during hearing process due to membership in organization responsible for crimes against humanity — Family had two hearings and were scheduled for third to hear further testimony — Third hearing was cancelled due to illness of Board member and set to be rescheduled — Before new date was set, parties received negative decision of Board — Applicants appealed decision — Appeal allowed — Administration of justice required decisions be complete and express true and whole intent of decision maker — Father had legitimate expectation that no decision would be made until all evidence was in on all issues, including exclusion issue — Failure to complete hearing before rendering judgment was fatal to totality of 316 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d) inclusion finding — Decision quashed in it’s entirety; matter remitted for new determination before another panel. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — General principles –––– Family of four were all citizens of Jordan who applied for refugee protection — Claims were joined for purposes of evidence and argument but father’s claim was excluded from consideration during hearing process due to membership in organization responsible for crimes against humanity — Family had two hearings and were scheduled for third to hear further testimony — Third hearing was cancelled due to illness of Board member and set to be rescheduled — Before new date was set, parties received negative decision of Board — Applicants appealed decision — Appeal allowed — Administration of justice required decisions be complete and express true and whole intent of decision maker — Father had legitimate expectation that no decision would be made until all evidence was in on all issues, including exclusion issue — Failure to complete hearing before rendering judgment was fatal to totality of inclusion finding — Decision quashed in it’s entirety; matter remitted for new determination before another panel. Cases considered by Michael L. Phelan J.: Alvarez v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 321, 2007 CarswellNat 717, 2007 CarswellNat 1688, 2007 CF 321 (F.C.) — referred to Apotex Inc. v. Canada (Attorney General) (2000), 188 D.L.R. (4th) 145, 255 N.R. 319, 24 Admin. L.R. (3d) 279, 6 C.P.R. (4th) 165, 2000 CarswellNat 889, [2000] 4 F.C. 264, 180 F.T.R. 278, 2000 CarswellNat 3266, [2000] F.C.J. No. 634 (Fed. C.A.) — 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 Car- swellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered dela Fuente v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 2749, 53 Imm. L.R. (3d) 171, 2006 CAF 186, 350 N.R. 362, 2006 FCA 186, 2006 CarswellNat 1334, 270 D.L.R. (4th) 681, [2007] 1 F.C.R. 387, [2006] F.C.J. No. 774 (F.C.A.) — considered Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board) (1994), 1994 CarswellNfld 277, 163 N.R. 27, 21 Admin. L.R. (2d) 248, 115 Nfld. & P.E.I.R. 334, 360 A.P.R. 334, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1, 1994 CarswellNfld 211, EYB 1994-67363, [1994] S.C.J. No. 14 (S.C.C.) — 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 Bruns- wick) 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 Xie v. Canada (Minister of Citizenship & Immigration) (2004), [2005] 1 F.C.R. 304, 2004 FCA 250, 2004 CarswellNat 2036, 37 Imm. L.R. (3d) 163, 2004 CarswellNat Albarahmeh v. Canada Michael L. Phelan J. 317

3972, 243 D.L.R. (4th) 385, 2004 CAF 250, 325 N.R. 255, [2004] F.C.J. No. 1142 (F.C.A.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 Generally — referred to Rules considered: Refugee Protection Division Rules, SOR/2002-228 R. 49(1) — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F(a) — considered

APPLICATION for judicial review of decision of Immigration and Refugee Board that was issued prior to completion of hearing.

Michael L. Phelan J.: I. Introduction 1 The Immigration and Refugee Board (Board) rendered a decision on the merits of a case before the case was concluded. This is a most unusual case — fortunately. The Court and the parties have been unable to cite any similar cases in the context of administrative hearings.

II. Background 2 The Applicants are a family of four; the male Applicant, his wife the female Applicant, and their children who are citizens of Jordan. In a decision dated March 3, 2010, the Board rejected all four Applicants’ claims for refugee protection. 3 The male Applicant, on his own, was excluded from consideration by virtue of Article 1F(a) of the Convention because he was a member of the Jordanian Public Security Directorate, an organization responsible for widespread and sys- tematic torture, mistreatment, arbitrary arrest, detention and murder. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; 318 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

The female Applicant, whose case was the foundation for the family’s claim for refugee status and protection, failed to rebut the presumption of state protection in respect to all four Applicants. The Board’s final conclusion was: Having found the claimants lack credibility and that they have failed to rebut the presumption that states can protect their citizens, I find that there is no crecible (sic) basis for the claim. 4 The critical problem with this decision is that the evidence and argument had not been concluded. A further hearing was scheduled and, without notice to anyone, the Board rendered its final decision part way through the process. 5 The four claims (one for each Applicant) were joined for purposes of evidence and argument. 6 The hearing of these joined refugee claims was conducted on June 25, 2009 and October 23, 2009. A further hearing date was required and the parties received a Notice to Appear setting the date for the third hearing for 1 p.m. on December 23, 2009. 7 At this point in the process the evidence on exclusion was complete and written submissions on this exclusion issue had been filed. The female Applicant was testifying as to the issue of inclusion of the four Applicants as refugees. 8 On December 23, 2009, the parties were advised that due to the Member’s illness, that day’s hearing was cancelled and a new hearing date would be set. 9 Without any further word from the Board, the parties received the negative decision dated March 3, 2010.

III. Analysis 10 The only real issue raised is whether the Applicants were denied procedural fairness. The Respondent has conceded the point in respect to the female Appli- cant and the two children. However, the Respondent maintains that the refugee finding against the male Applicant can stand because the decision in respect of the exclusion issue is reasonable and there was no unfairness in respect to the portions of the hearing that dealt with that issue. Correspondingly, the Respon- dent submits that the Court should sever the decision and conclude that the exclusion finding can stand but that the inclusion finding can be quashed. 11 As this is an issue of natural justice/procedural fairness, the standard of review is correctness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.)). There is no question that the Court may sever the decision under review and uphold part of that decision as a matter of discretion. This is clear from the Federal Courts Act and such decisions as Xie v. Canada (Minister of Citizenship & Immigration), 2004 FCA 250 (F.C.A.) and Alvarez v. Canada (Minister of Citizenship & Immigration), 2007 FC 321 (F.C.). 12 The claims of the four Applicants were joined pursuant to Rule 49(1) of the Refugee Protection Division Rules SOR/2002-228. The Board itself considered Albarahmeh v. Canada Michael L. Phelan J. 319

the family’s refugee claim as a whole in respect to inclusion; thus the failure to complete the hearing before rendering judgment is fatal to the totality of the inclusion finding. The Respondent concedes as much in respect to some of the Applicants. However, it is just as fatal an error to the inclusion issue for the male Applicant. 13 The real issue is whether the Court should allow the exclusion issue to be severed and allowed to stand. With some reluctance, I am of the view that it ought not to be severed. 14 While the evidence and submissions on exclusion were largely over, the Board remained seized with the matter. There is nothing in the Certified Tribu- nal Record which suggests that the matter was concluded with finality. 15 The male Applicant contends that he did not think that the case was closed — not a startling position. Of significance is the fact that Minister’s counsel did not think that the exclusion issue was necessarily concluded, either. 16 The Minister’s counsel, who was present at the hearing to deal with the exclusion issue, left at the beginning of the inclusion part of the case with the caution to the Board that he was to be called back if anything related to exclusion arose. 17 There is no question that the parties legitimately expected that a new hearing date, following the December 23 cancellation, would be set and would then occur. The procedural fairness raised is that of “legitimate expectation”, the principles of which have been expressed as follows: 19 The issue raised by the first question can be disposed of rapidly. Section 190 of the IRPA is clear and unambiguous. It provides that if an application is pending or in progress on June 28, 2002, the IRPA applies without condition. The doctrine of legitimate expectations is a procedural doctrine which has its source in common law. As such it does not create substantive rights and cannot be used to counter Parliament’s clearly expressed intent (Lidder v. Canada (Minister of Employment & Immigration) [1992] 2 F.C. 621, at pages 624, 625 and 632). dela Fuente v. Canada (Minister of Citizenship & Immigration), 2006 FCA 186 (F.C.A.) 26 Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.) [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 320 IMMIGRATION LAW REPORTER 93 Imm. L.R. (3d)

(F.C.T.D.); Mercier-N´eron v. Canada (Minister of National Health and Wel- fare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, “Legitimate Expectation and its Application to Canadian Immi- gration Law” (1992), 8 J.L. & Social Pol’y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Can- ada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contra- vention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) 123 The interests underlying the legitimate expectations doctrine are the non- discriminatory application in public administration of the procedural norms established by past practice or published guidelines, and the protection of the individual from an abuse of power through the breach of an undertaking. These are among the traditional core concerns of public law. They are also essential elements of good public administration. In these circumstances, consultation ceases to be a matter only of political process, and hence beyond the purview of the law, but enters the domain of judicial review. Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C. 264 (Fed. C.A.) 18 The male Applicant had a legitimate expectation that no decision would be made until all the evidence was in, on all issues. 19 The right to procedural fairness is not a right to form over substance and there are times when a court will excuse a procedural fairness error (Mobil Oil Canada Ltd. v. Canada-Newfoundland (Offshore Petroleum Board), [1994] 1 S.C.R. 202 (S.C.C.)). This is not one of those times. 20 There was the potential that matters could arise in the third hearing which would affect the exclusion analysis. The Minister’s counsel even contemplated that possibility, yet the Board’s actions precluded that possibility from ever being able to occur. Therefore, there is substance to the procedural fairness issue foreclosed. 21 Further, the Court cannot accept that the Member intended to render the decision on a partial record. It must have been an error and since it did not reflect the Board’s true intent (even if the Board intended the exclusion result), the decision ought not to stand. The administration of justice requires that decisions be complete and express the true and whole intent of the decision maker. Albarahmeh v. Canada Michael L. Phelan J. 321

22 Lastly, more harm would be done to the parties, the administration and the public if a decision rendered in such a flawed manner is allowed to stand than if the matter is subject to a new determination by a new member. The facts will not change, the actions of the Jordanian Public Security Directorate and the male Applicant’s involvement are largely substantiated. Perspectives and arguments may change but it is preferable, in the interests of justice, to have the whole of the truth exposed than to allow a flawed decision to stand.

IV. Conclusion 23 Therefore, this judicial review will be allowed, the Board’s decision will be quashed in its entirety and the matter remitted for a new determination before another panel which can accept as evidence of exclusion the evidence received in the earlier proceeding with leave to admit further evidence and argument as the panel determines. 24 The parties shall have seven (7) days from the date of these Reasons to file submissions on a certified question. Appeal allowed.