IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 15 (Cited 15 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 15 (Cited 15 Imm. L.R. (4th))

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[Indexed as: Stubicar v. R.] Vlasta Stubicar, Plaintiff and Her Majesty the Queen, Defendant Federal Court Docket: T-2102-10 2012 FC 1393 Jocelyne Gagné J. Heard: September 27, 2012 Judgment: November 29, 2012 Civil practice and procedure –––– Limitation of actions — Actions involving Crown — Actions in tort –––– Plaintiff had dual Canadian and Croation citizenship — In December 2008 plaintiff arrived at Calgary airport carrying both Canadian and Croation passports — Shortly after arriving in Canada plaintiff realized her Croation passport and identity cards were missing — Plaintiff reported her lost passport to Croation embassy in Ottawa — In October 2009 plaintiff claimed to have recalled that her Croation passport and identity documents had been seized by Canada Border Services Agency upon her arrival in Calgary in December 2008 — Plaintiff wrote to Minister in March 2010 and received reply in September 2010 — Plaintiff brought action against Crown in December 2010 — Defendant brought motion for summary judgement — Mo- tion granted — Plaintiff’s action arose at latest in September 2010 when Min- ister responded to her letter — Plaintiff’s action was filed three months and twelve days after Minister’s letter — Plaintiff’s action was statute-barred by op- eration of s. 106 of Customs Act. Civil practice and procedure –––– Summary judgment — Requirement to show no triable issue –––– Plaintiff had dual Canadian and Croation citizenship — In December 2008 plaintiff arrived at Calgary airport carrying both Ca- nadian and Croation passports — Shortly after arriving in Canada plaintiff realized her Croation passport and identity cards were missing — Plaintiff reported her lost passport to Croation embassy in Ottawa — In October 2009 plaintiff claimed to have recalled that her Croation passport and identity documents had been seized by Canada Border Services Agency upon her arrival in Calgary in December 2008 — Plaintiff wrote to Minister in March 2010 and received reply 2 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th) in September 2010 — Plaintiff brought action against Crown in December 2010 — Defendant brought motion for summary judgement — Motion granted — Plaintiff’s action arose raised no genuine issue for trial — Plaintiff did not have either direct or circumstantial evidence that her documents were seized in December 2008 — None of responses to plaintiff’s 15 access to information requests contained any indication that CBSA had plaintiff’s missing documents in its possession. Cases considered by Jocelyne Gagné J.: Baron v. R. (2000), 2000 CarswellNat 345, [2000] F.C.J. No. 263 (Fed. T.D.) — considered Hercules Management Ltd. v. Ernst & Young (1997), 31 B.L.R. (2d) 147, [1997] 2 S.C.R. 165, 1997 CarswellMan 198, 211 N.R. 352, 1997 CarswellMan 199, 115 Man. R. (2d) 241, 139 W.A.C. 241, (sub nom. Hercules Managements Ltd. v. Ernst & Young) 146 D.L.R. (4th) 577, 35 C.C.L.T. (2d) 115, [1997] 8 W.W.R. 80, [1997] S.C.J. No. 51 (S.C.C.) — considered Ingredia SA v. Canada (2010), 2010 CarswellNat 2965, 2010 CAF 176, (sub nom. Ingredia SA v. Canada Customs & Revenue Agency) 406 N.R. 278, 2010 FCA 176, 2010 CarswellNat 2229, [2010] F.C.J. No. 893 (F.C.A.) — followed Source Enterprises Ltd. v. Canada (Minister of Public Safety & Emergency Preparedness) (2012), 2012 CarswellNat 3433, 2012 CF 966, 2012 Car- swellNat 2865, 2012 FC 966, [2012] F.C.J. No. 1032, [2012] A.C.F. No. 1032 (F.C.) — considered Statutes considered: Access to Information Act, R.S.C. 1985, c. A-1 Generally — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 8 — referred to Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 s. 3(b)(i) — considered s. 32 — considered Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Pt. VI — referred to s. 2(1) “goods” — considered s. 2(1) “officer” — considered s. 11(1) — referred to ss. 98-163 — referred to s. 106 — considered s. 106(1) — considered s. 106(2) — considered s. 110(4) — considered Stubicar v. R. Jocelyne Gagné J. 3

s. 129 — referred to s. 129.1 [en. 2001, c. 25, s. 70] — referred to s. 131 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 213 — considered R. 215 — considered R. 216(1) — considered R. 216(2) — considered

MOTION by defendant for summary judgment dismissing plaintiff’s claim.

Vlasta Stubicar, Plaintiff, for herself Me Max Binnie, for Defendant

Jocelyne Gagn´e J.:

1 By motion to the Court, the defendant seeks summary judgment dismissing the plaintiff’s Amended Statement of Claim on the grounds that it is statute-barred pursuant to section 106 of the Customs Act, RSC 1985, c 1 (2nd Supp) [Act] and that it otherwise raises no genuine issue for trial. 2 In order to succeed, the defendant must establish that the plaintiff’s case, as it stands, “is so doubtful that it does not deserve consideration by the trier of fact at a future trial.” However, before reaching such a conclusion, this Court “must proceed with care, as the effect of the granting of summary judgment will preclude [the plaintiff] from presenting any evidence at trial with respect to the issues in dispute. In other words, [the plaintiff would] lose [her] “day in Court”” (see Source Enterprises Ltd. v. Canada (Minister of Public Safety & Emergency Preparedness), 2012 FC 966 (F.C.) at paras 20-21, [2012] F.C.J. No. 1032 (F.C.)). 3 The relevant provisions of the Federal Courts Rules (SOR/98-106) in the case at bar read as follows: 213. (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any 4 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

time after the defendant has filed a defence but before the time and place for trial have been fixed. (2) If a party brings a motion for summary judgment or summary trial, the party may not bring a further motion for either summary judgment or summary trial except with leave of the Court. (3) A motion for summary judgment or summary trial in an action may be brought by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion. (4) A party served with a motion for summary judgment or summary trial shall serve and file a respondent’s motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion. [...] 215. (1) If on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly. (2) If the Court is satisfied that the only genuine issue is (a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or (b) a question of law, the Court may determine the question and grant summary judgment accordingly. (3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may (a) nevertheless determine that issue by way of summary trial and make any order necessary for the conduct of the summary trial; or (b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding. 216. (1) The motion record for a summary trial shall contain all of the evidence on which a party seeks to rely, including (a) affidavits; (b) admissions under rule 256; (c) affidavits or statements of an expert witness prepared in accordance with subsection 258(5); and Stubicar v. R. Jocelyne Gagn´e J. 5

(d) any part of the evidence that would be admissible under rules 288 and 289. (2) No further affidavits or statements may be served, except (a) in the case of the moving party, if their content is limited to evidence that would be admissible at trial as rebuttal evidence and they are served and filed at least 5 days before the day set out in the notice of motion for the hearing of the summary trial; or (b) with leave of the Court. 213. (1) Une partie peut présenter une requête en jugement sommaire ou en procès sommaire a` l’égard de toutes ou d’une partie des questions que soulèvent les actes de procédure. Le cas ech´´ eant, elle la présente après le dépôt de la défense du défendeur et avant que les heures, date et lieu de l’instruction soient fixés. (2) Si une partie présente l’une de ces requêtes en jugement sommaire ou en procès sommaire, elle ne peut présenter de nouveau l’une ou l’autre de ces requêtes a` moins d’obtenir l’autorisation de la Cour. (3) La requête en jugement sommaire ou en procès sommaire dans une action est présentée par signification et dépôt d’un avis de re- quête et d’un dossier de requête au moins vingt jours avant la date de l’audition de la requête indiquée dans l’avis. (4) La partie qui re¸coit signification de la requête signifie et dépose un dossier de réponse au moins dix jours avant la date de l’audition de la requête indiquée dans l’avis de requête. [...] 215. (1) Si, par suite d’une requête en jugement sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant a` une déclaration ou a` une défense, elle rend un jugement sommaire en conséquence. (2) Si la Cour est convaincue que la seule véritable question litigieuse est: a) la somme a` laquelle le requérant a droit, elle peut ordonner l’instruction de cette question ou rendre un jugement sommaire assorti d’un renvoi pour détermination de la somme conformément a` la règle 153; b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence. 6 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(3) Si la Cour est convaincue qu’il existe une véritable question de fait ou de droit litigieuse a` l’égard d’une déclaration ou d’une dé- fense, elle peut: a) néanmoins trancher cette question par voie de procès sommaire et rendre toute ordonnance nécessaire pour le déroule- ment de ce procès; b) rejeter la requête en tout ou en partie et ordonner que l’action ou toute question litigieuse non tranchée par jugement sommaire soit instruite ou que l’action se poursuive a` titre d’instance a` gestion spéciale. 216. (1) Le dossier de requête en procès sommaire contient la totalité des el´´ ements de preuve sur lesquels une partie compte se fonder, notamment: a) les affidavits; b) les aveux visés a` la règle 256; c) les affidavits et les déclarations des témoins experts etablis´ conformément au paragraphe 258(5); d) les el´´ ements de preuve admissibles en vertu des règles 288 et 289. (2) Des affidavits ou déclarations supplémentaires ne peuvent etreˆ signifiés que si, selon le cas: a) s’agissant du requérant, ces affidavits ou déclarations seraient admissibles en contrepreuve a` l’instruction et leurs signification et dépôt sont faits au moins cinq jours avant la date de l’audition de la requête indiquée dans l’avis de requête; b) la Cour l’autorise. 4 As set out by the Supreme Court of Canada and applied by this Court, while the moving party has the onus of establishing that there is no genuine issue for trial, the responding party (the plaintiff in this case), must “put her best foot forward” in order to show that her claim has “a real chance of success” (see Hercules Management Ltd. v. Ernst & Young, [1997] S.C.J. No. 51 (S.C.C.) at para 15 and Baron v. R., [2000] F.C.J. No. 263 (Fed. T.D.) at para 24). As will be discussed below, the plaintiff has attempted to achieve this through her detailed affidavit of September 17, 2012, and the many exhibits filed in support thereof. Stubicar v. R. Jocelyne Gagné J. 7

The summary of facts as they appear from the plaintiff’s Amended statement of claim, affidavit and exhibits 5 The plaintiff has dual citizenship, Croatian by birth and Canadian by naturalization. 6 On December 24, 2008, at 2:30 p.m., the plaintiff arrived at the Cal- gary International Airport from Croatia, through London Heathrow Air- port. She was then in possession of both her Canadian and Croatian passports. In her Croatian passport, she had inserted her Croatian Identity Card and two photographs. 7 She presented herself to the Canada Border Services Agency [CBSA] primary line Border Services Officer BXS010 [primary line BSO] (see plaintiff’s exhibit C). A few questions were asked and answered, her E311 declaration card was stamped and she was directed towards the Border Services Officer stationed at point [point officer], who let her go through and wished her happy holidays. She was neither directed to the immigration secondary area, nor to the customs secondary area (see plaintiff’s exhibit N, page 6). 8 On December 27, 2008, the plaintiff realized that her Croatian passport, along with her Croatian Identity card and photographs [missing documents] were missing. She initially thought she had inadvertently lost them and went to the Air Canada lost and found office at the Calgary International Airport. She was told that they were not there and was given a printout of the search. The Air Canada employee suggested that she check with the Calgary police and the CBSA office at the Calgary International Airport, which she did. The CBSA officer looked in a drawer but did not find the missing documents (see plaintiff’s exhibit L). 9 On December 30, 2008, she went to the Croatian Embassy in Ottawa and reported having lost her Croatian passport (see plaintiff’s exhibit L). 10 On October 31, 2009 (i.e. over ten months after having noticed that her Croatian passport was missing) the plaintiff claims to have recalled, at the occurrence of an event which will be more fully discussed below, that the missing documents were seized on December 24, 2008, by the CBSA at her arrival at the Calgary International Airport. According to the plaintiff, she then recalled that both her passports were handed over to the primary line BSO, but that only her Canadian passport, along with her E311 declaration card, were handed back to her. 11 On March 16, 2010, the plaintiff wrote to the Minister of Public Safety and Emergency Preparedness [Minister] to request an extension of 8 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

time, pursuant to sections 129 and 129.1 of the Act, in order to seek the Minister’s intervention in accordance with section 131 of the Act (exhibit L). The plaintiff’s request was reiterated through her Member of Parlia- ment, Mr. Bernard Bigras on June 10, 2010. 12 On September 8, 2010, the Minister wrote to the plaintiff (her exhibit M). His answer will be reproduced at length: Dear Ms. Stubicar: You Member of Parliament, Mr. Bernard Bigras, wrote to me on your behalf on June 14, 2010, concerning your border clearance at Calgary International Airport on December 24, 2008. I also want to acknowledge your correspondence to me on this issue and apologize for the delay in responding. The Canada Border Services Agency (CBSA) border services offers are positioned to interview travellers and importers and to examine personal and commercial goods entering and leaving Canada. The agency’s mandate is to ensure that only admissible people and goods have access to Canada. The CBSA takes seriously its commitment to provide high-quality service to travellers while ensuring that Cana- dian society is protected through the responsible enforcement of Canada’s laws. Upon receipt of your correspondences, I requested that CBSA officials investigate and provide a report. Their findings indicate that no seizure or detention actions were taken against you on December 24, 2008. I am also advised that the CBSA and the Calgary Airport Authority have undertaken an exhaustive search of items brought to the Lost and Found areas at Calgary International Airport and that, unfortunately, your missing documents were not found. I regret that there is no action that the agency is able to take that may assist you in this matter. Thank you for writing. Yours sincerely, Vic Toews, P.C., Q.C., M.P. c.c.: Mr. Bernard Bigras, M.P. Rosemont-La Petite-Patrie 13 In addition to her fifteen requests to the CBSA pursuant to the Pri- vacy Act and the Access to Information Act (which will be discussed below), the plaintiff brought the within action against her Majesty the Queen in Right of Canada on December 20, 2010, seeking: Stubicar v. R. Jocelyne Gagn´e J. 9

i. “An order declaring that Defendant and her officers and agents have violated the plaintiff’s rights under s. 8 of the Canadian Charter of Rights and Freedom...; ii. An order granting the following remedy pursuant to s. 24(1) of the Charter: that the Defendant and her officers and agents shall, without delay, return to the Plaintiff all personal documents, including copies thereof, that were seized, on December 24, 2008, at port of entry Calgary International Airport by Defendant’s officer, Border Services Officer (BSO), Bethany Haeckel; iii. Costs; and, iv. Such further and other relief as this Honourable Court deems just.”

Defendant’s motion for summary judgment Is plaintiff’s claim time-barred? 14 According to the defendant, since the plaintiff claims that the defendant is vicariously liable for the action of the primary line BSO, pursuant to sections 32 of the Crown Liability and Proceedings Act, RSC, 1985, c C-50 [CLPA], the limitation period to be applied is the one set forth in section 106 of the Act, which reads as follows: 106. (1) No action or judicial proceeding shall be commenced against an officer for anything done in the performance of his duties under this or any other Act of Parliament or a person called on to assist an officer in the performance of such duties more than three months after the time when the cause of action or the subject-matter of the proceeding arose. (2) No action or judicial proceeding shall be commenced against the Crown, an officer or any person in possession of goods under the authority of an officer for the recovery of anything seized, detained or held in custody or safekeeping under this Act more than three months after the later of (a) the time when the cause of action or the subject-matter of the proceeding arose, and (b) the final determination of the outcome of any action or proceeding taken under this Act in respect of the thing seized, detained or held in custody or safe-keeping. [...] 106. (1) Les actions contre l’agent, pour tout acte accompli dans l’exercice des fonctions que lui conf`ere la pr´esente loi ou toute autre 10 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

loi fédérale, ou contre une personne requise de l’assister dans l’exercice de ces fonctions, se prescrivent par trois mois a` compter du fait générateur du litige. (2) Les actions en recouvrement de biens saisis, retenus ou placés sous garde ou en dépôt conformément a` la présente loi, contre la Couronne, l’agent ou le détenteur de marchandises que l’agent lui a confiées, se prescrivent par trois mois a` compter de celle des dates suivantes qui est postérieure a` l’autre: a) la date du fait générateur du litige; b) la date du règlement définitif de toute instance introduite en vertu de la présente loi au sujet des biens en cause. [...] 15 As to section 32 of the CLPA, it provides that where the relevant time-bar is found “in any other Act of Parliament”, those provisions shall apply: 32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. 32. Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s’appliquent lors des poursuites auxquelles l’Etat´ est partie pour tout fait générateur survenu dans la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit par six ans. 16 The following dates are to be considered in determining at what point in time the plaintiff’s cause of action might have arisen: the missing documents were allegedly seized on December 24, 2008; the plaintiff noticed they were missing on December 27, 2008; she made a link between their loss and the defendant on October 31, 2009; and the Minister replied to her request on September 8, 2010. The defendant argues that at best, the plaintiff’s cause of action arose on September 8, 2010, so that her claim issued on December 20, 2010 (i.e. three months and 12 days later) is statutebarred. 17 The plaintiff replies that section 106 of the Act does not apply to her claim since the primary line BSO did not act in pursuance of her duties Stubicar v. R. Jocelyne Gagné J. 11

under the Act. If she had, says the plaintiff, she would have notified her and issued the “seizure receipt” requested by section 110(4) of the Act. 18 The plaintiff further argues that when the primary line BSO illegally seized her missing documents, she acted under the Immigration and Ref- ugee Protection Act, SC 2001, c 27 [IRPA]. To reach this last conclusion, she relies on the defendant’s affidavit sworn by Ralph Lombardo (which, according to plaintiff, should be given little to no weight), which states: had a seizure been made, Ms. Stubicar would have received a IMM 5265 “Seizure Form” stating that date, the items that were seized and signed by both the seizing Officer and Ms. Stubicar. There is no such document 19 The statutory authority for the IMM 5265 “Seizure Form” being the IRPA, says the plaintiff, the primary line BSO would have acted outside the scope of the Act. 20 I disagree with plaintiff for several reasons. 21 First, it is uncontested that neither the Seizure Receipt provided for in section 110(4) of the Act, nor the Seizure Form provided for by the IRPA, were filled and issued to the plaintiff. It is also uncontested that the primary line BSO did not refer the plaintiff to the immigration secondary area, but that she was referred to the point officer who simply let her go through. 22 Furthermore, section 106 of the Act is found in its part VI entitled ENFORCEMENT (sections 98 to 163). This part begins with subtitle POWERS OF OFFICERS, and gives the “officers”, as defined in section 2, broad powers to ensure the effective enforcement of the Act. Section 106 of the Act is broad enough to cover any act performed by the primary line BSO on December 24, 2008, namely “anything done in the performance of [her] duties under this or any other Act of Parliament”. The primary line BSO was on duty at the Calgary International Airport on December 24, 2008, and the defendant is being held vicariously liable for an alleged fault or tort by her in her capacity of servant of the Crown, within the meaning of paragraph 3 b)(i) of the CLPA. 23 Finally, the plaintiff has taken the following steps and made the following arguments based on part VI of the Act: a. In one of her requests under the Access to Information Act (exhibit D), the plaintiff was asking for “the name of officer BXS010 to whom [she] presented herself... on returning to Canada... on De- 12 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

cember 24, 2008, as that name appears on documents... prepared by officer BXS010 in the performance of her duties under the Customs Act (notably s. 11 (1)) or under any other Act of Parlia- ment...)”. Plaintiff is using the exact language found in section 106 of the Act; b. In her letter of March 16, 2010, to the Minister (exhibit L), plaintiff made an “Application pursuant to s. 129.1 of the Customs Act for extension of time (limited by s. 129 of the Customs Act) to apply for ministerial review under s. 131 of the Customs Act regarding specific seizure of “goods” as defined under s. 2(1) of the Customs Act including “any document in any form.”” (The emphasis are in her original letter) Sections 129, 129.1 and 131, as section 106, are all found in part VI of the Act; c. The plaintiff blames the primary line BSO and other CBSA officers for having queried her name in the Integrated Customs En- forcement System (ICES), which contains “information [...] used by the Agency for the enforcement of the Customs Act” (see plaintiff’s exhibit R). 24 I therefore conclude that section 106 of the Act applies to the plaintiff’s claim and that her action against the defendant, for any act allegedly performed on December 24, 2008, by the primary line BSO in the performance of her duties, is statute-barred. In so finding, I am following the approach favored by the Federal Court of Appeal in Ingredia SA v. Canada, 2010 FCA 176 (F.C.A.) at paras 31-41, [2010] F.C.J. No. 893 (F.C.A.).

Does plaintiff’s claim disclose a genuine issue for trial? 25 In her Amended Statement of Claim and in her September 17, 2012 affidavit, the plaintiff enumerates a number of verifications made under her name by the CBSA officers in different systems available to them. The plaintiff is essentially seeking from this Court i) a declaration that her “right to be secure against unreasonable search or seizure”, as provided under section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] has been violated, and ii) an order en- joining the defendant to return her missing documents to her. 26 The plaintiff admits not having noticed the loss of the missing documents until three days after she arrived at the Calgary International Air- port. She further admits having first thought that she had lost them, hence Stubicar v. R. Jocelyne Gagn´e J. 13 the fact that that the first step she took was to visit the Air Canada lost and found office. She finally states that her memory of the December 24, 2008 incident was triggered over ten months later, on October 31, 2009, when she once again visited the Calgary International Airport. It is worth elaborating on the circumstances of that event, which is described in some details in the letter that the plaintiff wrote to the Senior Vice-Presi- dent/Customer Service of Air Canada, on behalf of her mother (her exhibit H). The most relevant excerpts of the letter are reproduced below: Dear..., RE: Harassment of Air Canada Passenger with Dual Citizenship by Air Canada Ticketing Staff at Calgary International Airport Please allow me to bring to your attention the following account of my experience, on October 31, 2009, at the Calgary International Airport Air Canada ticketing counter. With a confirmed reservation (MK562Z) and the applicable rebooking already paid, on my behalf, by my sister in Zagreb, Croatia, I arrived at the Calgary International Airport Air Canada ticketing area to get my ETKT printout and to check-in, around 17:00 (copies attached). Accompanying me was my daughter, Vlasta Stubicar. The first in line, I expected to be called to proceed to the closest available counter (closer to the east side window), staffed by a young male with fair coloured hair. A tall South Asian Air Canada staff member arrived from behind, however, to direct me to the counter furthest removed from the said window. Waiting there for me was a tall young to middle-aged Caucasian female which naturally frizzy hair, sandy coloured, neatly pulled back, who was wearing the Air Canada uniform, but without a name tag. She would identify herself as “Susanna” .... I handed “Susanna” my old ticket (copy attached), with a handwrit- ten notation on the rebooking code (MK562Z), along with my passport, and asked her to check whether I could get on an earlier con- necting flight to Zagreb. “Susanna” seemed to be taking longer than usual, as if she were not perfectly familiar with Air Canada’s reservation system. Relying on TIAC rules, she eventually pulled up on her computer screen, “Susanna” asked to see proof of Croatian citizenship (“a residence card or passport”) before she could check me in. As I did not yet have a return ticket for Canada, and had no other proof that I would not be staying more than 90 days, except (as I would later point out) for my travel insurance policy, Croatian authorities would require proof of citizenship, claimed “Susanna”. In vain, my daughter and I protested that: 14 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

1) my Croatian nationality by birth (as documented in my Cana- dian passport-“HRV”) gave me the right to return to my native land without a visa and that, therefore, Air Canada had no right to demand further identification; and 2) based on past travel experience with the Lufthansia and Brit- ish Airways, for instance, this was not standard procedure. Before long, arrived a somewhat older Caucasian male colleague with auburn hair that seemed dyed and a matching moustache, also in the Air Canada uniform, but without a name tag to match the name given, “Terry”. In a very authoritarian manner, “Terry” asserted the right to decide whether or not I would get on the plane, and with my passport in hand, disappeared to a room in the back, along the north wall in the terminal. A couple of times, at intervals of approximately 10 minutes, he came out, with my passport still in his hand, only to add to an already tense atmosphere. [...] Hallowe’en night at Calgary International, with “Sneaky Susanna” and “Tricky Terry” may be a fitting title for this strange check-in tail that raises many a question [sic] in my mind. 1. under whose authority were “Susanna” and “Terry” working? 2. How does their conduct, as described above, reflect on Air Canada’s reputation for customer service? 3. More importantly, under what authority were they allowed to demand further proof of my Croatian nationality, under threat of denying me the right to travel? 4. If not authorized to demand further proof of Croatian nationality, in addition to the clear annotation in my passport, were “Susanna” and “Terry” acting on improper, because unlaw- ful and discriminatory, considerations? 5. Are other holders of dual citizenship routinely subject to such harassment? (emphasis are in the letter) [...] 27 As indicated in a facsimile that was sent to the plaintiff on October, 31, 2009, and as it is clearly explained in Air Canada’s reply letter (exhibit H), the plaintiff’s mother was asked to present proof of her Croatian citizenship for the sole reason that she was flying on a one way ticket and did not have a visa delivered by the Croatian authorities. Commercial carriers are required to ensure that their passengers have the necessary visa or passport before they board a flight. Stubicar v. R. Jocelyne Gagn´e J. 15

28 That said, this was the event that allegedly triggered the plaintiff’s memory of her experience at the Calgary International Airport on De- cember 24, 2008. When she was told that Terry would not keep her mother’s Croatian passport, she replied “Not as you sometimes do.” The Air Canada employee’s “spontaneous facial expression (a known [sic] smile)...confirmed for [her] the inference [she] had drawn in the course of [that] occurrence” (para 14 of plaintiff’s September 17, 2012 affidavit), that it must be what had happened to her missing documents on December 24, 2008. 29 The Court is of the opinion that there is no need to consider the defendant’s affidavit, sworn by Ralph Lombardo, to conclude that the plaintiff’s claim raises no genuine issue for trial. There will therefore be no need to consider the plaintiff’s argument that, since it is chiefly based on a firm belief rather than being confined to facts within the deponent’s personal knowledge, it shall be given little weight by the Court for the purpose of the present motion. 30 Having “put her best foot forward”, the plaintiff has neither direct nor circumstantial evidence that a seizure of her missing documents occurred on December 24, 2008, and it is steadily denied by the defendant in its Amended statement of defence and by the CBSA in all the exhibits filed by the plaintiff in support of her affidavit. As indicated above, plaintiff has made fifteen requests to the CBSA pursuant to the Privacy Act and the Access to Information Act and filed, in support of her affidavit, all the information she received in response thereof. The plaintiff is thereby attempting to infer from the several verifications made under her name by the primary line BSO and other CBSA officers in the different systems available to them, that they had to have her Croatian passport on hand when they queried the systems. The Court has therefore thoroughly reviewed all the documents emanating from the CBSA, as well as all the other exhibits filed by the plaintiff. Her numerous requests to the CBSA are chronologically listed hereinafter and identified by the dates at which the CBSA replied to the plaintiff: April 1, 2010 (exhibit C) “A copy of Traveler’s API from London LHR to Calgary on December 24, 2008, time 14:30 P.M. Air Canada Flight #AC851, Booking #8312100 144 093 for STUBICAR, Vlasta.” August 24, 2010 16 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(exhibit Z) “The internal intelligence report prepared for the CBSA and already released to the Canadian Press under the Access to Information Act, as per the 2- page Canadian Press article by Jennifer Ditchburn, titled “Visa exemption for Croatians could bring war criminals: border agency and dated 15 July 2009.” August 26, 2010 (exhibit D) “The name of officer BXS010 to whom the undersigned presented herself and whose questions she answered, on returning to Canada, via Calgary In- ternational Airport, on December 24, 2008, as that name appears on documents, electronic or hard (paper) copy prepared by officer BXS010 in the performance of her duties under the Customs Act (notably s. 11(1)) or under any other Act of Parlia- ment. Attachment: 1-page ICES TRAVELLER HIS- TORY — TRAVELLER PASSAGE REPORT March 11, 2010.” September 15, 2010 (exhibit F) “1. Customs declaration card E311 filled out by STUBICAR, Vlasta on 24-12-2008. 2. All reports prepared by CBSA Officer BXS010 at Calgary International Airport, on 24-12-2008 as regards to STUBICAR, Vlasta.” 3. All notes made by CBSA Officer BXS010 at Cal- gary Int. Airport on 24-12-2008 as regards to STUBICAR, Vlasta.” October 4, 2010 (exhibit S) “All personal information and/or data retrievable by my name, Vlasta Stubicar (original spelling Vlas- ta Stubicar) or by passport number [...] issued to the holder, Vlasta Stubicar, [...], in Croatia and by Croatian Identity Card number [....], issued to the same holder as found in PIB Travel and Identity Document System (TIDS)-CBSA PPU 036.” (Pass- port and identity card numbers, as well as date of birth intentionally withdrew) Stubicar v. R. Jocelyne Gagn´e J. 17

October 12, 2010 (exhibit V) “The name of the supervisor that was on duty on 24/12/08, 14:34 at Calgary International Airport for BSO (CBSA Officer) BXS010 Bethany Haeckal.” October 15, 2010 (exhibit U) “All personal information retrievable by the undersigned’s name VLASTA STUBICAR (original spelling: Stubicar), DOB: [...], Croatia, in the CBSA — specific Personal Information Bank MWCSC, “Mod- ern War Crimes System — Classified”, CBSA PPU 028.” (Date of birth intentionally withdrew) November 22, 2010 (exhibit R) “CBSA Manuals (electronic versions): 1. Inland Services Procedures Manual 2. Recorded Information Management Policy and Procedures Manual 3. Traveller Processing;” November 29, 2010 (exhibit W) “I. Officer ID numbers, respectively, for Murray EDWORTHY and Mike GERENCIR. II. Customs Notebooks used on 24/12/2008, at Cal- garyy International Airport, by the following officers: 1) BSO BXSO10, Bethany HAECKEL. 2) Supervisor Murray EDWORTHY. 3) Supervisor Mike GERENCIR. III. Record Number: CBSA ADM132 (1-page copy of relevant Info Source excerpt attached) The Infor- mation Sharing Agreement between the CBSA and Statistics Canada, relating to E311 Traveller Decla- ration Cards.” October 13, 2011 (exhibit I) “The name and identifying (badge) number of the “point” officer on duty on 12-20-2008 [sic] at Cal- gary International Airport (Point of entry) to whom the undersigned handed her E311 card immediately following POE examination starting 14:34.” 18 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

December 15, 2011 (exhibit K) “The name and identifying badge number of the male CBSA officer on duty at the Canada Customs (Douanes Canada) office, at the arrivals level of Calgary International Airport, between 10:00 a.m. and 12:00 p.m., on Saturday, December 27, 2008. The said Canada Customs office is accessible to the public at the arrivals level of Calgary International Airport.” March 28, 2012 (exhibit BB) “The audit records generated the storage and access in PAXIS, and other CBSA databanks, of API/PNR data matching the undersigned’s name, Vlasta STUBICAR, and record locator number PKD MSV.” July 20, 2012 (exhibit DD) “The work location (City, Department, Unit, Sta- tion, etc...) and job title, effective 24/12/2008, 15:00 00:00 (midnight), of respectively, Chris SOWDEN CXS 766 and June DUTHIE JCD 127.” 31 After careful consideration of all the exhibits filed by plaintiff, I am of the opinion that her view is neither supported by the evidence nor by her reasons. Nowhere in the documents issued by the BCSA do we see the plaintiff’s Croatian passport number appear, nor do we see any indication that the CBSA would have in its possession plaintiff’s missing documents. In all the systems queried under her name, the plaintiff is referred to by her birth date and her Canadian passport number. 32 The plaintiff is unable to support her claim, and her allegations do not support the remedies sought. In that sense, the plaintiff’s claim is more of a massive investigation (that so far did not lead her anywhere) than a genuine claim and allowing it to move forward would unduly use valua- ble Court time and resources. 33 For these reasons, the Court finds that the plaintiff’s claim is time- barred and that it raises no genuine issue for trial and accordingly allows the defendant’s motion for summary judgment. Costs shall follow the event. Stubicar v. R. Jocelyne Gagn´e J. 19

Judgment THIS COURT’S JUDGMENT is that: 1. The defendant’s motion for summary judgement is hereby granted and the plaintiff’s action against the defendant is dismissed, with costs. Motion granted. 20 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Daniel v. Canada (Minister of Citizenship and Immigration)] Susanna Julia de Hoedt Daniel, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4379-12 2012 FC 1391 Michel M.J. Shore J. Heard: November 28, 2012 Judgment: November 29, 2012 Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Health –––– Applicant was Sri Lankan citizen — Applicant’s son suffered from cerebral palsy — Applicant’s application for permanent resident status was denied on basis that her son’s cerebral palsy might reasonably be expected to cause excessive demand on health or social services — Applicant brought application for judicial review of visa officer — Application dismissed — It was reasonable for visa officer to conclude that applicant’s plan for her son’s care was not credible and viable — Visa officer was required to take into account both medical and non-medical factors, such as availability, scarcity, or cost of publicly funded services, along with willingness and ability of applicant or family to pay for services — Applicant’s insurance plan did not appear to provide extensive coverage for someone in son’s particular circumstances — Letters offering financial, physical, and other support did not demonstrate level or quality of support that could meet Jordan’s highly specific needs. Cases considered by Michel M.J. Shore J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — considered Canada (Director of Investigation & Research) v. Southam Inc. (1997), 50 Ad- min. L.R. (2d) 199, 144 D.L.R. (4th) 1, 71 C.P.R. (3d) 417, [1997] 1 S.C.R. 748, 209 N.R. 20, 1997 CarswellNat 368, 1997 CarswellNat 369, [1996] S.C.J. No. 116 (S.C.C.) — considered Chaudhry v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 22, 2011 CarswellNat 60, 95 Imm. L.R. (3d) 93, 382 F.T.R. 145 (Eng.), 2011 CarswellNat 6408, 2011 CF 22, [2011] F.C.J. No. 29 (F.C.) — referred to Daniel v. Canada (MCI) 21

Colaco v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 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 Diaz Ovalle v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CarswellNat 1922, 2012 CF 507, 2012 CarswellNat 1268, 2012 FC 507, 8 Imm. L.R. (4th) 274 (F.C.) — 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 Ikhuiwu v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 693, 2008 FC 344, 2008 CF 344, 2008 CarswellNat 1433, [2008] 4 F.C.R. 432 (F.C.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Singh v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 315, 2006 CarswellNat 562, 2006 CF 315, 2006 CarswellNat 2251, [2006] F.C.J. No. 387 (F.C.) — considered S¨okmen v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 47, 2011 CarswellNat 119, 96 Imm. L.R. (3d) 251, 2011 CF 47, 2011 Car- swellNat 492 (F.C.) — considered 22 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Toma v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 779, 2006 CarswellNat 1755, 2006 CF 779, 2006 CarswellNat 3351, 295 F.T.R. 158 (Eng.), [2006] F.C.J. No. 1000 (F.C.) — considered Wang v. Canada (Minister of Citizenship & Immigration) (2006), 302 F.T.R. 127 (Eng.), 2006 FC 1298, 2006 CarswellNat 3482, 2006 CF 1298, 2006 CarswellNat 4792, [2006] F.C.J. No. 1615 (F.C.) — considered Zhang v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1093, 2012 CarswellNat 3526, 2012 CF 1093, 2012 CarswellNat 4190 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 38(1) — considered s. 38(1)(c) — considered s. 42 — considered s. 72(1) — pursuant to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 9 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 1(1) “excessive demand” — considered s. 20 — considered

APPLICATION for judicial review of decision of visa officer that applicant was not admissible on health grounds.

Malvin J. Harding, for Applicant Kim Sutcliffe, for Respondent

Michel M.J. Shore J.: I. Overview 1 Accompanying an application for permanent residence, intentions, alone, are not enough to address medical care and corollary healing professional services to be administered. An excessive demand on health and social services may be considered to be the outcome if a practical and detailed plan for paid medical care and accessory social services (ex. in respect of a required medical team) is not provided. Daniel v. Canada (MCI) Michel M.J. Shore J. 23

II. Introduction 2 The Applicant, a Sri Lankan citizen, seeks judicial review of a decision of an immigration officer of the High Commission of Canada [HCC Officer] denying her application for permanent residence. The Applicant argues that the HCC Officer was unreasonable in finding that she and her accompanying family members were inadmissible on health grounds under paragraph 38(1)(c) and section 42 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In particular, she argues that it was unreasonable to conclude that she and her accompanying family members were inadmissible on health grounds because her son’s Cere- bral Palsy might reasonably be expected to cause excessive demand on health or social services.

III. Judicial Procedure 3 This is an application, under subsection 72(1) of the IRPA, for judicial review of the decision of the HCC Officer, dated March 8, 2012.

IV. Background 4 The Applicant, Ms. Susanna Julia De Hoedt Daniel, and her spouse, Mr. Jeromie Daniel, are both citizens of Sri Lanka. 5 The Applicant’s son, Jordan Isaac Daniel, was born in New Zealand in 2009 while the Applicant and her spouse were working in that country. 6 Jordan has Cerebral Palsy, with spasticity and development delay. As a result, he has delayed growth and weight gain due to initial poor feed- ing, motor dysfunction, learning difficulties, and neurodevelopment limitations. 7 Jordan was enrolled in an early intervention program and receives physiotherapy and occupational therapy. His physicians believed he was small but at a normal growth velocity, eating well, social, and gaining independence using a walking frame. 8 The Applicant and her spouse have friends and family living and working in Canada. Her spouse’s sister is a permanent resident living in British Columbia with her family. 9 In August 2010, the Applicant applied for permanent residence in Canada [PR Application] under the Federal Skilled Worker Class, hoping to give Jordan an environment where children with Cerebral Palsy lead independent and fulfilling lives. 24 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

10 On November 7, 2011, the HCC Officer received an Immigration Medical Exam Summary [IME Summary] for Jordan, which concluded that his Cerebral Palsy might reasonably be expected to cause excessive demand on health or social services. 11 According to the IME Summary, Jordan would require a comprehensive assessment by a multi-disciplinary development team to establish and implement an appropriate program for Jordan. The services that Jor- dan would require, the IME Summary stated, would exceed the average amount spent on individual health care in Canada. 12 The IME Summary identified the following estimates of specific costs of services that Jordan would likely require: (i) participation in an Early Intervention Program for three years ($20,250); (ii) special education costs once he reached school age ($112,000); (iii) respite care over a 10-year period ($24,000); (iv) wheelchair costs ($6,500 to $8,000); and, (v) physiotherapy, occupational therapy, and speech therapy. 13 On November 24, 2011, the HCC Officer sent a letter to the Appli- cant [fairness letter] advising her that Jordan’s health condition might reasonably be expected to cause excessive demand on health or social services. The fairness letter disclosed the findings of the IME Summary discussed above. 14 The fairness letter requested submissions on a reasonable and worka- ble plan (and the Applicant’s financial means and intent to implement it) to offset excessive demands that Jordan would impose on Canadian social services. The fairness letter advised that an excessive demand is a demand for which the anticipated costs exceed the average Canadian per capita health and social services cost amount of $4806.00/year. 15 The fairness letter contained a paragraph on the cost of vocational training and supported independent living for Jordan. The Affidavit of Mr. Sean Morency, filed by the Respondent, states that the fairness letter was drafted from a precedent letter and that this paragraph was included inadvertently. 16 On February 3, 2012, the Applicant submitted a financial plan [Plan] on Jordan’s social and medical costs. 17 The Plan discussed the costs associated with Jordan’s needs, the family’s health and life insurance plan, job offers made to the Applicant and her spouse, their expected combined net income of $61,880 in Canada, and plans to accumulate $300,000 in savings over a 10-year period to meet Jordan’s future needs. Daniel v. Canada (MCI) Michel M.J. Shore J. 25

18 In conjunction with the Plan, the Applicant filed letters of support for long-term financial assistance and free physical care (including daycare) from members of the Maple Ridge, British Columbia community and the congregation of St. George’s Anglican Church in Maple Ridge and letters from the Applicant’s sister-in-law’s family offering general support and free accommodation for 5 years. 19 On March 8, 2012, the HCC Officer refused the PR Application, finding the family inadmissible because Jordan’s health condition might reasonably be expected to cause excessive demand on health or social services in Canada [final decision letter].

V. Decision under Review 20 The HCC Officer determined that Jordan was inadmissible to Canada on health grounds, under paragraph 38(1)(c) of the IRPA, because he has a health condition that might reasonably be expected to cause excessive demand on health or social services. Pursuant to section 42, the Appli- cant and her spouse were also inadmissible to Canada because they were Jordan’s accompanying family members. 21 The HCC Officer took the position that the Plan did not challenge (i) the IME Summary’s determination of Jordan’s health condition, or (ii) the assessment of the excessive cost of health and social services that he would require in Canada. In particular, the HCC Officer was not satisfied that the Plan showed that social services suited to Jordan’s needs could be secured and delivered by private or alternative means. Nor did the Plan show that the Applicant had the financial means or intent to implement it without imposing an excessive demand on the publicly-funded system. 22 According to the Global Case Management System notes [GCMS Notes], the Plan addressed the Applicant’s financial ability to meet Jor- dan’s social services costs but did not ultimately disclose a credible individualized plan to privately deliver services. 23 The HCC Officer found that the Plan was contingent on assumptions which, if correct, would show that it might be possible to meet Jordan’s needs privately. Nonetheless, the Plan did not explain how the Appli- cants would provide services to him. Since the offers of support discussed below were not from persons with identified medical or social service qualifications relevant to Jordan’s needs, they were not probative of this issue. 26 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

24 The HCC Officer analyzed how the Plan compared the financial figures submitted by the Applicant with the social service costs projected in the IME Summary. The GCMS Notes summarize the 10-year table of figures presented in the Plan describing projected costs (early intervention programming and special education) and note that this table omitted costs for respite care because family and friends would provide such care and anticipated to cover wheelchair costs through fundraising. The HCC Officer noted that the Plan compared these costs against the projected net income of the Applicants in Canada (less living expenses), funds of $7500 that they were bringing with them from Sri Lanka, a yearly dona- tion from a relative, and $300,000 in expected savings for future medical costs. 25 On the sister-in-law’s offer to provide 5 years of free accommodation, the HCC Officer found that she had not explained how they would accommodate the Applicant’s family. On her ability to accommodate the Applicant’s family, the HCC Officer noted that her own family consisted of 5 individuals. 26 The GCMS Notes recognized that the Plan contained offers of financial and general support (including childcare support) from community and fellow congregation members, a letter from the proprietor of a day care in Maple Ridge offering to accept Jordan at no charge, an affidavit by the Applicant and her spouse undertaking financial commitment for Jordan’s needs and outlining their confirmed employment and expected financial resources, offers by family and friends to provide respite care as a substitute for paid respite care and to raise funds for a motorized wheelchair, and an offer to provide $50/month in assistance from a relative in Australia. 27 On these offers, the HCC Officer concluded that they were insuffi- ciently specific and did not explain how the offers would contribute to Jordan’s social service costs. 28 The HCC Officer stated that while medical insurance purchased for the Applicant’s family gave some coverage for medical devices and home care, it “did not appear to be designed for someone with Jordan’s chronic needs” (Affidavit of Sean Morency [Morency Affidavit], Exhibit “A” GCMS Information Request: Application at p 57). The HCC Officer reasoned that the limit on 10 visits per year to a speech therapist and a limit of $250 for physiotherapy seemed unlikely to meet his chronic ongoing needs for specialized services. Moreover, the HCC Officer dis- Daniel v. Canada (MCI) Michel M.J. Shore J. 27

tinguished insurance to pay for services from a plan to actually provide services. 29 Finally, the HCC Officer found that the Plan did not disclose professional estimates or assessments that would show the Applicant has begun to organize the multi-disciplinary developmental team discussed in the IME Summary. In the absence of such information, the Plan was not credible in the view of the HCC Officer: “Without a credible plan that identifies qualified service providers willing and able to provide the required services, and the costs that would be incurred to provide the services, it is impossible to make a final determination with respect to the applicants’ financial ability to avert the projected excessive demand” (Morency Affidavit, Exhibit “A” GCMS Information Request: Applica- tion at pp 58).

VI. Issues 30 (1) Was the HCC Officer reasonable in finding that Jordan was inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services? (2) Did the HCC Officer ignore or misconstrue the evidence before him?

VII. Relevant Legislative Provisions 31 The following legislative provisions of the IRPA are relevant: 38. (1) A foreign national is 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. ... 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. 28 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

38. (1) Emporte, sauf pour le résident permanent, interdiction de territoire pour motifs sanitaires l’état de santé de l’étranger constituant vraisemblablement un danger pour la santé ou la sécurité publiques ou risquant d’entraˆıner un fardeau excessif pour les services sociaux ou de santé. [...] 42. Emportent, sauf pour le résident permanent ou une personne pro- tégée, interdiction de territoire pour inadmissibilité familiale les faits suivants: a) l’interdiction de territoire frappant tout membre de sa famille qui l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas; b) accompagner, pour un membre de sa famille, un interdit de territoire. 32 The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] are relevant: 1. (1) The definitions in this subsection apply in the Act and in these Regulations. ... “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 under paragraph 16(2)(b) of the Act, 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 existing waiting lists and would increase the rate of mortal- ity and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents. ... 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 or public safety or might reasonably be expected to cause excessive demand. Daniel v. Canada (MCI) Michel M.J. Shore J. 29

1. (1) Les définitions qui suivent s’appliquent a` la Loi et au présent règlement. [...] « 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 en application du paragraphe 16(2) de la Loi ou, s’il y a lieu de 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. [...] 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 ou risque d’entraˆıner un fardeau excessif.

VIII. Position of the Parties 33 The Applicant submits that the HCC Officer had a duty to explain his analysis of the Plan and that his failure to provide adequate reasons is a reviewable error. 34 According to the Applicant, the HCC Officer breached his duty to provide adequate reasons in failing to explain why the Plan and the evidence submitted in its support was insufficient to show that Jordan might not reasonably be expected to cause excessive demand on heath or social services in Canada. The Applicant contends that the reasons are inadequate because it is difficult to assess how the Plan did not overcome paragraph 38(1)(c) of the IRPA from the fairness and final decision letters. 35 From this, the Applicant infers that the immigration officer was determined on refusing their application, whatever the evidence provided in their plan. 30 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

36 The Applicant further argues that the HCC Officer based his decision on an erroneous finding of fact that he made without regard to the material before him. 37 The Applicant claims that the Plan addressed: (i) all costs outlined in the fairness letter and IME Summary; (ii) her and her spouse’s goal to accumulate $300,000 over a 10-year period through saving and fundraising; (iii) her family’s comprehensive medical and life insurance; (iv) her and her spouse’s job offers; (v) how the Maple Ridge community would support Jordan by letters of support promising to assist with respite care, ongoing fundraising, car pools, and other needs; (vi) her family’s access to free accommodation for five years with her sister-in-law; (vii) free daycare available to Jordan; (viii) the Applicant’s ability to begin work immediately on arrival in Canada; and, (xi) her savings of $7,500 to meet the family’s immediate needs. 38 If the HCC Officer had considered the elements of the Plan, as discussed above, the Applicant argues, then he would have found that paragraph 38(1)(c) did not apply to Jordan. Citing Colaco v. Canada (Minister of Citizenship & Immigration), 2007 FCA 282 (F.C.A.), the Applicant contends that a decision-maker may not ignore evidence of an applicant’s ability and willingness to pay for services in assessing the extent of his or her excessive demand on health or social services under paragraph 38(1)(c) of the IRPA. By extension, the Applicant argues that the HCC Officer should have considered the availability of community support. 39 The Applicant requests that this Court apply Justice Luc Martineau’s decision in S¨okmen v. Canada (Minister of Citizenship & Immigration), 2011 FC 47 (F.C.), which holds that “some demand [on health or social services] is acceptable” under paragraph 38(1)(c) of the IRPA and that, by consequence, the HCC Officer was required to conduct “a full analysis ... to determine whether the demand is ‘excessive’” (at para 34). 40 The Respondent submits that the HCC Officer conducted the individualized assessment of the Applicant’s circumstances, as required by Hilewitz v. Canada (Minister of Citizenship & Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 (S.C.C.). Since the Plan provided by the Appli- cant was not credible, the HCC Officer could not determine if it would actually meet Jordan’s needs. 41 The Respondent submits that the Plan was not credible because it did not address physiotherapy and speech therapy, special education, or a multi-disciplinary team. The statements of support were not probative of Daniel v. Canada (MCI) Michel M.J. Shore J. 31

the Applicant’s ability to meet these needs because these volunteers were not identified as professionally qualified. Finally, the Respondent submits that the HCC Officer acknowledged the Applicant’s medical and life insurance but found that it was not designed to meet Jordan’s needs. 42 In the Respondent’s opinion, the fairness letter shows that the Appli- cant ought to have been aware of the need to submit a satisfactory plan. The Respondent cites OB 063 “Assessing Excessive Demand on Health and Social Services”, which takes the position that a declaration of ability and intent must be supported by a credible plan, that the quality of this plan is the most significant element in assessing ability and intent, and that the plan should reflect the needs of the affected person. 43 The Respondent argues that, since the Plan was not sufficiently concrete to allow the HCC Officer to analyze the Applicant’s intent and ability to pay, his decision was reasonable and consistent with the evidence. The Respondent distinguishes Sokmen, above, on the basis that the applicant in that application had submitted a specific plan which included a plan that her son would receive treatment from a specific physician in France. By contrast, the Applicant did not submit a comparably concrete plan. 44 With respect to the adequacy of the HCC Officer’s reasons, the Re- spondent submits that this argument does not speak to the GCMS Notes, which form part of the HCC Officer’s decision. The Respondent notes that the Applicant indicated that she had received written reasons for the decision in her Application for Leave and for Judicial Review and that the Court did not initiate a request for reasons under Rule 9 of the Fed- eral Courts Immigration and Refugee Protection Rules, SOR/93-22 [Rules]. Citing Toma v. Canada (Minister of Citizenship & Immigration), 2006 FC 779, 295 F.T.R. 158 (Eng.) (F.C.) and Wang v. Canada (Minister of Citizenship & Immigration), 2006 FC 1298, 302 F.T.R. 127 (Eng.) (F.C.), the Respondent submits that the Applicant’s failure to initiate a request under Rule 9 amounts to a waiver of the right to receive the report. 45 The Respondent cites Ikhuiwu v. Canada (Minister of Citizenship & Immigration), 2008 FC 344, [2008] 4 F.C.R. 432 (F.C.) and Singh v. Canada (Minister of Citizenship & Immigration), 2006 FC 315 (F.C.), for the proposition that the Applicant’s complaint on the adequacy of reasons is answered by her failure to request further reasons under Rule 9. 32 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

46 In her Reply, the Applicant submits that the Plan did address physiotherapy and speech therapy, special education, and a multi-disciplinary team. She states that, while her insurance did not entirely address physiotherapy and speech therapy costs, it did provide some coverage; she submits that her general ability and intent to address Jordan’s needs shows that she would have increased the insurance premium to provide further coverage. The Applicant also notes that the Plan did discuss special education beginning at Year 4 of the Plan. Finally, the Applicant argues that she was not obligated to include a plan for a multi-disciplinary team because this component was discussed in the IME Summary, to which she did not have access. 47 The Applicant’s Reply also submits that the HCC Officer’s decision that the letters of support were not from individuals who had identified themselves as qualified to meet Jordan’s needs is also incorrect. The Ap- plicant observes that a daycare operator wrote in her letter of support that she had cared for “children with various special needs” and that another set of individuals identified themselves as a teacher and software engi- neer who “have done professional respite care with community living ... and have significant experience with special needs children” (Applicant’s Record [AR] at pp 39-40). The Applicant submits that the HCC Officer had a duty to further inquire into the qualifications of these persons.

IX. Analysis Standard of Review 48 Whether the Applicant is inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services is a question of mixed fact and law reviewable on the standard of reasonableness (Diaz Ovalle v. Canada (Minister of Citizenship & Immigration), 2012 FC 507 (F.C.)). The HCC Officer’s findings of fact are also reviewable on a standard of reasonableness (Chaudhry v. Canada (Minister of Citizenship & Immigration), 2011 FC 22, 95 Imm. L.R. (3d) 93 (F.C.)). 49 Since the standard of reasonableness applies, this Court may only intervene if the reasons are not “justified, transparent or intelligible”. To satisfy this standard, the decision must also fall in the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47). Daniel v. Canada (MCI) Michel M.J. Shore J. 33

50 The Applicant’s submission that the final decision letter did not sufficiently explain why the Plan was insufficient amounts to a challenge to the adequacy of the HCC Officer’s reasons. The Supreme Court of Can- ada has, however, held that if reasons are given, a challenge to the reasoning or result is addressed in the reasonability analysis. According to N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), “reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (at para 14). This Court may not “substitute [its] own reasons” but “may look ... to the record for the purpose of assessing the reasonableness of the outcome” (at para 15). 51 This Court also observes that the GCMS Notes are part of the HCC Officer’s reasons. Baker v. Canada (Minister of Citizenship & Immigra- tion), [1999] 2 S.C.R. 817 (S.C.C.) has held that “notes to file” are sufficient reasons in administrative immigration proceedings (at paras 43 and 44). Although the Applicant did not make submissions on the application of Rule 9 of the Rules, the Respondent is correct that the Applicant’s failure to initiate a request under Rule 9 amounts to a waiver of the right to receive the report (Toma, above, at para 13) and that the Applicant cannot complain as to the adequacy of reasons (Ikhuiwu, above, at para 18).

(1) Was the HCC Officer reasonable in finding that Jordan was inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services? 52 In Hilewitz, above, the Supreme Court of Canada held that a decision- maker considering whether an applicant might reasonably be expected to impose an excessive demand on health and social services must conduct “individualized assessments”, which require them to “take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services” (at para 55 and 56). This is the touchstone principle of paragraph 38(1)(c) of the IRPA. Its rationale, as stated by Justice Rosalie Abella, is that a decision-maker who “considers the need for potential services based only on the classification of the impairment rather than on its particular manifestation” will take a “generic rather than individual” approach “which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular 34 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds” (at para 56). 53 In assessing the reasonability of this decision on this PR Applicant, the question to ask is: did the HCC Officer assess Jordan as an individual, taking into account his particular situation or as a member of a class of persons; that is, as someone with Cerebral Palsy? 54 To conduct this analysis, this Court must examine the Plan and ask if it is evidence of a credible plan that shows that Jordan’s individual circumstances will not impose an excessive demand on health and social services. In Zhang v. Canada (Minister of Citizenship and Immigration), 2012 FC 1093 (F.C.), Justice Martineau held that an applicant arguing that paragraph 38(1)(c) of the IRPA does not apply must “provid[e] a credible plan for mitigating the excessive demand on social services in Canada” (at para 21). 55 This Court is not satisfied that the Plan is a credible and viable plan showing that Jordan’s individual situation is not such that it might reasonably be expected to impose an excessive demand on health and social services. 56 The Applicant’s insurance plan does not appear to provide extensive coverage for someone in Jordan’s particular circumstances; a young person in the early stages of child development with Cerebral Palsy. Al- though it is true that “some demand” is acceptable under paragraph 38(1)(c) of the IRPA (Sokmen, above) and that the insurance plan does begin to meet some of Jordan’s physiotherapy and speech thebapy costs, the insurance plan is not sufficient to meet many of Jordan’s other chronic and ongoing need for highly specialized services. 57 The Plan did not discuss a multi-disciplinary development team that would assess, establish, and implement an appropriate program to meet Jordan’s medical developmental needs. Contrary to the Applicant’s submissions, the need for such a team assessment was discussed in the fairness letter (Morency Affidavit, Exhibit “C”at pp 1-2). 58 The letters offering financial, physical, and other support do not demonstrate a level or quality of support that could meet Jordan’s highly specific needs. Perhaps the most troubling aspect of this PR Application is the HCC Officer’s assessment (and the judicial review of that assessment) of the offers from the Maple Ridge community and the Appli- cant’s extended family. It falls within the range of reasonable, acceptable outcomes to find that such expressions of support do not establish a cred- Daniel v. Canada (MCI) Michel M.J. Shore J. 35

ible and viable plan. The HCC Officer reasonably observed that these persons are not necessarily qualified to provide the professional care that Jordan needs. Although some of the letters were from persons experienced with special needs children and respite care, there is no indication that these persons had a specialized expertise working with persons with Cerebral Palsy. The undersigned member of this Court stresses that the question that should (and indeed did) control the HCC Officer’s decision under paragraph 38(1)(c) of the IRPA was whether the Plan was sufficient to meet Jordan’s individualized needs. In Jordan’s case, it was reasonable to find that general offers of support (even if the individuals making those offers had general experience in respite care for special needs persons) would not be sufficient to meet the highly specific medical needs of a very young boy with Cerebral Palsy. 59 Although it seems pedantic, the HCC Officer was also reasonable in questioning how the sister-in-law would actually accommodate the Ap- plicant’s family, given the size of her own family. 60 In finding that the offers of support from community members and family did not discharge the onus under Zhang, above, this Court recalls the following remarks of Justice Frank Iacobucci in Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.): [80] I wish to observe, by way of concluding my discussion of this issue, that a reviewer, and even one who has embarked upon review on a standard of reasonableness simpliciter, will often be tempted to find some way to intervene when the reviewer him- or herself would have come to a conclusion opposite to the tribunal’s. Appellate courts must resist such temptations. My statement that I might not have come to the same conclusion as the Tribunal should not be taken as an invitation to appellate courts to intervene in cases such as this one but rather as a caution against such intervention and a call for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system of judicial review is to be fashioned. The offers of support from community members and family presented in the Plan demonstrate much that is admirable in the human condition. Un- fortunately, that is not enough to practically satisfy the requirements of the IRPA and the reasonability analysis as discussed by Justice Iacobucci in Southam, above. 61 It was reasonable to conclude that the Plan was not credible and viable on the basis of the Applicant’s assumptions that she and her spouse could accumulate $300,000 over 10 years after moving to a new country, that fundraising could meet Jordan’s complex and extensive needs, and 36 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

that members of the Maple Ridge community could meet many of Jor- dan’s extensive needs. The measure of a plan, that is to say, its credibility, often depends on the extent and strength of its assumptions. These assumptions, unfortunately, were not particularly strong without adding specific viable detail.

(2) Did the HCC Officer ignore or misconstrue the evidence before him? 62 Reviewing the final decision letter and the GCMS Notes suggests that the HCC Officer did not ignore or misconstrue the evidence. This conclusion is confirmed by the analysis of the reasonability of the HCC Of- ficer’s decision that Jordan was inadmissible to Canada because of a health condition that might reasonably be expected to cause excessive demand on health or social services. The Applicant has not pointed to any evidence that was not discussed in the final decision letter or the CGMS Notes.

X. Conclusion 63 For all of the above reasons, the Applicant’s application for judicial review is dismissed.

Judgment THIS COURT ORDERS that the Applicant’s application for judicial review be dismissed. No question of general importance for certification.

Obiter It is recommended by the undersigned that the number of well-inten- tioned individuals, organizations and entities, having come forward to assist the Applicant with the care of the said child, begin the process again and that the Canadian authorities give priority to that process, recogniz- ing the time and effort that has already been given to the voluminous documents accompanying the application for permanent residence by all involved, including the specific individuals and entities in Maple Ridge, British Columbia. It would seem that a viable plan requires the preparation of a practical commitment on paper to ensure that it is acknowledged and understood as such by the authorities who would then make their decision thereon. Application dismissed. Kaaker v. Canada (MCI) 37

[Indexed as: Kaaker v. Canada (Minister of Citizenship and Immigration)] Farid Kaaker, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4241-12 2012 FC 1401 Michel M.J. Shore J. Heard: November 29, 2012 Judgment: November 30, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Generalized risk –––– Appli- cant Afghan was citizen who, since 1989, worked with non-government organizations (NGOs) to provide aid and humanitarian assistance — In 1998, applicant began work with NGO SIEAL in Pakistan and in Harat, Afghanistan — In 2001, Taliban authorities interrogated, threatened and beat applicant ordering that SIEAL cease activities; applicant was secretly airlifted out of Pakistan — In March 2002, applicant and his family returned to Afghanistan where he worked for SIEAL to deliver programs for new government — In 2007 applicant helped create and maintain microloan program that was controversial because many considered it contrary Islamic prohibition on interest; applicant subsequently resigned due to controversy — In December 2009 applicant began to receive threatening phone calls accusing him of working with foreigners and violating Islamic prohibition on interest — In January 2010 applicant’s vehicle was shot at and passenger was killed — Applicant subsequently received threatening letter — In February 2010 applicant came to Canada claiming refugee protection — Refugee Protection Division (RPD) dismissed applicant’s claim — Ap- plicant brought application for judicial review of decision of RPD — Application granted — RPD was unreasonable in applying generalized risk exception to applicant when it had accepted that applicant had been personally targeted for extortion and kidnapping — RPD could not reasonably determine that claimant faces risk to his life and simultaneously find that his risk was generalized because criminal extortion and kidnapping was rampant in Afghanistan. Cases considered by Michel M.J. Shore J.: Acosta v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 506, 2009 FC 213, 2009 CF 213, 2009 CarswellNat 6740, [2009] F.C.J. No. 270 (F.C.) — referred to 38 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Baires Sanchez v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 993, 2011 CarswellNat 3876, 2011 CarswellNat 4807, 2011 FC 993, [2011] F.C.J. No. 1358, [2011] A.C.F. No. 1358 (F.C.) — referred to Chen c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2005), 2005 CF 767, 2005 CarswellNat 1498, 2005 FC 767, 2005 CarswellNat 7531, [2005] A.C.F. No. 959, [2005] F.C.J. No. 959 (F.C.) — considered Cooper v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 118, 2012 CF 118, 2012 CarswellNat 223, 2012 CarswellNat 781, [2012] F.C.J. No. 135, [2012] A.C.F. No. 135 (F.C.) — considered Corado Guerrero v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1210, 2011 CarswellNat 4291, 2011 CF 1210, 2011 CarswellNat 5327, 5 Imm. L.R. (4th) 74, [2011] F.C.J. No. 1477 (F.C.) — considered Khodabakhsh v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1340, 2010 CarswellNat 5013, 95 Imm. L.R. (3d) 211, 2010 CarswellNat 5406, 382 F.T.R. 105 (Eng.), 2010 FC 1340 (F.C.) — considered King v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 1120, 2003 CarswellNat 4200, 240 F.T.R. 8, 2003 FC 1120, 2003 CarswellNat 3023 (F.C.) — considered Leon c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2009), 2009 CarswellNat 682, 2009 CF 290, 2009 FC 290, 2009 CarswellNat 2114, 80 Imm. L.R. (3d) 260 (F.C.) — distinguished Masango v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 563, 2011 CarswellNat 1629, 2011 CarswellNat 2637, 2011 CF 563 (F.C.) — referred to Monroy Beltran (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 275, 2012 CarswellNat 661, 2012 Car- swellNat 1721, 2012 CF 275, 10 Imm. L.R. (4th) 110 (F.C.) — referred to Moscol c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2008), 2008 CF 657, 2008 CarswellNat 1568, 2008 FC 657, 2008 CarswellNat 2819, [2008] F.C.J. No. 873 (F.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Olvera v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1048, 2012 CarswellNat 3396, 2012 CF 1048, 2012 CarswellNat 4094 (F.C.) — followed Kaaker v. Canada (MCI) Michel M.J. Shore J. 39

Paz Guifarro v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 182, 2011 CarswellNat 356, 2011 CF 182, 2011 CarswellNat 1350, [2011] A.C.F. No. 222, [2011] F.C.J. No. 222 (F.C.) — followed Pineda c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2007), 2007 CarswellNat 789, 2007 CF 365, 2007 CarswellNat 3468, 2007 FC 365, 65 Imm. L.R. (3d) 275, [2007] F.C.J. No. 501 (F.C.) — referred to Portillo v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 3344, 2012 CF 678, 9 Imm. L.R. (4th) 260, 2012 CarswellNat 1742, 2012 FC 678, [2012] F.C.J. No. 670 (F.C.) — followed Prophète v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 331, 2008 CarswellNat 625, 70 Imm. L.R. (3d) 128, 2008 CarswellNat 5092, 2008 CF 331, [2008] F.C.J. No. 415 (F.C.) — considered Prophète v. Canada (Minister of Citizenship & Immigration) (2009), 78 Imm. L.R. (3d) 163, 387 N.R. 149, 2009 FCA 31, 2009 CarswellNat 282, 2009 CarswellNat 1393, 2009 CAF 31, [2009] F.C.J. No. 143, [2009] A.C.F. No. 143 (F.C.A.) — referred to Santos Mancia v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 949, 2011 CarswellNat 3218, 2011 CarswellNat 3935, 2011 CF 949, [2011] A.C.F. No. 1224, [2011] F.C.J. No. 1224 (F.C.) — referred to Yoosuff v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 1116, 2005 CarswellNat 2447, 2005 CarswellNat 7483, 2005 CF 1116 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “réfugié” — considered s. 97 — considered

APPLICATION for judicial review of decision that applicant was not person in need of protection.

Peter Edelmann, for Applicant Jennifer Dagsvik, for Respondent

Michel M.J. Shore J.: I. Introduction 1 The Applicant is an Afghan citizen seeking judicial review of a decision of the Refugee Protection Division [RPD] of the Immigration and Refugee Board wherein he was found not to be a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigra- 40 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tion and Refugee Protection Act, SC 2001, c 27 [IRPA]. According to the Applicant, the RPD was unreasonable in: (i) finding that a document he submitted was not credible; (ii) determining that he was not a Conven- tion refugee on the political opinion grounds due to his former employment; and (iii) applying the generalized risk exception.

II. Judicial Procedure 2 This is an application under subsection 72(1) of the IRPA for judicial review of the RPD’s decision dated February 6, 2012.

III. Background 3 The Applicant, Mr. Farid Kaaker, is an Afghan citizen who, since 1989, has worked with non-government organizations [NGOs] to provide aid and humanitarian assistance. 4 In 1998, the Applicant began work with an NGO named Sanayee In- stitute of Education and Learning [SIEAL] in Pakistan and Harat, Afghanistan. 5 In 2001, Taliban authorities interrogated, threatened and beat the Ap- plicant ordering that SIEAL cease activities. The Applicant was secretly airlifted out of Pakistan. 6 In March 2002, the Applicant and his family returned to Afghanistan where he worked for SIEAL to deliver programs for the new government. 7 In 2007, the Applicant helped create and maintain a microloan program that was controversial because many considered it contrary the Is- lamic prohibition on interest. 8 On August 14, 2008, the Applicant resigned from his position due to this controversy and a dispute over wages paid to cleaning staff and attempted to run a small business. 9 In December 2009, the Applicant began to receive threatening phone calls accusing him of working with foreigners and violating the Islamic prohibition on interest. 10 On January 8, 2010, the Applicant’s vehicle was shot at and a passenger, his brother-in-law’s son, was killed. 11 On January 18, 2010, the claimant alleges that he received a shabnameh [night-letter] warning him that he would be killed for charg- ing interest and spreading Christianity. Kaaker v. Canada (MCI) Michel M.J. Shore J. 41

12 On February 25, 2010, the Applicant arrived in Canada claiming refugee protection.

IV. Decision under Review 13 The RDP determined that: (i) the Applicant was not a Convention refugee because the night-letter was not credible and because his status as a former employee of an NGO was distinguishable from that of a current employee; and, (ii) his business ownership and perceived wealth did not show a personalized risk under section 97 of the IRPA. 14 The RPD accepted that the Applicant was an Afghan citizen who worked for SIEAL and its successors from February 1999 to August 2008, he received threatening phone calls in December 2009, and his brother-in-law’s son was killed on January 8, 2010. 15 The RPD did not accept that the Applicant was a Convention refugee on the basis of political opinion under section 96 of the IRPA. Nor could he establish that his profile as a former NGO employee was a Conven- tion ground. While the RPD accepted that persons currently working for NGOs were at risk in Afghanistan, his situation was distinguishable because he had formerly worked for an NGO. The RPD did not find that he had been targeted by the Taliban for participating in SIEAL’s microloan program. The RPD reasoned that the threats against him began in De- cember 2009, over a year after he left SIEAL, and that he had not experienced threats from the Taliban while working on the microloan program. The night-letter did not link the threats to his employment because the RPD did not consider it to be credible. The RPD also noted documentary evidence that night-letters generally aim to compel NGO employees to resign from their positions and that, since the Applicant had already resigned from SIEAL, it was less likely that he would receive a night- letter. 16 The RPD doubted the credibility of the night-letter because notes by the Canada Border Services Agency [CBSA] Officer who interviewed the Applicant upon arrival [initial interviews] did not show that the Ap- plicant referred to the night-letter or identified the Taliban as his agent of persecution. The RPD considered these omissions to be serious. 17 The RPD summarized the course of the initial interviews thus: (i) on February 25, 2010, the Applicant stated that he faced dangers like all Afghanis; (ii) on February 26, 2010, he stated that he did not know who had targeted him but mentioned the death and funeral of his nephew; (iii) 42 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

on February 27, 2010, he stated that he did not know who targeted him but speculated that it was the government or the Taliban. 18 The RPD found the initial interviews notes to be inconsistent with the Applicant’s Personal Information Form [PIF] and the night-letter, both of which clearly identified the Taliban as the targeting party. His frustration at the initial interviews did not satisfactorily explain the inconsistency; nor did his ignorance as to the specific names of the people targeting him explain why he did not identify the Taliban in the initial interviews. Not- withstanding his stress at the initial interviews, it “d[id] not make sense that [he] would make no mention of the most recent contact from [his alleged] aggressors, particularly if [it] precipitated his flight” (RPD Deci- sion at para 21). The night-letter’s credibility was also impugned because the Applicant mentioned the December 2009 phone calls at the initial interviews but not the night-letter. 19 The RPD rejected arguments that: (i) the initial interview notes were not necessarily a complete record of the initial interviews; and, (ii) a negative inference should not be drawn from failing to describe the night- letter in the initial interviews when the Applicant gave detailed information about it in his PIF statement shortly thereafter. On the first argument, the RPD found that the initial interview notes appeared comprehensive; that these notes mentioned the December 2009 phone calls but not the night-letter further suggested that the Applicant had not mentioned the night-letter in the initial interviews. In response to the second argument, the RPD reasoned that the PIF statement was made almost two months after the initial interviews. 20 The RPD did not give weight to the alleged night-letter submitted to the RPD because there was documentary evidence that false night-letters can be purchased in Kabul and that the letter appeared to be a photocopy. 21 The RPD found that the Applicant could not show that he was a person in need of protection for the purpose of section 97 of the IRPA because he faced a generalized risk. Citing Paz Guifarro v. Canada (Minister of Citizenship & Immigration), 2011 FC 182 (F.C.), the RPD determined that the application for refugee protection by an individual who has been specifically targeted may be rejected if that individual faces a risk that “is shared by a sub-group of the population that is sufficiently large that the risk can reasonably be characterized as being widespread or prevalent” (at para 32). 22 Applying Guifarro, the RPD found that the Applicant was a victim of extortion and kidnapping due to his perceived wealth. According to the Kaaker v. Canada (MCI) Michel M.J. Shore J. 43

RPD, extortion was the likely motivation for the December 2009 phone calls and the Applicant “faces a risk to life as a result of this targeting” (Decision at para 29). The RPD noted that the Applicant had stated at the initial interviews and in oral testimony that he was the victim of extortion given his perceived wealth.

V. Issues 23 (1) Was the RPD unreasonable in applying the generalized risk exception to the Applicant? (2) Was the RPD unreasonable in finding that the Applicant was not a Convention refugee on the grounds of political opinion due to his former employment by an NGO? (3) Did the RPD make an unreasonable credibility finding on the night-letter?

VI. Relevant Legislative Provisions 24 The following legislative provisions of the IRPA are relevant: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not 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 44 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, Kaaker v. Canada (MCI) Michel M.J. Shore J. 45

(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes internationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne a` protéger (2) A egalement´ qualité de personne a` protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

VII. Position of the Parties 25 The Applicant states that he is a person in need of protection under section 97 of the IRPA and that the generalized risk exception does not apply to him. 26 The Applicant claims that a claimant who has been specifically targeted is not within the generalized risk exception, even if he or she faces risks experienced generally by a subgroup. The Applicant, citing Corado Guerrero v. Canada (Minister of Citizenship & Immigration), 2011 FC 1210 (F.C.), argues that the RPD should have asked the following in applying the generalized risk exception: (i) What, expressly, is the claimant’s risk?; (ii) Is that risk a risk to life or a risk of cruel and unusual treatment or punishment?; and, (iii) What is the basis for the risk? In assessing a claimant’s individualized risk, one must not “conflate the reason for the risk with the risk itself” (at para 28-29). 27 The Applicant submits that the RPD failed to assess his individualized risk because it focused on the reason that the Applicant was persecuted, extortion, and not his specific risk itself, the December 2009 phone calls and armed attack on his car. 28 The Applicant also submits that he is a Convention refugee on the grounds of political opinion and that the RPD should not have distinguished current and former employees of NGOs in deciding if he was a Convention refugee on this ground. 29 First, the Applicant argues that the distinction leads to an absurd result because a current NGO employee who claims refugee protection in 46 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Canada but returns without being employed by an NGO in the interim is also a former employee of an NGO. 30 Second, the distinction also requires documentary evidence on a highly specific fact matrix, the targeting of former employees of NGOs in Afghanistan. Citing Khodabakhsh v. Canada (Minister of Citizenship & Immigration), 2010 FC 1340, 382 F.T.R. 105 (Eng.) (F.C.) and King v. Canada (Minister of Citizenship & Immigration), 2003 FC 1120, 240 F.T.R. 8 (F.C.), the Applicant asserts that this imposes the unreasonable and excessive burden of adducing documentary evidence corresponding exactly to his own situation. 31 Third, the Applicant argues that the distinction assumes that the Taliban only persecutes employees of NGOs to compel them to cease working for NGOs. The RPD should instead have asked if a political opinion (aligning the Applicant with the current regime and international community and/or against Islamic practices) could be imputed to him, given his work history. The Applicant contends that assuming that the Taliban only persecutes employees of NGOs to compel them to cease work presumes that the Taliban always acts in a rational manner. Citing Yoosuff v. Canada (Minister of Citizenship & Immigration), 2005 FC 1116 (F.C.), the Applicant argues that the RPD was unreasonable to ascribe rationality to a terrorist group like the Taliban. 32 Finally, the Applicant argues that the RPD’s negative credibility finding on the night-letter is unreasonable because the initial interview notes are not trustworthy. The night-letter’s credibility was impugned not due to an internal inconsistency in his testimony but due to an external inconsistency with other evidence (the initial interview notes). Citing Cooper v. Canada (Minister of Citizenship & Immigration), 2012 FC 118 (F.C.), the Applicant argues that external inconsistencies must be “predicated [on] trustworthy [evidence] (at para 4). 33 The Applicant submits that the notes from the initial interviews are not trustworthy because: (i) refugee claimants (as this Court has acknowledged in Cooper) generally distrust authorities on first arrival and may not be candid; (ii) the Applicant repeatedly expressed discomfort at the initial interviews; (iii) there is no audio record for the initial interviews to demonstrate the accuracy of the notes; (iv) an interpreter was used at the initial interviews and the absence of an audio record makes it difficult to audit the interpretation; (v) the initial interviews occurred two years before the Applicant’s hearing before the RPD where he testified that he did not remember if he discussed the night-letter; (vi) the statu- Kaaker v. Canada (MCI) Michel M.J. Shore J. 47

tory declaration in which the notes to the initial interview are posed does not comply with formalities required for sworn oaths. 34 Finally, the Applicant argues it was unreasonable for the RPD to find that the night-letter was not credible on the basis of evidence that similar documents could be purchased in Afghanistan. The Applicant cites Leon c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 290 (F.C.) for the proposition that the RPD may not make a negative credibility finding on documents merely on the basis of evidence that fraudulent documents were readily available in a claimant’s country of citizenship. 35 The Respondent submits that the RPD was reasonable to apply the generalized risk exception. Citing Guifarro, above, Proph`ete v. Canada (Minister of Citizenship & Immigration), 2008 FC 331 (F.C.), aff’d 2009 FCA 31 (F.C.A.); Baires Sanchez v. Canada (Minister of Citizenship & Immigration), 2011 FC 993 (F.C.), Santos Mancia v. Canada (Minister of Citizenship & Immigration), 2011 FC 949 (F.C.), and other jurisprudence by this Court, the Respondent argues that a claimant previously targeted and fearing future targeting has a generalized risk if a subgroup experiences that risk generally. 36 According to the Respondent, Guerrero, above, is distinguishable because the decision-maker in that case failed to accurately and specifically identify the alleged risk before finding that it was generalized. The Re- spondent submits that the RPD’s decision is consistent with the general thrust of Guerrero because it conducted an individualized analysis, identifying the risk as one of extortion and threats of kidnapping that was a risk to his life and based on his perceived wealth. 37 The Respondent also submits that the RPD was reasonable to distinguish current and former employees of NGOs in determining if the Ap- plicant was a Convention refugee. The RPD did not place too high a burden on the Applicant in requiring evidence on the targeting of former employees of NGOs: (i) it is the Applicant who has the onus of establishing persecution; and, (ii) the RPD is not required to speculate on this issue. The Respondent distinguishes Khodabakhsh, above, because the decision-maker in that case required evidence of greater specificity than that required in this case and King, above, on the basis that the decision- maker in that case required corroboration of otherwise presumptively credible evidence. 38 The Respondent argues that the RPD was reasonable to conclude that the documentary evidence showed that the Taliban targeted employees of 48 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

NGOs to compel them to cease working and that the Applicant (having already ceased to work for an NGO) consequently did not fall within the risk profile of an employee of an NGO. According to the Respondent, the Applicant’s argument that terrorist groups should not always be presumed to act rationally does not speak to whether a former employee falls within the same risk profile as a current employee of an NGO. 39 The Respondent submits that it was reasonable to conclude that the night-letter was not a credible document because, according to the initial interview notes, the Applicant did not mention the night-letter at the initial interviews and did not identify the Taliban as his persecutors. Citing Chen c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2005 FC 767 (F.C.) and Moscol c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2008 FC 657 (F.C.), the Respondent argues that the RPD may come to a non-credibility finding on the basis of an inconsistency between an applicant’s testimony and his or her statements on arrival in Canada. The Respondent distinguishes Leon, above, because the decision-maker in that case rejected the fraudulent documents solely on the basis of evidence that it was easy to obtain false documents in the claimant’s home country. By contrast, the RPD considered additional factors. 40 The Respondent also characterizes the Applicant’s challenge to the RPD’s findings on the night-letter as purely a disagreement with the weight the [RPD] gave to the night letter. 41 The Applicant replies that the RDP stated that the night-letter lacked credibility, predicating its conclusion on the omission of the night-letter in the initial interviews notes and documentary evidence that such letters could be purchased in Afghanistan. The Applicant contends that Leon, above, is not distinguishable because the decision-maker in that case also made a non-credibility finding based on an inconsistency between the claimant’s testimony and statements on arrival in Canada.

VIII. Analysis Standard of Review 42 Whether the RPD unreasonably applied the generalized risk exception is a question of mixed fact and law reviewable on the standard of reasonableness (Olvera v. Canada (Minister of Citizenship and Immigra- tion), 2012 FC 1048 (F.C.). This standard also applies to whether the Applicant was a Convention refugee on the grounds of political opinion (Monroy Beltran (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration), 2012 FC 275 (F.C.) and the RPD’s negative Kaaker v. Canada (MCI) Michel M.J. Shore J. 49

credibility assessment (Masango v. Canada (Minister of Citizenship & Immigration), 2011 FC 563 (F.C.)). 43 Since the standard of reasonableness applies, the Court may only intervene if the Board’s reasons are not “justified, transparent or intelligible”. To satisfy this standard, the decision must also fall in the “range of possible, acceptable outcomes which are defensible in respect of the facts and law (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 47).

(1) Was the RPD unreasonable in applying the generalized risk exception to the Applicant? 44 The Applicant claims that he is a person in need of protection under section 97 of the IRPA. Consequently, he must show, on a balance of probabilities, that removing him to Afghanistan would subject him personally, in every part of Afghanistan, to a risk to his life or cruel and unusual treatment. Under the generalized risk exception, section 97 of the IRPA will not apply to the Applicant if he faces a risk that is faced generally by other individuals in or from Afghanistan. 45 The jurisprudence of this Court is consistent on the point that a risk may still be general, even if felt disproportionately by a large subgroup of a population (Prophète, above, at para 3 and 10). The RPD was reasonable in taking the position that an individual can be a member of a subgroup that generally experiences extortion and threats of kidnapping at an elevated level due to his/her perceived wealth or business ownership (Prophète, above, at para 13). 46 Olvera, above, however, observes that the jurisprudence of this Court is “less settled” on whether a person who has already been personally targeted for extortion faces a generalized risk (at para 37). Olvera observes that one branch of the jurisprudence has found that a claimant who has been specifically targeted may nonetheless face a generalized risk if he belongs to a subgroup that experiences that risk generally at a height- ened level (Acosta v. Canada (Minister of Citizenship & Immigration), 2009 FC 213 (F.C.). By contrast, another branch has found that it would be unreasonable to accept that a claimant has been specifically targeted “and in the same breath surmise” that such a claimant would not be exposed to a personal risk (Pineda c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2007 FC 365 (F.C.) at para 15). 47 In Olvera, this Court agreed with Portillo v. Canada (Minister of Citizenship & Immigration), 2012 FC 678 (F.C.), where Justice Mary 50 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Gleason held that it was unreasonable for the RPD to find that a refugee claimant who had been personally threatened by a criminal gang faced a risk of general criminality simply because criminal violence was rampant in the applicant’s country of citizenship. In Portillo, Justice Gleason stated that “[i]t is simply untenable” for the RPD to accept that a claimant has been personally targeted and to simultaneously take the position that that claimant’s risk is not personal, concluding that “if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general” (at para 36). 48 In Portillo, Justice Gleason proposed the following test for determining if a refugee claimant faces a personal or general risk. First, the decision-maker must ask if the claimant “faces an ongoing or future risk ... what the risk is, whether such risk is one of cruel and unusual treatment or punishment and the basis for the risk”. Second, the risk must be compared to “that faced by a significant group in the country to determine whether the risks are of the same nature and degree” (at para 40-41). 49 In continuing to follow the approach taken in Portillo, this Court adopts the rationale for this approach given in Olvera, above: [40] ... Firstly, it is problematic to accept that a person who has been specifically targeted faces a risk that is faced generally by other individuals. The risk of an individual who is being targeted is qualita- tively different from the risk of an individual who has a strong likelihood of being targeted. As such, the former cannot be faced generally. Secondly, the approach taken by the Board seems to empty section 97 of the IRPA of any application in the criminal context. As this Court has written in Lovato v Canada (Minister of Citizenship and Immigration), 2012 FC 143, “section 97 must not be interpreted in a manner that strips it of any content or meaning. If any risk created by ‘criminal activity’ is always considered a general risk, it is hard to fathom a scenario in which the requirements of section 97 would ever be met” (at para 14). 50 In the present case, the RPD accepted that the Applicant “faces a risk to life” because he was targeted for extortion (Decision at para 10). The RPD accepted that the Applicant received telephone calls in December 2009 “stating that he had gained a lot of money and that he could be kidnapped” and that “he was rich and that they would get money from him” (at para 29). Finally, the RPD accepted that the Applicant’s car was attacked while he was driving and that this attack resulted in the death of his brother-in-law’s son. Kaaker v. Canada (MCI) Michel M.J. Shore J. 51

51 The RPD was unreasonable in applying the generalized risk exception to the Applicant when it had accepted that the Applicant had been personally targeted for extortion and kidnapping. The RPD cannot reasonably determine that a claimant faces a risk to his life and simultaneously find that his risk was generalized because criminal extortion and kidnapping is rampant in Afghanistan.

(2) Was the RPD unreasonable in finding that the Applicant was not a Convention refugee on the grounds of political opinion due to his former employment by an NGO? 52 Since this Court has decided this matter under section 97 of the IRPA, it is not necessary to consider whether the RPD was unreasonable in finding that the Applicant was not a Convention refugee under section 96 of the IRPA on the grounds of political opinion due to his former employment by an NGO.

(3) Did the RPD make an unreasonable credibility finding on the night- letter? 53 The RPD only challenged the Applicant’s credibility on the night-letter. The night-letter is probative of the question of whether the Applicant was a Convention refugee on the grounds of political opinion. Although it might have had some bearing on whether the Applicant was a person in need of protection under section 97 of the IRPA, the RPD unequivocally accepted that the Applicant faced a risk to his life. Consequently, it is not necessary to assess the reasonability of the RPD’s credibility finding on the night-letter to dispose of this matter under section 97 of the IRPA.

IX. Conclusion 54 For all of the above reasons, the Applicant’s application for judicial review is granted and the matter is returned for determination anew (de novo) before a different decision-maker.

Judgment THIS COURT ORDERS that the Applicant’s application for judicial review be granted and that the matter be returned for determination anew (de novo) before a different decision-maker. No question for certification. Application granted. 52 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Gondal v. Canada (Minister of Citizenship and Immigration)] Muhammad Ashraf Gondal, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4820-11 2012 FC 1384 Fran¸cois Lemieux J. Heard: April 16, 2012 Judgment: November 28, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — Miscella- neous –––– Applicant was citizen of Pakistan who came to Canada in June 2003 — Applicant alleged that he suffered persecution at hands of Pakistan Muslim League because of his involvement with rival political party — Prior to hearing before RPD applicant was viciously attacked at his workplace in Canada and suffered permanent disability with serious brain injury that resulted in aphasia, which prevented him from speaking and understanding spoken language, or reading and writing — In September 2007 Refugee Protection Division (RPD) rejected applicant’s claim, finding him not to be credible based on documentary evidence and prior statements — Leave to appeal decision of RPD was dismissed — In June 2011 pre-removal risk assessment (PRRA) officer found that applicant did not face more than mere possibility of persecution should he return to Pakistan — Applicant brought application for judicial review of decision of PRRA officer — Application dismissed — Decision of PRRA officer was not unreasonable — PRRA officer did not assess medical availability in Pakistan to meet applicant’s needs — This failure was not determinative because paragraph 97(1)(b) of Immigration and Refugee Protection Act provides that protection is not granted when risk arises from state’s inability to provide adequate health or medical care. Cases considered by Fran¸cois Lemieux J.: Covarrubias v. Canada (Minister of Citizenship & Immigration) (2006), 56 Imm. L.R. (3d) 178, 2006 CAF 365, 2006 CarswellNat 4727, 148 C.R.R. (2d) 45, [2007] 3 F.C.R. 169, 2006 FCA 365, 2006 CarswellNat 3653, 354 N.R. 367, [2006] F.C.J. No. 1682 (F.C.A.) — considered Gondal v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FC 1383, 2012 CarswellNat 4634, 2012 CF 1383, 2012 CarswellNat 5194 (F.C.) — referred to Gondal v. Canada (MCI) Fran¸cois Lemieux J. 53

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97 — considered s. 97(1)(b) — considered s. 97(1)(b)(iii) — considered s. 97(1)(b)(iv) — considered

Application for judicial review of negative decision of pre-removal risk assessment officer.

Ms Melody Mirzaagha, for Applicant Mr. Martin Anderson, for Respondent

Fran¸cois Lemieux J.: I. Introduction and Background 1 The Applicant is a citizen of Pakistan who came to Canada in June 2003 seeking this country’s protection due to his fear of persecution at the hands of the Pakistan Muslim League (PML) arising from of his involvement in the Pakistan Peoples Party (PPP). He made his refugee claim shortly after coming to Canada. 2 The proceeding before this Court is a challenge by the Applicant to the June 14, 2011 decision of a Pre-Removal Risk Assessment Officer (PRRA Officer) who found the Applicant does not face more than a mere possibility of persecution on any of the Convention grounds should he return to Pakistan and therefore his PRRA application did not meet the requirements of section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). The PRRA Officer also found there was insufficient evidence to conclude he would be at a risk spelled out in section 97 of the IRPA and, in particular, under section 97(1)(b)(iii). 54 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

3 In September 2007 the Refugee Protection Division (RPD) rejected his claims to be at risk either under section 96 or section 97 of the IRPA. 4 The hearing before the RPD was scheduled to take place on Decem- ber 8, 2005 but was postponed because the Immigration and Refugee Board of Canada (IRB) received information “that the claimant was as- saulted at his work place in Canada (Toronto), suffered serious injuries, was in the hospital for a long period of time and then was placed in a rehabilitation facility. This limited his mobility and communications.” 5 It is accepted Mr. Gondal was brutally and viciously attacked on June 21, 2005 while working in a gas station in Toronto awaiting the hearing of his refugee claim. That attack left him permanently disabled with a serious brain injury which led to the development of a medical condition called Aphasia, a communication impairment condition which prevents him from speaking and understanding a spoken language, to read and to write. 6 As it turned out, the RPD had to appoint a designated representative but it was difficult for that representative to communicate with Mr. Gondal because of the language barrier and his difficulty to speak. There was no oral evidence from the Applicant before the RPD. He was simply not able to testify. The RPD’s decision was based on the evidence presented by Mr. Gondal in his Port-of-Entry statement, his Personal Infor- mation Form (PIF), other supportive documents and the evidence presented by the Minister as well as the observations from the Refugee Protection Officer (RPO) the comments from the designated representative and from his counsel, an Immigration Consultant who was to present further submissions in writing but did not do so. In submissions to the PRRA Officer and before this Court, Mr. Gondal was represented by competent counsel. 7 The RPD found his story not to be credible. The RPD had evidence from the Minister which states that Interpol tried to confirm if there was a false case of rape filed against him by his alleged persecutors, the PML, as asserted by PPP officials. The information received from In- terpol was that there was no such case filed which lead the RPD to conclude the PPP’s letters contained information which was false. The RPD also found his medical condition shows he would not be able to take care of himself let alone participate in political activities, and said “that the claimant would benefit if he returns to Pakistan, so his family in Pakistan can take care of him.” Gondal v. Canada (MCI) Fran¸cois Lemieux J. 55

8 Leave to seek judicial review was refused by a judge of this Court from the RPD’s decision on April 2, 2008.

II. The PRRA Officer’s Decision (dated June 14, 2011) 9 The PRRA Officer reviewed the RPD decision of November 21, 2007 citing its conclusion which reads: In summary, the panel finds that the core reasons presented by the claimant for the basis of his fear is impugned by the information presented by the Minister, which shows that the party the claimant allegedly supports and was a member of, provided letters stating that there was a false case of rape charges against the claimant, which actually does not exist. This leads the panel to believe that the letters are com- promised and are not genuine. 10 The PRRA Officer then wrote: The applicant has not addressed any of the serious credibility findings of the RPD panel in this application. I acknowledge that the applicant was not able to testify at his refugee hearing due to his communication limitations, however, the RPD panel made a finding of a lack of credibility based on the information that he had already provided to Canadian authorities. While I am not bound by these findings, the RPD is a decision making body who are experts in the determination of refugee claims, I therefore give considerable weight to the findings of the RPD. Furthermore, leave to appeal the negative RPD decision was denied by the Federal Court in a decision dated 02 April 2008. [Emphasis added] 11 The PRRA Officer acknowledged that counsel for Mr. Gondal in support of this PRRA application and submissions submitted various country conditions documentation as it pertains to the human rights, political, security and medical availability in Pakistan. He found, “based on analysis of this evidence, ... it does not provide any new evidence to indicate the applicant would now be at risk upon return to Pakistan.” He concluded by writing: I have thoroughly reviewed the applicant’s PRRA application and submissions, and it is my finding that there is insufficient objective evidence to indicate that his situation in Pakistan has changed since the RPD decision. The risk identified by the applicant was dealt with at the Refugee Protection Hearing. A PRRA application is not an appeal of a negative refugee decision, or a review of a previous decision of the RPD, but rather an assessment based on new facts or evidence which demonstrate that the applicant is now at risk of 56 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Nonetheless, I have carefully read and considered the materials submitted by the applicant and current country conditions. [Emphasis added] 12 He further noted in 2008 Pakistan held national elections which brought to power a coalition let by the PPP and discussed Mr. Gondal’s submissions that even though the PPP is now the governing party in Pa- kistan politics in that country are very unpredictable and the human rights situation remains poor, which the PRRA Officer recognized had some merit; he expressed the view, however, Mr. Gondal had provided insufficient evidence to persuade him he will be targeted upon return to Pakistan adding: The applicant has not been in Pakistan for eight years and there is insufficient evidence before me that any particular group or individual would be interested in causing the applicant any harm. Further- more, the applicant has not provided any evidence to indicate whether any of his family members in Pakistan are experiencing any difficulties due to his affiliation with the PPP. I find that it is mere speculation as to whether the applicant would experience any difficulties due to his political involvement with the PPP in the future. 13 The PRRA Officer then addressed the issue which Mr. Gondal had also raised, namely that his life is at risk due to the fact that he will lose his medical support system in Canada and be faced with a poorly equipped, rural health care system in Pakistan. 14 The PRRA Officer then reviewed the documentary evidence on the availability of medical care in Pakistan. I need not review this evidence because the PRRA Officer was alive to the provisions of Section 97(1)b) of the IRPA and particularly, section 97(1)b)(iv). He wrote: According to Section 97(1)b) of the Immigration and Refugee Pro- tection Act (IRPA), “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 to a risk to their life or to a risk of cruel and unusual treatment or punishment if (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.” Protection under 97(1)(b) is not granted when the risk arises from the state’s inability to provide adequate health or medical care. However, when treatment is available in the receiving country but the applicant is likely to be denied access to it, may establish a risk under 97(1)(b). Based upon careful analysis of the evidence before me, it is my finding that there is insufficient Gondal v. Canada (MCI) Fran¸cois Lemieux J. 57

evidence before me to indicate that the applicant will not be able to obtain the health services/medication and/or treatments that he may need upon return to Pakistan. Furthermore, I do not find that there is sufficient evidence to persuade me that the applicant would be denied access to any medical care which he may require upon return to Pakistan. [Emphasis added] 15 In so doing, the PRRA Officer applied the decision of the Federal Court of Appeal in Covarrubias v. Canada (Minister of Citizenship & Immigration), 2006 FCA 365 (F.C.A.), para 41, which held the exclusion in paragraph 97(1)b)(iv) would not cover situations where medical care is denied for an illegitimate reason such as prosecutorial reasons.

III. The Arguments 16 Counsel for the applicant argued; (1) the PRRA Officer ignored the risk allegations which the applicant put forward, (2) he failed to address the medical evidence put forward, (3) he failed to consider the totality of the evidence and not each element of it in isolation with the rest. 17 Counsel for the respondent counters by arguing the Officer’s reasons show he considered all grounds of the risks alleged by the applicant, namely, (1) the situation in Pakistan being volatile with the risk of political violence always being present, (2) the risk associated with his medical condition. The respondent submits the Officer did not err in not considering, as counsel for the applicant advanced, the risk generated through the combination of his political affiliation and his medical condition. Counsel for the respondent submits they were presented and considered as two discrete grounds. As to the applicant’s argument that the PRRA Officer failed to expressly consider specific pieces of evidence, counsel argued he was not obligated to mention each individual piece of evidence in his decision. Finally, counsel submitted the PRRA Officer did not give undue weight to the RPD’s credibility finding.

IV. Analysis and Conclusions (a) The standard of review 18 Both parties agree the reasonableness standard applies to this decision. According to the Supreme Court of Canada’s decision in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at paragraph 47 tells us a reasonable decision is one 58 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

which “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

(b) Conclusion 19 The applicant did not challenge the RPD’s credibility findings which led that tribunal to decide Mr. Gondal did not have a well-founded fear of persecution at the hands of the Pakistan Muslim League. The applicant’s PRRA submissions focussed on Pakistan’s weak human rights record, the volatility of its politics and the lack of medical facilities in Pa- kistan to meet his specific needs. 20 I agree with counsel for the applicant the PRRA Officer’s analysis of medical availability in Pakistan to meet the applicant’s needs was lacking. In the respondent’s memorandum of fact filed on November 3, 2011 opposing the grant of leave, respondent’s counsel, at paragraph 11, wrote that the applicant could not fault the Officer for not referring the medical documentation adduced because “he clearly understood the basic point of that documentation, to wit the facts of his disabilities and its effects on his life.” 21 That failure led this Court to quash the Officer’s finding the applicant’s H&C case had not been made out (See Gondal v. Canada (Minister of Citizenship and Immigration), 2012 FC 1383 (F.C.)). 22 Because of paragraph 97(1)(b) of the IRPA provides that protection is not granted when the risk arises from the state’s inability to provide adequate health or medical care, the Officer’s error in assessing the medical evidence is not determinative. That is why the Officer’s decision under the H&C application was doubly important. 23 The applicant has not shown how the PRRA decision was flawed otherwise. The decision was not unreasonable in the particular context of paragraph 97(1)(b) of the IRPA.

Judgment THIS COURT’S JUDGMENT is that this judicial review application is dismissed. No certified question was proposed. Application dismissed. Dembele v. Canada (MCI) 59

[Indexed as: Dembele v. Canada (Minister of Citizenship and Immigration)] Lassina Dembele, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-904-12 2012 FC 1434 Michael L. Phelan J. Heard: November 29, 2012 Judgment: December 6, 2012 Immigration and citizenship –––– Citizenship — Grant of citizenship — Re- quirements for grant of citizenship — Residence in Canada — Physical presence test — Evidence –––– Applicant citizen of Ivory Coast entered Canada in January 1993 as student, was granted permanent residence on January 30, 2004, and applied for citizenship on October 6, 2008 — Applicant was 237 days short of 1,095 days required by Citizenship Act, for relevant period of October 6, 2003 to October 6, 2008 — Citizenship judge relied on matters outside relevant period to conclude that applicant’s move to Germany in September 2007, while anticipated as temporary, was no longer temporary since he had not returned to reside in Canada — Citizenship judge refused applicant’s citizenship application because he had not met residency test nor were there extraordinary circumstances justifying citizenship even where residency had not been established — Applicant appealed — Appeal allowed — Matter referred back for new determination — Applicant was denied procedural fairness — Citizenship judge failed to consider relevant evidence — Six documents in possession of department did not form part of record before citizenship judge, including material related to applicant’s fellowships at University of Warwick, University of Cal- gary, and University of Duisburg-Essen — Evidence spoke to unique nature of applicant’s work, links with Canada and his role therein, and likelihood of obtaining tenured positions in Canada or United States — Missing documents were relevant to both qualitative residency test as well as to exceptional circumstances considered under s. 5(4) of Citizenship Act. Cases considered by Michael L. Phelan J.: Khan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 3822, 2009 FC 1178, 2009 CF 1178, 2009 CarswellNat 6608 (F.C.) — referred to 60 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Koo, Re (1992), 19 Imm. L.R. (2d) 1, [1993] 1 F.C. 286, 59 F.T.R. 27, 1992 CarswellNat 83, 1992 CarswellNat 621, [1992] F.C.J. No. 1107 (Fed. T.D.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 Generally — referred to s. 5(1) — referred to s. 5(4) — referred to

APPEAL from decision of citizenship judge refusing applicant’s citizenship application.

Erin Christine Roth, for Applicant Monmi Goswami, for Respondent

Michael L. Phelan J.: I. Overview 1 This is an appeal from the decision of a Citizenship Judge [Judge] refusing the Applicant’s citizenship application. The application was denied because the Applicant had not met the residency test nor were there extraordinary circumstances justifying citizenship even where residency had not been established.

II. Background 2 Dr. Lassina Dembele is a citizen of the Ivory Coast who entered Can- ada in January 1993 as a student. He was granted permanent residence on January 30, 2004 and applied for citizenship on October 6, 2008. The period for determining residency for purposes of s 5(1) of the Citizenship Act, RSC 1985, c C-29 [Citizenship Act or the Act], is October 6, 2004 to October 6, 2008 [the Relevant Period]. Dembele v. Canada (MCI) Michael L. Phelan J. 61

3 The record establishes that the Applicant is in a fairly specialized area of mathematical science related to cryptography. He was a teacher in the Ivory Coast before coming to Canada on scholarship to study for his Masters of Science degree in statistics at the Universit´e de Laval. He then obtained a PhD from McGill University in 2002 with a research focus in algebraic number theory. He is now working in the United King- dom at the University of Warwick funded by a Career Acceleration Fel- lowship from the UK Research Council following the completion of his appointment as the Marie-Curie Research Fellow at the University of Warwick. The Applicant was delayed in obtaining his PhD due to sur- gery to address complications from childhood polio. 4 Following his PhD, the Applicant spent periods of time in Boston on post-doctorate work as well as at the University of Calgary with the cryptography group. From July 2005 to June 2007 the Applicant was named as a Pacific Institute for Mathematical Sciences (PIMS) Postdoctoral Fel- low at the University of Calgary. 5 At the conclusion of his PIMS fellowship and as a result of limited Canadian employment opportunities in his field of study, he worked at the Max Plank Institute in Germany from October 2007 to July 2009. He then became the Marie-Curie Research Fellow at the University of War- wick in the United Kingdom. 6 There is no debate that the Applicant is 237 days short of the 1,095 days required by the Citizenship Act. 7 The Judge chose to apply the qualitative residency test outlined in Koo, Re (1992), 59 F.T.R. 27 (Fed. T.D.), 1992 CanLII 2417 [Re Koo]. In so doing the Judge concluded that the Applicant had established residence in Canada prior to the Relevant Period for residency calculation — October 6, 2004 to October 6, 2008. 8 The Judge further concluded that the Applicant had sufficient physical presence in the first three years of the Relevant Period and had a continuing intent to return to Canada even during absences. However, the Judge concluded that this pattern of continuing intent changed when the Applicant moved to Germany in September 2007 as he gave up most of his furniture, ended his apartment lease and ceased paying Canadian taxes. 9 The Judge further concluded that the absence from Canada while in Germany had been anticipated as temporary but since the Applicant had not returned to reside in Canada, the situation was no longer temporary 62 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

even though there was a continuing intention to return. In reaching this conclusion, the Judge relied on matters outside the Relevant Period. 10 Lastly, the Judge determined that there was no unusual hardship nor should citizenship be granted to reward services of an exceptional value to Canada.

III. Analysis 11 The parties agree and I concur that the standard of review of the Judge’s decision is reasonableness (Khan v. Canada (Minister of Citizenship & Immigration), 2009 FC 1178 (F.C.) (available on CanLII) at para 14). However, any breach of procedural fairness must be subject to a correctness standard of review (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.)). 12 This appeal can be determined on the issue of procedural fairness alone. It would therefore be unhelpful and unnecessary to delve into the reasonableness of the merits of the decision. 13 The Applicant maintained a current address with the Respondent’s department and there is no challenge to the Applicant’s position that documents were sent. Therefore, there is no issue that any documents missing from the Certified Tribunal Record cannot be attributed in any fash- ion to the Applicant. 14 There were six (6) documents which were in the possession of the department which did not, for some reason, form part of the record before the Judge. Among the missing documents was material related to the Marie-Curie Fellowship at the University of Warwick as well as other materials related to the Applicant’s fellowships at the University of Calgary and University of Duisburg-Essen in the Institute of Experimen- tal Mathematics. 15 In addition to addressing the unique nature of the Applicant’s work, the evidence (particularly that regarding the Marie-Curie Fellowship) speaks to links with Canada and the Applicant’s role therein as well as to the likelihood of obtaining tenured positions in Canada or the United States. 16 This evidence goes someway in addressing the Judge’s conclusion that the position at the University of Warwick was permanent — a conclusion which may not have been reached if the Judge had before her the materials from the University of Warwick. Dembele v. Canada (MCI) Michael L. Phelan J. 63

17 The Judge also accepted that the Applicant had been resident in Can- ada for more than three of the four years required but appears to have concluded that at some unstated time while the Applicant was in Ger- many this residency ceased. In reaching this conclusion, the Judge looked outside the four-year period which was the focus of the inquiry to draw the conclusion that the Applicant’s absence had transformed from temporary to permanent. The point at which this absence was deemed to be permanent is unclear. 18 Aside from the legal issue as to whether the Judge can look to events outside the four-year period to reach conclusions as to residency, no such exercise either within or outside the four years can be sustained where relevant documents are missing somewhere within the department. 19 The documents are relevant both to the qualitative residency test under Koo, Re, above, as well as to the exceptional circumstances considered under s 5(4) of the Act.

IV. Conclusion 20 For these reasons, there has been a denial of procedural fairness and a failure to consider relevant evidence which requires this appeal to be granted. 21 In referring this matter back for a new determination, I will not ex- pose the Applicant to the vagaries of the residency test selection. This matter, in so far as it relates to residency, is to be redetermined in accordance with the factors laid out in Koo, Re, above.

Judgment THIS COURT’S JUDGMENT is that the appeal is allowed and the matter is remitted back for reconsideration by a different judge applying the factors in Koo, Re (1992), 59 F.T.R. 27 (Fed. T.D.), 1992 CanLII 2417. Appeal allowed. 64 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Mohan v. Canada (Minister of Citizenship and Immigration)] Manish Mohan, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-3268-12 2012 FC 1426 Michel M.J. Shore J. Heard: December 4, 2012 Judgment: December 5, 2012 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Miscellaneous –––– Applicant was citizen of India who was born in 1979 — In March 2010 applicant applied for permanent residence in Canada under skilled worker category on basis of his work experience — Applicant provided documentary evidence of his father’s identity and claimed to have paternal uncle living in Canada — Visa officer did not give applicant any points for having uncle living in Canada — Visa officer held that applicant had insufficient points to qualify for permanent residence — Applicant brought application for judicial review of decision of visa officer — Application granted — Visa officer was not reasonable in finding, on balance of probabilities, that applicant could not be awarded five points on basis of his relationship to his alleged paternal uncle — Applicant established that he submitted additional page of Indian passport of his paternal uncle to officer in his response to the letter that requested him to submit completed application to visa office — Applicant was not necessarily limited to prescribed list of documents (i.e. birth, marriage, and death certificates) in establishing family relationships — Translated or transliterated identity documents ought to be assessed in light of fact that they have been translated or transliterated — Officer’s conclusion might have been reasonable in light of applicant’s statement in application that it was his spouse who had uncle living in Canada if applicant had not provided documentary evidence that it was his uncle who lived in Canada. Cases considered by Michel M.J. Shore J.: Canada (Minister of Citizenship & Immigration) v. Skomatchuk (2006), 2006 FC 994, 2006 CarswellNat 2515, 57 Imm. L.R. (3d) 200, 2006 CF 994, 2006 CarswellNat 5545, [2006] F.C.J. No. 1249 (F.C.) — followed Chowdhury v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1315, 2011 CarswellNat 4719, 2011 CF 1315, 2011 CarswellNat 5633, 4 Imm. L.R. (4th) 38, 400 F.T.R. 119 (Eng.) (F.C.) — considered Mohan v. Canada (MCI) 65

Dhillon v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 4019, 2010 FC 1049, 2010 CF 1049, 2010 CarswellNat 4812 (F.C.) — referred to Lee v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1893, 2011 FC 617, 2011 CF 617, 2011 CarswellNat 3889, 390 F.T.R. 166 (Eng.) (F.C.) — referred to Mavi v. Canada (Attorney General) (2011), 2011 CarswellOnt 4429, 2011 Cars- wellOnt 4430, 2011 SCC 30, 332 D.L.R. (4th) 577, 417 N.R. 126, 97 Imm. L.R. (3d) 173, (sub nom. Canada (Attorney General) v. Mavi) [2011] 2 S.C.R. 504, 19 Admin. L.R. (5th) 1, 279 O.A.C. 63, 108 O.R. (3d) 240 (S.C.C.) — referred to Moldeveanu v. Canada (Minister of Citizenship & Immigration) (1999), (sub nom. Moldevenau v. Canada (Minister of Citizenship & Immigration)) 235 N.R. 192, 1 Imm. L.R. (3d) 105, 1999 CarswellNat 101, [1999] F.C.J. No. 55 (Fed. C.A.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Oei c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2002), 23 Imm. L.R. (3d) 30, 2002 CarswellNat 2384, 2002 FCT 466, 2002 CFPI 466, 2002 CarswellNat 881, (sub nom. Oei v. Canada (Ministre de la Citoyennet´e & de l’Immigration)) 221 F.T.R. 112, [2002] F.C.J. No. 600 (Fed. T.D.) — considered 66 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Oladipo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 366, 2008 CarswellNat 819, 2008 CarswellNat 1483, 2008 CF 366 (F.C.) — considered R. v. Layton (2009), [2009] 2 S.C.R. 540, 466 W.A.C. 26, 245 Man. R. (2d) 26, 2009 CarswellMan 355, 2009 CarswellMan 356, 2009 SCC 36, 308 D.L.R. (4th) 1, 67 C.R. (6th) 226, 390 N.R. 340, 244 C.C.C. (3d) 417, [2009] 10 W.W.R. 420, [2009] S.C.J. No. 36 (S.C.C.) — considered Samuel v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 950, 2010 CF 223, 2010 CarswellNat 435, 2010 FC 223, [2010] F.C.J. No. 256 (F.C.) — considered Singh v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 3167, 2012 FC 855, 2012 CarswellNat 2508, 2012 CF 855 (F.C.) — considered Tahir v. Canada (Minister of Citizenship & Immigration) (1998), 1998 Car- swellNat 1825, 159 F.T.R. 109, [1998] F.C.J. No. 1354 (Fed. T.D.) — considered Wang v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 58, 23 Imm. L.R. (3d) 114, 2002 CarswellNat 119, 2002 CarswellNat 2378, 2002 CFPI 58, 217 F.T.R. 193 (Fed. T.D.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12(2) — considered s. 72(1) — pursuant to Rules considered: Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 R. 12 — considered R. 15 — considered R. 17 — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 75(2) — considered s. 76(1) — referred to s. 76(2) — considered s. 76(3) — referred to s. 83(1) — referred to s. 83(1)(d) — considered s. 83(5) — referred to Mohan v. Canada (MCI) Michel M.J. Shore J. 67

s. 83(5)(a)(vi) — considered

APPLICATION for judicial review of decision of visa officer.

Puneet Khaira, for Applicant Fran¸cois Paradis, for Respondent

Michel M.J. Shore J.: I. Overview 1 In addition to that of immediate-family reunification cases, a need also exists in the immigration framework to ensure who, in fact, is related to whom when considering relatives of potential immigrants living in Canada. Precision, thus attention to details, is essential to ensure bona fide relatives if said to exist, do. Such relatives are significant in view of the recognized assistance (or greater facility in adaptability for settlement or acculturation for economic success) they provide to new would-be immigrants. When such “relatives” would have, in fact, previously settled in Canada or would have been born therein, they are, presumably, established enough to provide some such assistance.

II. Introduction 2 The Applicant seeks judicial review of the decision of an Immigration Officer in the New Delhi visa office rejecting his application to be selected as a member of the economic class on the basis of his ability to become economically established in Canada under subsection 12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant argues that he should have received five points under paragraph 83(1)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as am SC 2002, c 8 [Regulations] for being related to a person living in Canada.

III. Judicial Procedure 3 This is an application under subsection 72(1) of the IRPA for judicial review of the decision of the Officer, dated February 1, 2012.

IV. Background 4 The Applicant, Mr. Manish Mohan, is a citizen of India who was born in 1979. 68 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

5 The Applicant has completed sixteen years of full-time formal educational training including a Bachelor of Commerce Degree. 6 The Applicant has more than four years work experience in an occupation classified under National Occupation Classification Code 1111, “Financial auditors or accountants” [NOC 1111]. 7 On March 11, 2010, the Applicant applied for permanent residence in Canada under the skilled worker category [PR Application] on the basis of his work experience. 8 On Schedule 3 of the PR Application, the Applicant indicated that his spouse had an uncle who was living in Canada or was a permanent resident in Canada; however, the Applicant did not indicate that he himself had such a relative. 9 On Schedule 1 of his PR Application, the Applicant indicated his father’s name as Madan Lal Mohan and that his father had passed away on October 25, 1989. 10 On March 30, 2010, the Federal Skilled Worker Centralized Intake Office advised the Applicant that his PR Application would be recommended to the visa office on the basis of his NOC 1111 work experience and requested him to submit a completed application to the New Delhi visa office [CIO Approval Letter]. 11 On July 26, 2010, the Applicant made submissions in response to the CIO Approval Letter and stated that his paternal uncle was Subhash Chander Mehta [Subhash Mehta], a permanent resident of Canada [Re- sponse to CIO Letter]. 12 In the Response to the CIO Letter, the Applicant included: (i) a family tree indicating that his father’s name as Madan Lal Mehta and that Subhash Mehta was his father’s brother; (ii) a Death Certificate for a Madan Lal Mehta who passed away on October 25, 1990; (iii) the Appli- cant’s marriage certificate indicating his father’s name as Madan Lal Mohan; (iv) affidavits by the Applicant and his spouse stating that he is the son of Madan Lal Mehta; and, (v) the birth certificate of the Appli- cant’s son, Arnav Mohan, indicating that Arnav’s paternal grandfather’s name was Madan Lal Mehta. 13 On July 31, 2010, the Applicant submitted an affidavit by Subhash Mehta, stating that the Applicant is the son of Subhash Mehta’s brother, Madan Lal Mehta. Mohan v. Canada (MCI) Michel M.J. Shore J. 69

V. Decision under Review 14 The Officer rejected the Applicant’s application to be selected for permanent residence as a member of the economic class on the basis of his ability to become economically established in Canada under subsection 12(2) of the IRPA. 15 The Officer found that the Applicant had insufficient points to qualify for permanent residence. The Officer applied the selection criteria in subsection 76(2) of the Regulations to determine if the Applicant met the minimum requirements set out in subsection 75(2) of the Regulations. 16 The Applicant received ten points for age, twenty for education, eight for language proficiency, twenty-one for experience, zero for arranged employment, and five for adaptability. This made for a total of sixty-four points, three points short of the required sixty-seven points established by the Minister under subsection 76(3) of the Regulations as the minimum number of points required of a skilled worker. 17 Under paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regu- lations, an applicant under the skilled worker category shall be awarded five points for an aunt or uncle living in Canada. The Officer did not award the Applicant these points because the Applicant had not provided sufficient evidence of his relationship to a stated relative in Canada (his spouse’s aunt or uncle and his paternal uncle). 18 The Officer did not accept the Applicant’s claim on Schedule 3 of his PR Application that his spouse had an aunt or uncle residing in Canada or that Subhash Mehta was his paternal uncle. According to the case notes, an affidavit submitted in support of the latter claim was not supported by documentation and did not satisfy the Officer that Subhash Mehta was the Applicant’s paternal uncle, especially since the Applicant had indicated on Schedule 3 of his PR Application that his relative in Canada was related to his spouse and not to himself.

VI. Issues 19 (1) Was the Officer reasonable in finding that the Applicant could not be awarded five points under paragraph 83(1)(d) of the Regula- tions for his relationship to Subhash Mehta, his alleged paternal uncle? (2) Did procedural fairness require the Officer to provide the Appli- cant with an opportunity to respond? 70 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

VII. Relevant Legislative Provisions 20 Please see Annex “A” for the relevant legislative provisions of the IRPA and the Regulations.

VIII. Position of the Parties 21 The Applicant submits that the Officer was unreasonable in refusing to award him five points for adaptability under paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations since Subhash Mehta is a child of the father of the Applicant’s father. 22 The Applicant argues that he submitted sufficient documentation to establish that Madan Lal Mohan (also known as Madan Lal Mehta) was his father, including copies of his Indian passport, marriage certificate, and school, employment, and tax records. 23 The Applicant also argues that he submitted sufficient documentation to establish that Madan Lal Mohan (or Mehta) and Subhash Mehta were brothers, notwithstanding the unavailability of their birth certificates. The documentation includes the death certificate of Madan Lal Mohan, the Indian passport of Subhash Mehta, the statutory declaration of Subhash Mehta, and a diagram illustrating the Mehta family tree. 24 According to the Applicant, his father and Subhash Mehta were born in an era and region of India in which the registration of births and other vital statistics was unusual. The Applicant claims that the legislative requirement to register births and deaths did not come into effect until the 1970s. 25 Citing Wang v. Canada (Minister of Citizenship & Immigration), 2002 FCT 58 (Fed. T.D.), the Applicant argues that the applicable standard of proof in assessing an application for permanent residence is the balance of the probabilities standard. The Applicant, relying on R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540 (S.C.C.), argues that this standard required him to establish that it was more probable than not that Subhash Mehta is his paternal uncle. 26 The Applicant submits that, given the documents described above, it was more probable than not that his father and Subhash Mehta were brothers and that the requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations were met. The Applicant contends that he was not obliged to present a birth or marriage certificate to establish this relationship and that he provided the best available evidence in the absence of these records. Mohan v. Canada (MCI) Michel M.J. Shore J. 71

27 The Applicant argues that the Officer also breached procedural fairness by failing to provide adequate reasons and an opportunity to respond. The Applicant argues that he received no notice that the documentation he submitted (in particular, the statutory declaration of Subhash Mehta) was insufficient to establish that Subhash Mehta was his paternal uncle. The Applicant submits that his inability to obtain birth certificates of his father and paternal uncle and the evidence he submitted in substitution of the birth certificates required the Officer to raise his concerns with the Applicant. Moreover, the Applicant claims that the Of- ficer’s rejection of the statutory declaration of Subhash Mehta amounts to an adverse credibility assessment to which the Applicant should have had the opportunity to respond. 28 The Respondent submits that the Officer was reasonable in finding that the Applicant had failed to establish that Subhash Mehta is his paternal uncle and, consequently, that the Applicant could not satisfy the requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations. 29 In particular, the Respondent argues that this finding was reasonable because the Applicant had produced confusing and inconsistent evidence to establish that Subhash Mehta was his uncle. First, the Applicant initially stated in Schedule 3 of his PR Application that it was his wife who had a relative living in Canada. Second, the Applicant’s Response to the CIO Letter stated that Subhash Mehta was living in India and not Can- ada. Third, the Applicant provided documents that indicated that his father was Madan Lal Mohan rather than Madan Lal Mehta. Fourth, the death certificate of Madan Lal Mehta stated the name of the father of the deceased as Sham Sundar Mehta (as opposed to the name of Sham Sun- der Mehta given on the Indian passport of Subhash Mehta). Fifth, the copy of the Applicant’s Bachelor’s Degree in Commerce states the name of his father as Madan Lal Mahita. Finally, the statutory declaration of Subhash Mehta did not include any supporting exhibits and contradicted the Applicant’s initial statements on Schedule 3 of his PR Application. 30 The Respondent argues that the Applicant’s application for judicial review effectively asks this Court to reweigh the evidence. 31 In response to the Applicant’s submissions on the unavailability of birth certificates for his father and Subhash Mehta, the Respondent contends that: (i) the Officer did not find that the Applicant was required to provide such documentation; (ii) the unavailability of this documentation was irrelevant to the question of the sufficiency of the evidence actually 72 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

submitted; and (iii) the Applicant did not inform the Officer that such documentation was unavailable. 32 Citing N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), the Respondent submits that adequacy of reasons is not a stand-alone ground for judicial review. 33 The Respondent further argues that the Officer was not required to give the Applicant an opportunity to respond because the Applicant had the onus of providing sufficient documentation to establish that paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations applied. Citing Tahir v. Canada (Minister of Citizenship & Immigration) (1998), 159 F.T.R. 109 (Fed. T.D.), the Respondent argues the Officer had no “duty to request supporting documentation or to grant an interview in order to substantiate the application” (at para 8). The Respondent claims, relying on Oei c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2002 FCT 466, 221 F.T.R. 112 (Fed. T.D.), that an applicant’s failure to provide adequate, sufficient or credible evidence does not trigger a duty to give an opportunity to respond. 34 In further submissions, the Respondent submits that the only documentary evidence that the Applicant adduces to support the inference that Subhash Mehta is his paternal uncle cannot be considered by this Court since it was not considered by the Officer. The Respondent observes that the only documentary evidence of Subhash Mehta’s parentage, an additional page of a copy of the Indian passport of Subhash Mehta [additional passport page], does not appear in the Certified Tribunal Record [CTR]. 35 According to the Respondent, the Applicant has not established that he submitted the additional passport page in support of his PR Applica- tion because his affidavit only states that he submitted a copy of the In- dian passport of Subhash Mehta to the Officer but (i) does not specify the number of pages of the passport that he submitted, or (ii) attach as an exhibit what he submitted in support of his application. 36 The Respondent claims that the affidavit of Cindy Sran (to which the additional passport page was attached as an exhibit) does not assist the Applicant because that affidavit does not depose (i) that the additional passport page was submitted in support of the Applicant’s PR Applica- tion, and (ii) how the affiant would have personal knowledge of whether the additional passport page was submitted to the Officer. The Respon- dent notes that the Applicant did not tender an affidavit from his counsel to establish what he submitted in support of his PR Application. The Re- spondent cites Moldeveanu v. Canada (Minister of Citizenship & Immi- Mohan v. Canada (MCI) Michel M.J. Shore J. 73

gration) (1999), 235 N.R. 192 (Fed. C.A.), wherein the Federal Court of Appeal struck the affidavit of a paralegal from counsel’s firm because it was not confined to facts within the paralegal’s personal knowledge.

IX. Analysis Standard of Review 37 A decision to award an applicant points for adaptability for being related to a person living in Canada is a question of mixed fact and law reviewable on the standard of reasonableness (Lee v. Canada (Minister of Citizenship & Immigration), 2011 FC 617 (F.C.)). The standard of correctness applies to questions of procedural fairness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 129). The content of the duty of procedural fairness will, however, vary according to the circumstances and the legislative and administrative context of a decision (Mavi v. Canada (Attorney General), 2011 SCC 30, [2011] 2 S.C.R. 504 (S.C.C.)). 38 Where the standard of reasonableness applies, the Court may only intervene if the Board’s reasons are not “justified, transparent or intelligible”. To satisfy this standard, the decision must also fall in the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para 47). 39 Although the Applicant has challenged the adequacy of the Officer’s reasons, the Supreme Court of Canada has held that if reasons are given, a challenge to the reasoning or result is addressed in the reasonability analysis. According to Newfoundland and Labrador Nurses Union, above, “reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (at para 14). A reviewing court may not “substitute [its] own reasons” but may “look to the record for the purpose of assessing the reasonableness of the outcome” (at para 15).

(1) Was the Officer reasonable in finding that the Applicant could not be awarded five points under paragraph 83(1)(d) of the Regulations for his relationship to Subhash Mehta, his alleged paternal uncle? 40 The Officer was not reasonable in finding, on a balance of probabilities, that the Applicant could not be awarded five points under paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations on the basis of his relationship to Subhash Mehta, his alleged paternal uncle. 74 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

41 A decision-maker assesses whether a person is related to a person living in Canada on a balance of probabilities (Dhillon v. Canada (Minister of Citizenship & Immigration), 2010 FC 1049 (F.C.)). Pursuant to Lay- ton, above, this required the Officer to ask if it was more probable than not that the Applicant was the nephew of Subhash Mehta and that paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations should apply. 42 The Applicant submitted several documents to support his claim that his father was Madan Lal Mehta, that Madan Lal Mehta was the son of Sham Sunder Mehta, and that Subhash Mehta was also the son of Sham Sunder Mehta. Those documents found in the CTR released pursuant to Rules 15 and 17 of the Federal Courts Immigration and Refugee Protec- tion Rules, SOR/93-22, as am SOR/98-235, ss 1-6,7 (Fr) [Rules] include: • A translated copy of the birth certificate of the Applicant’s daughter identifying her father as the Applicant and her paternal grandfather as Madan Lal Mehta, dated July 15, 2011 (CTR at p 30); • A copy of a police clearance certificate for the Applicant identifying his father as Madan Lal Mehta, dated April 9, 2010 (CTR at p 95); • A copy of the Applicant’s Indian passport, issued March 5, 2010, identifying his father as both Madan Lal Mehta (CTR, above at 98) and Madan Lal Mohan (CTR at p 115); • A copy of the Applicant’s Indian passport, issued April 28, 2005, identifying his father as both Madan Lal Mehta (CTR, above at 122) and Madan Lal Mohan (CTR at p 134); • A translated copy of the marriage certificate of the Applicant and his spouse, dated August 30, 2006, identifying the Applicant’s father as Madan Lal Mohan (CTR at p 195); • Affidavits of the Applicant and his spouse stating that the Appli- cant is the son of Madan Lal Mehta (CTR at pp 196 and 198); • A translated copy of the birth certificate of the Applicant’s son identifying his father as the Applicant and his paternal grandfather as Madan Lal Mehta, dated April 23, 2007 (translation, dated May 17, 2010) (CTR at p 200); • A translated copy of the death certificate of Madan Lal Mehta identifying his father as Sham Sundar Mehta, dated October 25, 1990 (CTR at p 203); Mohan v. Canada (MCI) Michel M.J. Shore J. 75

• A copy of the Applicant’s election identity card identifying his father as the Late Madan Lal (CTR at p 204); • A translated copy of a salary slip of the Applicant identifying his father as Madan Lal Mehta, dated May 5, 2010 (CTR at p 209); • A copy of an employer’s letter of recommendation identifying the Applicant’s father as Madan Lal Mehta, dated June 15, 2004 (CTR at p 211); • A copy of a letter of appointment for the Applicant identifying the Applicant’s father as Madan Lal Mehta, dated June 1, 2004 (CTR at p 212); • A copy of a letter of confirmation of employment for the Appli- cant identifying the Applicant’s father as Madan Lal Mehta, dated May 27, 2010 (CTR at p 214); • Copies of letters advising the Applicant of salary increases and identifying the Applicant’s father as Madan Lal Mehta, dated April 1, 2007, March 28, 2008, and March 31, 2009 (CTR at pp 215 — 217); • A copy of the tax records identifying the Applicant’s father as Madan Lal Mehta (CTR at p 222); • A bilingual copy of the Applicant’s Bachelor of Commerce De- gree identifying the Applicant’s father as Madan Lal Mahita, dated June 23, 1999 (CTR at p 236); • Translated copies of the Applicant’s academic record at Guru Nanak Dev University identifying his father as Madan Lal Mehta, dated May 22, 1997, June 3, 1998, June 23, 1999 (translations, dated May 17, 2010, May 21, 2010, and May 21, 2010 respectively) (CTR at pp 239, 244, and 245); • Copies of the Applicant’s secondary school records identifying his father as Madan Lal Mehta, dated 1997, March 6, 1996, 1994, 1994, and June 14, 1994 (CTR at pp 246, 248, 250, 304, and 252); • An affidavit of Subhash Mehta identifying himself as the son of Sham Sunder Mehta and the paternal uncle of the Applicant, dated May 25, 2010 (CTR at p 68); • A diagram of the Applicant’s family tree alleging that the Appli- cant’s father was the brother of Subhash Mehta (CTR at p 192); and, 76 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

• A copy of the first page of the Indian passport of Subhash Mehta, issued May 25, 2005 (CTR at p 194). 43 The Application Record [AR] contains an affidavit of Cindy Sran [Sran Affidavit], dated June 7, 2012, that purports to reproduce in Ex- hibit B the Response to the CIO Letter submitted by the Applicant. The Response to the CIO Letter contains an additional page of the Indian passport of Subhash Mehta identifying his father as Sham Sunder Mehta (AR at p45). 44 The Respondent argues that this additional page is not contained in the CTR and that the Applicant is required to establish that he submitted the additional page of the Indian passport of Subhash Mehta to the Of- ficer. This Court finds that the Applicant has established that he submitted the additional page of the Indian passport of Subhash Mehta to the Officer in the Response to the CIO Letter. 45 First, the Sran Affidavit attaches as Exhibit B a “Letter from Gurpreet Khaira, with the following selected enclosures ... viii. Passport copy of the Subhash Chander Mehta (pages 44 — 45 of the Applicant’s Applica- tion Record)” (at pp 13-14). The Letter from Gurpreet Khaira described in the Sran Affidavit is the Response to the CIO Letter that was sent to the Officer on July 26, 2010 and is included in the CTR (at pp 328-330); the passport copy described in the Sran Affidavit includes the additional page of the Indian passport of Subhash Mehta. Since the Sran Affidavit describes the additional page of the Indian passport of Subhash Mehta as an enclosure to the Response to the CIO Letter, it follows that the Sran Affidavit does depose that the additional page of the Indian passport of Subhash Mehta was submitted to the Officer as an enclosure to the Re- sponse to the CIO Letter. 46 Second, affiant of the Sran Affidavit does depose how she would have personal knowledge of whether the additional passport page was submitted to the Officer. According to the Sran Affidavit, the affiant had “reviewed the Applicant’s file” and was “familiar with its contents” (AR at p 13). From this one can infer that the affiant reviewed the Response to the CIO Letter submitted to the Officer and would have personal knowledge of what was contained as an enclosure to that document, including the additional passport page of Subhash Mehta’s Indian passport. 47 Rule 12 of the Rules states that affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court. In Samuel v. Canada (Minister of Citizenship & Immigration), 2010 FC 223 (F.C.), Mohan v. Canada (MCI) Michel M.J. Shore J. 77

Justice John O’Keefe applied Rule 12 in the context of a visa officer decision, stating that the corollary of Rule 12 was that it incorporates “the usual common law rules of evidence ... including the twin requirements of necessity and reliability for the admissibility of hearsay evidence” (at para 21). The Sran Affidavit only deposes on what was included in the Response to the CIO Letter, the contents of which the deponent would have had personal knowledge by reviewing the Appli- cant’s file. A hearsay problem does not arise with respect to the Sran Affidavit because the affiant can be cross-examined on what was contained as an enclosure to the Response to the CIO Letter when the affiant reviewed it. 48 Having addressed this preliminary matter and before disposing of the essential question in this application for judicial review, this Court recog- nizes the following three principles. 49 First, an applicant is not necessarily limited to a prescribed list of documents (i.e. birth, marriage, and death certificates) in establishing family relationships for the purposes of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations. In Singh v. Canada (Minister of Citizenship & Immigration), 2012 FC 855 (F.C.), Justice O’Keefe did not accept Canadian passports and permanent residence cards as evidence of a family relationship because these documents did not actually state that the applicant was related to alleged family members. In Singh, this Court was concerned with documents that did not contain sufficient genealogi- cal information. It follows that certain records that give such information but are outside in the category of birth, marriage, and death certificates may be probative of a family relationship in certain circumstances. It must be stressed, as the Respondent argues, that the Officer does not appear to have limited the Applicant to a particular category of document. 50 Second, an affidavit unsupported by corroborating evidence often has limited probative value in assessing whether an applicant meets the requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations. In Singh, Justice O’Keefe held that affidavits from self-interested parties may not be sufficient to show that a person is related to a person living in Canada if the affidavits lack corroborating evidence (at para 30). 51 Third, the decision of Justice Judith Snider in Canada (Minister of Citizenship & Immigration) v. Skomatchuk, 2006 FC 994 (F.C.) is useful in assessing identity documents that have been translated or transliterated from another language or script. In Skomatchuk, Justice Snider deter- 78 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

mined that an individual was a concentration camp guard notwithstanding variations in the spelling of his name in the record: [102] As a general observation, I would note that the record shows different spellings of the surname “Skomatchuk”. Even documents produced by the Defendant provide a variation on the spelling; for example, “Skomaczuk”. I am satisfied that these differences can be explained by the translation of the name from Cyrillic writing to either English or German. Phonetically, “Skomatchuk”, “Skomat- schuk”, “Skomachuk” and “Skomaczuk” are identical; use of a different spelling does not necessarily indicate a different person. 52 The general corollary of Justice Snider’s comments in Skomatchuk is that translated or transliterated identity documents ought to be assessed in light of the fact that they have been translated or transliterated. 53 Applying these principles to this application for judicial review leads to the conclusion that the Officer was unreasonable in finding that Sub- hash Mehta was not, on a balance of probabilities, the paternal uncle of the Applicant. 54 Even though the Applicant’s marriage certificate identified his father as Madan Lal Mohan and his Bachelor of Commerce Degree identified his father as Madan Lal Mahita, several of his documents (including his police clearance record, the birth certificates of his son and daughter, his employment records, his school records, and his tax records) identified his father as Madan Lal Mehta. The name of Madan Lal Mahita on the Applicant’s Bachelor of Commerce Degree can be rationalized as a problem of transliteration since Mahita and Mehta are phonetically similar. 55 The death certificate of Madan Lal Mehta identifies the father of Madan Lal Mehta as Sham Sundar Mehta. It is more probable than not that the Madan Lal Mehta who is the subject of this death certificate is the father of the Applicant because the address of the deceased is stated as ES-188, Makhdoompura, Jalandhar (CTR at p 203); this same address is stated as the address of the Applicant on other documentation. On a balance of probabilities, Sham Sundar Mehta was the Applicant’s grandfather. 56 Finally, the Indian passport of Subhash Mehta identifies Subhash Mehta’s father as Sham Sunder Mehta. Since this passport also states that Subhash Mehta comes from Jalandhar, the balance of probabilities also points in the Applicant’s favor. The spelling difference between Sham Sundar Mehta (on Madan Lal Mehta’s death certificate) and Sham Sun- Mohan v. Canada (MCI) Michel M.J. Shore J. 79

der Mehta (on Subhash Mehta’s Indian passport) is immaterial, given the problems that may arise in transliteration. 57 The Officer’s conclusion did not become reasonable simply because the Applicant stated in Schedule 3 that it was his spouse who had a relative living in Canada. Such a conclusion might have been reasonable if the Applicant had not provided documentary evidence establishing that Subhash Mehta was his paternal uncle but is not supportable in the face of documentary evidence to the opposite effect.

(2) Did procedural fairness require the Officer to provide the Applicant an opportunity to respond? 58 Since this Court has disposed of the application for judicial review on its merits, it is not necessary to consider the question of whether procedural fairness required the Officer to provide the Applicant an opportunity to respond. 59 Nonetheless, it should be noted that, through jurisprudence of this Court, it has been established that a decision-maker is not required to notify an applicant for a skilled worker visa under subsection 12(2) of the IRPA that he or she has produced insufficient documentation. In Chowdhury v. Canada (Minister of Citizenship & Immigration), 2011 FC 1315 (F.C.), Justice James Russell held that procedural fairness did not require an immigration officer give an applicant an opportunity to address concerns about an alleged family relationship if the concerns “arose directly from the documentation, or lack thereof, submitted by the [a]pplicant” (at para 45). Citing Oladipo v. Canada (Minister of Citizenship & Immigration), 2008 FC 366 (F.C.), Justice Russell reasoned that the applicant had the onus of preparing and filing an application with relevant, sufficient, and credible supporting documentation.

X. Conclusion 60 For all of the above reasons, the Applicant’s application for judicial review is granted and the matter is returned for determination anew (de novo) before another Immigration Officer.

Judgment THIS COURT ORDERS that the Applicant’s application for judicial review be granted and the matter be returned for determination anew (de 80 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th) novo) before another Immigration Officer. No question of general importance for certification. Application granted.

Annex “A”

Relevant legislative provisions of the Immigration and Refugee Protec- tion Act, SC 2001, c 27: 12. ... (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. Relevant legislative provisions of the Immigration and Refugee Protec- tion Regulations, SOR/2002-227, as am SC 2002, c 8: 75. ... (2) A foreign national is a skilled worker if (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Manage- ment Occupations or Skill Level A or B of the National Oc- cupational Classification matrix; (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties. 76. (1) For the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada, they must be assessed on the basis of the following criteria: (a) the skilled worker must be awarded not less than the minimum number of required points referred to in subsection (2) on the basis of the following factors, namely, (i) education, in accordance with section 78, Mohan v. Canada (MCI) Michel M.J. Shore J. 81

(ii) proficiency in the official languages of Canada, in accordance with section 79, (iii) experience, in accordance with section 80, (iv) age, in accordance with section 81, (v) arranged employment, in accordance with section 82, and (vi) adaptability, in accordance with section 83; and (b) the skilled worker must (i) have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to half the minimum necessary income applicable in respect of the group of persons consist- ing of the skilled worker and their family members, or (ii) be awarded the number of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1). (2) The Minister shall fix and make available to the public the minimum number of points required of a skilled worker, on the basis of (a) the number of applications by skilled workers as members of the federal skilled worker class currently being processed; (b) the number of skilled workers projected to become permanent residents according to the report to Parliament referred to in section 94 of the Act; and (c) the potential, taking into account economic and other relevant factors, for the establishment of skilled workers in Canada. 83. (1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements: (a) for the educational credentials of the skilled worker’s accompanying spouse or accompanying common-law partner, 3, 4 or 5 points determined in accordance with subsection (2); (b) for any previous period of study in Canada by the skilled worker or the skilled worker’s spouse or common-law partner, 5 points; (c) for any previous period of work in Canada by the skilled worker or the skilled worker’s spouse or common-law partner, 5 points; (d) for being related to a person living in Canada who is described in subsection (5), 5 points; and 82 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(e) for being awarded points for arranged employment in Canada under subsection 82(2), 5 points. ... (5) For the purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points if (a) the skilled worker or the skilled worker’s accompanying spouse or accompanying common-law partner is related by blood, marriage, common-law partnership or adoption to a person who is a Canadian citizen or permanent resident living in Canada and who is (i) their father or mother, (ii) the father or mother of their father or mother, (iii) their child, (iv) a child of their child, (v) a child of their father or mother, (vi) a child of the father or mother of their father or mother, other than their father or mother, or (vii) a child of the child of their father or mother; or (b) the skilled worker has a spouse or common-law partner who is not accompanying the skilled worker and is a Canadian citizen or permanent resident living in Canada. Nascimento v. Canada (MCI) 83

[Indexed as: Nascimento v. Canada (Minister of Citizenship and Immigration)] Marta Sousa Do Nascimento Yasmin Thatyanne Nascimento Braga and Manuel Sousa Carreiro, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-9219-11 2012 FC 1424 Richard G. Mosley J. Heard: October 9, 2012 Judgment: December 6, 2012 Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — Inland applications — Application of humanitarian and compassionate considerations — Miscellaneous –––– Applicants were mother and daughter, who were prevented from entering Canada in 2008 by reason of Safe Third Country Agreement and excluded for one year, absent written authorization to return — Applicants crossed border within that year, without reporting to port of entry, and principal applicant subsequently met and married Canadian citizen, who sought to sponsor applicants for permanent residence from within Canada — Immigration officer refused application for permanent residence due to inadmissibility flowing from applicants’ illegal entry into Canada — Applicants applied for judicial review — Application allowed — Content of duty of fairness in context of sponsorship interview did not require prior notice of admissibility issue such as breach of authorization to return requirement — It was sufficient that issue be raised and applicants given opportunity to respond, and here, applicants with legal counsel failed to provide officer with submissions after interview and prior to determination of application — Officers deciding inland spousal sponsorship applications could waive inadmissibility resulting from lack of authorization to re-enter Canada, on humanitarian and compassionate factors brought to their attention — Officer was splitting hairs in failing to view spouse’s query whether there was anything he could do in face of inadmissibility as distinct from request for assistance from officer — On face of information before officer, it was unreasonable not to consider whether humanitarian and compassionate factors would justify exemption. Cases considered by Richard G. Mosley J.: Brar v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4281, 2011 CarswellNat 2285, 2011 FC 691, 2011 CF 691, 391 84 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

F.T.R. 192, [2011] A.C.F. No. 891, [2011] F.C.J. No. 891 (F.C.) — considered de Araujo v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 515, 2009 CarswellNat 4023, 2009 CarswellNat 1415, 2009 FC 515 (F.C.) — referred to Fen v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 3991, 2003 FC 1492, 2003 CF 1492, 2003 CarswellNat 6820 (F.C.) — referred to Husain v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1187, 2011 FC 451, 2011 CarswellNat 1927, 2011 CF 451, 388 F.T.R. 153 (Eng.) (F.C.) — referred to Jnojules v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 531, 2012 CarswellNat 2086, 2012 CarswellNat 3059, 2012 CF 531 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Kumari v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 3917, 2003 FC 1424, 2003 CF 1424, 2003 CarswellNat 4921, [2003] F.C.J. No. 1832 (F.C.) — referred to Millette v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 542, 2012 CarswellNat 2874, 2012 FC 542, 2012 CarswellNat 1392, [2012] A.C.F. No. 564, [2012] F.C.J. No. 564 (F.C.) — referred to Mustafa v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 2847, 2006 FC 1092, 2006 CarswellNat 4502, 2006 CF 1092, 306 F.T.R. 52 (Eng.), 56 Imm. L.R. (3d) 110, [2006] F.C.J. No. 1377 (F.C.) — referred to Rogers v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 26, 2009 CarswellNat 708, 2009 FC 26, 2009 CarswellNat 49, 339 F.T.R. 191 (Eng.), 78 Imm. L.R. (3d) 31 (F.C.) — considered Toussaint v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CAF 146, 2011 CarswellNat 1943, 417 N.R. 356, 2011 CarswellNat 1446, 2011 FCA 146, 235 C.R.R. (2d) 21, 98 Imm. L.R. (3d) 191, 30 Admin. L.R. (5th) 209 (F.C.A.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 21(1) — referred to s. 52(1) — considered Nascimento v. Canada (MCI) Richard G. Mosley J. 85

Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 s. 72(1)(e)(i) — referred to s. 124(b) — referred to s. 226(1) — considered

APPLICATION for judicial review of denial of applicants’ inland application for permanent residence.

Hadayt Nazami, for Applicants Nimanthika Kaneira, for Respondent

Richard G. Mosley J.:

1 The applicants seek judicial review of a decision by an immigration officer denying their application from within Canada for permanent residence under the spouse or common law partner class. 2 The principal applicant, Ms. Sousa do Nascimento and her daughter Yasmin, born in 1993, are Brazilian nationals. They have had no contact with Yasmin’s father since 1996. Ms. Sousa do Nascimento visited Can- ada on a visa in 2006. On May 25, 2008, leaving an abusive relationship, she and her daughter attempted to enter Canada at Fort Erie, Ontario. They were prevented from doing so by reason of the Safe Third Country Agreement and excluded for one year, absent written authorization to return. The applicants then crossed the border near Montreal in June, 2008 without reporting to a Port of Entry. 3 The principal applicant met her current husband on August 1, 2009 in Toronto. The relationship developed, and they were married on February 6, 2010. The couple prepared a sponsorship application and presented themselves for an interview at the Citizenship and Immigration Canada Etobicoke office on October 6, 2011. While the husband is named as an applicant in the style of cause herein, he is not a person “directly affected” by the decision under review as contemplated by s. 18.1 of the Federal Courts Act R. S. C., c. F-7 and is not, therefore, properly a party. References to “the applicants” in this decision are to the principal applicant and her daughter. 4 Ms. Sousa do Nascimento says she was not aware that she and her daughter had been excluded for one year and were in breach of the requirement to obtain written authorization when she illegally crossed into 86 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Canada. When the couple discovered at the interview that the applicants were inadmissible, they claim that the immigration officer refused to accept and consider their representations concerning humanitarian and compassionate considerations such as unity of the family. 5 The Spouse or Common-law partner in Canada Class, as set out in the Inland Processing Manual (IP 8) exempts applicants from the requirement under s 21(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”) and ss 72(1)(e)(i) and 124(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] to have legal status in Canada but not from the other requirements for the spouse/partner in Canada class. Among other limitations, the policy specifies that people lacking status who cannot take advantage of the policy are those who are inadmissible because they failed to obtain permis- sion to enter Canada after being deported. S. 52(1) of the IRPA and s 226(1) of the Regulations require a foreign national to obtain authorization to return to Canada (ARC) after the enforcement of a deportation order. 6 A negative decision was rendered on November 21, 2011. The officer concluded that the marital relationship appeared to be bona fide but that the applicant was inadmissible. The applicants submit that the officer erred in failing to consider humanitarian and compassionate factors and fettered her discretion. Those are issues attracting the reasonableness standard of review: Husain v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 451 (F.C.) at para 13; Millette v. Canada (Minister of Citizenship & Immigration), 2012 FC 542 (F.C.) at para 14; and Jnojules v. Canada (Minister of Citizenship & Immigration), 2012 FC 531 (F.C.) at para 16. 7 This application also raises questions of procedural fairness. For such questions, no deference is due. The Court must determine whether the process followed by the decision-maker satisfied the level of fairness required in all of the circumstances: see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at para 43. 8 At the hearing of this application, I allowed the applicants to raise an additional issue that was not identified in their notice of application or memorandum of argument. The applicants contend that they were un- fairly denied prior notice that the admissibility issue would be raised by the officer at the interview. Had they received such notice, they contend, Nascimento v. Canada (MCI) Richard G. Mosley J. 87

they would have sought legal counsel and attended the interview prepared to make representations on H&C grounds. 9 The officer states in her affidavit and on cross-examination that it is not her practice to send “fairness letters” with respect to admissibility issues in advance of a spousal sponsorship interview. 10 In my view, the content of the duty of fairness in the context of a sponsorship interview does not require prior notice of an admissibility issue such as the breach of the authorization to return requirement. It is sufficient that the issue be raised and that the applicants are given an opportunity to respond. I note that the applicants had the benefit of immigration counsel who accompanied them to the interview but was not, ap- parently in the interview room. Further, they received legal advice immediately after the interview. Notwithstanding this, no effort was made to provide the officer with submissions in the five to six weeks prior to the determination of the application. In the circumstances, the lack of notice could not be said to have deprived the applicants of an opportunity to make submissions. 11 There is no dispute between the parties that an explicit request for exemption from the requirement for an authorization to reenter Canada was never made by the applicants. The question remains whether the officer erred in failing to consider the submissions received at the interview as an implicit application for H&C consideration. 12 In this case, the applicants argue that the officer followed the inadmissibility exclusion in IP 8 even when H&C factors were presented to her. The officer erred, they contend, in failing to consider the unity of the family and the best interests of the dependent applicant, to which she was alerted by the applicant’s spouse at the interview. They assert that the officer misled them by telling them that she had no power to overcome inadmissibility and prevented them from making H&C submissions. 13 The principal applicant’s affidavit says at para 4(q): When Manuel heard that our application would be refused, he explained to the officer how much my daughter and I mean to him and how big a part of his life we are now and how much he means to us. It would hurt all of us a lot if our family was torn apart. He explained also how he has always wanted a child but was never able to have one. Now, it is so important to Manuel to hear my daughter Yasmin call him ‘dad’. Manuel told the officer about our lives and love and the security all three of us had together in Canada and that he would do anything for us to stay together. He asked if there is any way to 88 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

prevent our family from being separated because this would be dev- astating for all of us. The officer said that she could not do anything to help us because I did not wait until exclusion was over before coming back to Canada. It was clear the officer did not want to hear what we had to say because the officer cited some codes from the law which we did not know and said that there was nothing she could do. (Emphasis added) 14 In her affidavit and in cross-examination, the officer disputed the allegation and stated that her notes to file contain a verbatim record of what was said during the interview. Her notes indicate that the husband stated: For the first time I am very happy with my wife and what I have. I now have a daughter. I never had a child and it is a wonderful feeling. I work hard to provide for them and I would do anything for them. Is there anything I can do? 15 In response to this, the officer suggested that they consult their lawyer. She understood that she could consider an exemption from the inadmissibility requirement but did not take the husband’s comments to be a request for H&C consideration. She acknowledged on cross-examination that the effect of the inadmissibility decision would be that the principal applicant and her daughter would have to leave Canada and would be separated from their husband and stepfather. She conceded that these are factors that she would consider in a humanitarian request. 16 The respondent acknowledges that the Minister (or a delegated person) may, on his own consideration, review H&C factors but contends that an H&C request has to be explicit. Absent such a request, the officer is under no obligation to consider the application of H&C grounds: Kumari v. Canada (Minister of Citizenship & Immigration), 2003 FC 1424 (F.C.) at para 9; Fen v. Canada (Minister of Citizenship & Immi- gration), 2003 FC 1492 (F.C.) at para 12. Furthermore, the Court has held that there is no duty on an officer to advise applicants of their right to make an H&C application: Mustafa v. Canada (Minister of Citizenship & Immigration), 2006 FC 1092 (F.C.) at paras 10, 13-14. 17 The respondent’s position that the officer has no authority to consider an implied request is inconsistent with the IP Manual, recent Federal Court jurisprudence and the officer’s own understanding of her duties. 18 It is correct that the Courts have held that officers deciding inland spousal sponsorship applications can waive inadmissibility resulting from the lack of an authorization to reenter Canada on humanitarian and Nascimento v. Canada (MCI) Richard G. Mosley J. 89

compassionate (H&C) factors if these factors are brought to their attention: de Araujo v. Canada (Minister of Citizenship & Immigration), 2009 FC 515 (F.C.) at paras 18-19. The Minister may waive any applicable criteria or obligation of the Act on H&C grounds and has an obligation to consider them if they are raised: Toussaint v. Canada (Minister of Citizenship & Immigration), 2011 FCA 146 (F.C.A.) at para 11. 19 But section 5.27 of the Inland Processing Manual 5 (IP 5) states, in addition, that an officer: a. ... may use discretion to consider, on their own initiative, whether an exemption on H&C grounds would be appropriate. Where the applicant does not directly request an exemption but facts in the application suggests that they are requesting an exemption for the inadmissibility, officers should treat the application as if the exemption has been requested. (Emphasis in the original) 20 This guideline was interpreted by Justice Russell in Brar v. Canada (Minister of Citizenship & Immigration), 2011 FC 691 (F.C.). At paragraph 58 he held that it was immaterial that an applicant had not made a specific request for an exemption from inadmissibility as s 5.27 creates a duty in an officer to consider such as request when the facts suggest that a request has been made. See also Rogers v. Canada (Minister of Citizenship & Immigration), 2009 FC 26 (F.C.) at paras 22-38 where the nature of officers’ discretion to grant an exemption on their own initiative is discussed. 21 The officer interpreted the husband’s entreaty at the close of the interview as a statement of how he felt. During cross-examination she acknowledged having the authority to consider an implied request. She stated that when asked “Is there anything I can do? He didn’t ask me if there was anything I could do for him...” This was, as the applicants argue, splitting hairs. On the face of the information before the officer, it was unreasonable not to consider whether the H&C factors would justify an exemption. 22 For that reason, the decision must be quashed and the matter sent back for redetermination before a different officer. The parties proposed no questions of general importance and none will be certified.

Judgment THIS COURT’S JUDGMENT is: 90 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

1. the application is granted and the matter is remitted for redetermination by a different officer; and 2. no questions are certified. Application granted. Sanchez v. Canada (MCI) 91

[Indexed as: Sanchez v. Canada (Minister of Citizenship and Immigration)] Paulina Alexandra Sanchez Mantilla (a.k.a. Paulina Alexand Sanchez Mantilla), Jhonny Javier Bilbao Morillo, Emily Giuliana Bilbao Sanchez, and Maria Fabiola Mantilla Proano, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1734-12 2012 FC 1460 Richard Boivin J. Heard: October 10, 2012 Judgment: December 10, 2012 Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — Implausibility –––– Applicants were citizens of Ecuador — Principal applicant claimed that she was victim of theft and attempted break in, and received threatening phone calls — Board denied applicants’ claim for refugee protection pursuant to ss. 96 and 97(1) of Immigration and Refugee Protection Act — Board concluded that applicants were not Con- vention refugees or persons in need of protection based on negative credibility finding — Applicants brought application for judicial review — Application granted — Board failed to refer to and address evidence — For Board to seemingly accept factual basis supporting applicants’ claim and then to conclude that it was not credible that they would be at risk was contradictory and unreasonable finding. Cases considered by Richard Boivin J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Mahmood v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3693, 2005 FC 1526, 2005 CarswellNat 5333, 2005 CF 1526, [2005] F.C.J. No. 1883 (F.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. 92 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Theophile v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 961, 2011 CarswellNat 2957, 1 Imm. L.R. (4th) 37, 2011 CarswellNat 3972, 2011 CF 961, 396 F.T.R. 33 (Eng.), [2011] F.C.J. No. 1177 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Pt. 2, Div. 1 — referred to s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 97(1) — considered

APPLICATION for judicial review decison by Board determining that applicant’s were neither refugees nor person in need of protection.

Erin Christine Roth, for Applicants Neeta Logsetty, for Respondent

Richard Boivin J.:

1 This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision rendered by the Refugee Protection Division of the Immi- gration and Refugee Board of Canada (Board) on January 20, 2012, in which the applicants’ claim for refugee protection pursuant to sections 96 and 97(1) of the Act was denied.

Factual Background 2 The applicants are citizens of Ecuador and members of the same family. Paulina Alexandra Sanchez Mantilla (the principal applicant) is married to Jhonny Javier Bilbao Morillo (the second applicant). Emily Giu- liana Bilbao Sanchez is their five (5) year-old daughter (Emily), and Maria Fabiola Mantilla Proano (Maria) is the principal applicant’s mother. 3 The principal and second applicants arrived in Canada on October 23, 2009 with their daughter Emily and applied for refugee status on the Sanchez v. Canada (MCI) Richard Boivin J. 93

same day. Maria arrived in Canada on May 5, 2010, and also sought protection (Affidavit of the principal applicant, Applicants’ Application Record, p 17). 4 The second applicant is a psychologist. Using this training, the principal and second applicants developed a fourteen (14)-week motivational program based on Christian values towards the end of 2003 entitled “Skimming”. Their first centers initially opened in the cities of Quito and Ambato in 2005. As their business expanded, they hired Ms. Patricia Mendoza and Mr. Santiago Lemos Jaramillo (Mr. Lemos) to work for them. Mr. Lemos was transferred to the Ambato location, but the applicants found out he was not following their program, was criticizing it and using their business name to make purchases. It is alleged that Mr. Le- mos disagreed with the Christian focus of the program. The principal and second applicants dismissed Mr. Lemos and Ms. Mendoza on September 13, 2005. Mr. Lemos allegedly threatened the principal and second applicants that they would regret dismissing him. 5 On September 14, 2005, the principal and second applicants travelled to the city of Riobamba to lease an additional space for their growing business. They were told that Mr. Lemos had already tried to rent the same space, but the owner rented it to the applicants because they had an existing relationship. On September 15, 2005, the principal and second applicants attended a public fair to promote their business. They were confronted by Mr. Lemos, who said they had stolen his facility in Ri- obamba. He then allegedly threatened to kill the second applicant and started fighting with him. The principal and second applicants managed to leave the fair with the help of bystanders. They claimed to have reported to the Attorney General’s office the following day, but that they were told they would have to pay more money for a full investigation and chose not to pursue it further. 6 In June 2006, the principal applicant’s purse was stolen from her office, which contained her documents, bank statements, as well as keys to the office. Despite reporting the theft to the police, the principal applicant claims there was no investigation. 7 The principal applicant asserts that when she was pregnant in 2007, they began receiving strange telephone calls at home and at their office in Quito. The callers were male, would ask for the principal or second applicant, and hang up. The callers allegedly knew when the principal applicant was alone at home and would threaten her on that basis, saying they knew she was alone and pregnant. 94 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

8 In mid-February 2007, the principal applicant was alone in her home when individuals tried to break in. The principal applicant claims to have contacted the police, who told her no one was available at the station to help. She called her neighbours who allegedly screamed at the men to leave, and they finally did. A similar episode is said to have occurred in October 2007, but the police came. Since no one had been hurt and nothing stolen, they could not do anything and did not let the principal applicant file a report. The principal and second applicants linked these events to Mr. Lemos because they both occurred when the second applicant was visiting Latacunga (and thus Mr. Lemos would have known the principal applicant was alone). The applicants state that they often called the police during the period of 2007-2008, but claim they never came. 9 Following other problems with employees, the principal and second applicants had to dismiss a number of people. They encountered financial struggles which they attributed to Mr. Lemos’s influence. 10 The principal and second applicants moved on January 1, 2009 and continued to receive threatening phone calls. In May 2009, they moved in with the principal applicant’s mother, Maria. The phone calls allegedly persisted. 11 Ms. Mendoza allegedly told the principal and second applicants that Mr. Lemos believed they had cursed him, and that the only way to break the curse was to have sexual relations with their daughter, Emily. In Sep- tember 2009, the principal and second applicants saw Mr. Lemos in church. Afraid for her daughter, the principal applicant went to the nurs- ery where she claims she saw Mr. Lemos asking the person in charge for their daughter. The principal applicant took her daughter and Mr. Lemos allegedly ran away from the premises. Fearing for their daughter, they decided to leave in the last week of September 2009. 12 The principal applicant’s mother, Maria, had money stolen from her bank account in October 2009. Maria allegedly received several threatening phone calls after the principal and second applicants left with their daughter, and a vehicle reversed in her front door damaging it. In January 2010, a man allegedly tried to get into Maria’s car without success since she managed to drive away. On January 29, 2010, a man succeeded in breaking the passenger window of her car and taking her purse with Ma- ria’s cell phone. That same evening, a man allegedly called the principal applicant’s brother and other friends asking for her and the second applicant. Maria was able to make a police report for lost identification only, the theft being deemed minor. She was subsequently hit by a taxi driver, Sanchez v. Canada (MCI) Richard Boivin J. 95

and when three (3) men got out of the taxi, they allegedly called out something similar to “say hi to Paulina (the principal applicant)”. Maria tried to report all these events to the police, feeling they were connected, and went to the Prosecutor General’s office on March 31, 2010. The police told her they could not act unless she made formal accusations and identified her attacker, which she could not do. 13 The applicants’ hearing before the Board was held on September 16, 2011 and November 24, 2011. The decision was rendered on January 20, 2012.

Impugned Decision 14 The Board provides an extensive summary of the facts and allegations in the applicants’ case (Tribunal Record, pp 4-9). It found no issue with their identities. The Board concluded that the applicants were not Convention refugees as they were allegedly persecuted by Mr. Lemos as victims of crime, corruption or vendettas — motives which are generally not within the definition of a Convention refugee because of lack of nexus with one of the five grounds enumerated in section 96. 15 Therefore, the Board followed with its analysis of factors under section 97, which it elaborated under the single subheading “Credibility”. The Board referred to the death threats received and the assault initiated by Mr. Lemos at the public fair in September 2005. The Board was ultimately of the view that there was no persuasive evidence that Mr. Lemos was involved in the series of events which the applicants claim have happened, aside from the incident at the public fair and the church. The Board held that Maria’s statement in her PIF that her attackers during the taxi incident had said “Say hi to Paulina” was an embellishment of her story, based on her uncertainty during questioning at the hearing. 16 The Board concluded that, on a balance of probabilities, it was not credible that the claimants would be at risk to their lives or at risk of cruel and unusual treatment or punishment should they return to Ecua- dor. The applicants were therefore neither Convention refugees, nor persons in need of protection.

Issue 17 The sole issue before the Court in this case is whether the Board’s decision is unreasonable. The applicants are not disputing the Board’s finding as it pertains to section 96 of the Act, but are arguing that his 96 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

conclusion that they face no risk under section 97 of the Act is unreasonable.

Statutory Provisions 18 The following provisions of the Immigration and Refugee Protection Act are applicable in these proceedings: PART 2 DIVISION 1 REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Sanchez v. Canada (MCI) Richard Boivin J. 97

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. PARTIE 2 SECTION 1 NOTIONS D’ASILE, DE REFUGIE ET DE PERSONNE A PROTEGER Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes internationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. 98 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

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 19 The parties agree that the applicable standard of review for questions of credibility assessment is that of reasonableness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.)). As such, the decision must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir, above, at para 47).

Analysis 20 The Court acknowledges the respondent’s argument that much deference must be shown to administrative decision-makers on questions of credibility. However, the Court is of the opinion that this case warrants its intervention. 21 While an important portion of the Board’s decision is written under the “Credibility” subheading, it does appear from a careful reading of the reasons that the events recounted by the applicants were believed. How- ever, the Board did not believe that Mr. Lemos was involved in all of the events. This is not a negative finding with regards to credibility since the applicants have no knowledge or proof of Mr. Lemos’s personal involve- ments in the events. They have, however, asserted their belief that he is the source of the incidents of the past few years. Without drawing any negative conclusions with regards to the applicants’ credibility, the Board goes on to dismiss their application because it was not persuaded that the same person was behind all the incidents that had plagued the applicants. The Court finds this conclusion to be unreasonable. The Court agrees with the applicants that the Board made an “adverse plausi- bility finding” without referring to contradictions or inconsistencies to support this conclusion (Mahmood v. Canada (Minister of Citizenship & Immigration), 2005 FC 1526 (F.C.) at paras 14 and 16, (2005), 143 A.C.W.S. (3d) 1091 (F.C.) [Mahmood]). 22 The Board stated that it did not find there was “persuasive evidence that Lemos was involved in any of these matters.” [Emphasis added]; (Board’s decision at para 37, Tribunal Record, p 14). The fact remains that there were many such “matters” and the applicants strongly believed Sanchez v. Canada (MCI) Richard Boivin J. 99

that Mr. Lemos was responsible. The Board failed to refer and address the evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35 (Fed. T.D.), 1998 CanLII 8667) even though many documents were provided: a. a lease showing the applicants moved on January 1, 2009 (Applicants’ Application Record, p 106); b. a declaration from Maria’s maid pertaining to the phone calls received at Maria’s house and ambushes of the vehi- cles (Applicants’ Application Record, p 110); c. a letter from the church with regards to the incident allegedly involving Mr. Lemos with their daughter Emily (Ap- plicants’ Application Record, p 135); d. a letter from an employee about Mr. Lemos’ threats upon dismissal and subsequent phone calls received at the office (Applicants’ Application Record, p 139); e. a letter from a neighbour about the men breaking into the principal and second applicants’ home (Applicants’ Appli- cation Record, p 146); f. a complaint made in regards to the September 2005 incident at the fair (Applicants’ Application Record, p 175); g. a complaint to the police about the principal applicant’s purse and documents being stolen (Applicants’ Application Record, p 177); h. a complaint to the police about Maria’s money being stolen from her bank account (Applicants’ Application Record, p 179); i. a complaint to the police about phone calls received at Ma- ria’s house (Applicants’ Application Record, p 184); j. a complaint to the police about Maria’s documents being stolen (Applicants’ Application Record, p 187). 23 However, despite this evidence, the Board concludes that “it is not credible that the claimants would be at risk to their lives [...] if they returned to Ecuador” (Board’s decision at para 39, Tribunal Record, p 13). The Court finds it unreasonable to accept the sequence of incidents that has happened to the applicants, as the Board did, to make no negative assessment of credibility but to conclude that there is no risk on a balance of probabilities because the Board had concerns over Mr. Lemos’ 100 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

participation. In Theophile v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 961, 396 F.T.R. 33 (Eng.) (F.C.), Justice Russell held that a proper analysis under section 97 should have been done even though the applicant could not prove who his attacker was. Justice Rus- sell also held that the evidence indicated “some kind of targeting of the Applicant and strenuous attempts to kill him” (Theophile, above, at para 62). 24 In the case at bar, the Court is of the view that to seemingly accept the factual basis supporting the applicants’ claim and then to conclude that it is not credible that they would be at risk is a contradictory and unreasonable finding. The decision does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, para 47). The application for judicial review will therefore be granted.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. No question is certified. Application granted. Khan v. Canada (MCI) 101

[Indexed as: Khan v. Canada (Minister of Citizenship and Immigration)] Faisal Nawaz Khan, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8534-11 2012 FC 1471 Russel W. Zinn J. Heard: October 29, 2012 Judgment: December 13, 2012* Immigration and citizenship –––– Exclusion and removal — Loss of status — Permanent residents — General principles –––– Applicant was permanent resident of Canada and had been issued permanent resident card (“PR Card”) as proof of status — PR Cards were time limited and officer refused to renew applicant’s now-expired PR Card — Applicant brought application for judicial review of decision — Application granted — Decision of officer refusing to issue to applicant the PR Card was set aside — Immigration and Refugee Pro- tection Act required that every permanent resident meet residency obligation in every rolling five-year period — Therefore, although not required, it was open to officer to question whether applicant met residency obligation as at that date or as at any other earlier date — What was not open to officer was to refuse to issue applicant the PR Card once he had met conditions set out in subsection 59(1) of Immigration and Refugee Protection Regulations. Cases considered by Russel W. Zinn J.: Bageerathan v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 513, 2009 CarswellNat 4030, 2009 FC 513, 2009 CarswellNat 2555, 83 Imm. L.R. (3d) 111 (F.C.) — considered Canada (Minister of Citizenship & Immigration) v. Sidhu (2011), 2011 Car- swellNat 3541, 2011 FC 1056, 2011 CarswellNat 4225, 2011 CF 1056, 4 Imm. L.R. (4th) 196, 397 F.T.R. 29 (Eng.) (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada

*A corrigendum issued by the Court on January 28, 2013 has been incorporated herein. 102 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Shaath v. Canada (Minister of Citizenship & Immigration) (2009), 2009 FC 731, 2009 CarswellNat 2251, 2009 CF 731, 2009 CarswellNat 4145, [2010] 3 F.C.R. 117, 349 F.T.R. 81 (Eng.) (F.C.) — considered Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 28 — considered s. 28(1) — considered s. 28(2)(a)(i) — considered s. 44(2) — referred to s. 46(1) — considered s. 63(3) — referred to s. 63(4) — 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. 56 — considered s. 56(2)(a)(vii) — considered s. 56(2)(c) — considered s. 56(2)(d) — considered s. 57 — considered s. 58(3) — considered s. 58(4) — considered s. 59(1) — considered s. 59(1)(a) — considered s. 59(1)(a)-59(1)(d) — referred to s. 59(1)(c) — considered Khan v. Canada (MCI) Russel W. Zinn J. 103

s. 59(1)(d) — considered

APPLICATION by applicant for judicial review of decision of officer which refused to renew Permanent Resident Card.

Matthew Jeffery, for Applicant Alexis Singer, for Respondent

Russel W. Zinn J.:

1 Mr. Khan is a permanent resident of Canada and had been issued a permanent resident card [PR Card] as proof of his status. PR Cards are time limited and this application arises out of Mr. Khan’s failed attempt to renew his now-expired PR Card. The PR Card does not create or maintain one’s status as a permanent resident — it merely serves as proof of that status. Despite the fact that Mr. Khan no longer has a valid PR Card, he remains a permanent resident of Canada.

Background 2 Mr. Khan had a PR Card valid for five years ending March 10, 2010. He submitted the required application form to Citizenship and Immigra- tion Canada [CIC] to obtain a replacement PR Card. 3 The Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], sets out a residency requirement for permanent residents. It provides that a “permanent resident must comply with a residency obligation with respect to every five-year period:” Subsection 28(1) of the Act. “A permanent resident complies with the residency obligation with respect to a fiveyear period if, on each of a total of at least 730 days in that five- year period they are physically present in Canada:” Subparagraph 28(2)(a)(i) of the Act. Under this requirement, a permanent resident can be abroad up to 1095 days in a five-year period. Subparagraph 56(2)(a)(vii) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations], provides that “an application for a permanent resident card must be made in Canada and include the periods during the previous five years that the applicant was absent from Can- ada.” Accordingly, applicants are asked on the PR Card application form to list all absences from Canada “in the last five years” and, if the total number of days equals 1095 or more, the applicant must complete other portions of the form focused on the exceptions set out in section 28 of the Act, none of which are relevant to the application before the Court. 104 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

4 Mr. Khan provided an affidavit in this application in which he attests that he “signed” his application for a new PR Card on April 12, 2010; he does not specifically say when he filed it with CIC. CIC records confirm that the renewal application was signed April 12, 2010, but indicate that it was received by CIC on June 8, 2010. It is not known what caused the delay of eight weeks (56 days) between the signing and the receipt of the application. Mr. Khan swears that as at the date he signed his application form, he was absent from Canada for 1044 days, and was present in Can- ada 781 days. Therefore, in the five year period ending April 12, 2010, Mr. Khan met the residency obligation specified in the Act. 5 Also required to be included with an application for a PR Card are copies of various documents specified in the Regulations. These include the applicant’s passport, issued travel documents, and various government issued identification cards: Paragraphs 56(2)(c) and (d) of the Regulations. 6 Like all applications for PR Cards, Mr. Khan’s application was processed by CIC at its Case Processing Centre — Sydney (CPC-S). The Field Operations Support System [FOSS] notes in the record show the following entry on December 15, 2010, from CPC-S: 15DEC2010 — PR CARD REC’D IN SYDNEY. IMM 194; PPT: PAK828. CLIENT ABSENT 1044 DAYS AS OF 08JUN2010. [emphasis added] 7 It is clear from this entry that the CIC official in Sydney who processed Mr. Khan’s application was satisfied, based on the information provided in and with the application, that Mr. Khan had been absent for 1044 days as of June 8, 2010, which was the date the application was received by CIC. The entry also indicates that on that date CPC-S received Mr. Khan’s new PR Card which was valid to December 24, 2015, and it then forwarded the PR Card to the CIC office at 25 St. Clair Ave. East in Toronto, Ontario [CIC GTA Central]. In a letter dated January 12, 2011, Mr. Khan was informed that he could pick up his new PR Card at CIC GTA Central on February 10, 2011; however, he was in Pakistan on that date and was unable to do so. The letter also advised that “if you are unavailable on this date, please visit our office within 180 days.” Mr. Khan attended at CIC GTA Central on June 28, 2011, well within that 180 day period. Khan v. Canada (MCI) Russel W. Zinn J. 105

8 The January 12, 2011, form letter provided further information to Mr. Khan as follows: According to the Immigration and Refugee Protection Act, all permanent residents of Canada are subject to a residency assessment at the time of distribution of their new PR card. An immigration official will review your documents and may request additional information to determine your eligibility for a PR card. REQUIRED DOCUMENTS: • This letter; • All passports and travel documents (current and expired); • Original record of landing, confirmation of permanent residence (IMM 1000 or IMM 5292) or other Canadian residency/landing documents; • Valid photo ID issued by the province or by a federal agency (e.g. driver’s license, health card); • Minors under age 14 must be accompanied by a parent or legal guardian with a birth certificate and/or legal guardianship papers; • Expired PR card. A new card will not be issued unless your expired card has been surrendered with your application or is returned and/or accounted for. [emphasis in the original] 9 When Mr. Khan attended at CIC GTA Central on June 28, 2011, to pick up his new PR Card, the CIC officer examined his former and current passport and asked him why he had taken so long to pick up his new PR Card. He told her that he had been in Pakistan for the birth of his daughter. Mr. Khan attests that the officer then asked him to write down the dates of all of his absences in the five years preceding that day (June 28, 2011). He did so. The officer then said that it appeared that he did not meet the residency requirement and she could not issue the card to him. He protested saying that he thought the five year period was from the date of the application, not the date when he picked up the card. The officer told him that it wasn’t her decision and that a senior officer would be contacting him. The following entry was made (presumably by the officer at CIC GTA Central) in the FOSS notes on June 29, 2011: “CLI- ENT ABSENT 1309 DAYS. DID NOT MEET RESIDENCY. SENT TO INVESTIGATION.” 106 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

10 Mr. Khan then sought legal advice and his current counsel wrote asking for an explanation and demanding that the PR Card be issued immediately. CIC responded as follows: With regards to the above person’s application for a Permanent Resi- dent Card, the application was referred to our office on 29 JUN 2011 as the client was not meeting the residency obligations. Currently the minimum assessment time is 1.5 years. Should the client require to travel within the time frame, he may do so with a valid passport. The client would then require to apply for a Travel Docu- ment at the nearest Canadian Visa Office to facilitate his return to Canada. We do not expedite applications once referred to our office. 11 This application for leave and judicial review was commenced on November 23, 2011. Leave was opposed by the respondent claiming that no decision, within the meaning of section 18.1 of the Federal Courts Act, RSC 1985, c F-7, had been made. This Court granted leave by Order dated July 31, 2012. It appears that shortly after leave was granted, CIC took a look at the applicant’s file because an officer called Mr. Khan’s counsel advising that she wished to continue the processing of Mr. Khan’s PR Card application. On August 29, 2012, the officer sent a letter to Mr. Khan via his counsel stating the following: In order to continue to process your application for a Permanent Res- ident Card, a determination is required as to whether you have complied with the residency obligation, pursuant to section 28 of the Im- migration and Refugee Protection Act. ... Please provide sufficient documentation to prove that you were physically present in Canada during the period of time under consideration, i.e. 09June 2005 and 08June 2010. [emphasis in original] 12 When contacted, the officer advised that the June 9, 2005 to June 8, 2010 period she sought represented the five year period ending on the date that CIC received the application for the PR Card and that she was “not interested” in the five year period immediately prior to the date he attempted to pick up his card — the period that had been of interest to the officer at CIC GTA Central. 13 The respondent filed an affidavit in this proceeding sworn September 10, 2012, by a CIC employee, Mr. Gillis, “lead analyst” on the Regula- tions. The applicant objected to this new evidence. I have considered it Khan v. Canada (MCI) Russel W. Zinn J. 107

only insofar as the affiant attests to the process at CIC for issuing PR Cards. To the extent that he purports to interpret the Act and Regulations, it is improper and inadmissible. 14 Mr. Gillis, in his affidavit, cautiously attests that the respondent may have used an incorrect five-year period earlier: ... [I]t appears that the application for a permanent resident card may have been directed to the investigation inventory during the local office review that was conducted June 29, 2011. It is unclear from the notes provided what period of residency was used to determine why the application was referred to investigation — a process which in this local office can take 15 months or more. It may have been referred as the reviewing staff used the date that the Applicant appeared at the local office as the part of the five year residency period. As an incorrect residency period may have been used, the application has been removed from the investigation inventory and has been as- signed to an officer for review. The officer has been advised on the correct residency period that is under review for the permanent resident card application. [emphasis added] 15 At the hearing held on October 29, 2012, counsel for the respondent admitted that the officer at CIC GTA Central erred in stating that the five-year period for Mr. Khan’s residency determination ended on that day; it should have ended on the date the application was received by CIC.

Issues and Standard of Review 16 Mr. Khan raises the following issues: 1. Did the CIC GTA Central representative act unlawfully in refusing to provide Mr. Khan with his validly issued permanent resident card because the respondent was functus officio after granting the card? 2. Did the CIC GTA Central representative otherwise act unlawfully since nothing in the Act mandates the review of the residency requirement when providing the card? 17 Mr. Khan submits that both issues are reviewable on a standard of correctness because the first is a matter of jurisdiction and the second is a matter of law. The respondent makes no submissions as to the appropriate standard of review. 108 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

18 I am satisfied that both issues raise jurisdictional questions. Both issues ask whether the officer acted without jurisdiction in refusing to provide to or in withholding from Mr. Khan the PR Card and accordingly are true questions of jurisdiction because they concern “whether [the officer’s] statutory grant of power [gave] it the authority to decide [that] particular matter:” New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at para 59, and see also Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.), at para 42.

Analysis 1. Functus Officio 19 Mr. Khan submits that his PR Card had been issued by CPC-S and that all the officer at CIC GTA Central was to do was to hand it over to him after checking his documents. I do not agree. 20 This submission turns on when a PR Card is issued and by whom. I agree with the respondent that the PR Card had been processed by CPC- S but that it had not yet been issued to Mr. Khan. The issuing of a PR Card requires the transmitting to or delivery of the card to the applicant. That did not happen at CPC-S; it was to happen at CIC GTA Central when Mr. Khan arrived to take possession of his new card. Accordingly, I reject the submission that the officer at CIC GTA Central was functus. This is not to suggest that there were no limitations on the officer’s obligation to hand over the PR Card to Mr. Khan.

2. Limitations on Issuing a PR Card 21 Mr. Khan submits that, pursuant to subsection 59(1) of the Regula- tions, the officer was legally obliged to issue the PR Card to him. He suggests that there was nothing else the officer could do. The respondent submits that prior to issuing the PR Card, the officer had to ensure that Mr. Khan met the residency obligation. In my view, neither is correct. Mr. Khan’s submission is not accepted because the officer must be satisfied that the conditions set out in subsection 59(1) of the Regulations have been met before issuing the PR Card. The respondent’s submission is incorrect because it confuses the issuance of a PR Card with proving that the residency obligation in the Act has been met. Khan v. Canada (MCI) Russel W. Zinn J. 109

Why the Applicant’s Submission is in Error 22 Subsection 59(1) of the Regulations provides: 59. (1) An officer shall, on application, issue a new permanent resident card if (a) the applicant has not lost permanent resident status under subsection 46(1) of the Act; (b) the applicant has not been convicted under section 123 or 126 of the Act for an offence related to the misuse of a permanent resident card, unless a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act; (c) the applicant complies with the requirements of sections 56 and 57 and subsection 58(4); and (d) the applicant returns their last permanent resident card, unless the card has been lost, stolen or destroyed, in which case the applicant must produce all relevant evidence in accordance with subsection 16(1) of the Act. 59. (1) L’agent délivre, sur demande, une nouvelle carte de résident permanent si les conditions suivantes sont réunies: a) le demandeur n’a pas perdu son statut de résident permanent aux termes du paragraphe 46(1) de la Loi; b) sauf réhabilitation —a ` l’exception des cas de révocation ou de nullité — en vertu de la Loi sur le casier judiciaire, le demandeur n’a pas et´´ e condamné sous le régime des articles 123 ou 126 de la Loi pour une infraction liée a` l’utilisation frauduleuse d’une carte de résident permanent; c) le demandeur satisfait aux exigences prévues aux articles 56 et 57 et au paragraphe 58(4); d) le demandeur rend sa dernière carte de résident permanent, a` moins qu’il ne l’ait perdue ou qu’elle n’ait et´´ e volée ou dé- truite, auquel cas il doit donner tous el´´ ements de preuve per- tinents conformément au paragraphe 16(1) de la Loi. 23 This provision stipulates that prior to being entitled to have a PR Card issued, an applicant must meet the requirements set out in paragraph 59(1)(a) (i.e. he has not lost his permanent resident status under subsection 46(1) of the Act), and the requirements of paragraph 59(1)(c) (i.e. he has provided the documents and information required with his application set out in sections 56 and 57 and subsection 58(4) of the Regulations). 110 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Paragraph 59(1)(a) of the Regulations - Lost Permanent Resident Status 24 The requirement in paragraph 59(1)(a) of the Regulations is met if “the applicant has not lost permanent resident status under subsection 46(1) of the Act.” That subsection provides as follows: 46. (1) A person loses permanent resident status (a) when they become a Canadian citizen; (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28; (c) when a removal order made against them comes into force; or (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection. 46. (1) Emportent perte du statut de résident permanent les faits suivants: a) l’obtention de la citoyenneté canadienne; b) la confirmation en dernier ressort du constat, hors du Canada, de manquement a` l’obligation de résidence; c) la prise d’effet de la mesure de renvoi; d) l’annulation en dernier ressort de la décision ayant accueilli la demande d’asile ou celle d’accorder la demande de protection. 25 Mr. Khan did not become a Canadian citizen and he has not made any claim for protection. Therefore, the only questions remaining are whether Mr. Khan “lost permanent resident status” as a result of “a final determination of a decision made outside of Canada that [he has] failed to comply with the residency obligation under section 28 [emphasis added]” or had a removal order made against him. These provisions reflect the two ways that a permanent resident may be stripped of his status: (1) by actions taken when he is outside Canada, and (2) by actions taken when he is in Canada. 26 Canada (Minister of Citizenship & Immigration) v. Sidhu, 2011 FC 1056 (F.C.), is an illustration of the first situation, in which a permanent resident outside Canada was determined by a visa officer in India that he had failed to comply with the residency obligation in section 28 of the Act. That decision was appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board pursuant to subsection 63(4) of the Act. Shaath v. Canada (Minister of Citizenship & Immigra- Khan v. Canada (MCI) Russel W. Zinn J. 111

tion), 2009 FC 731 (F.C.), is an illustration of the second situation, in which a permanent resident in Canada was determined to have failed to comply with the residency obligation in section 28 of the Act. A removal order was issued against him pursuant to subsection 44(2) of the Act and that decision was appealed to the IAD pursuant to subsection 63(3) of the Act. 27 There is no suggestion that Mr. Khan had lost his permanent resident status by virtue of ... a “decision made outside of Canada.” In fact, there is no suggestion that any decision, either outside or inside Canada, has been made that has resulted in him losing his status. Whether or not he has lost status as a result of failing to reside in Canada the required amount of time remains under consideration by the respondent. More will be said of this later.

Paragraph 59(1)(c) of the Regulations - Documents and Information 28 To meet the requirement of paragraph 59(1)(c), Mr. Khan had to comply “with the requirements of sections 56 and 57 and subsection 58(4) [of the Regulations].” Section 56 of the Regulations prescribes the information and documents that must be included in an application for a PR Card. The list is long. The relevant question is whether Mr. Khan fulfilled his obligation to include all of the necessary information and documents in his application. 29 Mr. Gillis swears in his affidavit that PR Cards are only sent by CPC- S to an applicant’s local CIC office for pick-up after the application has been reviewed for completeness. Since Mr. Khan’s PR Card was sent by CPC-S to CIC GTA Central this means that Mr. Khan’s application was reviewed and deemed complete by the respondent, if only preliminarily. The respondent does not suggest that Mr. Khan’s application was missing documents or information. The officer at CIC GTA Central refused to give Mr. Khan his new PR Card only because she formed the view that he did not meet the residency obligation, not because his application was incomplete. 30 Section 57 of the Regulations states that an applicant must sign an application on their own behalf. Again, there is no suggestion that Mr. Khan did not sign his own application. 31 Subsections 58(3) and (4) of the Regulations require that an applicant personally attend to pick-up his PR Card and present the originals of the 112 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

copied documents submitted with the application, for verification. They provide as follows: 58. (3) A permanent resident who applies for a permanent resident card under section 56 must, in order to be provided with the card, attend at the time and place specified in a notice mailed by the De- partment. If the permanent resident fails to attend within 180 days after the Department first mails a notice, the card shall be destroyed and the applicant must make a new application in order to be issued a permanent resident card. 58. (4) When attending in accordance with subsection (3), a permanent resident must produce the original documents copies of which were included in their application as required by paragraphs 56(2)(c) and (d). 58. (3) Le résident permanent qui fait une demande aux termes de l’article 56 doit, afin de se voir remettre la carte de résident permanent, se présenter aux date, heure et lieu mentionnés dans un avis envoyé par courrier par le ministère. Si le résident permanent ne se présente pas dans les cent quatre-vingts jours suivant la première mise a` la poste d’un avis, la carte est détruite et il doit, s’il veut qu’une autre carte lui soit délivrée, faire une nouvelle demande. 58. (4) Lorsqu’il se présente conformément au paragraphe (3), le rés- ident permanent produit les pièces originales dont les copies accom- pagnaient sa demande aux termes des alinéas 56(2)c) et d). 32 Mr. Khan attests that he brought the required documents with him when he went to pick up his PR Card on June 28, 2011. Again, there is no suggestion by the respondent that he did not. The objection of the officer at CIC GTA Central was never with the documents Mr. Khan brought with him, but rather with whether he could pass a fresh residency assessment based on the period she set. 33 In summary, all of the evidence in the record points to the conclusion that Mr. Khan met all the requirements of paragraph 59(1)(c) of the Reg- ulations. It was only after he had done so that he was entitled to be issued the PR Card; however, once he had, then the officer was required to issue the PR Card to him. 34 Subsection 59(1) of the Regulations mandates that on application for a PR Card, an officer “shall” issue it if the requirements of paragraphs (a) to (d) are met. Mr. Khan met those requirements and thus the officer at CIC GTA Central was required to issue him the PR Card that had previously been processed and sent there by CPC-S for issuance. Khan v. Canada (MCI) Russel W. Zinn J. 113

35 What that officer could do, and ought to have done if she did not, was compare the original documents handed to her by Mr. Khan with the copies he provided with his application. If she found that they did not match, then she could have withheld the PR Card and had CIC investigate the matter. In my view, that is all that the officer could do once Mr. Khan otherwise met the conditions set out in subsection 59(1) of the Regulations.

Why the Respondent’s Submission is in Error 36 The respondent submits that it is incumbent on an applicant to prove that he or she meets the residency requirements as at the date that the PR Card application is received by CIC and not merely when he or she purports to have signed it. I agree with the respondent that the relevant date is the date when the application is filed with CIC, otherwise an applicant could unilaterally select an earlier date to sign the application, a date when he or she meets the residency obligation. 37 In the majority of cases, the time between the date of signature and the date of receipt will only be a few days and it is not likely to be relevant to determining whether residency has been met. In this case, however, there was an unexplained gap of eight weeks (56 days). That gap could have been relevant as Mr. Khan’s application indicated that he had been in Canada, as of the date of signature, 781 days. If he left Canada immediately after signing the application then he would have been in Canada only 725 days — five days short of the minimum requirement. 38 It is certainly open to CPC-S, when processing an application, to satisfy itself if there is uncertainty as to whether the residency obligation is met as at the date of filing. It can seek further information from the applicant. Indeed, Mr. Gillis attests that CPC-S “conducts a review of the applicant’s residency and other compliance with the IRPA and IRPR to assist in identifying applicants where there is a higher risk of non- compliance.” In this case, the FOSS notes contain an entry that confirms that CPC-S did the required residency review; it reads: “CLIENT AB- SENT 1044 DAYS AS OF 08JUN2010.” One can only conclude from this entry that the officer at CPC-S was satisfied, although the officer may have been mistaken, that Mr. Khan met the residency obligation. 39 I note that the information that Mr. Khan gave to the officer at CIC GTA Central was that in the five year period preceding that date he had been absent from Canada from August 17, 2007, to February 28, 2010, and again from June 2, 2010 (or possibly June 12, 2010), to June 6, 2011. 114 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

If accurate, this information supports that Mr. Khan was in Canada almost all of the period between signing the application and it being received by CIC. 40 The respondent, however, submits that the officer at CIC GTA Cen- tral was obliged to withhold the PR Card unless satisfied that Mr. Khan met the residency obligation. That is in error because meeting the residency obligation is not a condition for issuing the PR Card set out in subsection 59(1) of the Regulations. Further, notwithstanding the statement in the form letter sent to those who are to pick up their new PR Card that “According to the Immigration and Refugee Protection Act, all permanent residents of Canada are subject to a residency assessment at the time of distribution of their new PR card,” there is no such requirement in the Act. It is most certainly within the prerogative of the respondent to confirm at the time of pick up or at any other time that a permanent resident satisfies the residency obligation; however there is no legislated requirement that it be done at the time of the PR Card pick up and such an examination cannot impede the issuance of the PR Card. 41 The Act requires that every permanent resident meet the residency obligation in every rolling five-year period. Therefore, although not required, it was open to the officer at CIC GTA Central to question whether Mr. Khan met the residency obligation as at that date or as at any other earlier date. What was not open to her was to refuse to issue him the PR Card once he had met the conditions set out in subsection 59(1) of the Regulations.

Remedy 42 Mr. Khan asks, if his application is allowed, that the respondent be directed to issue a new PR Card to him forthwith without requiring him to provide further information or appear in person to pick up the card. He also seeks his costs. 43 Included as an exhibit to an affidavit of a consultant employed in the offices of Mr. Khan’s counsel is an email from Mr. Khan explaining his current circumstances. He is now in Pakistan with his family. Counsel at the hearing said that it was unknown whether he could now return to Canada without a PR Card. He cites Bageerathan v. Canada (Minister of Citizenship & Immigration), 2009 FC 513 (F.C.), where the Court directed the Minister to grant the applicant’s husband permanent resident status in Canada due to “the lack of comprehension and cooperation shown by the First Secretary and his obstinacy.” Khan v. Canada (MCI) Russel W. Zinn J. 115

44 Here, there was a refusal to acknowledge that Mr. Khan was entitled to be issued his new PR Card notwithstanding questions as to whether he had complied with the residency obligation. Those questions could and should have been addressed later and, if it was determined that he had failed to meet the residency obligation, appropriate steps taken which would provide Mr. Khan with appeal rights to the IAD from any adverse decision. 45 Mr. Khan, however, is entitled to be placed back in the position he ought to have been on June 28, 2011. He is entitled to the PR Card that ought to have been issued to him that date, provided he produces the relevant original documents. If he is in Pakistan, then he should not be required to travel to Canada to re-attend at a CIC office in Canada to pick it up. Further, it is unclear whether Mr. Khan can obtain a visa to travel to Canada without a valid PR Card to prove that he has permanent resident status in Canada. It is not clear from the record whether the officer at CIC GTA Central ever compared his original documents with those submitted with the application or took possession of his old PR Card. These are statutory requirements. Although an application for a PR Card must be made in Canada there is no requirement in the Act that it must be issued to an applicant in Canada. The Court will order that Mr. Khan inform the respondent as to his current location and if he is in Pakistan, require that the PR Card be sent to Islamabad where, upon satisfying an officer that the copies of the documents submitted with the application reflect the originals, and upon returning his expired PR Card, if he has not previously done so, he will have the PR Card issued to him. Unless Mr. Khan has previously handed over those documents to CIC and thus no longer has possession of them, he must produce them for inspection to be compared with the copies he sent with the application prior to being issued the PR Card. 46 As stated, the issuance of the PR Card and the residency obligation are two distinct matters. The respondent is entitled to pursue an investigation as to whether Mr. Khan has met the residency obligation if it con- tinues to have any concerns in that regard. The Court will not therefore order that Mr. Khan is free from responding to inquiries made by the respondent in this respect.

Costs 47 Costs are exceptional in immigration applications. However, I find that this is one of those exceptional cases. But for the error made by the 116 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

officer at CIC GTA Central, the applicant would have been issued the PR Card and any question whether he met the residency obligation in the Act would have been investigated separately. The applicant has incurred unnecessary costs to bring this matter forward and accordingly is entitled to his costs, which are fixed at $5,000 inclusive of fees, disbursements, and taxes.

Certified Question 48 The respondent has proposed the following question for certification: Who has the jurisdiction to make the final determination on the merits of an application for a permanent resident card application - CPC- S who may authorize the production of the PR card or the CIC local office whose mandate is to issue the PR card pursuant to s. 59 of the regulations? 49 Aside from the assumptions that the respondent has written into the question, it is not a certifiable question as it would not be determinative of an appeal of this decision.

Judgment THIS COURT’S JUDGMENT is that: 1. This application is allowed and the decision of the officer on June 28, 2011, refusing to issue to Mr. Khan the permanent resident card that had been prepared and sent to it by CPC-S is set aside; 2. Within thirty (30) days of the date hereof, the applicant is to advise the respondent, in writing, as to whether he is in Pakistan or Canada and he is to provide his current address; 3. Within thirty (30) days after receiving such residence information, the respondent is directed to transmit the permanent resident card that was prepared for the applicant on December 15, 2010, to the Canadian High Commission in Islamabad, Pakistan, if the applicant advises that he is currently residing there, or to the CIC office closest to the applicant’s residence if the applicant advises that he is currently residing in Canada; 4. The respondent is directed to advise the applicant no more than 90 days from the date hereof, as to where, in accordance with this Judgment, he may pick up his permanent resident card and the applicant shall be required to attend in person to pick it up; Khan v. Canada (MCI) Russel W. Zinn J. 117

5. If the applicant has not previously handed over to the respondent the originals of all or any of the documents copied in his application for a permanent resident card, then he must present them for comparison with the copies provided with his application, prior to being issued the permanent resident card, which shall be issued if the copies match the original documents; 6. If the applicant has not previously done so, he is to return his expired permanent resident card, as required by paragraph 59(d) of the Regulations; 7. If the original documents do not match the copies the applicant submitted with his application for the renewal of his permanent resident card, then the respondent shall not be required to issue the card to the applicant without further examination; 8. The applicant is awarded $5,000 in costs, inclusive of fees, disbursements and taxes; and 9. No question is certified. Application granted. 118 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Khan v. Canada (Minister of Citizenship and Immigration)] Nasser Ali Khan, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: T-1780-11 2012 FC 1488 Michael L. Phelan J. Heard: November 20, 2012 Judgment: December 18, 2012 Administrative law –––– Prerogative remedies — Mandamus — Perform- ance of public duty — Conditions precedent to enforcement of duty –––– Applicant citizen of Saudi Arabia became permanent resident of Canada in 2001, and applied for Canadian citizenship shortly before leaving country to which he had not yet returned — Citizenship application was flagged as he gave office address of his immigration consultant as his residential address, and he was asked to complete residence questionnaire in 2007 which allegedly was sent in by consultant — Receipt of questionnaire was never acknowledged by Citi- zenship and Immigration, and it did not appear in any file — Applicant’s permanent residence card expired in 2008, and he would not attend interview scheduled in Canada in early 2012, because such attendance would have confirmed his loss of permanent residence — Applicant applied in 2011 for judicial review seeking order in nature of mandamus directing approval of citizenship application — Application dismissed — Applicant had submitted no evidence that questionnaire was ever sent in by consultant, failing to even provide affidavit from consultant to that effect — There was public legal duty to act given that applicant had not formally lost permanent resident status yet, but he had admitted failure to comply with permanent residence obligations — As applicant did not satisfy all conditions precedent to Minister of Citizenship and Immigration’s performance of duty, it was not reasonable time for Minister to perform duty and so delay could not be unreasonable — Applicant contributed to delay by listing questionable address, failing to establish that questionnaire was filed promptly and refusing to attend examination at which his loss of permanent residence would be exposed — Balance of convenience favoured Minister as applicant for citizenship must be prepared to submit himself to due inquiry in manner reasonably required by Minister. Immigration and citizenship –––– Citizenship — Application for grant of or retention of citizenship — Availability of judicial review –––– Applicant citi- Khan v. Canada (MCI) 119 zen of Saudi Arabia became permanent resident of Canada in 2001, and applied for Canadian citizenship shortly before leaving country to which he had not yet returned — Citizenship application was flagged as he gave office address of his immigration consultant as his residential address, and he was asked to complete residence questionnaire in 2007 which allegedly was sent in by consultant — Receipt of questionnaire was never acknowledged by Citizenship and Immigra- tion, and it did not appear in any file — Applicant’s permanent residence card expired in 2008, and he would not attend interview scheduled in Canada in early 2012, because such attendance would have confirmed his loss of permanent residence — Applicant applied in 2011 for judicial review seeking order in nature of mandamus directing approval of citizenship application — Application dismissed — Applicant had submitted no evidence that questionnaire was ever sent in by consultant, failing to even provide affidavit from consultant to that effect — There was public legal duty to act given that applicant had not formally lost permanent resident status yet, but he had admitted failure to comply with permanent residence obligations — As applicant did not satisfy all conditions precedent to Minister of Citizenship and Immigration’s performance of duty, it was not reasonable time for Minister to perform duty and so delay could not be unreasonable — Applicant contributed to delay by listing questionable address, failing to establish that questionnaire was filed promptly and refusing to attend examination at which his loss of permanent residence would be exposed — Bal- ance of convenience favoured Minister as applicant for citizenship must be prepared to submit himself to due inquiry in manner reasonably required by Minister. Cases considered by Michael L. Phelan J.: Dragan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CFPI 211, [2003] 4 F.C. 189, 2003 CarswellNat 1525, 227 F.T.R. 272, 2003 Car- swellNat 467, 2003 FCT 211, 27 Imm. L.R. (3d) 157, 224 D.L.R. (4th) 738, [2003] F.C.J. No. 260 (Fed. T.D.) — followed Statutes considered: Citizenship Act, R.S.C. 1985, c. C-29 s. 5(1)(c)(i) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 2(1) “permanent resident” — considered s. 28(1) — considered s. 28(2)(b)(i) — considered s. 28(2)(b)(ii) — considered s. 46 — considered

APPLICATION for judicial review seeking order of mandamus directing approval of applicant’s citizenship application. 120 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Matthew Jeffery, for Applicant Khatidja Moloo-Alam, for Respondent

Michael L. Phelan J.: I. Introduction 1 The Applicant has many problems with this judicial review for a mandamus order, not the least of which is that if he returns to Canada, he will formally lose his permanent resident status. If he loses his permanent resident status, he cannot become a citizen — the very point of this request for mandamus. It is reminiscent of the old ditty “oh what a tangled web we weave when first we practice to deceive”. This is a judicial review for an order of mandamus directing the Respondent to approve the Applicant’s citizenship application.

II. Background 2 The Applicant, a citizen of Saudi Arabia, where he presently resides, became a permanent resident of Canada on January 7, 2001. His permanent resident card expired in April 2008. 3 He applied for Canadian citizenship on August 15, 2004 and left the country shortly thereafter. He has yet to return. 4 The Respondent flagged the Applicant’s citizenship application because his residential address was the office address of the immigration consultant handling the Applicant’s application. This fact raised issues as to his real place of residence. 5 On January 17, 2007, the Respondent asked the Applicant to complete a Residence Questionnaire. The unproven allegation is that the immigration consultant sent it but that Citizenship and Immigration lost the Questionnaire somewhere in the process. What is known is that the receipt of the Questionnaire was never acknowledged nor did it appear in any file. 6 In 2008 counsel took over prosecution of this file and attempted to move it along the regulatory chain. A status inquiry in 2008 was answered with reference to the need for Immigration, RCMP and CSIS clearances. 7 A further communication in 2008 that the Applicant filed the Resi- dence Questionnaire was met with a reply two years later that the Ques- tionnaire was not in the departmental file. A copy of the Questionnaire Khan v. Canada (MCI) Michael L. Phelan J. 121

was immediately filed. Two unreported absences from Canada were observed by officials. 8 In May 2011, the Applicant’s counsel was advised that the file had gone to the Mississauga office. On November 1, 2011, the Applicant filed this mandamus application. 9 The Respondent scheduled an interview for the Applicant in Canada in early 2012. The Applicant refused to attend in Canada because he had not renewed his permanent resident card. An interview would have confirmed his loss of permanent residence. The Applicant proposed alterna- tives to an “in-Canada” interview but the Respondent continued to insist on the in-Canada interview. A further interview was scheduled which the Applicant did not attend. 10 The crux of the Applicant’s problem is that he has not complied with his residency obligation as required by the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], s 28(1) and that an examination (interview) conducted under s 28(2)(b)(ii) will confirm such non-compliance. 28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period. (2) The following provisions govern the residency obligation under subsection (1): ... (b) it is sufficient for a permanent resident to demonstrate at examination (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident; (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and ..... 28. (1) L’obligation de résidence est applicable a` chaque période quinquennale. (2) Les dispositions suivantes régissent l’obligation de résidence: ... 122 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

b) il suffit au résident permanent de prouver, lors du contrôle, qu’il se conformera a` l’obligation pour la période quinquennale suivant l’acquisition de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu’il s’y est conformé pour la période quinquennale précédant le contrôle; ...

III. Analysis 11 Section 5(1) of the Citizenship Act, RSC, 1985, c C-29, provides the conditions under which the Minister shall grant citizenship — permanent residence status is one of the pre-conditions. 5. (1) The Minister shall grant citizenship to any person who ... (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and ... 5. (1) Le ministre attribue la citoyenneté a` toute personne qui, a` la fois: ... c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence etant´ calculée de la manière suivante: (i) un demi-jour pour chaque jour de résidence au Canada avant son admission a` titre de résident permanent, ... Section 2(1) of IRPA defines “permanent resident” to mean a person who has acquired permanent residence status and “has not subsequently lost that status under section 46”. Section 46 of IRPA stipulates that a person loses permanent residence status “on a final determination of a Khan v. Canada (MCI) Michael L. Phelan J. 123

decision made outside of Canada that they have failed to comply with the residency obligation under section 28”. 12 The test for the grant of mandamus is set forth in Dragan v. Canada (Minister of Citizenship & Immigration), 2003 FCT 211, [2003] 4 F.C. 189 (Fed. T.D.) at para 39: (1) There must be a public legal duty to act. (2) The duty must be owed to the applicant. (3) There is a clear right to the performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty; (b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay. (4) No other adequate remedy is available to the applicant. (5) The order sought will be of some practical value or effect. (6) The Court in the exercise of discretion finds no equitable bar to the relief sought. (7) On a “balance of convenience” an order in the nature of mandamus should issue. 13 The Applicant contends that the delay in granting citizenship is the fault of the Respondent because it lost the Questionnaire. However, the Applicant has submitted no evidence that the Questionnaire was ever sent in by the consultant as alleged. The simplest proof, an affidavit by the consultant or even an explanation as to why the consultant could not provide an affidavit, is not addressed. 14 In attempting to attribute fault for delay entirely to the Respondent, the Applicant ignores: • that the use of the consultant’s business address as his residence was misleading or at the very least justified inquiry by the Re- spondent and explanation by the Applicant. • that there is no evidence that the Questionnaire, required for the continued processing of the Applicant’s citizenship application, was ever sent, much less received, by the Respondent in 2007. 124 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

• that the Applicant has refused to attend an examination which would have, in all probability, resulted formally in his loss of permanent resident status. 15 As to the criteria to be satisfied for an order of mandamus, the Court’s conclusion on each in relation to the facts are: (a) There is a public legal duty to act but it is subject to compliance with certain conditions. While the loss of permanent resident status has not occurred and thus the Applicant’s case meets this criterion, it is of dubious merit given the admitted failure to comply with the permanent residence obligations. (b) The public legal duty is owed to the Applicant if he could comply with the conditions for citizenship. (c) As to the clear right to Ministerial performance of the duty, the Applicant does not meet this criterion. He has not met the conditions precedent to performance of the duty. (d) While there has been a demand for performance, the Applicant cannot satisfy the factors of reasonable time for Ministerial performance and unreasonable delay. The reasonable time to perform does not arise until the Applicant satisfies all pre-conditions. Therefore, the Minister’s delay is not unreasonable. (e) The Applicant is correct to claim that mandamus is the only adequate remedy. (f) There is no question that if the other conditions for mandamus were met, such an order would have practical effect. (g) The Applicant does not satisfy the absence of an equitable bar fac- tor. The Applicant has contributed to the delay by listing a questionable “residential” address; by failing to establish that the Questionnaire was filed promptly; and, by refusing to attend an examination at which his loss of permanent residence would be exposed. (h) The balance of convenience favours the Minister for the reasons in (g) and because an applicant for citizenship must be prepared to submit himself to due inquiry in a manner reasonably required by the Minister. The Applicant’s refusal to submit to an in-Canada examination is unreasonable. Khan v. Canada (MCI) Michael L. Phelan J. 125

IV. Conclusion 16 Therefore, for all these reasons, the mandamus application is denied with costs to the Respondent.

Judgment THIS COURT’S JUDGMENT is that the mandamus application is denied with costs to the Respondent. Application dismissed. 126 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Canadian Security Intelligence Service, Re] In the Matter of an application by [...] for warrants pursuant to sections 16 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 In the Matter of [...] Federal Court Docket: None given. 2012 FC 1437 Anne Mactavish J. Judgment: December 6, 2012* Law enforcement agencies –––– Particular police and security forces — Ca- nadian Security Intelligence Service –––– Canadian Security Intelligence Ser- vice (“CSIS”) brought application for warrants pursuant to ss. 16 and 21 of Ca- nadian Security Intelligence Service Act — Application included request for assistance in collection of intelligence relating to foreign state(s), corporation or person — Operative portions of warrants referred specifically to interception of communications, specifically oral and telecommunications, of certain named Canadian citizens, permanent residents or corporations — Issue arose whether Federal Court had power to issue warrants, pursuant to ss. 16 and 21 of Act, authorizing CSIS to intercept communications of or utilize other intrusive investigative techniques in relation to Canadian citizen, permanent resident or corporation — Application for warrants dismissed — Section 16(1) of Act provides that CSIS may assist Minister of National Defence or Minister of Foreign Af- fairs in collection of intelligence relating to activities of “(a) any foreign state or group of foreign states; or (b) any person other than (i) a Canadian citizen (ii) a permanent resident ..., or (iii) a corporation incorporated by or under an Act of Parliament or of the legislature of a province” — Section 16(2) states “assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii)” — Degree of potential intrusion on privacy interest of individual named in Part III of warrant, which permits intentional interception, significantly greater than potential intrusion on rights of those whose communications may only be incidentally intercepted — Special Senate Committee Report indicated clear understanding that while requests for assistance could be made to obtain foreign intelligence, “only foreign nationals could be targeted” when CSIS exercising warrant powers in relation to s. 16

*A corrigendum issued by the Court on March 11, 2013 is incorporated herein. Canadian Security Intelligence Service, Re 127 request — Section 16(2) clearly prohibits obtaining assistance in relation to activities of foreign state(s), corporation or person, by targeting intrusive investigative techniques aimed at Canadian citizens, permanent residents or corporations — Federal Court did not have jurisdiction to issue warrants. Statutes –––– Interpretation — Extrinsic aids — Legislative record — Com- missions and reports –––– Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 16(2) — Canadian Security Intelligence Service (“CSIS”) brought application for warrants pursuant to ss. 16 and 21 of Canadian Security Intelligence Service Act — Application included request for assistance in collection of intelligence relating to foreign state(s), corporation or person — Opera- tive portions of warrants referred specifically to interception of communications, specifically oral and telecommunications, of certain named Canadian citizens, permanent residents or corporations — Issue arose whether Federal Court had power to issue warrants, pursuant to ss. 16 and 21 of Act, authorizing CSIS to intercept communications of or utilize other intrusive investigative techniques in relation to Canadian citizen, permanent resident or corporation — Application for warrants dismissed — Section 16(1) of Act provides that CSIS may assist Minister of National Defence or Minister of Foreign Affairs in collection of intelligence relating to activities of “(a) any foreign state or group of foreign states; or (b) any person other than (i) a Canadian citizen (ii) a permanent resident ..., or (iii) a corporation incorporated by or under an Act of Parliament or of the legislature of a province” — Section 16(2) states “assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii)” — Degree of potential intrusion on privacy interest of individual named in Part III of warrant, which permits intentional interception, significantly greater than potential intrusion on rights of those whose communications may only be incidentally intercepted — Special Senate Committee Report indicated clear understanding that while requests for assistance could be made to obtain foreign intelligence, “only foreign nationals could be targeted” when CSIS exercising warrant powers in relation to s. 16 request — Section 16(2) clearly prohibits obtaining assistance in relation to activities of foreign state(s), corporation or person, by targeting intrusive investigative techniques aimed at Canadian citizens, permanent residents or corporations — Federal Court did not have jurisdiction to issue warrants — Interpretation of s. 16(2) confirmed when French version of provision considered. Cases considered by Anne Mactavish J.: Canada (Information Commissioner) v. Canada (Minister of National Defence) (2011), 331 D.L.R. (4th) 513, 416 N.R. 105, [2011] 2 S.C.R. 306, 2011 Car- swellNat 1474, 2011 CarswellNat 1475, 2011 SCC 25, 18 Admin. L.R. (5th) 181, [2011] S.C.J. No. 25 (S.C.C.) — referred to Canada Trustco Mortgage Co. v. R. (2005), (sub nom. Canada Trustco Mortgage Co. v. Canada) 2005 D.T.C. 5523 (Eng.), (sub nom. Hypoth`eques 128 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Trustco Canada v. Canada) 2005 D.T.C. 5547 (Fr.), [2005] 5 C.T.C. 215, 2005 SCC 54, (sub nom. Minister of National Revenue v. Canada Trustco Mortgage Co.) 340 N.R. 1, 2005 CarswellNat 3212, 2005 CarswellNat 3213, 259 D.L.R. (4th) 193, [2005] 2 S.C.R. 601, [2005] S.C.J. No. 56 (S.C.C.) — considered Felipa v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FCA 272, 2011 CarswellNat 3921, 2 Imm. L.R. (4th) 177, 340 D.L.R. (4th) 227, 422 N.R. 288, 32 Admin. L.R. (5th) 1, 2011 CarswellNat 6334, 2011 CAF 272, [2012] 1 F.C.R. 3, [2011] F.C.J. No. 1355 (F.C.A.) — considered Hill v. William Hill (Park Lane) Ltd. (1949), [1949] 2 All E.R. 452, [1949] A.C. 530 (U.K. H.L.) — considered Montreal (Ville) v. 2952-1366 Québec inc. (2005), (sub nom. Montréal (City) v. 2952-1366 Québec Inc.) 134 C.R.R. (2d) 196, [2005] 3 S.C.R. 141, 201 C.C.C. (3d) 161, 32 Admin. L.R. (4th) 159, 15 M.P.L.R. (4th) 1, 2005 Car- swellQue 9633, 2005 CarswellQue 9634, 2005 SCC 62, 258 D.L.R. (4th) 595, (sub nom. Montreal (City) v. 2952-1366 Québec Inc.) 340 N.R. 305, 18 C.E.L.R. (3d) 1, 33 C.R. (6th) 78, [2005] S.C.J. No. 63 (S.C.C.) — considered New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), (sub nom. Estabrooks Pontiac Buick Ltd., Re) 116 A.P.R. 201, (sub nom. Fisherman’s Wharf Ltd., Re) 144 D.L.R. (3d) 21, (sub nom. Fisherman’s Wharf Ltd., Re) 7 C.R.R. 46, 1982 CarswellNB 236, (sub nom. Estabrooks Pontiac Buick Ltd., Re) 44 N.B.R. (2d) 201, [1982] N.B.J. No. 397 (N.B. C.A.) — referred to R. v. Chesson (1988), [1988] 6 W.W.R. 193, [1988] 2 S.C.R. 148, 87 N.R. 115, 61 Alta. L.R. (2d) 289, 90 A.R. 347, 43 C.C.C. (3d) 353, 65 C.R. (3d) 193, 1988 CarswellAlta 550, 1988 CarswellAlta 144, EYB 1988-66879, [1988] S.C.J. No. 70 (S.C.C.) — considered R. v. Monney (1999), 1999 CarswellOnt 935, 1999 CarswellOnt 936, 237 N.R. 157, 133 C.C.C. (3d) 129, 171 D.L.R. (4th) 1, 61 C.R.R. (2d) 244, 24 C.R. (5th) 97, 119 O.A.C. 272, [1999] 1 S.C.R. 652, 6 B.H.R.C. 336, [1999] S.C.J. No. 18 (S.C.C.) — considered Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867 (1985), 1985 CarswellMan 183, [1985] 1 S.C.R. 721, [1985] 4 W.W.R. 385, 19 D.L.R. (4th) 1, 59 N.R. 321, 35 Man. R. (2d) 83, 1985 CarswellMan 450, [1985] S.C.J. No. 36 (S.C.C.) — referred to Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, [1998] S.C.J. No. 2 (S.C.C.) — followed Canadian Security Intelligence Service, Re Anne Mactavish J. 129

Statutes considered: Canadian Security Intelligence Service Act, S.C. 1984, c. 21 Generally — referred to Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 Generally — referred to s. 2(1) “permanent resident” — referred to s. 12 — referred to s. 16 — considered s. 16(1) — considered s. 16(2) — considered s. 21 — considered s. 21(2)(d) — considered Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) s. 13 — referred to Authorities considered: Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2008)

APPLICATION by Canadian Security Intelligence Service for warrants pursuant to ss. 16 and 21 of Canadian Security Intelligence Service Act.

Charles Murray, for Applicant Colin Baxter, Amicus Curiae

Anne Mactavish J.:

1 These reasons relate to an application for [...]1 warrants brought by the Canadian Security Intelligence Service (the Service or CSIS) pursuant to sections 16 and 21 of the Canadian Security Intelligence Services Act, R. S 1985, c. C-25. 2 The novel issue raised by this application is whether the Federal Court has the power to issue warrants authorizing the Service to intercept

1Words or ellipses found in square brackets were inserted by the Court and re- present either redactions from the Top Secret Reasons for Order and Order, or are summaries of redacted portions of the Top Secret Reasons for Order and Order or substitutes for words in the Top Secret Reasons for Order and Order that would be injurious to Canada’s national security and international relations if disclosed. The length of the redactions does not reflect the actual length of the redacted portions of the Top Secret Reasons for Order and Order. 130 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

the communications of or utilize other intrusive investigative techniques in relation to [a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a corporation incorporated by or under an Act of Parliament or of the legislature of a province]. 3 The Service contends that subsection 16(2) of the Act does not preclude the naming of [a Canadian citizen, permanent resident or corporation] as [...] whose communications may be intercepted in a warrant issued under sections 16 and 21 of the Act. It says that subsection 16(2) of the Act prohibits it from directing the foreign intelligence assistance provided to a Minister at [a Canadian citizen, permanent resident or corporation]. According to the Service, the request for assistance in this case is directed at [a foreign state or group of foreign states, corporation or person], with the result that the prohibition contained in subsection 16(2) does not apply. 4 [...] I dealt with the matter by Order issued on [...]. I dismissed the Service’s application insofar as it related to [a Canadian citizen, permanent resident or corporation]. These are my reasons for that decision. 5 As will be explained below, I have concluded that, properly interpreted, subsection 16(2) prohibits the interception of the communications of [...] in question in this case, except insofar as those communications may be incidentally intercepted through the exercise of warrant powers in relation to the communications of [a foreign state or group of foreign states, corporation or person].

Background 6 [...] 7 [...] 8 [...] 9 [...] 10 [...] 11 [...] 12 [...]

The Application for Warrants 13 On [...], the Service applied for [...] warrants under section 16 of the Act, [...]. Canadian Security Intelligence Service, Re Anne Mactavish J. 131

14 Section 16 of the Canadian Security Intelligence Services Act provides that: 16. (1) Subject to this section, the Service may, in relation to the defence of Canada or the conduct of the international affairs of Can- ada, assist the Minister of National Defence or the Minister of For- eign Affairs, within Canada, in the collection of information or intelligence relating to the capabilities, intentions or activities of (a) any foreign state or group of foreign states; or (b) any person other than (i) a Canadian citizen, (ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or (iii) a corporation incorporated by or under an Act of Par- liament or of the legislature of a province. (2) The assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii). (3) The Service shall not perform its duties and functions under subsection (1) unless it does so (a) on the personal request in writing of the Minister of National Defence or the Minister of Foreign Affairs; and (b) with the personal consent in writing of the Minister. (Emphasis added) 16. (1) Sous réserve des autres dispositions du présent article, le Ser- vice peut, dans les domaines de la défense et de la conduite des affaires internationales du Canada, prêter son assistance au ministre de la Défense nationale ou au ministre des Affaires etrang`´ eres, dans les limites du Canada, a` la collecte d’informations ou de renseignements sur les moyens, les intentions ou les activités: a) d’un Etat´ etranger´ ou d’un groupe d’Etats´ etrangers;´ b) d’une personne qui n’est ni un citoyen canadien, ni un rési- dent permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés, ni une personne morale constituée en vertu d’une loi fédérale ou provinciale. (2) L’assistance autorisée au paragraphe (1) est subordonnée au fait qu’elle ne vise pas des personnes mentionnées aux sous-alinéas (1)b)(i), (ii) ou (iii). 132 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Consentement personnel des ministres (3) L’exercice par le Service des fonctions visées au paragraphe (1) est subordonné: a)a ` une demande personnelle ecrite´ du ministre de la Défense nationale ou du ministre des Affaires etrang`´ eres; b) au consentement personnel du ministre. (je souligne) 15 In accordance with the requirements of subsection 16(1) of the Act, the application included a request for assistance in the collection of information and intelligence with respect to the capabilities, intentions and activities of [a foreign state or group of foreign states, corporation or person]. This request came from the Minister of [...] and was addressed to the Minister of Public Safety. 16 Also included with the application was the personal consent of the Minister of Public Safety to having CSIS assist in the collection of information and intelligence with respect to the capabilities, intentions or activities of [a foreign state or group of foreign states, corporation or person]. 17 The application and the draft warrants were styled as being “In the Matter of [a foreign state or group of foreign states, corporation or person]”. However, the operative portions of the warrants referred specifically to the interception of the communications of certain named [...]. 18 By way of example, Part III, Section 1 of the General Intercept and Search Warrant states “I authorize the Director and any employee of the Service acting under this authority to intercept any oral and telecommunications destined to, received by or originating from ...”. [...] 19 Provision is also made in the warrants for the interception of the communications of [...]. 20 The warrants also contain a list of [...] whose communications may be incidentally intercepted in the exercise of the powers granted by the warrants. [...]

The Warrant Hearings 21 An ex parte hearing was held in relation to the warrant application on the morning of [...]. At the request of the Court, the deponent of the affidavit filed in support of the application took the stand and was examined by the Court under oath. Written and oral submissions were also received from counsel for the Service. Canadian Security Intelligence Service, Re Anne Mactavish J. 133

22 At the conclusion of the hearing, I advised counsel that I was prepared to sign the warrants, as they related to [...], but that I was not prepared to sign the warrants in relation to [...] without further consideration and without the benefit of submissions from an amicus curiae. 23 [...] The [...] warrants were then signed in their amended form. 24 Following discussions at the hearing with counsel for the Service, Mr. Colin Baxter was appointed to act as an amicus. A case management meeting was then held with CSIS counsel and Mr. Baxter during the af- ternoon of [...]. 25 A timetable was established at the case management meeting for the procedural steps to be followed in relation to this matter, [...]. The case was then put over to [...] for a further hearing on the jurisdictional question. The hearing was completed on [...], in the presence of CSIS counsel and the amicus.

The Consequences of Naming [a Natural or Corporate Person] in Part III of a Warrant 26 Paragraph 21(2)(d) of the CSIS Act specifies that an application to a judge for a warrant shall be made in writing and shall identify the person, if known, whose communication is proposed to be intercepted or who has possession of the information, record, document or thing proposed to be obtained. 27 The intrusive nature of wiretapping and other investigative techniques means that the communications of innocent third parties may be incidentally intercepted along with the communications of the individual or entity named as the target of the investigation. This is because of the association of the innocent third party with the [natural or corporate person] named in the warrant, or because of the nature and location of the interception [...]. 28 Consequently, a warrant application must set out the [natural or corporate person] whose communication are proposed to be intercepted, and must also carefully describe the place or places at which the interception will take place so as to restrict, to the extent possible, the privacy in- fringement. To the extent possible, the authorization must attempt to minimize intrusions into the privacy of innocent third parties. 29 The practice of this Court has been to require the Service to include in warrant applications a list of all of those [...] known to the Service whose communications may be incidentally intercepted in the exercise of the 134 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

powers granted by the warrant. These [...] are known colloquially as “Vanweenans”, from the decision of the Supreme Court of Canada in R. v. Chesson, [1988] 2 S.C.R. 148 (S.C.C.) [hereinafter Vanweenan]. 30 Before addressing the jurisdictional issue, it is helpful to start by identifying the practical consequences that flow from [...] being named in Part III of a warrant as [...] whose communications may be intentionally intercepted. It is instructive to then contrast these consequences with the degree of intrusion on the privacy of [...] that can flow from [...] being named as [...] whose communications may only be incidentally intercepted in the exercise of the powers granted by the warrants. 31 As will be seen from the discussion that follows, the degree of the potential intrusion on the privacy interests of [...] named in Part III of a warrant is significantly greater than the potential intrusion on the rights of [...] whose communications may only be incidentally intercepted. 32 Where a designated judge authorizes the interception of the communications of [...] specifically named in Part III of a warrant, those communications can then be intentionally intercepted. Depending on the powers granted by the Court, this may include communications emanating from [various locations]. Warrants may also authorize [the person to whom it is directed to intercept any communication or obtain any information, record, document or thing.] 33 In contrast, where [...] is identified in a warrant as a Vanweenan, the degree of possible intrusion on the privacy of [...] is greatly restricted. 34 For example, the communications of the [...] named as a Vanweenan cannot be intentionally intercepted. These [...] communications can only be intercepted [in certain limited circumstances.] 35 [...] 36 As a result, it is clear that the potential intrusion on the privacy interests of [...] named in Part III of a warrant is significantly greater than the degree of potential intrusion that can occur with respect to those [...] whose communications may only be incidentally intercepted in the exercise of the powers granted by the warrants. 37 [...] 38 [...] 39 [...] 40 [...] Canadian Security Intelligence Service, Re Anne Mactavish J. 135

41 More fundamentally, [...] cannot confer jurisdiction on the Court to authorize the warrant where that jurisdiction cannot otherwise be found in the enabling legislation. 42 Before leaving this issue, it should be noted that while there is a question as to whether [a Canadian citizen, permanent resident or corporation] can be named in Part III of a warrant authorized under sections 16 and 21 of the CSIS Act as a [natural or corporate person] whose communications are proposed to be intercepted, there is no dispute that the private communications of [Canadian citizens, permanent residents or corporations] can be incidentally intercepted as a result of the duly- authorized interception of the communications of [a foreign state or group of foreign states, corporation or person]. 43 Nor is there any dispute that the private communications of [Cana- dian citizens, permanent residents or corporations] can lawfully be intercepted where a warrant has been obtained under section 12 of the Act because there are reasonable grounds for suspecting that those communications relate to a threat to the security of Canada. 44 With this understanding of the consequences that flow from the naming of [a natural or corporate person] in Part III of a warrant, I turn now to consider the jurisdictional question raised by this application. This requires a close examination of the wording and legislative history of section 16 of the Canadian Security Intelligence Services Act, and the application of accepted principles of statutory interpretation to the provision in question.

Principles of Statutory Interpretation 45 In interpreting section 16 of the Act, the Court must have regard to accepted principles of statutory interpretation. 46 In Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), the Supreme Court of Canada described the preferred approach to statutory interpretation, stating that “[t]oday there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parlia- ment”: at para. 21. See also Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (S.C.C.) at paragraph 27. 47 In Canada Trustco Mortgage Co. v. R., 2005 SCC 54, [2005] 2 S.C.R. 601 (S.C.C.), the Supreme Court noted that “The interpretation of 136 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole”: at para. 10. 48 The Court went on in the same paragraph in Canada Trustco to note that “when the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process”. However, the Court also noted that “where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role”. In such cases, “[t]he relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole”. 49 In Montreal (Ville) v. 2952-1366 Qu´ebec inc., 2005 SCC 62, [2005] 3 S.C.R. 141 (S.C.C.), the Supreme Court observed that “the more general the wording adopted by the lawmakers, the more important the context becomes”. The Court went on to caution that the contextual approach to statutory interpretation has its limits, noting that “Courts perform their interpretative role only when the two components of communication converge toward the same point: the text must lend itself to interpretation, and the lawmakers’ intention must be clear from the context: both quotes from para. 15. 50 The Federal Court of Appeal recently provided a helpful summary of the principles of statutory interpretation in Felipa v. Canada (Minister of Citizenship & Immigration), [2011] F.C.J. No. 1355 (F.C.A.). There, the majority observed that in determining what Parliament mean by certain words, consideration must be given to the entire context of the provision in question in order to ascertain Parliament’s intent, noting that this intent is “[t]he most significant element of this analysis”: citing R. v. Mon- ney, [1999] 1 S.C.R. 652 (S.C.C.) at para. 26. 51 Finally, in Rizzo & Rizzo Shoes Ltd., Re, above, the Supreme Court made it clear that although Courts must be alive to the frailties associated with its use, legislative history is nevertheless a legitimate source of assistance in statutory interpretation cases: see para.35.

Does Section 16 Prohibit the Naming of [a Canadian citizen, permanent resident or corporation] in Part III of a Warrant? 52 This takes us to the heart of the matter, which is whether section 16 of the Canadian Security Intelligence Services Act prohibits the naming of [a Canadian citizen, permanent resident or corporation] in a warrant as [a Canadian Security Intelligence Service, Re Anne Mactavish J. 137

natural or corporate person] whose communications are proposed to be intercepted, when the warrant is issued in relation to a request for assistance in the collection of information or intelligence from the Minister of National Defence or the Minister of Foreign Affairs relating to the capabilities, intentions or activities of [a foreign state or group of foreign states, corporation or person]. 53 CSIS submits that subsection 16(2) of the Act does not prohibit the naming of [a Canadian citizen, permanent resident or corporation] in such circumstances. CSIS says that subsection 16(2) of the Act prohibits it from directing foreign intelligence assistance at [Canadian citizens, permanent residents or corporations]. According to the Service, the request for assistance in this case is directed at [a foreign state or group of foreign states, corporation or person], and not at [a Canadian citizen, permanent resident or corporation]. As a consequence, the prohibition contained in subsection 16(2) does not apply. 54 The Service argues that if subsection 16(2) is interpreted to prohibit the foreign intelligence assistance contemplated by this application, then the intent of the foreign intelligence regime in the CSIS Act would be frustrated. It could not have been Parliament’s intention that [...]. Rather, CSIS says, Parliament’s intent was that it not be able to carry out foreign intelligence investigation on [Canadian citizens, permanent residents or corporations]. 55 The Service further submits that if Parliament had intended to place an absolute bar on the interception of the communications of [Canadian citizens, permanent residents or corporations] under section 16, it would have done so. Instead, it took a more “nuanced” approach, merely prohibiting the directing of assistance at [Canadian citizens, permanent residents or corporations]. According to CSIS, this recognized the “practical reality” of intelligence gathering, while protecting Canadians such as professors and journalists from becoming targets of foreign intelligence collection. 56 CSIS contends that representations made by the Government of Can- ada during Senate hearings that preceded the enactment of the Canadian Security Intelligence Services Act demonstrate that the prohibition in section 16(2) was not intended to apply in a situation such as this. 57 [...] 58 [...] 138 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

59 Put another way, the Service submits that a section 16 warrant is directed at [a foreign state or group of foreign states, corporation or person and] does not amount to “directing assistance” at [a Canadian citizen, permanent resident or corporation] in a way that is prohibited by subsection 16(2) of the Act. 60 In support of its position, CSIS points to comments made by the Honourable Jean-Luc Pepin, the then-Minister of State (External Rela- tions) in 1983 when he was appearing before the Special Committee of the Senate on the Canadian Security Intelligence Service. 61 In explaining the intent of the prohibition against collecting foreign intelligence from [Canadians] under the proposed Service’s foreign intelligence mandate, the Minister stated: (...) this agency will not be able to take action or carry out investigation on Canadians. (...) it will not be able to “target” Canadians. It will only be able to investigate foreign governments and individuals. (at p. 11:23) 62 [...] 63 [...] Minister Pepin stated that: I think you are overlapping. Let us take Carghill as an example. The information on Carghill is corporate information: it is not personal information. The fact that there is an exclusion — and I said so in my paper — and I repeat, “Canadians, both individual and corporate, could only be the subject of an investigation under the primary [threat-related]2 mandate of the agency. So, we have not tried to ex- tract directly foreign information from Canadian citizens or Canadian corporate bodies. (at p. 11:31) 64 The Service argues that [...] is legitimate foreign intelligence for the purposes of the Act. 65 However, it is necessary to have an understanding of the legislative history of section 16 of the Act in order to put Minister Pepin’s comments into their proper context. 66 In the wake of the Report of the McDonald Commission, the Cana- dian government decided to create a civilian security service. To this end, Bill C-157 was introduced in the House of Commons in May of 1983. Bill C-157 would have created the Canadian Security Intelligence Service.

2Text in square bracket appears in unredacted decision Canadian Security Intelligence Service, Re Anne Mactavish J. 139

67 Amongst other things, Bill C-157 contained a provision that was similar, although not identical to what became subsection 16(1) in the 1985 CSIS Act. However, it is important to note that there was no provision comparable to subsection 16(2) in Bill C-157. 68 According to a 1984 publication of the Library of Parliament, “[a]lmost immediately [Bill C-157]3 became the cynosure of negative critical comment. It was alleged to be an attack on civil liberties, giving the proposed service extremely wide powers, insulating the government from accountability, and failing to institute a precise mandate or a worka- ble review system”: The Canadian Security Intelligence Service: Library of Parliament, 18 September 1984, at p. 8. 69 The predecessor to what is now subsection 16(1) of the CSIS Act was a particular target of criticism. 70 The Library of Parliament report goes on to note that because of the vehemence of the opposition to Bill-157, the Government decided against sending the Bill for second reading, referring it instead to a Spe- cial Committee of the Senate. Hearings of the Special Senate Committee were held during the summer of 1983. In the course of these hearings, the concern was expressed that the Service’s foreign intelligence gathering mandate could be used to investigate [Canadian citizens, permanent residents or corporations]. 71 A report was subsequently issued by the Special Senate Committee recommending substantial changes to the legislation so that there could be “a more appropriate balance between collective and individual security”: The Canadian Security Intelligence Service, at para. 26. 72 Bill-157 was subsequently allowed to die on the Order Paper. In the next session of Parliament, a new Bill — Bill C-9 — was introduced. Bill C-9 incorporated almost all of the changes that had been recommended by the Report of the Special Senate Committee. After proceeding virtually unchanged through the legislative process, Bill C-9 was pro- claimed in force in 1984. 73 As noted, the Service relies upon statements made by Minister Pepin [...]. It is important to understand, however, that these statements were made in the context of the Special Senate Committee hearings on Bill C- 157, and did not relate to the legislation as it appear in its amended form in Bill C-9.

3Text in square bracket appears in unredacted decision 140 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

74 While section 18 of C-157 was similar to section 16(1) of current Act, C-157 did not contain provision similar to subsection 16(2) of the Cana- dian Security Intelligence Services Act. It will be recalled that subsection 16(2) states that “[t]he assistance provided pursuant to subsection (1) shall not be directed at any person referred to in subparagraph (1)(b)(i), (ii) or (iii)”. [...] The comments of Minister Pepin relied upon by the Service must thus be considered with this in mind. 75 As the Service points out, the Report of the Special Senate Commit- tee was alive to the concern that Canadians such as university professors with knowledge of a foreign state could become the targets of Service foreign intelligence gathering. Noting that this concern “may have substance”, the Report recommended that the predecessor provision to what is now section 16 be amended “to make it completely clear that the targeting of Canadians or permanent residents is forbidden”: at para. 52. 76 According to the Service, in adopting the language of “directing assistance” in subsection 16(2) of the Act, Parliament gave effect to the substance of this concern, without compromising the legitimate collection of foreign intelligence against [a foreign state or group of foreign states, corporation or person] within Canada. 77 It is, however, important to note that in the paragraph immediately preceding the one relied upon by the Service, the Report of the Special Senate Committee stated that: According to the Minister, section 18 [the predecessor to what is now section 16(1) of the Act]4 is intended to provide necessary support for the collection of foreign intelligence in Canada. At present, the government has inadequate means in this area. Section 18 would fill that gap, allowing CSIS to assist the relevant government depart- ments. What would distinguish the agency’s role in this area from that with respect to security intelligence would be the fact that only foreign nationals could be targeted, and the fact that the agency would only act at the request of a minister of the Crown. (at para. 51, emphasis added) 78 [...] As is apparent from paragraph 51 of the Report of the Special Senate Committee, it was clearly the understanding of the Senate Com- mittee that while requests for assistance could be made to obtain foreign intelligence with respect to [a foreign state or group of foreign states, corporation or person], “only foreign nationals could be targeted” when

4Text in square bracket appears in unredacted decision Canadian Security Intelligence Service, Re Anne Mactavish J. 141

the Service was exercising warrant powers in relation to a section 16 request. 79 There does not appear to be any contemplation by the Senate Com- mittee that [Canadian citizens, permanent residents or corporations] could be “targeted” by a warrant obtained under what is now section 16 of the Act. 80 I note that the Service is now taking the position that [a Canadian citizen, permanent resident or corporation] would not be “targeted” by the warrants sought in this case, and that the “target” of the warrants is [...]. 81 Similarly, in paragraph 18 of the Service’s written submissions, there is a discussion of [...] 82 The Service now says that “targeting” is a term of art in the intelligence world, and that its choice of language in its written submissions was “unfortunate”. I do not agree that it was an unfortunate choice of language. It seems to me that paragraph seven of the Service’s written submissions accurately describes what happens when [a natural or corporate person] is named in Part III of a warrant. 83 While a request for assistance may be made in relation to the capabilities, intentions or activities of [a foreign state or group of foreign states, corporation or person], the assistance is obtained by directing or targeting the intrusive investigative techniques at [...]. When [...] are [Canadian citizens, permanent residents or corporations], that is precisely [what] subsection 16(2) seeks to prohibit. 84 Subsection 16(2) of the Canadian Security Intelligence Services Act clearly prohibits the provision of assistance by the Service in response to a Ministerial request, where that request is directed at [a Canadian citizen, permanent resident or corporation]. A [Canadian citizen, permanent resident or corporation] is a target of the warrants sought here. As a consequence, I am satisfied that I do not have the jurisdiction to issue warrants authorizing the Service to intentionally intercept the communications of, or utilize other intrusive investigative techniques in relation to [a Canadian citizen, permanent resident or corporation], including [...]. 85 My interpretation of subsection 16(2) is confirmed when regard is had to the French version of the provision which states that “[l]’assistance autorisée au paragraphe (1) est subordonnée au fait qu’elle ne vise pas des personnes mentionnées aux sous-alinéas (1)b)(i), (ii) ou (iii). (my emphasis) 142 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

86 The English and the French version of legislation have equal authenticity, and neither is to be preferred over the other: see the Official Lan- guages Act, 1985, c.31 (4th Supp.), s. 13 and Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867, [1985] 1 S.C.R. 721 (S.C.C.), at para. 125. As the two versions are equally authoritative, both must be examined in order to identify the intent of Parliament: see New Brunswick v. Estabrooks Pontiac Buick Ltd., [1982] N.B.J. No. 397 (N.B. C.A.), per La Forest J.A. 87 I agree with the amicus that the use of the verb “viser” in the French version of subsection 16(2) is instructive, and that it supports the view that the direct interception of [a Canadian citizen’s, permanent resident’s or corporation’s] communications is prohibited by the Act. 88 According to Harrap’s New Standard French and English Diction- ary, “viser” means “with a view to”, “relative to”, “alluding to” or “affected by”. It also includes the notions of “regarder attentivement”, “s’appliquer o,ˆ and “diriger attentivement son regard vers le but, la cible a` atteindre”: Le Petit Robert — Nouvelle Edition´ du Petit Robert de Paul Robert. 89 In my view, the activities contemplated by the [...] warrants relative to [a Canadian citizen, permanent resident or corporation] are investigative activities vis a` vis [a Canadian citizen, permanent resident or corporation] that correspond to these meanings. 90 I am further satisfied that the interpretation of subsection 16(2) suggested by the Service must be rejected as it would effectively render the provision devoid of any real meaning insofar as the protection afforded to [Canadian citizens, permanent residents or corporations] is concerned. 91 It will be recalled that CSIS’s argument is that subsection 16(2) of the Act only prohibits it from directing foreign intelligence assistance at [a Canadian citizen, permanent resident or corporation], but does not prohibit the naming of [a Canadian citizen, permanent resident or corporation] in a warrant as [...] whose communications are proposed to be intercepted where the request for assistance is directed at [a foreign state or group of foreign states, corporation or person] in accordance with subsection 16(1) of the Act. 92 However, subsection 16(1) already limits the ability of the Service to provide assistance to Ministers with respect to the collection of foreign intelligence. Information or intelligence may be sought with respect to the capabilities, intentions or activities of [a foreign state or group of foreign states, corporation or person], as long as [...] is not a Canadian Canadian Security Intelligence Service, Re Anne Mactavish J. 143

citizen, a permanent resident or a Canadian company. Thus all assistance provided to Ministers under subsection 16(1) is, by definition, “directed at” foreign states, companies or individuals. 93 Subsection 16(2) then contains a further prohibition on the provision of assistance, stating that “[t]he assistance provided pursuant to subsection (1) shall not be directed at ... [a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refu- gee Protection Act, or a corporation incorporated by or under an Act of Parliament or of the legislature of a province]”. If the Service’s interpretation of subsection 16(2) is accepted, then this provision would be su- perfluous, as the assistance provided under subsection 16(1) would always be exclusively “directed at” foreign states, companies or individuals. 94 In other words, subsection 16(2) would never have any practical application. [...] named in warrants as [...] whose communications are proposed to be intercepted could never be the person or entity at whom the request for assistance was directed as a result of the limitation contained in subsection 16(1). Such an interpretation must clearly be rejected. 95 In interpreting statutory provisions, it is presumed that every word in a statute is intended “to have a specific role to play in advancing the legislative purpose”: see Ruth Sullivan, Sullivan on the Construction of Statutes, (5th Ed.) at p. 210. Moreover, “when the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before” and that the phrase “add[s] something which would not be there if the words were left out”: Hill v. William Hill (Park Lane) Ltd., [1949] A.C. 530 (U.K. H.L.), at 546, as cited in Sullivan, above. 96 My conclusion that subsection 16(2) was intended to prevent [a Cana- dian citizen, permanent resident or corporation] being named as [...] whose communications are proposed to be intercepted under warrants obtained pursuant to section 16 of the CSIS Act is further borne out when regard is had to the legislative history of Bill C-9. 97 As was noted earlier, as a result of the serious concerns voiced with respect to Bill C-157, the Bill was allowed to die on the Order paper. In 1984, Bill C-9 was introduced, incorporating almost all of the changes that had been recommended by the Report of the Special Senate Com- mittee. One of these changes was the addition of the prohibition contained in what is now subsection 16(2). 144 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

98 The Minister’s “Black Book” explains the rationale for the addition of subsection 16(2) in Bill C-9, stating that the predecessor to section 16(1) “was seen by many critics as a ‘hidden agenda’ enabling the Ser- vice to go far beyond the bounds of security intelligence. It was seen as justifying virtually unlimited collection and permitting the Service to do indirectly what it could not do directly...” The document goes on to note that the additions to the legislation were intended “to more expressly prohibit the targeting of Canadians”. 99 The effect of this amendment was also discussed in the Proceedings of the House of Commons’ Standing Committee on Justice and Legal Affairs. In the course of the Committee hearings, there was a discussion as to how section 16 would work in relation to companies, and the following question was put to the Minister of Justice: First of all, when we were going through this before, I mentioned the point about the corporation, because what you are trying to exclude is a Canadian citizen, a permanent resident, and a Canadian corporation. But I raised the point that foreigners can come in and incorpo- rate a Canadian company as long as they met the requirement of certain Canadian directors and that type of thing. Therefore, it struck me that there was a loophole in terms of legal drafting. I am wondering if you agree of disagree with that? 100 The then-Solicitor General of Canada, the Honourable Robert Kaplan, responded by stating: On point one, you wonder whether foreigners can get a corporation exempted by making it a Canadian corporation. I agree with you that is possible, but we wanted to ensure that Canadian corporations were protected and have given a wider net, and what we would do in the event of proper authorization for targeting of a foreigner is to go behind the corporation to the individuals who could be targeted pursuant to this clause. (Emphasis added) 101 Thus it is clear that for Minister Kaplan, it might be possible to cir- cumvent the prohibition on targeting Canadian companies contained in section 16 of the Act by intercepting the communications of the company’s directors, officers and employees, provided, however, that these individuals were individuals who could be targeted under section 16. Im- plicit in this statement is the understanding that there may be individuals who could not be targeted pursuant to section 16. Who are these individuals? Subsection 16(2) tells us that they are Canadian citizens, permanent residents and Canadian corporations. Canadian Security Intelligence Service, Re Anne Mactavish J. 145

102 In other words, it was the view of the Solicitor General of the day that authorization could be granted by the Court under section 16 of the Act to intercept the communications of representatives of a Canadian company, provided that these individuals were foreigners, and not Canadians. 103 The example discussed by the Minister involved the obtaining of information regarding a Canadian entity (which could not itself be the subject of a section 16 warrant), through the interception of the communications of its employees. According to the Minister, this would be permissible, as long as the employee is not a Canadian. 104 [...] 105 [...]

Conclusion 106 As I have explained in the above analysis, I have concluded that, properly interpreted, subsection 16(2) prohibits the interception of the communications of [a Canadian citizen, permanent resident or corporation], including [...], except insofar as those communications may be incidentally intercepted through the exercise of warrant powers in relation to the communications of [a foreign state or group of foreign states, corporation or person]. As a result, I have dismissed the Service’s application for [...] warrants, insofar as it relates to [a Canadian citizen, permanent resident or corporation]. 107 I would like to thank both counsel for their courteous and helpful submissions which were ably put together under significant time constraints. Application dismissed. 146 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

[Indexed as: Muhammad v. Canada (Minister of Citizenship and Immigration)] Arshad Muhammad, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-1735-12 2012 FC 1483 Richard Boivin J. Heard: October 2, 2012 Judgment: December 18, 2012 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Minister’s delegate rejected applicant’s Pre-Removal Risk Assessment (“PRRA”) application — Applicant made application for judicial review of decision — Application granted — Minister’s Delegate recognized risk of questioning and possible detention upon arrival in Pakistan — She was in possession of initial PRRA, which had concluded to presence of risk and extremely difficult conditions for detained persons — Given use of insufficient documentation to justify conclusions which were contrary to initial PRRA assessment, and contrary to bulk of country conditions evidence, Minister’s delegate’s treatment of evidence was unreasonable. Cases considered by Richard Boivin J.: Benitez v. Canada (Minister of Citizenship & Immigration) (2006), 54 Imm. L.R. (3d) 27, 290 F.T.R. 161 (Eng.), 2006 FC 461, 2006 CarswellNat 1062, [2007] 1 F.C.R. 107, 2006 CarswellNat 2496, 40 Admin. L.R. (4th) 159, 2006 CF 461, [2006] F.C.J. No. 631 (F.C.) — referred to 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 Farzam v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3445, 2005 FC 1432, 2005 CF 1432, 2005 CarswellNat 5862, [2005] A.C.F. No. 1757, [2005] F.C.J. No. 1757 (F.C.) — considered Fi v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CarswellNat 2859, 2006 FC 1125, 2006 CF 1125, 2006 CarswellNat 5299, 56 Imm. L.R. (3d) 131, [2007] 3 F.C.R. 400, [2006] F.C.J. No. 1401 (F.C.) — distinguished Geza v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FCA 124, 2006 CarswellNat 706, (sub nom. Kozak v. Canada (Minister of Citizenship Muhammad v. Canada (MCI) 147

& Immigration)) 349 N.R. 309, 52 Imm. L.R. (3d) 163, 2006 CAF 124, [2006] 4 F.C.R. 377, 2006 CarswellNat 2310, 267 D.L.R. (4th) 54, 41 Ad- min. L.R. (4th) 45, [2006] F.C.J. No. 477 (F.C.A.) — referred to Guzman v. Canada (Minister of Citizenship & Immigration) (2004), 2004 CF 838, 2004 CarswellNat 3080, 2004 FC 838, 2004 CarswellNat 1818, [2004] F.C.J. No. 1033 (F.C.) — considered John v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 1656, 2012 FC 688, 2012 CarswellNat 2650, 2012 CF 688, [2012] F.C.J. No. 657, [2012] A.C.F. No. 657 (F.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CarswellNat 1128, 249 D.L.R. (4th) 306, 2005 CAF 1, 329 N.R. 346, 41 Imm. L.R. (3d) 157, 2005 CarswellNat 30, 2005 FCA 1, [2005] 3 F.C.R. 239, [2005] F.C.J. No. 1 (F.C.A.) — referred to Liyanagamage v. Canada (Secretary of State) (1994), (sub nom. Liyanagamage v. Canada (Minister of Citizenship & Immigration)) 176 N.R. 4, 1994 Car- swellNat 1327, [1994] F.C.J. No. 1637 (Fed. C.A.) — referred to Mancia v. Canada (Minister of Citizenship & Immigration) (1998), [1998] 3 F.C. 461, 45 Imm. L.R. (2d) 131, 1998 CarswellNat 2069, 161 D.L.R. (4th) 488, 226 N.R. 134, 147 F.T.R. 307 (note), 1998 CarswellNat 811, [1998] F.C.J. No. 565 (Fed. C.A.) — followed N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to 148 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Placide c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), (sub nom. Placide v. Canada (Minister of Citizenship and Immigration)) 359 F.T.R. 217 (Eng.), 2009 CF 1056, 2009 FC 1056, 2009 CarswellNat 5444, 2009 CarswellNat 3181 (F.C.) — considered R. v. F. (W.J.) (1999), 180 Sask. R. 161, 205 W.A.C. 161, 27 C.R. (5th) 169, 247 N.R. 62, [1999] 12 W.W.R. 587, [1999] 3 S.C.R. 569, 178 D.L.R. (4th) 53, 1999 CarswellSask 625, 1999 CarswellSask 626, 138 C.C.C. (3d) 1, [1999] S.C.J. No. 61 (S.C.C.) — followed R. v. Khelawon (2006), 355 N.R. 267, 274 D.L.R. (4th) 385, 220 O.A.C. 338, [2006] 2 S.C.R. 787, 42 C.R. (6th) 1, 2006 CarswellOnt 7825, 2006 Cars- wellOnt 7826, 2006 SCC 57, 215 C.C.C. (3d) 161, [2006] S.C.J. No. 57 (S.C.C.) — referred to Suing v. Canada (Attorney General) (2012), 2012 CarswellNat 635, 2012 FC 297, 2012 CF 297, 2012 CarswellNat 1533, [2012] F.C.J. No. 327 (F.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (1999), 65 C.R.R. (2d) 344, 173 F.T.R. 1, 1999 CarswellNat 1112, 50 Imm. L.R. (2d) 183, [1999] F.C.J. No. 865 (Fed. T.D.) — referred to Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Admin. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 Car- swellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — distinguished Ventura v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3134, 2010 FC 871, 2010 CF 871, 2010 CarswellNat 3850, 90 Imm. L.R. (3d) 264, [2010] F.C.J. No. 1079 (F.C.) — referred to Wang v. Canada (Minister of Citizenship & Immigration) (2003), 2003 CF 833, 2003 CarswellNat 2643, 2003 FC 833, 2003 CarswellNat 2029, [2003] F.C.J. No. 1083, [2003] A.C.F. No. 1083 (F.C.) — referred to Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — referred to Zheng v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 4926, 2011 FC 1359, 2011 CF 1359, 2011 CarswellNat 5641, [2011] F.C.J. No. 1659, [2011] A.C.F. No. 1659 (F.C.) — distinguished Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — considered Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 Generally — referred to Muhammad v. Canada (MCI) 149

Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 3(1)(h) — referred to s. 3(1)(i) — referred to s. 3(2)(h) — referred to s. 3(3)(a) — referred to s. 3(3)(f) — referred to s. 6(1) — referred to s. 6(2) — referred to s. 96 — considered s. 97 — considered s. 98 — referred to s. 112 — referred to s. 112(3) — considered s. 112(3)(c) — considered s. 113 — referred to s. 113(d) — considered s. 113(d)(i) — considered s. 113(d)(ii) — considered s. 114(1) — referred to s. 114(1)(b) — considered Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Article 1F — considered Article 1F(a) — considered Article 1F(c) — considered Regulations considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Immigration and Refugee Protection Regulations, SOR/2002-227 Generally — referred to s. 161 — referred to s. 162 — referred to s. 172 — considered s. 172(1) — considered s. 172(2) — considered

APPLICATION by applicant for judicial review of decision of Minister’s delegate which rejected applicant’s Pre-Removal Risk Assessment application.

Lorne Waldman, Clarisa Waldman, for Applicant Sharon Stewart Guthrie, Jane Stewart, for Respondent 150 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

Richard Boivin J.:

1 This is an application for judicial review of a decision made by a Minister’s Delegate rejecting the applicant’s Pre-Removal Risk Assess- ment (PRRA) application. The applicant is identified under subsection 112(3) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. Therefore, his application for protection was examined under the structure set out in section 172 of the Immigration and Refugee Pro- tection Regulations, SOR/2002-227 [the Regulations]. 2 For the following reasons, the application for judicial review will be allowed.

Factual Background 3 Mr. Arshad Muhammad (the applicant) is a citizen of Pakistan and a Sunni Muslim. He arrived in Canada on August 2, 1999, at Pearson In- ternational Airport in Toronto, using a false Italian passport (Applicant’s Application Record, Vol 1, Affidavit of Humera Ahsan, Exhibit “A”, p 72). The applicant was interviewed at the Port of Entry by immigration officials where he declared having been a member of a Sunni party in Pakistan. 4 Upon arriving in Canada, the applicant initially resided in Montreal (Applicant’s Application Record, Vol 1, p 72). He claimed refugee status, but his claim was denied on October 16, 2001 (Applicant’s Applica- tion Record, Vol 2, pp 488-501). The Board held that the applicant should be excluded from the definition of a “Convention Refugee” pursuant to Articles 1F(a) and (c) of the UNHCR 1951 Convention Relating to the Status of Refugees (the Refugee Convention) because of his membership to a terrorist organization banned by the Pakistani government (Applicant’s Application Record, Vol 2, pp 497 and 880). The Board based its decision on the applicant’s declarations at the Port of Entry and statements he made in his Personal Information Form (PIF) about being a member of a terrorist group for a brief period of time (Applicant’s Appli- cation Record, Vol 1, Affidavit of Humera Ahsan, Exhibit “A”, p 73). The applicant sought judicial review of the decision on his refugee claim to this Court, but application for leave was denied on February 6, 2002 (Applicant’s Application Record, Vol 2, p 881). The applicant is the subject of a removal order which became effective on February 5, 2002 (Ap- plicant’s Application Record, Vol 2, p 514). Muhammad v. Canada (MCI) Richard Boivin J. 151

5 The applicant now claims that the declarations he made at the Port of Entry and on his PIF were untrue — he claims to have been coached to say he was a member of this organization in order to have his refugee claim accepted (Applicant’s Application Record, Vol 2, p 881). 6 The applicant subsequently applied for permanent residence on humanitarian and compassionate grounds, which was refused on November 5, 2002. He submitted a first PRRA application on October 30, 2002, which was also refused on March 19, 2003 (Applicant’s Application Re- cord, Vol 2, p 881). Prior to receiving these two (2) negative decisions, the applicant allegedly wrote to his former counsel advising that he was leaving Montreal and going back to Pakistan; however, he relocated to Toronto (Tribunal Record, Vol 1, p 5). 7 The applicant was told to attend an interview with CBSA in January 2003 but did not, claiming he was afraid he would be jailed and returned to Pakistan if he went to the interview (Applicant’s Application Record, Vol 2, p 881). A warrant for his removal was issued on July 3, 2003. 8 The applicant worked in the construction industry in Toronto until his arrest in July 2011. The applicant was apprehended a few days after the Canada Border Services Agency (CBSA) had released his name, photograph, and last known whereabouts, along with that of twenty-nine (29) other individuals, on its website under the heading “Wanted by the CBSA” (hereafter, “CBSA’s list”). The website description stated: “These individuals are the subject of an active Canada-wide warrant for removal because they are inadmissible to Canada. It has been determined that they violated human or international rights under the Crimes Against Humanity and War Crimes Act, or under international law.” (Applicant’s Application Record, Vol 2, p 881). The applicant is currently detained at the Toronto West Detention Centre. 9 The applicant claims that his case has received a significant amount of publicity after having been on the CBSA’s list and as a result of Cana- dian officials publicly stating that the applicant was linked to an Islamist organization involved in terrorist attacks in Pakistan. According to the applicant, this media attention is widespread in Canada, but also in Paki- stan (Applicant’s Application Record, Vol 2, p 882). 10 The applicant submits that his family was threatened in Pakistan. On July 28, 2011, individuals allegedly went to the applicant’s family home and threatened to kill him. On August 23, 2011, the applicant’s brother was allegedly attacked and asked about the applicant’s whereabouts (Ap- plicant’s Application Record, Vol 2, p 882). 152 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

11 The applicant submitted a second PRRA application on August 3, 2011, claiming that new facts had arisen since July 2011. He submitted that he was a person in need of protection because of the publicity sur- rounding his case (Applicant’s Application Record, Vol 1, pp 34 and 45). 12 The following new facts were alleged in the applicant’s 2011 PRRA application (Applicant’s Application Record, Vol 1, p 45): 1. CBSA identified the applicant as an individual who was the subject of an active Canada-wide warrant for removal for violating human or international rights under the Crimes Against Humanity and War Crimes Act, and Canadian officials publicly stated that he was a member of an Islamist group that has committed terrorist acts in Pakistan; 2. These allegations have been widely disseminated in the media, in Canada and internationally, along with the applicant’s photograph and personal information; 3. The applicant’s family in Pakistan has received death threats and has filed a police report pertaining to death threats made against the applicant himself; and 4. On August 2, 2011, the Board member presiding over the applicant’s detention review found that there was a serious possibility of risk upon the applicant’s removal to Pakistan. 13 The applicant submits that possible risks in Pakistan include extreme physical abuse while in custody (Tribunal Record, Vol 2, p 101-04), un- lawful detention and extrajudicial killings (Applicant’s Application Re- cord, Vol 2, p 883). The applicant also alleges risks from sectarian groups or vigilantes. 14 The applicant’s 2011 PRRA application (Tribunal Record, Vol 2, pp 97-109) received a positive outcome: on October 7, 2011, the PRRA Of- ficer found that the applicant would be subject to risk should he be removed to Pakistan because he would be of interest to the Pakistani authorities. The Officer assessed the applicant’s PRRA on the basis that he would be perceived as a member of a terrorist organization, since the applicant now claimed that he was not actually a member of such a group and lied to Canadian authorities, thinking it would aid his refugee claim. The PRRA Officer examined objective documentary evidence identifying human rights abuses at the hands of state authorities and law enforcement. The Officer found that the applicant’s case had been widely reported in Canada and somewhat in English-language media in Pakistan, and concluded that the Pakistani authorities are likely aware of the allegations made against the applicant. Given the consensus from objective Muhammad v. Canada (MCI) Richard Boivin J. 153

documentation on the mistreatments of Pakistani citizens at the hands of the Pakistani police and security forces, the Officer found that it was more likely than not that the applicant would face risk if returned. The PRRA Officer found that there was an internal flight alternative (IFA) with respect to the threat by vigilante groups, but not with respect to the threat by state authorities. 15 As required by subparagraph 113(d)(ii) of the Act, on December 15, 2011, the CBSA produced an assessment of the nature and severity of the acts committed by the applicant and the danger that he constitutes to the security of Canada (Applicant’s Application Record, Vol 2, pp 514-27). It determined that it had insufficient information to establish that the applicant is a danger to the security of Canada and that he was “complicit by association” in the acts committed by the terrorist group (Applicant’s Application Record, Vol 2, p 526). The CBSA wrote that it was not established that the applicant was directly involved in the perpetration of international crimes, and that “this may not be sufficient to justify his removal from Canada should he be found at risk” (Applicant’s Applica- tion Record, Vol 2, p 527). 16 The PRRA outcome and the CBSA’s security assessment were disclosed to the applicant in December 2011 for comment before being sent to the Minister’s Delegate. The applicant provided written submissions on January 17, 2012 (Applicant’s Application Record, Vol 2, pp 533-56). The submissions included the following arguments: (i) the Minister’s Delegate should only weigh and balance the PRRA and CBSA’s security assessment and not re-evaluate the risk assessment; (ii) the Minister’s Delegate should not reassess risk because he/she is not sufficiently independent to do so; (iii) the Minister’s Delegate is biased in the assessment of risk because the concerned Ministers have a vested interest in the outcome of the case; (iv) the PRRA should not be reversed because it was correct. 17 The Minister’s Delegate considered both the positive PRRA and CBSA’s assessment and rendered a negative decision on February 16, 2012, rejecting the applicant’s PRRA (Tribunal Record, Vol 1, pp 1-27). The Minister’s Delegate’s decision is the one under review before this Court. 18 On February 17, 2012, the applicant was served with a Notification for Removal Arrangements following the Minister’s Delegate’s decision. Removal was scheduled for February 28, 2012. This Court granted a mo- 154 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

tion for stay of removal on February 27, 2012, pending the outcome of the present application (Applicant’s Application Record, Vol 2, p 888).

The Impugned Decision 19 The Minister’s Delegate rendered a decision in which it determined that the applicant would not be at risk of torture, risk to life or risk of cruel and unusual treatment or punishment should he be returned to Paki- stan. Having concluded that the applicant would not be facing the risks identified in section 97 of the Act, the Minister’s Delegate did not balance this finding with CBSA’s assessment of the seriousness of the applicant’s actions and the danger he poses to Canada (Tribunal Record, Vol 1, p 25). 20 The Minister’s Delegate examined the PRRA Officer’s risk assessment and cited excerpts from it. In response to the applicant’s counsel’s written submissions, the Minister’s Delegate noted that the PRRA Of- ficer’s risk assessment is only an opinion, not a decision, as he or she does not have the delegated authority over this matter. The Minister’s Delegate also explained the staffing procedure for her position, stating that she is an officer working for CIC, not CBSA; that delegates are not personally chosen by the Minister; and that the process that named her in this position is the same as the one used to choose a PRRA officer (involving a competition, examination and interview). The Minister’s Dele- gate indicated that this process is free from ministerial involvement (Tri- bunal Record, Vol 1, pp 7-9). 21 With regards to the applicant’s concerns as to bias, the Minister’s Delegate affirmed that her mandate is neither to confirm nor contest the political validity of the CBSA’s list. She noted that media interest in the applicant’s case has diminished over time, and that lately it was the applicant’s counsel himself who attracted media attention with his client’s case. The Minister’s Delegate indicated that her decision was based solely on her interpretation of the evidence before her and is free from political influence (Tribunal Record, Vol 1, p 9). 22 In her assessment of risk, the Minister’s Delegate did not agree that the Pakistani authorities would be as interested in a person with alleged links to a terrorist organisation as the Canadian authorities are when such a person arrives in Canada because terrorist organizations are more prevalent in Pakistan (Tribunal Record, Vol 1, p 12). She noted that although it is a known practice to have government representatives enquire with relatives as to an individual’s whereabouts in Pakistan, this has not been Muhammad v. Canada (MCI) Richard Boivin J. 155

alleged in this case. The Minister’s Delegate considered that it was reasonable to believe that, given the sheer number of supporters of the group the applicant allegedly belongs to in Pakistan, the applicant would practically have gone unnoticed were it not for CBSA’s list. After con- sulting objective evidence, she found it reasonable to believe that the applicant would be of interest to the authorities, would be questioned and may be labelled as a member of a terrorist group and suffer discrimination. She noted that there was no report of ill treatment by the authorities in the evidence she consulted, but that it was not “ruled out” (Tribunal Record, Vol 1, p 19). The Minister’s Delegate found that, although the applicant could be subjected to questioning upon arrival, he might be detained if he mentioned his allegiance to the group or was recognized from the media reports. Although there are gross violations of human rights in Pakistan, this did not constitute sufficient grounds for determining that the applicant faced a danger of being tortured (Tribunal Record, Vol 1, p 21). 23 With regards to the risk from non-state actors, the Minister’s Delegate found it hard to believe that with only a photograph, date of birth and name, the applicant’s family was found and threatened (Tribunal Record, Vol 1, p 23). 24 The Minister’s Delegate concluded that former members of the group to which the applicant allegedly belongs are not currently targeted by authorities in Pakistan, that the evidence does not show that the applicant occupied a high rank in the group, or that he has maintained links with it. Although discrimination, arrest and questioning upon return to Pakistan are likely in the applicant’s case, the Minister’s Delegate concluded that the applicant did not establish a connection between him being recognized in the media reports and risks as described in section 97 of the Act. 25 Having made a negative determination on risks, the Minister’s Dele- gate did not engage in a balancing exercise of the PRRA and CBSA’s security assessment and denied the applicant’s application for protection (Tribunal Record, Vol 1, p 26).

Issues 26 Several issues are raised in the present case: 1. Is the affidavit of Jillan Sadek filed by the respondent admissible? 2. Did the Minister’s Delegate breach the principles of natural justice by relying on extrinsic evidence that was not disclosed to the applicant? 156 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

3. Did the Minister’s Delegate err in her assessment of the evidence? 4. Did the Minister’s Delegate have the jurisdiction to override the PRRA Officer’s conclusions with respect to risk of return to torture? 5. Did the Minister’s Delegate lack independence to render a decision in relation to risk of return to torture? 6. Was there an apprehension of bias with respect to the Minister’s Delegate due to the direct involvement of the Minister of Citizen- ship and Immigration in the case and the close proximity of the decision-maker to the Minister?

Statutory Provisions 27 The relevant statutory provisions are included in Annex to the judgment. The statutory scheme particular to this case is set out in both the Act and Regulations.

Standard of Review 28 The parties do not disagree on the proper standard of review to apply to each issue raised in the present case. Issues that pertain to procedural fairness and natural justice are reviewable on a standard of correctness (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) [Dunsmuir]; Geza v. Canada (Minister of Citizenship & Immigration), 2006 FCA 124, [2006] 4 F.C.R. 377 (F.C.A.); Benitez v. Canada (Minister of Citizenship & Immigration), 2006 FC 461 (F.C.) at para 44, (2006), [2007] 1 F.C.R. 107 (F.C.)). Therefore, the issues of whether the Minister’s Delegate breached procedural fairness by relying on extrinsic evidence and lack of independence are reviewable on a standard of correctness. Similarly, the issue of whether or not the Minister’s Delegate could re-assess the PRRA is a question of jurisdiction involving the interpretation of the Act and its Regulations, and is reviewable on a standard of correctness (Dunsmuir, above, at paras 50 and 59). The parties agree that the standard of review applicable to the Minister’s Delegate’s assessment of the evidence is reasonableness (Dunsmuir, above; John v. Canada (Minister of Citizenship & Immigration), 2012 FC 688, [2012] F.C.J. No. 657 (F.C.)).

Analysis 29 As a preliminary comment, the Court finds it useful to recall the process involved for removal in cases like the one at bar, where the appli- Muhammad v. Canada (MCI) Richard Boivin J. 157

cant is identified under subsection 112(3) of the Act. According to paragraph 112(3)(c) of the Act, a person whose refugee claim is rejected on the basis of section F of Article 1 of the Refugee Convention, as is the case with the applicant, cannot obtain refugee protection. 30 As such, a PRRA for someone described in subsection 112(3) of the Act will only consider factors set out in section 97 of the Act, and not section 96. Paragraph 113(d) of the Act sets out the factors to consider for persons identified under subsection 112(3). In this case, the factors set out in section 97 must be considered along with the nature and severity of acts committed by the applicant or the danger he constitutes for Canada’s security (subparagraph 113(d)(ii) of the Act). 31 Furthermore, pursuant to paragraph 114(1)(b) of the Act, a positive PRRA decision in such a case would only result in staying the removal order against that person, not refugee protection. Subsections 172(1) and (2) of the Regulations provide that before allowing or rejecting the application of someone identified in subsection 112(3) of the Act, the Minister (or his delegate) shall consider the written assessment on the section 97 factors (the PRRA), a written assessment on the factors set out in subparagraph 113(d)(i) or (ii), whichever the case may be (in this case, CBSA’s assessment on nature and severity of the acts and danger to Canada), and any written response from the applicant. This is the process that was undertaken in the case at bar. 32 The Court now turns to the issues raised by the parties.

First Issue: Is the affidavit of Jillan Sadek admissible? 33 As a general principle, hearsay is a statement provided for the truth of its content, but which cannot be tested through cross-examination. It is presumed inadmissible, unless it is shown to be necessary and reliable (R. v. Khelawon, 2006 SCC 57 (S.C.C.) at paras 2-3 and 35, [2006] 2 S.C.R. 787 (S.C.C.)). 34 In the present case, the respondent submitted an affidavit by Jillan Sadek, who is not the Minister’s Delegate who rendered the final PRRA decision in the applicant’s case. Ms. Sadek, Director of Case Review with Citizenship and Immigration Canada, provided evidence of her knowledge of staffing procedures for the Minister’s Delegate’s position (Director, Case Determination) and attached as Exhibit “A” to her affidavit a Public Service Staffing Advertisements and Notifications which outlines the necessary qualifications for the said position. She also provided questions and answers, asked and responded to by email, between 158 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

herself and the Minister’s Delegate who decided on the applicant’s PRRA. Both parties agree that this evidence is hearsay. The Minister’s Delegate did not swear the affidavit herself because she was on bed rest due to her pregnancy when the affidavit was sworn (August 10, 2012), on vacation from August 16, 2012 to August 31, 2012, and expecting a child in September and thus was expected to be on maternity leave.

Applicant’s Position 35 The applicant submits that the affidavit of Ms. Sadek, filed by the respondent on August 14, 2012, contains hearsay and is therefore inadmissible. The applicant submits that, if the Minister’s Delegate herself had sworn the affidavit, he would have cross-examined her on certain answers in order to obtain further evidence on the structure of the Min- ister’s Delegate’s office, the assignment of files and how work is distrib- uted in order to establish whether there is an independent, impartial system in place. Although the respondent agrees that the affidavit contains hearsay, the respondent contends that the affidavit is necessary and reliable and thus should be admissible.

Analysis 36 The criterion for necessity were set out in R. v. F. (W.J.), [1999] 3 S.C.R. 569, 178 D.L.R. (4th) 53 (S.C.C.). At paragraph 36, the Court stated that necessity “is a matter of whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort” and that “reasons for necessity may be diverse”. In the present case, the Min- ister’s Delegate is unavailable for medical reasons. In Farzam v. Canada (Minister of Citizenship & Immigration), 2005 FC 1432, 143 A.C.W.S. (3d) 308 (F.C.), the person susceptible of giving evidence was in another country and unwilling to give evidence or participate in the procedures in any way. The Court was not satisfied that reasonable efforts were made to obtain direct evidence. 37 In the present case, the Minister’s Delegate was not unwilling, but unavailable for medical reasons, holidays, and maternity leave. The Court notes that the Certified Tribunal Record was produced on July 23, 2012, thus reducing the window of time during which the respondent could reasonably file an affidavit. The Court also notes that the Min- ister’s Delegate was away in August on bed rest. The affidavit presents relevant and reliable information, consistent with previous statements made by the Minister’s Delegate prior to litigation. While the applicant Muhammad v. Canada (MCI) Richard Boivin J. 159

could have cross-examined the affiant on the matters for which she had personal knowledge — namely, the accuracy of the reproduced answers, as well as organizational structure and case assignment — the Court notes that the applicant chose not to do so. The case of Suing v. Canada (Attorney General), 2012 FC 297 (F.C.) at para 85, [2012] F.C.J. No. 327 (F.C.), cited by the applicant, states that the Federal Court “may strike all or portions of affidavits in circumstances where they are abusive, clearly irrelevant, or contain opinion, argument or legal conclusion”. The Court is of the view that, in the circumstances, the respondent’s affidavit is neither abusive nor irrelevant, and does not contain opinions or arguments. 38 Therefore, it is difficult for the Court to agree with the applicant that the filing of this affidavit was prejudicial. In light of the Minister’s Dele- gate’s unavailability, the relevance and reliability of the information presented in the affidavit (as corroborated by Exhibit “A” and the Minister’s Delegate’s previous similar statements), the Court finds the affidavit admissible.

Second Issue: Did the Minister’s Delegate breach the principles of natural justice by relying on extrinsic evidence that was not disclosed to the applicant? Applicant’s Position 39 The applicant submits that the Minister’s Delegate breached the principles of natural justice by conducting her own research into the issue of risk of return to torture and relying on extrinsic documents. The applicant alleges that this is a breach of natural justice for two (2) reasons: (i) because the Minister’s Delegate is not entitled to do her own research; and (ii) because the said research did not involve recent, generally available documents which the applicant would reasonably have assumed would be considered. The applicant submits that at the first stage of the PRRA, the PRRA officer can consider generally available country condition documents that were accessible at the time submissions were made without disclosing them to the applicant (the test outlined in Mancia v. Canada (Minister of Citizenship & Immigration), [1998] 3 F.C. 461, 161 D.L.R. (4th) 488 (Fed. C.A.) [Mancia]). However, the applicant alleges that, because the Minister’s Delegate is undertaking the “second step” of the PRRA process for applicants described in subsection 112(3) of the Act, she was not entitled to do further research without disclosing all of it. 160 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

40 The applicant argues that because section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] is engaged, the case is akin to Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.) [Suresh] in that full disclosure to the applicant was required, and the Minister’s Delegate had to base her decision solely on the disclosed record. The applicant submits that the Mancia test does not apply in the case at bar, but rather a full disclosure pursuant to Suresh, above, is required. Alternatively, the applicant submits that even if the Minister’s Delegate could undertake her own research without disclosing all documents, the particular documents she relied on would not be subject to the disclosure exemption outlined in Mancia, above, because they are not general country conditions evidence and were not part of the IRB documentation package at the time of the decision.

Respondent’s Position 41 Citing Placide c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 1056, 359 F.T.R. 217 (Eng.) (F.C.) [Placide], the respondent submits that the Minister’s Delegate is entitled to conduct her own research and to consult publicly available documents that have not been disclosed to the applicant. The respondent submits that the applicant himself in his own PRRA submissions referred to documents similar to and published in the same year as the ones with which he now takes issue. The respondent further notes that the documents relied upon by the Minister’s Delegate are publicly available from the UNHCR website. The respondent also submits that the disclosure requirements under Suresh, above, do not apply in this case because in Suresh, the information required to be disclosed did not pertain to country conditions and was not publicly available — rather, the documents were directly relevant to Mr. Suresh personally. The respondent also adds that it is inaccu- rate to say that the Minister’s Delegate had to make full disclosure in Suresh, above. Indeed, the Minister’s Delegate was under no duty to disclose a memorandum that contained materials that were generally known to the applicant and information that was publicly available (Suresh v. Canada (Minister of Citizenship & Immigration) (1999), 173 F.T.R. 1, 50 Imm. L.R. (2d) 183 (Fed. T.D.); Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.)). Muhammad v. Canada (MCI) Richard Boivin J. 161

Analysis 42 As this Court has already stated in Placide, above, a Minister’s Dele- gate deciding on an application for protection is entitled to conduct her own research. She is entitled to do so because she is not engaging in a review of the PRRA Officer’s assessment, and need not limit herself to the information that was considered at that level. Furthermore, the documents concerned in the present case are quite different than the ones at issue in Suresh, above. They are publicly available documents pertaining to country conditions and do not specifically and personally relate to the applicant. Therefore, the decision in Mancia, above, applies to the present case. As indicated in Guzman v. Canada (Minister of Citizenship & Immigration), 2004 FC 838, 131 A.C.W.S. (3d) 1124 (F.C.), and cited in Placide, above at para 39, IRB documents are not extrinsic documents. They are from a public source and are available online and at IRB documentation centres. 43 In this case, the applicant objects to the use of three (3) documents: (i) “Project Thread” document, PAK42394.E, dated March 3, 2004; (ii); United States Department of State Report, July-December, 2010 Interna- tional Religious Freedom Report — Pakistan, dated September 13, 2011 [Religious Freedom Report]; and (iii) Jamestown Foundation Report, Is- lamist Reaction to the NATO Airstrike on the Pakistani Border, dated December 9, 2011 (Tribunal Record, Vol 1, pp 68-94). The documents are available online through the Immigration and Refugee Board of Can- ada and on the UNHCR’s Refworld website. However, the Court notes that the applicant himself has used a document from that same website and same year in his PRRA submissions (Tribunal Record, Vol 2, pp 266-67; Vol 3, pp 348-62). It is therefore difficult to establish that the applicant was not cognizant of such documents. While the weight that should be attributed to these documents is a distinct matter that will be examined in the following section of the present judgment, the question here is whether they should have been disclosed. 44 Having regard to the criteria outlined in Mancia, above, the Court finds no error in the Minister’s Delegate’s use of these documents without prior disclosure. The applicant is at the stage of a second PRRA application, and thus has experience with the general process of decision- makers relying on such documents, having already undergone the refugee application process as well as another PRRA (Mancia, above, at para 25). The documents are available to the public, are general and neutral because they do not refer to the applicant personally, nor were they pre- 162 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

pared specifically for his case (Mancia, above, at para 26). Finally, as was the case in Mancia, above, at para 24, the Regulations do not impose a duty upon the Minister’s Delegate to disclose the information on which she relies. The sole procedural right afforded to the applicant under subsection 172(1) of the Regulations is to make written submissions which must be considered by the Minister’s Delegate. While the Regulations do not expressly allow the Minister’s Delegate to conduct her independent research, neither do the provisions pertaining to the PRRA officer in a regular (i.e., non-subsection 112(3)) case (sections 161 and 162 of the Regulations). 45 The applicant references a number of cases which are distinguishable from the one at bar. For instance, in Fi v. Canada (Minister of Citizenship & Immigration), 2006 FC 1125, [2007] 3 F.C.R. 400 (F.C.), the PRRA officer had used many documents from the Internet which were not available among the standard documents found in the IRB documentation centres, and in particular, a document from the Wikipedia website. In the present case, all documents used were available from IRB documentation centres or the UNHCR’s website, Refworld. The quality and reliability of these documents cannot be compared to an article sourced from Wikipedia. 46 Also, in Zheng v. Canada (Minister of Citizenship & Immigration), 2011 FC 1359, [2011] F.C.J. No. 1659 (F.C.) [Zheng], the applicant was before the Refugee Board for the first time, a situation where all information relied on must be disclosed to the applicant. The Board had used a document that had been removed from the national information request package because its conclusions were no longer accurate, and replaced with a different, more accurate and recent document. The Court had considered this a breach of procedural fairness. In the present case, there is no indication that the documents relied on by the PRRA Officer are no longer accurate. The present situation is not one where an old version of a document is replaced with a newer, significantly different version that establishes the earlier version as being erroneous. The case of Zheng, above, is a case where the document used was superseded by another one and is therefore clearly distinguishable from the case at bar. 47 Nothing in the jurisprudence allows the Court to conclude that all documents must be disclosed in a situation like the applicant’s. The Court finds that there was no breach in procedural fairness because the Minister’s Delegate engaged in her own research and did not disclose documents that were general in nature and publicly available from Muhammad v. Canada (MCI) Richard Boivin J. 163

sources used by the applicant himself (the IRB documentation centres and the UNHCR’s Refworld website). The Court reiterates that the burden of demonstrating a breach in procedural fairness lies with the applicant (Wang v. Canada (Minister of Citizenship & Immigration), 2003 FC 833, 124 A.C.W.S. (3d) 776 (F.C.)). The applicant has not discharged himself of that burden.

Third Issue: Did the Minister’s Delegate err in her assessment of the evidence? Applicant’s Position 48 The applicant submits that it is an error for a tribunal to engage in a selective reading of the documentary evidence (citing Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (Fed. T.D.)). He argues that the Minister’s Delegate in this case ignored an important amount of objective documentation supporting the fact that individuals held in custody are tortured and mistreated, only to favor a few selective and irrelevant excerpts that supported her negative conclusion on risks. The applicant cites several recent documents that were before the Minister’s Delegate but were ignored and claims that the Minister’s Delegate did not provide an analysis as to why she preferred the documents she chose over the other evidence before her. The applicant reiterates that section 7 of the Charter is engaged in the present case because he faces the possibility of deportation despite the presence of risk of torture or mistreatments.

Respondent’s Position 49 The respondent submits that the Minister’s Delegate’s consideration of the evidence was reasonable and that the Minister’s Delegate did not ignore documents, but weighed them against the totality of the evidence. The respondent notes that a decision-maker is not required to refer to all items of evidence before him or her (citing N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para 16, [2011] 3 S.C.R. 708 (S.C.C.)). The respondent submits that the Minister’s Dele- gate’s decision is based on the lack of evidence of the use of torture and abusive techniques with persons in situations similar to that of the applicant and that the applicant failed to establish that his profile was such that he would be of particular interest to the Pakistani authorities. The respondent claims that the documents cited by the Minister’s Delegate were particularly relevant to the applicant’s personal circumstances, and 164 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

that the Minister’s Delegate preferred more specific evidence, which she was entitled to do. 50 The respondent submits that the Minister’s Delegate was aware of the situation in Pakistan with regards to human rights, but a poor human rights record is not sufficient — a connection must be established between the applicant and these conditions (Ventura v. Canada (Minister of Citizenship & Immigration), 2010 FC 871 (F.C.) at paras 24-25, (2010), 90 Imm. L.R. (3d) 264 (F.C.)) and the evidence does not support a finding that detainees of the applicant’s profile would be subject to abuses.

Analysis 51 The Court recalls that the standard of review for the present issue is that of reasonableness, deference being owed to a decision-maker for the evaluation of the evidence. However, for the reasons that follow, the Court is of the view that the Minister’s Delegate’s assessment of the documentary evidence before her was unreasonable. 52 The Minister’s Delegate referred to a Country of Origin Information Report from the United Kingdom Home Office, dated September 29, 2011 (Tribunal Record, Vol 1, pp 52-67), in which it is stated that failed refugees are detained and interviewed if they “are alleged to have violated any law in respect of travel/visit to a foreign country, e.g. traveled on fake travel documents” (Tribunal Record, Vol 1, p 19). This is applicable to the applicant, having traveled with a false Italian passport. The same document stated that all deportations are inquired into, and that “if a failed applicant for refugee status is handed over by the country concerned to Pakistani authorities, Pakistani FIA/relevant authorities would question such a person.” (Tribunal Record, Vol 1, p 20). Finally, that same report states that “[i]f a person’s refugee status gets a lot of media publicity, the government will inquire into it.” (Tribunal Record, Vol 1, p 21). From this document, the Minister’s Delegate concluded that detention and questioning at arrival were reasonably possible if the applicant was recognized from the media reports. 53 The Minister’s Delegate consulted another document dealing with the “Project Thread”, PAK42394.E, dated March 3, 2004 (Tribunal Record, Vol 1, pp 68-71). The applicant takes issue with the use of this document, which is older (the events having occurred in 2003) but somewhat relevant, as it illustrates what happens when the Canadian government labels Pakistani citizens as suspected terrorists, and returns these individuals to Pakistan — a situation very similar to the one at bar. From this Muhammad v. Canada (MCI) Richard Boivin J. 165

document, the Minister’s Delegate concluded that the applicant would be of interest to the authorities, that he would be questioned, and that he might be labeled as a member of a terrorist organization. She also concluded that he might be discriminated against, and that ill treatment by the authorities was not “ruled out” (Tribunal Record, Vol 1, p 19) 54 The Minister’s Delegate then cites excerpts from the PRRA Officer’s report that illustrate the problems with torture and mistreatment of individuals by state authorities while in custody (Tribunal Record, Vol 1, pp 21-23). She then states that she has researched information pertaining to the particular treatment of individuals with links to the same group as the applicant, and cites (i) a September 13, 2011 report by the US Depart- ment of State (July-December, 2010 International Religious Freedom Report — Pakistan; Tribunal Record, Vol 1, pp 72-91) [Religious Free- dom Report] and (ii) a Jamestown Foundation Report, dated December 9, 2011 (Islamist Reaction to the NATO Airstrike on the Pakistani Border; Tribunal Record, Vol 1, pp 92-94). The applicant takes issue with these two (2) reports, arguing that they are irrelevant. 55 The Jamestown Foundation Report recounts reactions from Islamist groups and Pakistani authorities following a hit by NATO air strike on two (2) Pakistani Army check posts in November 2011. Following this air strike, the group with which the applicant is linked organized anti- NATO protests in various cities. The Minister’s Delegate relies on this document because it does not expressly mention that there were deten- tions or ill treatments of the protesters. However, the Court notes that the scope of this article was cross-border militancy and not human rights or treatment of protesting individuals. Given the nature of this report, the Court remains unconvinced that the article would have mentioned detention or ill treatment even if they had occurred. The Minister’s Delegate does not provide any distinction or any explanation in that respect and there is no information to the contrary. 56 The Religious Freedom Report contains information on blasphemy laws and other discriminatory legislation. It indicates that the government is taking some steps to improve religious freedom, and that 95% of the population is Muslim (of which 75% are Sunni, like the applicant, and 25% are Shia). The report mainly focuses on mistreatments that religious minorities endure. It does speak of religious prisoners and detainees, indicating that “[n]on-Muslim prisoners generally were accorded poorer facilities than Muslim inmates” (Tribunal Record, Vol 1, p 81). When noting attacks on holy places of religious minorities, the report did 166 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

indicate that no arrests had been made yet (indicating that this report might include this type of information if it was available; Tribunal Re- cord, Vol 1, p 83). However, the scope of the report is aimed at religious freedoms and various mistreatments that religious minorities suffer in Pakistan. The applicant is not a member of a religious minority — he is a Sunni Muslim. Furthermore, while the document might report on arrests, it does not report on treatment within prisons or otherwise at the hands of authorities. 57 The Minister’s Delegate uses these reports to support the notion that members of the applicant’s group are not necessarily arrested, tortured or subjected to ill treatment by the authorities because the said reports are silent on the subject. The Court takes issue with the use by the Minister’s Delegate of the Jamestown Foundation Report and the Religious Free- dom Report: these two (2) documents, which are narrow in scope, are weak in comparison to all the other documentary evidence pointing to mistreatment and torture while detained. 58 The objective country conditions evidence clearly demonstrates poor prison conditions, torture and ill treatment by the police and security forces for individuals in custody. However, the Court is cognizant that this is insufficient: it remains incumbent on the applicant to show how this evidence relates to him. The applicant was reported in the media, including mid-eastern media, as being linked to a terrorist organization. The Minister’s Delegate states that the applicant would have gone unnoticed in Pakistan, given the sheer number of supporters of the applicant’s group, were it not for CBSA’s list. It follows that the Minister’s Delegate believes that the applicant will not go unnoticed. This is therefore the profile of the applicant — a failed refugee claimant who will be returned to Pakistan by Canadian authorities, who is said to be linked with a terrorist organization, and who will not go unnoticed. 59 The Minister’s Delegate uses the Religious Freedom Report and the Jamestown Foundation Report to discount recent information about mistreatments at the hands of officials, police officers and security forces towards detainees. The Court finds that the reliance on absence of information in two (2) very narrow documents to rebut the information that is present in a significant amount of other recent and relevant documents is, in these circumstances, unreasonable. 60 The Minister’s Delegate also considered recent information that states that all deportations are inquired into. It logically follows that Pakistani authorities would inquire as to the reason for the applicant’s deportation. Muhammad v. Canada (MCI) Richard Boivin J. 167

The Minister’s Delegate concluded that, should the Pakistani authorities discover the applicant’s link to the banned group, there was a reasonable possibility that he would be detained and questioned, but nonetheless concluded that there was no risk. Given the evidence of mistreatment of persons in custody, the Court finds that the Minister’s Delegate’s conclusion that the applicant would not likely face risk of torture or mistreatments is unreasonable and contradictory to her analysis. 61 The Minister’s Delegate recognized a risk of questioning and possible detention upon arrival in Pakistan. She was in possession of the initial PRRA, which had concluded to the presence of risk and extremely difficult conditions for detained persons. Given the use of insufficient documentation to justify her conclusions which were contrary to the initial PRRA assessment, and contrary to the bulk of country conditions evidence, the Court finds that the Minister’s Delegate’s treatment of the evidence was unreasonable. Furthermore, the Minister’s Delegate’s statement that ill treatment was “not ruled out” raises a doubt with regards to the reasonableness of her assessment. While she is not required to show that ill treatment is “ruled out” in order to dismiss a PRRA, the test being whether it is more likely than not that the applicant would experience ill treatment (Li v. Canada (Minister of Citizenship & Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239 (F.C.A.)), the Minister’s Delegate fails to adequately justify, on the basis of the evidence, why she concludes that the applicant will likely not be at risk. The Court’s intervention is therefore warranted. 62 The Court’s conclusion on this issue is determinative of the application for judicial review and there is no need to address the other issues.

The Proposed Questions for Certification 63 The applicant has proposed three (3) questions for certification in the present application: 1. Is the Minister’s Delegate required to provide full disclosure to the PRRA applicant of all material considered by him/her prior to ren- dering a decision on the application for protection made pursuant to section 112(3) and 113(d) of the Act? 2. Can the Minister’s Delegate, when assessing an application for protection pursuant to sections 112(3) and 113(d) of the Act, go behind the conclusion of the PRRA Officer that the applicant is at risk pursuant to section 97 and make a finding that the applicant is not at risk? 168 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

3. Does the Minister’s Delegate possess sufficient independence and impartiality to render decisions pursuant to section 112(3) and 113(d) when section 7 Charter rights are engaged? 64 Given the Court’s finding that the Minister’s Delegate’s decision was unreasonable, and the ensuing consequence that this application for judicial review will be granted, none of the proposed questions are determinative of the application (Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4, 51 A.C.W.S. (3d) 910 (Fed. C.A.); Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.) at para 12, (2004), 318 N.R. 365 (F.C.A.)). Therefore, the Court will not certify the proposed questions in light of its conclusion on the reasonability of the Minister’s Delegate’s decision.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed. The Minister’s Delegate’s decision dated February 16, 2012 is set aside and the matter is remitted back to a different Minister’s Delegate for re-determination. No question is certified. Application granted.

Annex

The following provisions of the Immigration and Refugee Protection Act are relevant to the present case: OBJECTIVES AND APPLICATION Objectives — immigration 3. (1) The objectives of this Act with respect to immigration are ... (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and ... Objectives — refugees (2) The objectives of this Act with respect to refugees are ... Muhammad v. Canada (MCI) Richard Boivin J. 169

(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. Application (3) This Act is to be construed and applied in a manner that (a) furthers the domestic and international interests of Canada; ... (f) complies with international human rights instruments to which Canada is signatory. ENABLING AUTHORITY ... Designation of officers 6. (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated. Delegation of powers (2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization PART 2 REFUGEE PROTECTION DIVISION 1 REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION ... 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, 170 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. ... DIVISION 3 PRE-REMOVAL RISK ASSESSMENT Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). Exception (2) Despite subsection (1), a person may not apply for protection if (a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act; (b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible; (b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division; Muhammad v. Canada (MCI) Richard Boivin J. 171

(c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister. Exemption (2.1) The Minister may exempt from the application of paragraph (2)(b.1) or (c) (a) the nationals — or, in the case of persons who do not have a country of nationality, the former habitual residents — of a country; (b) the nationals or former habitual residents of a country who, before they left the country, lived in a given part of that country; and (c) a class of nationals or former habitual residents of a country. Application (2.2) However, an exemption made under subsection (2.1) does not apply to persons in respect of whom, after the day on which the exemption comes into force, a decision is made respecting their claim for refugee protection by the Refugee Protection Division or, if an appeal is made, by the Refugee Appeal Division. Regulations (2.3) The regulations may govern any matter relating to the application of subsection (2.1) or (2.2) and may include provisions establishing the criteria to be considered when an exemption is made. Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parlia- ment punishable by a maximum term of imprisonment of at least 10 years; 172 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. ... Muhammad v. Canada (MCI) Richard Boivin J. 173

The following provisions from the Immigration and Refugee Protection Regulations, SOR/2002-227, are also relevant: DIVISION 4 PRE-REMOVAL RISK ASSESSMENT ... Applicant described in s. 112(3) of the Act 172. (1) Before making a decision to allow or reject the application of an applicant described in subsection 112(3) of the Act, the Min- ister shall consider the assessments referred to in subsection (2) and any written response of the applicant to the assessments that is received within 15 days after the applicant is given the assessments. Assessments (2) The following assessments shall be given to the applicant: (a) a written assessment on the basis of the factors set out in section 97 of the Act; and (b) a written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act, as the case may be. Certificate (2.1) Despite subsection (2), no assessments shall be given to an applicant who is named in a certificate until a judge under section 78 of the Act determines whether the certificate is reasonable. When assessments given (3) The assessments are given to an applicant when they are given by hand to the applicant or, if sent by mail, are deemed to be given to an applicant seven days after the day on which they are sent to the last address that the applicant provided to the Department. Applicant not described in s. 97 of the Act (4) Despite subsections (1) to (3), if the Minister decides on the basis of the factors set out in section 97 of the Act that the applicant is not described in that section, (a) no written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act need be made; and (b) the application is rejected. ... 174 IMMIGRATION LAW REPORTER 15 Imm. L.R. (4th)

The following provisions from Article 1 of the UNHCR 1951 Convention Relating to the Status of Refugees, July 28, 1951, Can TS 1969 No 6, 189 UNTS 137 art 33 are also relevant to the present case: Article 1. — Definition of the term “refugee” ... F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.