IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 18 (Cited 18 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 18 (Cited 18 Imm. L.R. (4th))

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[Indexed as: Tabingo v. Canada (Minister of Citizenship and Immigration)] Mae Joy Tabingo, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5635-12, IMM-8669-12, IMM-10307-12, IMM- 4866-12, IMM-8302-12, IMM-3725-12, IMM-6165-12, IMM- 8747-12 2013 FC 377 Donald J. Rennie J. Heard: January 14-16, 2013 Judgment: April 18, 2013* Immigration and citizenship –––– Admission — Application for temporary resident or immigrant visa — General principles –––– Whether amendments terminating open applications for admission operate retrospectively — Immigra- tion matters — In response to growing backlog of applications for permanent residence in Canada in federal skilled worker (FSW) class, Parliament amended Immigration and Refugee Protection Act (IRPA) — Amendments came into force on June 29, 2012 — Pursuant to s. 87.4 of Act as amended, any FSW permanent residence application commenced prior to February 27, 2008 was statutorily terminated unless Immigration Officer had made admission decision prior to March 29, 2012 — Applicants, aliens who had each commenced FSW applications prior to February 27, 2008, were advised by Minister that their applications were terminated by operation of s. 87.4 of IRPA as amended — Aliens brought application for, inter alia, declaration that amendments did not operate retrospectively to bar FSW applications but that IRPA continued to require individual adjudication of each application — Application dismissed — Assuming without deciding that aliens had vested rights prior to coming into force of

*Corrigenda filed June 13, 2013 and June 18, 2013 have been incorporated herein. 2 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) amendments, then absent clear intent of Parliament statute should not be interpreted to remove those rights — Pursuant to s. 12 of Interpretation Act and judgment of Supreme Court of Canada in Celgene Corp. v. Canada (Attorney Gen- eral), however, where language of legislative instrument is “precise and unequivocal” then ordinary meaning of words used is dominant tool of statutory interpretation — In present case s. 87.4 of IRPA as amended, particularly word “terminated”, was “precise and unequivocal”, and clear intent of Parliament was that amendments were to operate retrospectively to remove aliens’ vested rights — Language of s. 87.4(1) of IRPA created non-discretionary application of law to “incontestable facts” — On facts of present case, all aliens were caught by s. 87.4 of IRPA, aliens’ FSW applications were “terminated” on June 29, 2012 and application was accordingly properly dismissed. Statutes –––– Retroactive and retrospective operation — Vested rights — Repeal –––– Immigration matters — In response to growing backlog of applications for permanent residence in Canada in federal skilled worker (FSW) class, Parliament amended Immigration and Refugee Protection Act (IRPA) — Amendments came into force on June 29, 2012 — Pursuant to s. 87.4 of Act as amended, any FSW permanent residence application commenced prior to Febru- ary 27, 2008 was statutorily terminated unless Immigration Officer had made admission decision prior to March 29, 2012 — Applicants, aliens who had each commenced FSW applications prior to February 27, 2008, were advised by Min- ister that their applications were terminated by operation of s. 87.4 of IRPA as amended — Aliens brought application for, inter alia, declaration that amendments did not operate retrospectively to bar FSW applications but that IRPA continued to require individual adjudication of each application — Application dismissed — Assuming without deciding that aliens had vested rights prior to coming into force of amendments, then absent clear intent of Parliament statute should not be interpreted to remove those rights — Pursuant to s. 12 of Interpre- tation Act and judgment of Supreme Court of Canada in Celgene Corp. v. Can- ada (Attorney General), however, where language of legislative instrument is “precise and unequivocal” then ordinary meaning of words used is dominant tool of statutory interpretation — In present case s. 87.4 of IRPA as amended, particularly word “terminated”, was “precise and unequivocal”, and clear intent of Parliament was that amendments were to operate retrospectively to remove aliens’ vested rights — Language of s. 87.4(1) of IRPA created non-discretionary application of law to “incontestable facts” — On facts of present case, all aliens were caught by s. 87.4 of IRPA, aliens’ FSW applications were “terminated” on June 29, 2012 and application was accordingly properly dismissed. Constitutional law –––– Canadian Bill of Rights — Human rights and freedoms — Due process of law –––– In response to growing backlog of applications for permanent residence in Canada in federal skilled worker (FSW) class, Parliament amended Immigration and Refugee Protection Act (IRPA) — Pursu- Tabingo v. Canada (MCI) 3 ant to s. 87.4 of Act as amended, any FSW permanent residence application commenced prior to February 27, 2008 was statutorily terminated unless Immi- gration Officer had made admission decision prior to March 29, 2012 — Appli- cants, aliens who had each commenced FSW applications prior to February 27, 2008, were advised by Minister that their applications were terminated by operation of s. 87.4 of IRPA as amended — Aliens brought application for, inter alia, declaration s. 87.4(1) of IRPA as amended was invalid as impairing aliens’ economic and property due process rights pursuant to s. 1(a) of Canadian Bill of Rights, superseding quasi-constitutional Act of Parliament — Application dismissed — Following judgment of Supreme Court of Canada in Authorson (Liti- gation Guardian of) v. Canada (Attorney General), Bill of Rights due process rights are not applicable absent some adjudicative process — As IRPA amendments specifically omitted such process in favour of “if-then” conditional collec- tive determination, ss. 1(a) due process and 2(e) fair hearing Bill of Rights rights were not available to aliens and application was accordingly properly dismissed. Constitutional law –––– General principles of interpretation of constitutional statutes –––– Unwritten principles — Rule of law — In response to growing backlog of applications for permanent residence in Canada in federal skilled worker (FSW) class, Parliament amended Immigration and Refugee Protection Act (IRPA) — Pursuant to s. 87.4 of Act as amended, any FSW permanent residence application commenced prior to February 27, 2008 was statutorily terminated unless Immigration Officer had made admission decision prior to March 29, 2012 — In present judgment, court held that amendments operated retrospectively, even in event that FSW applications held vested rights — Appli- cants, aliens who had each commenced FSW applications prior to February 27, 2008, were advised by Minister that their applications were terminated by operation of s. 87.4 of IRPA as amended — Aliens brought application for, inter alia, declaration s. 87.4(1) of IRPA as amended was unconstitutional as violating rule of law generally — Application dismissed — Following judgment of Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., historical Anglo-Canadian constitutional principles do not bar Parliament from enact- ing legislation conferring special privileges on Crown, and in fact countenance that result — Save and except for criminal or quasi-criminal legislation, retrospective application of statutory instruments with deleterious results to individuals is not prima facie unconstitutional — Accordingly resort to “rule of law” generally did not bar amendments and application was properly dismissed. Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — Visitors and immigrants — Admission –––– Whether aliens residing outside Canada have rights guaranteed by Charter — In response to growing backlog of applications for permanent residence in Canada in federal skilled worker (FSW) class, Parliament amended Immigration and Refugee Pro- tection Act (IRPA) — Pursuant to s. 87.4 of Act as amended, any FSW perma- 4 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) nent residence application commenced prior to February 27, 2008 was statutorily terminated unless Immigration Officer had made admission decision prior to March 29, 2012 — Applicants, aliens who had each commenced FSW applications prior to February 27, 2008, were advised by Minister that their applications were terminated by operation of s. 87.4 of IRPA as amended — Aliens brought application for, inter alia, declaration s. 87.4(1) of IRPA as amended was unconstitutional and of law force or effect as impairing aliens’ rights as guaranteed by ss. 6, 7 and 15 of Canadian Charter of Rights and Freedoms — Application dismissed — Section 6 of Charter expressly applies only to citizens of and permanent residents in Canada, so application was properly dismissed in respect of s. 6 — Section 7 of Charter applies to “everyone” and s. 15 of Charter applies to “every individual” — “The weight of the case law indicates that non-citizens outside of Canada may not claim the protection of the Charter, absent exceptional circumstances involving the actions of Canadian officials or agents abroad” — In any event, aliens’ s. 7 Charter life, liberty and security claim failed on its merits, as s. 7 of Charter was primarily directed toward criminal prosecutions — While certain extensions of s. 7 Charter rights had been acknowledged in jurisprudence, primarily surrounding bodily integrity, immigration is not “of such an intimate, profound and fundamental nature as to be comparable” with those common-law extensions — Similarly, aliens’ s. 15 Charter equality rights claim was not sustainable — National origin is enumerated ground of prohibited discrimination for purpose of s. 15 of Charter, and citizenship analogous ground, but country of residence is not analogous ground — Sec- tion 15 of Charter does not guarantee identical treatment as between all persons or groups of persons — In totality of circumstances, evidence adduced upon application did not discharge aliens’ burden of proof of establishing that s. 87.4(1) of IRPA had disproportionate impact on persons on aliens on basis of national origin, not that amendments were designed to or had effect of perpetuating stereotypes — Accordingly aliens’ Charter claims were not properly founded and application was dismissed. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — General principles –––– Retrospectivity — Immigration and Refugee Protection Act amendments. Immigration and citizenship –––– Appeals to Federal Court of Appeal and Supreme Court of Canada — Certification of questions by Federal Court Trial Division — Constitutional issue –––– Charter of Rights and Freedoms and Canadian Bill of Rights questions. Cases considered by Donald J. Rennie J.: Amnesty International Canada v. Canada (Minister of National Defence) (2008), (sub nom. Amnesty International Canada v. Canadian Armed Forces (Chief, Defence Staff)) 320 F.T.R. 257 (Eng.), (sub nom. Amnesty Tabingo v. Canada (MCI) 5

International Canada v. Canada (Chief of the Defence Staff)) [2008] 4 F.C.R. 546, 81 Admin. L.R. (4th) 190, 2008 CarswellNat 5727, (sub nom. Amnesty International Canada v. Canadian Forces (Defence Staff, Chief)) 292 D.L.R. (4th) 127, 2008 FC 336, 2008 CarswellNat 597, (sub nom. Amnesty International Canada v. Canada (Canadian Forces)) 168 C.R.R. (2d) 274, [2008] F.C.J. No. 356 (F.C.) — considered Amnesty International Canada v. Canada (Minister of National Defence) (2008), 2008 CarswellNat 5272, (sub nom. Amnesty International Canada v. Canadian Forces (Defence Staff, Chief)) 305 D.L.R. (4th) 741, 182 C.R.R. (2d) 203, 2008 CarswellNat 4625, 2008 FCA 401, (sub nom. Amnesty International Canada v. Canada (Chief of Defence Staff)) [2009] 4 F.C.R. 149, 2008 CAF 401, [2008] F.C.J. No. 1700 (F.C.A.) — referred to Andrews v. Law Society (British Columbia) (1989), 10 C.H.R.R. D/5719, [1989] 2 W.W.R. 289, 56 D.L.R. (4th) 1, 91 N.R. 255, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, [1989] 1 S.C.R. 143, 1989 CarswellBC 16, 1989 CarswellBC 701, EYB 1989-66977, [1989] S.C.J. No. 6 (S.C.C.) — considered Authorson (Litigation Guardian of) v. Canada (Attorney General) (2003), (sub nom. Authorson v. Canada (Attorney General)) 2003 C.E.B. & P.G.R. 8051, (sub nom. Authorson v. Canada (Attorney General)) 227 D.L.R. (4th) 385, (sub nom. Authorson v. Canada (Attorney General)) 109 C.R.R. (2d) 220, (sub nom. Authorson v. Canada (Attorney General)) 306 N.R. 335, (sub nom. Authorson v. Canada (Attorney General)) 66 O.R. (3d) 734 (note), (sub nom. Authorson v. Canada (Attorney General)) [2003] 2 S.C.R. 40, 2003 CarswellOnt 2773, 2003 CarswellOnt 2774, 2003 SCC 39, 36 C.C.P.B. 29, (sub nom. Authorson v. Canada (Attorney General)) 175 O.A.C. 363, 4 Admin. L.R. (4th) 167, [2003] S.C.J. No. 40, REJB 2003-44762 (S.C.C.) — followed B. (R.) v. Children’s Aid Society of Metropolitan Toronto (1995), 9 R.F.L. (4th) 157, 21 O.R. (3d) 479 (note), 122 D.L.R. (4th) 1, [1995] 1 S.C.R. 315, 26 C.R.R. (2d) 202, (sub nom. Sheena B., Re) 176 N.R. 161, (sub nom. Sheena B., Re) 78 O.A.C. 1, 1995 CarswellOnt 105, 1995 CarswellOnt 515, EYB 1995-67419, [1994] S.C.J. No. 24 (S.C.C.) — considered Babcock v. Canada (Attorney General) (2002), 2002 SCC 57, 2002 CarswellBC 1576, 2002 CarswellBC 1577, [2002] 8 W.W.R. 585, 214 D.L.R. (4th) 193, 3 B.C.L.R. (4th) 1, [2002] 3 S.C.R. 3, 3 C.R. (6th) 1, 289 N.R. 341, 168 B.C.A.C. 50, 275 W.A.C. 50, [2002] S.C.J. No. 58, REJB 2002-32276 (S.C.C.) — considered Bacon v. Saskatchewan Crop Insurance Corp. (1999), 180 Sask. R. 20, 205 W.A.C. 20, 1999 CarswellSask 308, 65 C.R.R. (2d) 170, [1999] 11 W.W.R. 51, [1999] S.J. No. 302 (Sask. C.A.) — referred to 6 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Bacon v. Saskatchewan Crop Insurance Corp. (2000), 2000 CarswellSask 358, 2000 CarswellSask 359, 257 N.R. 396 (note), 203 Sask. R. 109 (note), 240 W.A.C. 109 (note), [1999] S.C.C.A. No. 437 (S.C.C.) — referred to Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — considered British Columbia v. Imperial Tobacco Canada Ltd. (2005), 45 B.C.L.R. (4th) 1, [2005] 2 S.C.R. 473, 134 C.R.R. (2d) 46, 2005 SCC 49, 2005 CarswellBC 2207, 2005 CarswellBC 2208, 257 D.L.R. (4th) 193, [2006] 1 W.W.R. 201, 218 B.C.A.C. 1, 359 W.A.C. 1, 339 N.R. 129, 27 C.P.C. (6th) 13, EYB 2005-95296, [2005] S.C.J. No. 50, [2004] S.C.C.A. No. 302 (S.C.C.) — considered Canadian Council of Churches v. R. (1990), 10 Imm. L.R. (2d) 81, 106 N.R. 61, 68 D.L.R. (4th) 197, 46 C.R.R. 290, 44 Admin. L.R. 56, [1990] 2 F.C. 534, 1990 CarswellNat 682, 1990 CarswellNat 23, 36 F.T.R. 80 (note), [1990] F.C.J. No. 224 (Fed. C.A.) — referred to Canadian Council of Churches v. R. (1992), (sub nom. Canadian Council of Churches v. Canada) 132 N.R. 241, 5 C.P.C. (3d) 20, 2 Admin. L.R. (2d) 229, (sub nom. Canadian Council of Churches v. Canada) 88 D.L.R. (4th) 193, 16 Imm. L.R. (2d) 161, (sub nom. Canadian Council of Churches v. Canada (Minister of Employment & Immigration)) 8 C.R.R. (2d) 145, (sub nom. Canadian Council of Churches v. Canada (Minister of Employment & Immigration)) [1992] 1 S.C.R. 236, 1992 CarswellNat 650, 1992 Car- swellNat 25, 49 F.T.R. 160 (note), [1992] S.C.J. No. 5, EYB 1992-67212 (S.C.C.) — referred to Celgene Corp. v. Canada (Attorney General) (2011), 2011 CarswellNat 34, 2011 CarswellNat 35, 2011 SCC 1, 327 D.L.R. (4th) 513, 410 N.R. 127, 14 Admin. L.R. (5th) 1, [2011] 1 S.C.R. 3, 89 C.P.R. (4th) 1, [2011] S.C.J. No. 1 (S.C.C.) — referred to Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 1992 Car- swellNat 18, 1992 CarswellNat 653, EYB 1992-67215, [1992] S.C.J. No. 27 (S.C.C.) — considered Corbiere v. Canada (Minister of Indian & Northern Affairs) (1999), 163 F.T.R. 284 (note), 1999 CarswellNat 663, 1999 CarswellNat 664, (sub nom. Canada (Minister of Indian & Northern Affairs) v. Corbiere) 61 C.R.R. (2d) 189, (sub nom. Corbi`ere v. Canada (Minister of Indian & Northern Affairs)) Tabingo v. Canada (MCI) 7

173 D.L.R. (4th) 1, 239 N.R. 1, [1999] 3 C.N.L.R. 19, [1999] 2 S.C.R. 203, [1999] S.C.J. No. 24 (S.C.C.) — considered Crease v. Canada (1994), (sub nom. Crease v. Canada (Minister of State for Multiculturalism & Citizenship)) 78 F.T.R. 192, (sub nom. Crease v. Canada (Minister of Multiculturalism & Citizenship)) 21 C.R.R. (2d) 347, 1994 CarswellNat 286, 1994 CarswellNat 286F, [1994] 3 F.C. 480 (Fed. T.D.) — referred to Deol v. Canada (Minister of Citizenship & Immigration) (2001), 211 F.T.R. 12, 2001 FCT 694, 2001 CarswellNat 1350, 19 Imm. L.R. (3d) 26, 90 C.R.R. (2d) 162, 2001 CarswellNat 5886, 2001 CFPI 694, [2001] F.C.J. No. 1034 (Fed. T.D.) — referred to Deol v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 1477, 2002 FCA 271, 291 N.R. 218, 22 Imm. L.R. (3d) 153, 97 C.R.R. (2d) 1, 2002 CAF 271, 215 D.L.R. (4th) 675, 2002 CarswellNat 2847, [2003] 1 F.C. 301, 228 F.T.R. 320 (note), [2002] F.C.J. No. 949 (Fed. C.A.) — referred to Droit de la famille - 091768 (2013), 2013 CarswellQue 113, 2013 CarswellQue 114, 2013 SCC 5, 21 R.F.L. (7th) 1, 354 D.L.R. (4th) 191 (S.C.C.) — considered Gustavson Drilling (1964) Ltd. v. Minister of National Revenue (1975), 1975 CarswellNat 330, [1976] C.T.C. 1, 75 D.T.C. 5451, 66 D.L.R. (3d) 449, 7 N.R. 401, 1975 CarswellNat 376, [1977] 1 S.C.R. 271, [1975] S.C.J. No. 116 (S.C.C.) — referred to Khadr v. Canada (Minister of Justice) (2008), 375 N.R. 47, 72 Admin. L.R. (4th) 1, 232 C.C.C. (3d) 101, (sub nom. Canada (Justice) v. Khadr) [2008] 2 S.C.R. 125, 293 D.L.R. (4th) 629, (sub nom. Canada (Minister of Justice) v. Khadr) 172 C.R.R. (2d) 1, 2008 SCC 28, 2008 CarswellNat 1400, 2008 Car- swellNat 1401, 56 C.R. (6th) 255 (S.C.C.) — distinguished Kingsway General Insurance Co. v. Alberta (2005), 2005 ABQB 662, 2005 CarswellAlta 1213, 29 C.C.L.I. (4th) 190, 258 D.L.R. (4th) 507, 53 Alta. L.R. (4th) 147, [2006] 7 W.W.R. 290 (Alta. Q.B.) — considered Kinsel v. Canada (Minister of Citizenship and Immigration) (2012), 2012 Car- swellNat 5167, 2012 FC 1515, 2012 CF 1515, 2012 CarswellNat 5512 (F.C.) — referred to Law v. Canada (Minister of Employment & Immigration) (1999), 170 D.L.R. (4th) 1, 1999 CarswellNat 359, 1999 CarswellNat 360, (sub nom. Law v. Canada (Minister of Human Resources Development)) 60 C.R.R. (2d) 1, 236 N.R. 1, [1999] 1 S.C.R. 497, 43 C.C.E.L. (2d) 49, (sub nom. Law v. Minister of Human Resources Development) 1999 C.E.B. & P.G.R. 8350 (headnote only), [1999] S.C.J. No. 12 (S.C.C.) — considered Lee v. Canada (Minister of Citizenship & Immigration) (1997), 37 Imm. L.R. (2d) 278, 1997 CarswellNat 338, 126 F.T.R. 229, [1997] F.C.J. No. 242 (Fed. T.D.) — referred to 8 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Little Sisters Book & Art Emporium v. Canada (Minister of Justice) (2000), 145 B.C.A.C. 1, 237 W.A.C. 1, [2000] 2 S.C.R. 1120, 28 Admin. L.R. (3d) 1, 2000 SCC 69, 2000 CarswellBC 2442, 2000 CarswellBC 2452, 79 C.R.R. (2d) 189, 38 C.R. (5th) 209, 83 B.C.L.R. (3d) 1, [2001] 2 W.W.R. 1, 263 N.R. 203, 150 C.C.C. (3d) 1, 193 D.L.R. (4th) 193, [1998] S.C.C.A. No. 448, REJB 2000-21529, [2000] S.C.J. No. 66 (S.C.C.) — referred to Medovarski v. Canada (Minister of Citizenship & Immigration) (2005), [2005] 2 S.C.R. 539, 2005 SCC 51, 2005 CarswellNat 2943, 2005 CarswellNat 2944, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 339 N.R. 1, EYB 2005-95306, [2005] S.C.J. No. 31 (S.C.C.) — considered New Brunswick (Minister of Health & Community Services) v. G. (J.) (1999), 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 216 N.B.R. (2d) 25, 552 A.P.R. 25, [1999] 3 S.C.R. 46, 7 B.H.R.C. 615, 1999 CarswellNB 305, 1999 Car- swellNB 306, 244 N.R. 276, 177 D.L.R. (4th) 124, 26 C.R. (5th) 203, REJB 1999-14250, [1999] S.C.J. No. 47 (S.C.C.) — distinguished PIPSC v. Canada (Attorney General) (2012), 352 D.L.R. (4th) 491, (sub nom. Professional Institute of the Public Service of Canada v. Canada (Attorney General)) 438 N.R. 1, 2012 CarswellOnt 15718, 2012 CarswellOnt 15719, 2012 SCC 71, D.T.E. 2012T-892, 1 C.C.P.B. (2nd) 1, EYB 2012-215501 (S.C.C.) — referred to R. v. Cook (1998), 1998 CarswellBC 2001, [1999] 5 W.W.R. 582, [1998] 2 S.C.R. 597, 57 B.C.L.R. (3d) 215, 1998 CarswellBC 2002, 230 N.R. 83, 128 C.C.C. (3d) 1, 164 D.L.R. (4th) 1, 5 B.H.R.C. 163, 19 C.R. (5th) 1, 112 B.C.A.C. 1, 182 W.A.C. 1, 55 C.R.R. (2d) 189, [1998] S.C.J. No. 68 (S.C.C.) — considered R. v. Hape (2007), 363 N.R. 1, 227 O.A.C. 191, 160 C.R.R. (2d) 1, [2007] 2 S.C.R. 292, 2007 SCC 26, 2007 CarswellOnt 3563, 2007 CarswellOnt 3564, 47 C.R. (6th) 96, 220 C.C.C. (3d) 161, 280 D.L.R. (4th) 385, [2007] S.C.J. No. 26 (S.C.C.) — considered R. v. Morgentaler (1988), 63 O.R. (2d) 281 (note), (sub nom. R. v. Morgentaler (No. 2)) [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1, 1988 CarswellOnt 954, 1988 CarswellOnt 45, EYB 1988-67444, [1988] S.C.J. No. 1 (S.C.C.) — considered R. v. Spindloe (2001), 2001 SKCA 58, 2001 CarswellSask 303, 207 Sask. R. 3, 247 W.A.C. 3, 42 C.R. (5th) 58, 154 C.C.C. (3d) 8, [2002] 5 W.W.R. 239, [2001] S.J. No. 266 (Sask. C.A.) — referred to R. v. Turpin (1989), 69 C.R. (3d) 97, [1989] 1 S.C.R. 1296, 96 N.R. 115, 34 O.A.C. 115, 48 C.C.C. (3d) 8, 39 C.R.R. 306, 1989 CarswellOnt 76, 1989 CarswellOnt 957, EYB 1989-67449, [1989] S.C.J. No. 47 (S.C.C.) — considered Tabingo v. Canada (MCI) 9

Reference re Secession of Quebec (1998), 228 N.R. 203, 1998 CarswellNat 1300, 161 D.L.R. (4th) 385, 1998 CarswellNat 1299, 55 C.R.R. (2d) 1, [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61 (S.C.C.) — considered Rodriguez v. British Columbia (Attorney General) (1993), 1993 CarswellBC 1267, 82 B.C.L.R. (2d) 273, 85 C.C.C. (3d) 15, 107 D.L.R. (4th) 342, [1993] 3 S.C.R. 519, 17 C.R.R. (2d) 193, 24 C.R. (4th) 281, 158 N.R. 1, 34 B.C.A.C. 1, 56 W.A.C. 1, [1993] 7 W.W.R. 641, 1993 CarswellBC 228, EYB 1993-67109, [1993] S.C.J. No. 94 (S.C.C.) — considered Ruparel v. Canada (Minister of Employment & Immigration) (1990), 1990 Car- swellNat 52, 1990 CarswellNat 664F, 11 Imm. L.R. (2d) 190, 36 F.T.R. 140, [1990] 3 F.C. 615 (Fed. T.D.) — referred to Singh v. Canada (Minister of Employment & Immigration) (1985), 1985 Car- swellNat 663, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, 58 N.R. 1, 12 Ad- min. L.R. 137, 14 C.R.R. 13, 1985 CarswellNat 152, [1985] S.C.J. No. 11 (S.C.C.) — considered Slahi v. Canada (Minister of Justice) (2009), 186 C.R.R. (2d) 160, 2009 CF 160, 2009 CarswellNat 1112, 340 F.T.R. 236 (Eng.), 2009 FC 160, 2009 Car- swellNat 264 (F.C.) — considered Slahi v. Canada (Minister of Justice) (2009), 2009 CarswellNat 2748, 2009 FCA 259, 394 N.R. 352, 2009 CarswellNat 5845, 2009 CAF 259 (F.C.A.) — referred to Toronto Coalition to Stop the War v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 219 C.R.R. (2d) 226, 17 Admin. L.R. (5th) 1, (sub nom. Toronto Coalition to Stop the War v. Canada) [2012] 1 F.C.R. 413, 2010 CarswellNat 3438, 2010 CarswellNat 3439, 2010 FC 957, 2010 CF 957, 374 F.T.R. 177 (Eng.), 91 Imm. L.R. (3d) 123 (F.C.) — referred to Withler v. Canada (Attorney General) (2011), [2011] 4 W.W.R. 383, 87 C.C.P.B. 161, 300 B.C.A.C. 120, 509 W.A.C. 120, [2011] 1 S.C.R. 396, 2011 SCC 12, 15 B.C.L.R. (5th) 1, 329 D.L.R. (4th) 193, D.T.E. 2011T-181, 412 N.R. 149, 2011 CarswellBC 379, 2011 CarswellBC 380, [2011] S.C.J. No. 12 (S.C.C.) — considered Zeng v. Canada (Attorney General) (2013), 2013 FC 104, 2013 CarswellNat 175 (F.C.) — considered Statutes considered: Canada Evidence Act, R.S.C. 1985, c. C-5 s. 39 — considered Canadian Bill of Rights, S.C. 1960, c. 44, Pt. I, reprinted R.S.C. 1985, App. III Generally — referred to s. 1(a) — considered s. 2(e) — considered 10 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 2(d) — considered s. 6 — considered s. 7 — considered s. 15 — considered s. 15(1) — considered s. 24 — considered Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 52 — considered Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1 [en. 1990, c. 8, s. 5] — referred to Financial Administration Act, R.S.C. 1985, c. F-11 Generally — referred to s. 19(2) — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 12(2) — considered s. 25 — considered s. 25.2 [en. 2010, c. 8, s. 5] — considered s. 74(d) — referred to s. 87.3 [en. 2008, c. 28, s. 118] — considered s. 87.4 [en. 2012, c. 19, s. 707] — considered s. 87.4(1) [en. 2012, c. 19, s. 707] — considered s. 87.4(3) [en. 2012, c. 19, s. 707] — considered s. 87.4(4) [en. 2012, c. 19, s. 707] — considered s. 87.4(5) [en. 2012, c. 19, s. 707] — considered Interpretation Act, R.S.C. 1985, c. I-21 s. 12 — considered Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19 Generally — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 397 — 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. 11(1) — considered Tabingo v. Canada (MCI) Donald J. Rennie J. 11

s. 65.1 [en. SOR/2004-167] — considered s. 70 — considered s. 72 — considered s. 75 — considered s. 76 — considered ss. 76-83 — referred to

APPLICATION by aliens for declaration that subsection 87.4(1) of Immigration and Refugee Protection Act does not apply retrospectively to bar aliens’ applications for permanent residence in Canada, that impugned provision is invalid for want of compliance with subsections 1(a) and 2(e) of Canadian Bill of Rights and that impugned provision is unconstitutional and of no force or effect as impairing applicants’ rights as guaranteed by ss. 6, 7 and 15 of Canadian Charter of Rights and Freedoms.

Mario Bellissimo, Erin Roth, for Applicant, Mae Joy Tabingo (IMM-5635-12) Lorne Waldman, Jacqueline Swaisland, for Applicant, Yanjun Yin (IMM-8747- 12) Matthew Jeffery, for Applicant, Ali Raza Jafri (IMM-4866-12) Rocco Galati, Lawrence S. Wong, for Applicant, Sumera Shahid (IMM- 3725- 12) Rocco Galati, Lawrence S. Wong, for Applicant, Fang Wei (IMM-6165-12) Keith Reimer, Martin Anderson, Jocelyn Espejo-Clarke, C. Julian Jubenville, for Respondent

Donald J. Rennie J.: Overview 1 These applications concern section 87.4 of the Immigration and Refu- gee Protection Act, SC 2001, c 27 (IRPA), a recent amendment introduced by Bill C-38, known as the Jobs Growth and Long-term Prosper- ity Act. Subsection 87.4(1) provides that applications for permanent residence as a member of the federal skilled worker (FSW) class made before February 27, 2008 are terminated unless an officer had made a selection decision before March 29, 2012. 2 The applicants applied for FSW permanent resident visas before Feb- ruary 27, 2008. They have been waiting many years for their applications to be processed and are now subject to legislation which purports to cancel their applications without further consideration. They seek an order of mandamus directing the respondent to process their applications and have filed Notices of Constitutional Question alleging that section 87.4 violates the rule of law and the Canadian Charter of Rights and Free- 12 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

doms [Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c 11 (UK), RSC, 1985, Appendix II, No 44]. 3 Eight applicants were identified to represent approximately 1400 other individuals, all of whom had commenced applications under section 18.1 of the Federal Courts Act, RSC 1985, c F-7, seeking similar relief The applicants are: a. Mae Joy Tabingo, who applied for permanent residence at the visa office in Manila, Philippines in 2005 (IMM-5635-12); b. Habibollah Abedi, who applied for permanent residence at the visa office in Damascus, Syria in 2006 (MM-8669-12); c. Maria Sari Teresa Borja Austria, who applied for permanent residence at the visa office in Manila, Philipines in 2005 (IMM- 10307-12); d. Ali Raza Jafri, who applied for permanent residence at the visa office in Islamabad, Pakistan in 2007 (TMM-4866-12); e. Zafar Mahmood, who applied for permanent residence at the visa office in Islamabad, Pakistan in 2006 (TMM-8302-12); f. Sumera Shahid, who applied for permanent residence at the visa office in Islamabad, Pakistan in 2007 (TMM-3725-12); g. Fang Wei, who applied for permanent residence at the visa office in Hong Kong, People’s Republic of China in 2007 (IMM-6165- 12); and h. Yanjun Yin, who applied for permanent residence at the visa office in Beijing, People’s Republic of China in 2007 (IMM-8747- 12). 4 For the reasons that follow, the applications are dismissed.

Legislative Background 5 The FSW category fells within the economic class of immigrants who, pursuant to subsection 12(2) of the IRPA, are selected based on their ability to become established in Canada. The economic class also includes business immigrants, provincial and territorial nominees, the Canadian experience class and live-in caregivers, as well as their spouses and dependants. 6 Section 75 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) sets out the minimum requirements for immigration as a FSW. Sections 76 to 83 of the Regulations detail the se- Tabingo v. Canada (MCI) Donald J. Rennie J. 13

lection criteria used to determine whether an applicant is able to become economically established in Canada. 7 The number of FSW applications has consistently exceeded both Citi- zenship and Immigration Canada’s (CIC) processing capacity and the number of immigrants permitted under the annual immigration levels plan. It could take many years for an application to be reached, let alone assessed and the necessary information updated. This delay made it difficult to align a candidate’s experience and skills to Canada’s current labour market needs, or so it is contended by the respondent. The ensuing backlog of FSW applications has been a concern of CIC for a number of years. 8 To address this problem, the IRPA was amended in February of 2008 to introduce section 87.3. Section 87.3 authorized the Minister of Citi- zenship and Immigration (the Minister) to issue Ministerial Instructions regarding the priority in which applications would be processed, and removed the obligation to process every application received. The Ministe- rial Instructions provided for a triage of applications according to revised eligibility criteria, including the establishment of categories of applicants and quotas. However, and of importance for the purposes of these proceedings, the Ministerial Instructions only applied to applications submitted after February 27, 2008. 9 The first set of Ministerial Instructions was unsuccessful in re- straining the growth of applications and reducing the backlog. A second set of Ministerial Instructions was thus introduced. The second set imposed a global cap on FSW applications; a maximum of 20,000 applications (excluding those with an arranged employment offer) were to be processed each year. Within that cap, a maximum of 1,000 applications per occupational category were to be processed each year. Applications exceeding those limits would be returned unprocessed. A third set of Ministerial Instructions lowered this cap to 10,000 FSW applications per year and 500 per occupation. 10 The Ministerial Instructions had two consequences. First, the annual caps on total applications prevented the backlog from growing. Second, the Instructions created a hierarchy of processing priority. Applications received under the third Ministerial Instructions were given the highest priority, followed by applications received under the second and then the first Ministerial Instructions and finally, applications from before Febru- ary 27, 2008. The Ministerial Instructions slowed, but did not completely halt, the processing of applications from before February 27, 2008. 14 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

11 CIC also attempted to reduce the backlog by confirming whether applicants were still interested in immigrating to Canada. In 2009, CIC sent letters to pending FSW applicants offering to return the application fee if applicants wished to withdraw their application These letters stated; “No further offers to return your fee will be sent.” 12 By April, 2011 the backlog had been reduced by 50%. Despite this progress, the government determined that further measures to eliminate the backlog were required. 13 Before Bill C-38 received Royal Assent, CIC issued Operational Bul- letin 400, which instructed that processing should not commence or continue for any FSW application received before February 27, 2008 for which a selection decision had not been made before March 29, 2012. The application of this bulletin was successfully challenged on the grounds that it implemented proposed legislation that had not yet become law. CIC subsequently issued Operational Bulletin 413, stating that man- agers must continue processing all FSW applications until Bill C-38 came into force. 14 Bill C-38 received Royal Assent on June 29, 2012. CIC issued Opera- tional Bulletin 442 to provide guidance on its implementation. Bulletin 442 provided that applications were terminated in two situations: (1) if an officer had not made a selection decision prior to March 29, 2012; or (2) if an officer made a selection decision on or after March 29, 2012 and the application had not been finalized as of Royal Assent. This is, in fact, a subset of the first situation.

The Applicants 15 The applicants share the common characteristic of having their FSW applications terminated. The eight applicants are citizens of diverse na- tionalities and applied at different Canadian visa posts, including Is- lamabad, Beijing, Manila and Damascus. As noted, the eight applicants represent, in turn, several thousand FSW applicants who have had their applications terminated and who have commenced applications for judicial review. 16 The applicants, collectively, raise the following issues: a. Whether section 87.4 applies retrospectively and terminated the applications upon its coming into force; b. Whether subsections 1(a) and 2(e) of the Canadian Bill of Rights, SC 1960, c 44 apply to provide procedural safeguards; Tabingo v. Canada (MCI) Donald J. Rennie J. 15

c. Whether section 87.4 is compliant with the rule of law; d. Whether section 87.4 respects judicial independence; e. Whether section 87.4 is compliant with the Charter, f. Whether the Court may issue an order for mandamus; g. Whether the applicants may request humanitarian and compassionate relief; h. Whether section 87.4 complies with the Financial Administration Act, RSC 1985, c F-11; and i Whether the applicants are entitled to interest on their application fees.

Discussion Statutory Interpretation 17 The first, and perhaps most significant issue, is that of statutory interpretation. The applicants submit that section 87.4 (Annex A), properly construed, does not apply retrospectively to interfere with vested rights. Further, they submit that it does not operate to terminate the applications as a matter of law, but rather that individualized adjudication must follow to determine what applications the provision in fact captures; put otherwise, the applications remain extant until a subsequent administrative action or adjudicative decision is made. 18 As I will explain, these arguments cannot be sustained. It is evident, on a principled reading of the provision, that section 87.4 was intended to terminate the applications upon its coming into force. This requires that it apply retrospectively, cancelling any entitlement the applicants may have had to have their applications considered. 19 The modern approach to statutory interpretation is set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), p 87: “...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 Parliament.” As a corollary to this, when the language of the statute is precise and unequivocal, the ordinary meaning of the words plays a dominant rob in the interpretive process: Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3 (S.C.C.), para 21. 16 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

20 Section 12 of the Interpretation Act, RSC 1985, c I-21 also instructs that: 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. 12. Tout texte est censé apporter une solution de droit et s’interprète de la manière la plus equitable´ et la plus large qui soit compatible avec la réalisation de son objet. 21 When determining what Parliament or the legislature intended, a court may reference the various ancillary principles of statutory interpretation. The applicants urge this Court to apply the presumption against interference with vested rights, the presumption against retrospectivity and the presumption that the legislature does not intend absurd or inequi- table results. For the purpose of the statutory interpretation question I will assume that the applicants had a vested right to the processing of their application. 22 Courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear. However, when a statute is unambiguous, there is no role for presumptions or interpretive aids, and the courts may not apply any of the interpretive presumptions noted earlier: PIPSC v. Canada (Attorney General), 2012 SCC 71 (S.C.C.), paras 95, 159-160; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 (S.C.C.), para 71; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue (1975), [1977] 1 S.C.R. 271 (S.C.C.). 23 Here, the ordinary meaning of the provision governs. The meaning and effect of the word “terminated” is clear. Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications. The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness. The three presumptions relied on by the applicants are displaced by the clarity of Parliament’s intention. Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee. 24 The applicants point to various terms in section 87.4 which they contend are ambiguous and vague. In particular, the applicants identify the terms “selection criteria” and “other requirements applicable to that class” as undefined and as having multiple meanings. Additionally, the Tabingo v. Canada (MCI) Donald J. Rennie J. 17

applicants argue that preliminary assessments are made at various stages in the processing of an application and therefore it is not clear what constitutes a selection decision and when it arises. Individualized evaluation is thus required. 25 The wording does not demonstrate any ambiguity such that presumptions are triggered. 26 The term “selection criteria” is used elsewhere in the IRPA and Regu- lations. Section 70 of the Regulations provides that a visa officer shall issue a permanent resident visa if it is established that a foreign national meets various conditions, including the “selection criteria”. Section 76 of the Regulations is, titled “Selection Criteria” and provides the criteria on which applicants will be assessed. When read in context, as it must, this term is not vague. 27 The phrase “other requirements applicable to that class” is also familiar to the Regulations. Satisfying such other requirements is a precondi- tion for obtaining permanent residence visas and status in sections 65.1, 70 and 72 of the Regulations. The “other requirements” would include, for example, the minimum requirements set out in section 75 of the Regulations. 28 It is apparent from the plain reading of the section that only the final decision given by an officer qualifies as a selection decision When an application is brought forward for processing, applicants are asked to provide updated forms and supporting documents. At this stage staff at the visa office perform an initial paper screening of the file. The file is then forwarded to an officer who decides whether the applicant meets the selection criteria and other requirements applicable to the FSW class. The language of subsection 87.4(1) specifically refers to this decision, as it is the only one made under the IRPA by an officer. 29 Having determined that section 87.4 is intended to operate retrospectively, the question remains whether the FSW applications at issue were terminated by operation of law when section 87.4 came into force, or whether the applications are to be terminated following an individualized assessment and decision. 30 The respondent takes the position that the applications were terminated by operation of law at the time of Royal Assent, on June 29, 2012. The applicants submit that the termination only takes effect once an officer determines whether section 87.4 applies. I conclude that what subsection 87.4(1) entails is a non-discretionary application of the law to incontestable facts. 18 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

31 The applicants’ position is premised on the language of section 87.4, contending it necessitates a decision-making process. As I have previously found, the language in section 87.4 is clear. Section 87.4 creates objective, factual criteria for termination: (1) the application was made before February 27, 2008; and (2) an officer has not made a selection decision before March 29, 2012. These conditions either existed or did not exist for each application as of the date of Royal Assent. The legislation does not contemplate any subsequent adjudicative process, nor does it authorize the exercise of judgment or discretion in applying the law to each application. An officer is not entitled to consider an applicant’s unique circumstances or to weigh various factors. No new factual determination must be made other than to identify whether or not the file contains a selection decision 32 It was only necessary for CIC to identify, through an administrative review, which applications had been terminated. This is distinguishable from an adjudicative process whereby an officer would decide whether to terminate an application Again, section 87.4 entails a non-discretionary application of law to verifiable and incontrovertible facts. 33 The applicants’ statutory interpretation argument also fails when viewed through the lens of section 12 of the Interpretation Act. If the files are not terminated, as a matter of law, but terminated only upon some subsequent assessment, then the plain and obvious meaning of section 87.4 would be undermined. 34 The applicants point to CIC’s Operational Bulletin 442 which provides that applicants who had not received a selection decision prior to March 29, 2012 but who had subsequently received a selection decision and had their application finalized before June 29, 2012 are not affected by section 87.4. This ensures that even if an application should have been terminated by section 87.4, i.e., captured by having been decided during the transition period, the positive selection decision stands if it was made before section 87.4 became law. 35 In my view, if the FSW application had been determined before Bill C-38 received Royal Assent then there was no pending application for section 87.4 to terminate. It ceased to be “pending”. It was now spent. Section 87.4 only purports to terminate applications, not an applicant’s file indicating that he or she has been accepted, much less a permanent residence visa once it has been issued. Operational Bulletin 442 is consistent with this interpretation. Tabingo v. Canada (MCI) Donald J. Rennie J. 19

36 Finally, the applicants submit that there must be some individualized decision so that the applicants could seek judicial review in the event that their application was terminated in error. I disagree. An applicant may apply to this Court for an order of mandamus to compel the Minister to process an application which had been identified as terminated if in fact a positive selection decision had been made. The Court will then determine whether the application is in fact caught by section 87.4. If not, then it was never terminated (only mistakenly classified as terminated) and an order for mandamus may follow. Accordingly, applicants have a process for redress if their application is identified as terminated in error. 37 My conclusion on the issue of statutory interpretation is that section 87.4 terminates the applications at issue by operation of law. The presumptions put forward by the applicants do not apply and there is no requirement for individualized adjudication. Therefore, the application for mandamus mast fail unless the legislation is unconstitutional or contrary to the Bill of Rights.

Bill of Rights 38 The Bill of Rights was enacted in 1960 as a statute of Parliament. While it has diminished importance in light of the Charter, as the Char- ter does not contain a general guarantee of “due process” or any protection for economic rights, the Bill of Rights retains continued significance in the landscape of Canadian jurisprudence. 39 The applicants submit that section 87.4 violates their rights under subsection 1(a) of the Bill of Rights, which protects the right not to be deprived of property except by due process of law and subsection 2(e), which guarantees a fair hearing for the determination of rights and obligations (Annex B). 40 My conclusion that there is no adjudicative process involved in terminating the applications is determinative of this issue. The due process protections of the Bill of Rights do not apply to legislative enactments: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40 (S.C.C.), paras 42-46 and 59 and, as there is no individualized decision to terminate the applications, the Bill of Rights is inapplicable. The Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations. 41 In Authorson, disabled war veterans relied on the Bill of Rights to claim interest on pension funds held in trust on their behalf by the federal 20 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

government. Parliament had enacted legislation which barred any claim for interest that might otherwise be payable on the funds prior to 1990. The Supreme Court of Canada agreed that the effect of the statute was to take a property interest from a vulnerable group, in disregard of the government’s fiduciary duty. However, this taking was within the power of Parliament. 42 The Supreme Court of Canada rejected the argument that subsection 1(a) was triggered by the deprivation of property and the bar of judicial recourse. Major J, speaking for the Court, wrote: What procedural protections for property rights are guaranteed by due process? In my opinion, the Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal. [...] Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960. Certain procedural rights in this regard have long been recognized. In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Mon- tr´eal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension. Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required. For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces. However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits. 43 To conclude, the language of Authorson (Litigation Guardian of) is dispositive of this issue: The respondent submitted that the clear, uncontested interpretation of s. 5.1(4) of the Department of Veterans Affairs Act is that it is an expropriation of disabled veterans’ interest on DVA-administered pensions, and as such is inoperative. But no adjudicative procedure is necessary for the non-discretionary application of a law to incontestable facts. A taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him. 44 While I accept that the applicants have incurred various expenses in making their FSW applications this is not equivalent to a deprivation of Tabingo v. Canada (MCI) Donald J. Rennie J. 21

property. Rather, the applicants have freely chosen to apply to come to Canada and to incur the related expense. Their FSW application did not provide any right to, or recognizable legal interest in, the potential future economic opportunities that might come their way if they were successful. At best, the applicants possessed a mere chance to gain access to economic opportunities in Canada. No economic right had vested and any opportunity remained prospective, contingent and speculative. In sum, a pending FSW application does not constitute property within the meaning of subsection 1(a) of the Bill of Rights. Even if it was considered property, the Bill of Rights does not prevent the expropriation of property without compensation by the passage of unambiguous legislation.

Rule of Law / Unwritten Principles of the Constitution 45 The applicants contend that section 87.4 is unconstitutional. They argue that the provision violates the rule of law because it is vague and has retrospective effects. 46 Three principles underlie the rule of law. First, the law is supreme over both the government and individuals. Second, law must be created and maintained to preserve and embody a normative order. Third, the relationship between individuals and the state must be regulated by law. 47 None of these principles speak directly to the content of legislation. In consequence, as noted by the Supreme Court of Canada “it is difficult to conceive of how the rule of law could be used as a basis for invalidat- ing legislation ... based on its content”. The rule of law is primarily concerned with the relationship between the executive, legislative and judicial branches of government, and the legislature is only constrained in the sense that it must comply with the procedural requirements for enact- ing, amending and repealing legislation: Imperial Tobacco Canada Ltd., paras 58-60. 48 There has been some debate as to the extent to which the rule of law and unwritten principles of the Constitution have embedded within them principles that would permit the invalidation of legislation on the basis of its content. This issue was joined in Babcock v. Canada (Attorney Gen- eral), 2002 SCC 57, [2002] 3 S.C.R. 3 (S.C.C.). Section 39 of the Can- ada Evidence Act, RSC 1985, c C-5, barred the production of documents and their admission into evidence upon certification by the Clerk of the Privy Council that they were confidences of the Queen’s Privy Council. It was contended that the unfairness of creating special evidentiary rules 22 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

that favoured the Crown and the absence of judicial oversight of the certification process offended the rule of law. The Supreme Court of Canada rejected the argument: Babcock, para 57. 49 The Supreme Court of Canada returned to the question three years later in Imperial Tobacco Canada Ltd. (paras 61-64) concluding that there is no constitutional guarantee that law be general in character and not confer special privileges on the government: Nonetheless, considerable debate surrounds the question of what additional principles, if any, the rule of law might embrace, and the extent to which they might mandate the invalidation of legislation based on its content. [...] This debate underlies Strayer J.A.’s apt observation in Singh v. Can- ada (Attorney General), 2000 CanLII 17100 (FCA), [2000] 3 F.C. 185 (C.A.), at para. 33, that “[a]dvocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be.” The appellants’ conceptions of the rule of law can fairly be said to fall at one extreme of the spectrum of possible conceptions and to support Strayer J.A.’s thesis. They submit that the rule of law requires that legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial. And they argue that the Act breaches each of these requirements, rendering it invalid. A brief review of this Court’s jurisprudence will reveal that none of these requirements enjoy constitutional protection in Canada. 50 With the exception of criminal offences and sanctions there is no requirement that legislation be prospective, even though retrospective and retroactive legislation can overturn settled expectations and be perceived as unjust: Imperial Tobacco Canada Ltd., paras 69-72. Whatever personal and economic opportunities a pending FSW application may represent to an applicant, it does not equate with, or possess the characteristics of an interest that would preclude its termination on the basis of the rule of law. Here, Parliament has expressed a clear intention that section 87.4 apply retrospectively. Though this may be perceived as unjust, it does not violate the rule of law. 51 Section 87.4 is also not contrary to the rule of law due to vagueness. I have found that its meaning is readily apparent on a plain and obvious reading. Second, vagueness has only been used to invalidate legislation Tabingo v. Canada (MCI) Donald J. Rennie J. 23

in exceedingly rare circumstances and then only in a criminal law context: R. v. Spindloe, 2001 SKCA 58 (Sask. C.A.), para 78. 52 As was the case in Imperial Tobacco Canada Ltd., the applicants have argued for an understanding of unwritten constitutional principles that would expand on the rights specifically provided for in the written Constitution In particular, the applicants have argued that, embedded in the rule of law, there is a broader equality right than that provided for in section 15 of the Charter. Acceptance of this argument would render the written constitutional rights redundant. The recognition of unwritten constitutional principles is not an invitation to dispense with the written text of the Constitution: Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.), para 53, and, while the parameters of the unwritten principles of the Constitution remain undefined, they must be balanced against the concept of Parliamentary sovereignty which is also a component of the rule of law: Warren J Newman, The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation (2005) 16 NJCL 175. 53 The argument predicated on the rule of law and unwritten principles of the Constitution is therefore dismissed.

Judicial Independence 54 Although unwritten, judicial independence is a foundational principle of the Constitution. Judicial independence safeguards the judiciary’s freedom to render decisions based solely on the requirements of the law, without interference from the executive branches of government. There are three essential conditions of judicial independence: security of tenure, financial security and administrative independence. The applicants have not identified a basis on which section 87.4 interferes with any of the essential conditions of judicial independence. 55 In Imperial Tobacco Canada Ltd., the Supreme Court of Canada emphasized that judicial independence does not include the freedom to apply only laws of which the judiciary approves. This would require “a constitutional guarantee not of judicial independence, but of judicial governance.” 56 The rule of law mandates that the government is not beyond the law. However, the government is only bound by the law as it exists from time to time. Subject always to the Constitution, both written and unwritten, Parliament may change the law and this includes barring certain claims through limitation and Crown immunity statutes: Bacon v. Saskatchewan 24 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Crop Insurance Corp. (1999), 11 W.W.R. 51 (Sask. C.A.), leave denied (2000), [1999] S.C.C.A. No. 437 (S.C.C.). 57 The applicants argue that section 87.4 unduly interferes with the courts by prescribing certain outcomes. They draw support for this from subsection 87.4(3) which they argue excludes any form of judicial super- vision, and subsection 87.4(5) which bars any right of recourse against the Crown for damages. 58 This argument misunderstands the origins and purpose of judicial independence. Parliament is free to craft legislation and the courts must, assuming it is constitutional, interpret and apply that legislation as written. It is not interference with judicial independence for Parliament to write legislation which leads to a certain outcome when property applied. This is the proper function of lawmaking, of which there are many examples. Authorson (Litigation Guardian of), Imperial Tobacco Canada Ltd., and Babcock involved legislative change or adaptation to what would otherwise be decided through judicial process. In Authorson (Litigation Guardian of), causes of action to recover interest were barred; in Imperial Tobacco Canada Ltd., a duty of care and causation were de- creed by legislation and in Babcock, relevant evidence could be rendered inadmissible by a certificate of the Clerk of the Privy Council. 59 As I have previously explained, if any applicants believe their applications were improperly identified as terminated and can point to a positive selection decision before March 29, 2012, they may apply to the Court for an order of mandamus. The rule of law mandates that all administrative action must have its source in law. If CIC improperly identi- fies an application as terminated and refuses to process it, that action would be without a source in law and therefore amenable to the Court’s jurisdiction. Additionally, this Court is not prevented from scrutinizing the legislation to ensure it is compliant with the Constitution and the Bill of Rights. Section 87.4 does not bar access to the courts. 60 Finally, Crown immunity clauses, such as that contained in subsection 87.4(5), are not unconstitutional unless the statute itself is ultra vires on division of powers grounds: Kingsway General Insurance Co. v. Al- berta, 2005 ABQB 662 (Alta. Q.B.), para 67. In Kingsway General Insurance Co., the legislature of Alberta passed legislation to immunize the government from liability resulting from insurance reforms, targeting a specific action which was pending before the Court of Queen’s Bench. The Court determined that the legislation was within the competence of Tabingo v. Canada (MCI) Donald J. Rennie J. 25

the legislature and did not violate the rule of law even though it barred a specific, pending action.

Applicability of the Charter 61 The applicants contend that section 87.4 infringes their rights under sections 6, 7 and 15 of the Charter. At the hearing, the applicants abandoned their reliance on subsection 2(d) of the Charter, the right to freedom of association. 62 As a threshold issue, there is the question whether the applicants, as non-citizens residing outside of Canada, are entitled to the protection of the Charter. This question is one of application of the Charter, and not to be confused or conflated in its analysis with that of standing. The applicants are “directly affected” by the passage of Bill C-38, as to have sufficient legal interest to commence the applications. Whether the Charter applies or extends to non-residents is a discrete legal question. 63 Without a doubt, as legislation enacted by Parliament, section 87.4 must be Charter compliant. If not, a remedy is available under section 52 of the Constitution Act, 1982. Similarly, Charter compliant legislation must be administrated in a manner consistent with the Charter. If not, a remedy is available under section 24 of the Charter. In all cases, the central and controlling frame of analysis is that constitutionality is governed by effect and consequence, not legislative intent. In this case, the repercussions and effects of section 87.4 are outside of Canada, and fall upon nationals of other countries. At issue, therefore, is whether section 7 and section 15 rights are vested in foreign, non-resident applicants. The legislation would not violate the applicants’ Charter rights if they do not have those rights to begin with. 64 Section 6 of the Charter is explicitly limited to citizens and permanent residents. Therefore, the applicants’ reliance on that section must fail. However, section 7 and section 15 do not contain that explicit limitation, applying to “everyone” and “every individual” respectively. 65 There has been clear guidance from the Supreme Court of Canada and the Federal Court of Appeal as to when the Charter applies to the actions of Canadian officials outside of Canada. The present case has a significant distinction from these authorities. The issue here is not whether the Charter applies to officers and agents of the Government of Canada when abroad, but whether it affords rights to foreign nationals outside of Canada who are affected only by legislative change of Parlia- ment. The weight of the case law indicates that non-citizens outside of 26 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Canada may not claim the protection of the Charter, absent exceptional circumstances involving the actions of Canadian officials or agents abroad. 66 Justice Edmond Blanchard considered this issue in Slahi v. Canada (Minister of Justice), 2009 FC 160 (F.C.) (aff’d 2009 FCA 259 (F.C.A.)), in the context of a section 7 Charter claim brought by foreign nationals who had been detained at Guantanamo Bay and questioned there by Ca- nadian officials. Justice Blanchard conducted a detailed review of the law on extra-territorial application of the Charter, starting with Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177 (S.C.C.). In Singh, it will be recalled, Justice Wilson accepted that the term “everyone” in section 7 of the Charter “includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law”. 67 Justice Blanchard also noted Justice L’Heureux-Dubé’s dissenting reasons in R. v. Cook, [1998] 2 S.C.R. 597 (S.C.C.) wherein she noted: I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word “everyone”. Rather, I think that it is arguable that “everyone” was used to distinguish the rights granted to everyone on the territory of Canada from those granted only to citizens of Canada and those granted to persons charged with an offence. 68 The majority in Cook had determined that the Charter did apply in the context of an American citizen who had been questioned by Cana- dian authorities in the United States and then faced trial for murder in Canada, without explicitly addressing Justice L’Heureux-Dubé’s concern. 69 More recently, in R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 (S.C.C.) the Supreme Court of Canada effectively overruled the majority in Cook and determined that the Charter did not apply to Canadian police officers while conducting an extraterritorial search and seizure under the authority of local officials. Writing for the majority, Justice LeBel emphasized that Canada cannot act to enforce or give effect to its laws, including the Charter, within the territory of another state absent that state’s consent or some other exceptional basis in international law. Jus- tice LeBel also acknowledged, but did not explicitly endorse, Justice L’Heureux-Dubé’s dissent in Cook. I note, parenthetically, that the cir- Tabingo v. Canada (MCI) Donald J. Rennie J. 27

cumstances of this case do not involve the application of Canadian law within the territory of another state. 70 Having reviewed these authorities, Justice Blanchard concluded, at paragraphs 47-48 that: In summary, the jurisprudence of the Supreme Court teaches that section 7 Charter protections may be available to non-Canadians when they are physically present in Canada or subject to a criminal trial in Canada, and that Canadian citizens, in certain circumstances, may assert their section 7 Charter rights when they are outside Canada. [...] The Applicants are not Canadian citizens. They have failed to establish the required connection to Canada. Consequently, their circumstances cannot engage a section 7 Charter right. 71 This decision was upheld by the Federal Court of Appeal in Slahi v. Canada (Minister of Justice), 2009 FCA 259 (F.C.A.). The Court agreed with Justice Blanchard’s determination “that section 7 was inapplicable to the applicants while detained by U.S. authorities at Guant`anamo Bay because they are not Canadian citizens”. 72 In Khadr v. Canada (Minister of Justice), 2008 SCC 28, [2008] 2 S.C.R. 125 (S.C.C.), the Supreme Court of Canada found that the Char- ter applied to Canadian agents who questioned Omar Khadr, a Canadian citizen, while he was detained in Guantanamo Bay. Two factors distinguish Khadr from the present case. First, Mr. Khadr was a Cana- dian citizen. Second, it was accepted that Canada had participated in a process that violated Mr. Khadr’s fundamental human rights under both Canadian law and international law. This finding was at the core of the decision in Khadr. 73 Amnesty International Canada v. Canada (Minister of National De- fence), 2008 FC 336 (F.C.) (aff’d 2008 FCA 401 (F.C.A.)), involved detainees held by the Canadian Forces in Afghanistan in the context of an ongoing armed conflict. The Federal Court of Appeal upheld Justice Anne Mactavish’s conclusion that while the detainees were protected by international humanitarian law, they did not have Charter rights as “there has been no consent by the Government of Afghanistan to having Cana- dian Charter rights conferred on its citizens, within its territory”: Amnesty International Canada, para 172. 74 It is significant that the jurisprudence interpreting section 15 has de- veloped in reference to Canadian society and Canadian norms and val- ues. In Law v. Canada (Minister of Employment & Immigration), [1999] 28 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

1 S.C.R. 497 (S.C.C.), Justice Iacobucci explained that discrimination promotes the view that an individual has less value “as a human being or as a member of Canadian society.” In determining whether a claim for discrimination has been made out, a court is to consider whether the claimant has a “disadvantaged position within Canadian society.” The Supreme Court of Canada recently endorsed this language in Droit de la famille - 091768, 2013 SCC 5 (S.C.C.), para 151. 75 Other recent decisions of this Court have found that non-citizens outside of Canada generally do not hold Charter rights: Zeng v. Canada (Attorney General), 2013 FC 104 (F.C.), paras 70-72; Kinsel v. Canada (Minister of Citizenship and Immigration), 2012 FC 1515 (F.C.), paras 45-47; Toronto Coalition to Stop the War v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 957 (F.C.), paras 81-82. These three decisions followed Justice Blanchard’s determination that a Charter claim may only be advanced by an individual who is present in Canada, subject to criminal proceedings in Canada, or possessing Cana- dian citizenship. 76 This limitation on the application of the Charter is not a recent development. Even prior to Slahi, the Federal Court and the Federal Court of Appeal had interpreted Singh as barring Charter claims from non-citizens outside Canada: Canadian Council of Churches v. R., [1990] 2 F.C. 534 (Fed. C.A.) (aff’d on other grounds [1992] 1 S.C.R. 236 (S.C.C.)); Ruparel v. Canada (Minister of Employment & Immigration), [1990] 3 F.C. 615 (Fed. T.D.); Lee v. Canada (Minister of Citizenship & Immigra- tion), [1997] F.C.J. No. 242 (Fed. T.D.); Deol v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1034 (Fed. T.D.) (aff’d on other grounds 2002 FCA 271 (Fed. C.A.)). 77 The only exception counsel identified involved an applicant claiming the right to citizenship, rather than the privilege of immigration: Crease v. Canada, [1994] 3 F.C. 480 (Fed. T.D.). In that case the applicant had applied for citizenship from within Canada and had a Canadian mother. 78 The respondent does not dispute either the applicants’ standing or the application of the Charter. The parties appear to coalesce around the proposition that the FSW applications establish a sufficient nexus with Can- ada to extend the reach of sections 7 and 15. The jurisprudence does not support this concession. What is in issue involves the repercussions abroad of domestic legislation. In this case, there is no question of the extra-territorial application of the Charter as an adjunct of the actions of Canadian officials abroad, nor is there, as I conclude on the evidence, Tabingo v. Canada (MCI) Donald J. Rennie J. 29

non-compliant administration of the legislation. The issue framed by this case is whether the protections provided by sections 7 and 15 reach foreign nationals, when residing outside of or beyond Canadian territory. 79 Despite my reservations as to the correctness of the concession, given that there is no lis between the parties on the issue, I will not determine the point. Charter jurisprudence should develop incrementally through the interface of opposing positions and interests. In any event, it is un- necessary to determine the point, as I find that the claims of infringement M on their merits.

Life, Liberty and Security of the Person 80 Section 7 of the Charter provides that: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 7. Chacun a droit a` la vie, a` la liberté et a` la sécurité de sa personne; il ne peut etreˆ porté atteinte a` ce droit qu’en conformité avec les principes de justice fondamentale. 81 A prerequisite to a discussion of the principles of fundamental justice is that the applicants’ life, liberty or security interests be demonstrated to have been engaged: Blencoe v. British Columbia (Human Rights Com- mission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.), para 47. I have concluded that the applicants’ argument under section 7 fails at that threshold question. 82 In Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 (S.C.C.), the Supreme Court of Canada concluded that deportation of a non-citizen for committing serious crimes did not violate section 7. While the respondent urges Chiarelli as a conclusive answer to the section 7 challenge, the applicants say that this is too broad a reading, noting that the Court in Chiarelli did not determine whether deportation could be conceptualized as a deprivation of the right to liberty, only that it did not violate the principles of fundamental justice. 83 In a subsequent decision the Supreme Court of Canada relied on Chiarelli in support of its conclusion that “the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7”: Medovarski v. Canada (Minister of Citizenship & Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (S.C.C.), para 46. In both decisions, the Supreme Court of Canada emphasized that, “The most fundamental 30 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada.” 84 These decisions are dispositive of the applicants’ section 7 arguments. While the focus was on the right to remain in Canada consequent to criminal conduct, the Supreme Court of Canada spoke at a higher level of principle when it concluded that there is no unqualified right to enter into Canada. 85 The applicants seek to confine the scope of Chiarelli and Medovarski. They contend that their liberty and security of the person interests are engaged because immigration is a decision of fundamental personal importance and because of the psychological stress they have experienced. The applicants were assured that their applications would be processed. They incurred substantial costs and made personal sacrifices in hopes of immigrating. They waited patiently in the queue, for many years. They are now dismayed to learn that it was all for nothing. 86 Mae Joy Tabingo, a qualified nurse, waited seven years, only to find that it was for naught. As the door she was seeking to enter closed, another door opened to other nurses who had not stood in the same line. I accept her evidence that she perceives this to be unfair. 87 Fang Wei applied to immigrate to Canada in order to join her husband who landed as a permanent resident on June 14, 2006. Because her husband did not disclose their marriage on landing, she cannot be sponsored by him as a spouse. Ms. Wei and her husband have delayed having children as a result of their separation and her life has been “on hold”. CIC repeatedly reassured her that “all of the applications in our inventory will be processed” and she was not advised that she could reapply under that the new Ministerial Instruction scheme. 88 Sumera Shahid made her application in September of 2007. CIC mistakenly returned her file on the erroneous basis that she had failed to include the appropriate fee. CIC confirmed acceptance of her application in November of 2007 and advised that processing would take three to three and a half years. Ms. Shahid repeatedly inquired as to the status of her application and was reassured that a decision would be forthcoming. 89 Ali Raza Jafri also applied in 2007 at the Islamabad visa office, based on his experience as a marketing manager. His wife and children were listed as his dependants. In 2009 he requested that his application be transferred to another visa office but this was denied. He now feels “completely betrayed” by the termination of his application. He gave up Tabingo v. Canada (MCI) Donald J. Rennie J. 31

job opportunities and delayed buying a home in anticipation of immigrating. 90 Habibollah Abedi is a citizen of Iran where he has worked as an air- craft maintenance engineer. He applied at the Damascus visa office in 2006, listing his wife and children as dependants. In 2010, his file was transferred to Warsaw and in 2012 the Warsaw office advised that it was trying to “manage arrivals” and needed to “stagger” the issuance of visas. 91 Maria Sari Teresa Borja Austria applied at the visa office in Manila in 2005, listing her son as a dependant. She hoped to be reunited with her sister in Canada. When she applied, Ms. Austria was 49 years old and would have received 10 out of 10 points for her age. Now, she is outside of the prescribed age range and would not be entitled to any points for her age. For Ms. Austria, the possibility of submitting a new application is no solution to having her pending application terminated. 92 Zafar Mahmood applied in 2006 at the Islamabad visa office, with his wife and three children as dependants. CIC informed him that the anticipated processing time was 36 - 42 months, and so he expected a decision by May of 2010. His application was transferred to London in 2010 and by then the anticipated processing time had increased to 88 months. 93 Yanjun Yin applied in 2007, listing his wife as his dependant. In March of 2010, he provided updated documentation to the Beijing visa office, as requested by that office, and anticipated that a decision would be forthcoming. Mr. Yin has been diligent in corresponding with CIC and the Minister regarding his pending application. He and his wife pursued English language and professional education in anticipation of immigrating. 94 These circumstances are said to engage the applicants’ section 7 interests. 95 Section 7 is primarily, but not exclusively, concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment. However, the liberty interest protected by section 7 encompasses more than freedom from physical restraint and includes the freedom to make fundamental personal choices: Blencoe, paras 49, 54. Additionally, security of the person can protect both physical and psychological integrity: New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.). 32 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

96 The applicants contend that their pending FSW applications engage these fundamental interests. The FSW process provides the sole path by which they can attain additional rights and a standard of living essential to their physical and psychological integrity. They also say that completing their applications and emotionally investing in the decision to leave their country of origin constitutes a fundamental personal choice. How- ever, giving section 7 its widest scope, I find that there are no section 7 interests engaged by section 87.4. 97 In R. v. Morgentaler, [1988] 1 S.C.R. 30 (S.C.C.), Justice Wilson, speaking for herself, determined that a woman’s liberty interest was engaged by restricting access to abortion. She explained at page 166, that the right to liberty “grants the individual a degree of autonomy in making decisions of fundamental personal importance.” Justice La Forest endorsed this passage in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (S.C.C.) at page 369, in deciding that section 7 protected the rights of parents to care for their children. 98 In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (S.C.C.), Justice Sopinka wrote that personal autonomy and basic human dignity are encompassed within security of the person. This includes the right to make choices concerning one’s own body and control over one’s physical and psychological integrity. In Blencoe, the Court cautioned that only serious, state-imposed impacts on a person’s psychological integrity may engage section 7: Blencoe, paras 56-57. 99 I accept that the applicants have experienced stress and hardship; I also accept that the circumstances of some of the applicants are compelling. However, immigration is not of such an intimate, profound and fondamental nature as to be comparable with a woman’s right of repro- ductive choice, or the freedom of parents to care for their children. The ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage section 7. While it may have life-altering consequences, the possibility of immigrating to Canada as a successful FSW applicant does not engage life or liberty interests. 100 The voluntary character of the applicants’ decision to apply for a FSW visa, and to voluntarily put major life decisions in abeyance pending the outcome, is determinative of the question as to whether security of the person is engaged. Voluntariness distinguishes the applicants’ situation from that in Rodriguez. Sue Rodriguez suffered from amyotrophic lateral sclerosis, a terminal illness. She challenged the law against as- Tabingo v. Canada (MCI) Donald J. Rennie J. 33

sisted suicide so that she could die at the time and in the manner of her choosing. The Supreme Court of Canada accepted that she would slowly deteriorate, become dependent and lose her dignity. The hardship she experienced is incomparable in extent and dimension to that experienced by the applicants, and more importantly, she had no choice. 101 The applicants’ situation is also unlike that in New Brunswick (Minister of Health & Community Services) v. G. (J.) wherein the Su- preme Court of Canada found that an application by the state to remove children from a parent affected the parents’ security of the person. Child apprehension is a profound intrusion into private life and stigmatizes the parent who is judged as “unfit.” In reaching this conclusion, Chief Jus- tice Lamer emphasized that, “the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.” 102 The loss of the expectation or hope is understandably distressing. I also accept that, given the passage of time, the effect on the points awarded on the basis of age and the shift in occupational priorities reflected in successive Ministerial Instructions, the opportunity of re-applying has evaporated. Nevertheless, I find that the interests protected by section 7 are not engaged in these circumstances. In my view, the applicants have experienced the ordinary stresses and anxieties that accom- pany an application to immigrate. All section 87.4 did was terminate the opportunity. Therefore, the section 7 argument fails at the threshold question.

Equality 103 Subsection 15(1) of the Charter provides that: 15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 15.(1) La loi ne fait acception de personne et s’applique egalement´ a` tous, et tous ont droit a` la même protection et au même bénéfice de la foi, indépendamment de toute discrimination, notamment des dis- criminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques. 34 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

104 The applicants argue that section 87.4 codifies and legitimizes past discrimination on the basis of national origin and country of residence. As such, the application and implementation of the law is discriminatory. 105 It is also axiomatic to Charter analysis that, regardless of Parlia- ment’s intention or purpose, the legislation is assessed by its effects on individuals and groups. It is not enough for legislation itself to be constitutional; legislation must also be administered in a Charter compliant manner: Little Sisters Book & Art Emporium v. Canada (Minister of Jus- tice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (S.C.C.). 106 The applicants’ evidence is that approximately 92% of the terminated applications originated in Africa, the Middle East, Asia and the Pacific, while 8% of the terminated applications originated in Europe and the Americas. They argue that the sole conclusion that can be drawn from these differential rates in the clearance of FSW backlogs is that CIC’s manner of implementing the IRPA, namely the allocation of resources and other operational decisions, has resulted in differential treatment on the basis of national origin or residence. 107 From this global analysis of the evidence the applicants point to specific visa posts for further support. The rate of reduction varied dramatically depending on the visa office in question. For example, Mae Joy Tabingo is a citizen of the Philippines and applied at the Manila visa office. Manila had a backlog of 21,581 files as of February 27, 2008. On June 29, 2012, there were 13,733 files remaining. In contrast, the Buffalo office in the United States had 17,225 applications in its backlog as of February 27, 2008. On June 29, 2012, there were only 9 remaining fibs to be terminated. 108 This is significant because subsection 11(1) of the Regulations requires persons applying for a permanent resident visa to apply at the visa office serving their country of citizenship or residence. The objective of this regulation is to ensure that applications are assessed by the visa posts best situated to verity and assess the application materials. This does not mean, however, that applications, once received, are necessarily processed in that country’s visa post. 109 As a matter of first impression, the visa office processing rates support the inference that nationals of the Americas and Europe have been prioritized over those from Asia, the Pacific, the Middle East and Africa, and support the claim of differential treatment based on national origin Closer examination reveals a different picture. Tabingo v. Canada (MCI) Donald J. Rennie J. 35

110 As a preliminary issue, I note that national origin is an enumerated ground of discrimination and that citizenship has been recognized as an analogous ground. The applicants primarily rely on national origin for their section 15 argument. They have placed less emphasis on country of residence, which they argue is a ground of discrimination analogous to those set out in section 15. 111 There is no case law which suggests that country of residence is an analogous ground. 112 Analogous grounds arise or are established on the basis of personal characteristics that are immutable, or changeable only at unacceptable cost to personal identity. When determining whether grounds of discrimination are analogous to those listed in section 15, courts should consider whether the characteristics at issue have historically served as “illegitimate and demeaning proxies for merit-based decision making” and whether the distinction being drawn affects a “discrete and insular minority or a group that has been historically discriminated against”: Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, para 13. 113 The applicants point to R. v. Turpin, [1989] 1 S.C.R. 1296 (S.C.C.) wherein the Supreme Court of Canada left it open that a person’s prov- ince of residence might, in appropriate circumstances, ground a claim of discrimination. Further, in Corbiere, the Court found that the residence of aboriginal Canadians, specifically the question of whether an aboriginal band member lives on or off a reserve, is an analogous ground of discrimination. However, the Court made it clear that residence decisions faced by non-aboriginal Canadians should not be confused with the profound decisions aboriginal band members make to live on or off their reserves, assuming choice is possible. Aboriginal identity, including identification with an ancestral land, is unique. The situation in Corbiere is not comparable to that of the applicants. 114 It is doubtful that country of residence could be an analogous ground. Country of residence is not an immutable characteristic, nor is it vital to identity, given the applicants’ willingness to immigrate. Nor are the applicants a discrete and insular minority, and certainly not such a group within Canadian society. Country of residence, in contrast to race and religion, does not have the same historical antecedence of being a basis for discrimination, nor is there sufficient evidence that would establish that residence is an illegitimate or demeaning proxy for merit-based decision making. Accordingly, I find that country of residence is not an anal- 36 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

ogous ground of discrimination under section 15 of the Charter and turn to the applicants’ argument based on national origin. 115 Finally, it is said that the applicants share the common characteristic or condition of economic disadvantage and in some cases, poverty. It is difficult to make a singular finding of financial circumstances across a broad class of individuals, resident in all corners of the globe. This aside, poverty or economie disadvantage is not an immutable, indelible personal characteristic. Financial circumstances and the associated social conditions change; individual fortunes may ebb and flow, several times, over a lifetime, as may the general social and economic condition of their country of origin. 116 In Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (S.C.C.) the Supreme Court of Canada cautioned against a formalistic approach to section 15 and the rigid reliance on comparator groups. The Court re-focused section 15 on the core question of substantive discrimination, the foundational principle expressed in Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143 (S.C.C.). 117 Section 15 does not guarantee identical treatment. Given that the search is for substantive discrimination, differential treatment is not necessarily discriminatory. Justice McIntyre explained discrimination in An- drews as follows: [...] discrimination may be described as a distinction, whether inten- tional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. 118 In determining whether a law is discriminatory within the meaning of section 15, there is a two part test: (1) whether the law creates a distinction based on an enumerated or analogous ground; and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping: Withler, paras 30-31. Put otherwise, not all distinctions are discriminatory. Tabingo v. Canada (MCI) Donald J. Rennie J. 37

Evidence of Discrimination 119 On its face, section 87.4 only differentiates FSW applicants based on the date of application. However, I accept the applicants’ evidence that processing rates varied between visa offices, such that section 87.4 had a differential impact and outcome depending on where an applicant applied. That however, does not necessarily indicate a distinction based on an enumerated or analogous ground. 120 The applicants are a diverse group. They share no commonality of race, national or ethnic origin, colour or religion. They are nationals of various countries, having made their FSW applications in the Philip- pines, Syria, Pakistan and China. The eight applicants in turn represent hundreds of additional applicants across the global spectrum of race, nationality and religion. 121 There is some dispute between the parties with regards to the statistical evidence. The applicants have argued that the respondent’s evidence should be given little weight because its affiants do not have personal knowledge of the statistical evidence they provided. While the statistics are hearsay, I consider the evidence reliable and necessary in the circumstances. I doubt that statistics regarding the FSW program in an organiza- tion as large and complex as CIC could be within the personal knowledge of any particular affiant. Additionally, apart from the objection raised at the level of principle against the receipt of hearsay evidence, no precise or particular deficiency was raised that might call the accuracy or reliability of the evidence into question. 122 Once received, CIC transferred many applications between visa offices for processing. 10,000 applications were transferred from the Is- lamabad visa office to London and of these, 512 were processed. Ali Raza Jafri, Sumera Shahid and Zafar Mahmood’s applications are among those that were transferred from Islamabad to London in 2010 and 2011. Additionally, 6,000 files and 4,600 files were transferred from Damascus and New Delhi, respectively, to Warsaw. Nearly 10,000 of these applications were processed in Warsaw. The applicant Habibollah Abedi’s application was transferred to Warsaw in 2010. 123 On February 27, 2008, there were 29,423 files in the backlog inventory at the visa offices in Africa and the Middle East. On June 29, 2012, 17, 257 files remained in the backlog, a 41% reduction. However, the applicants note that 769 files which originated in Damascus were transferred to Warsaw but not processed. Adding these files back, there were 38 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

18,026 files remaining which originated from the Africa and Middle East region, a 39% reduction in the backlog from this region. 124 For the Asia and Pacific region, there were 123,923 applications in the backlog on February 27, 2008. As of June 29, 2012, 62,265 files remained, indicating the backlog was reduced by 50%. Again, adding back the 9,503 fifes transferred from Islamabad and New Delhi but not processed, 71,768 fifes remained, a 42% reduction in the backlog. 125 Overall, 39% of the backlog files originating in Africa and the Middle East and 42% of the files originating in Asia and the Pacific were processed before section 87.4 became law. In comparison, 88% of the backlog fifes from Europe and 92% from the Americas were processed. 126 This evidence demonstrates, in the applicants’ view, that the Africa, Asia and Middle East visa posts were chronically and deliberately under- resourced, reflecting discrimination against FSW applicants from countries served by those offices. Applicants from those regions were presumed to be less worthy, less capable of being successful immigrants, and therefore the corresponding visa posts were resourced at lower levels. 127 The respondent provided evidence to explain the different processing rates between the various offices. 128 James McNamee is the Director for the Immigration Strategies and Analysis Division, Strategic Policy and Planning Branch for CIC. He explained that each mission receives a varied mix of applications including temporary resident visa applications and non-FSW permanent resident applications such as those in the family class. Temporary resident visas, which include visitors, international students and temporary foreign workers, may be prioritized because they are time sensitive. 129 David Manicom, Director General of the Immigration (Policy) Branch for CIC gave evidence that external factors influence CIC’s ability to resource certain visa offices. For example, natural disasters, political instability and regional conflicts resulted in temporary and partial clo- sures at the visa offices in Islamabad and Damascus. Additionally, staff turnover varies between offices. During 2007 and 2008, the Accra, Ghana regional processing centre lost five of its six decision makers. Fi- nally, Mr. Manicom noted that there are physical and security limitations to adding more resources. At various times in the past six years, the Ac- cra, Cairo, Damascus, Islamabad, Manila, Nairobi, New Delhi and Preto- ria offices have been staffed at their maximum, given the availability of space. Tabingo v. Canada (MCI) Donald J. Rennie J. 39

130 Mr. Manicom also explained that applications from certain regions require more time and resources to process. The Accra office is illustra- tive. Mail service is unreliable and bandwidth for e-mail and other tele- communications has been problematic. Documentation can be of poor quality and fraud is elevated, requiring additional verification measures. Local conditions make verification of birth, education and training cre- dentials more difficult and time-consuming. 131 Additionally, Mr. Manicom testified that certain visa offices had different priorities. The Damascus, Cairo and Nairobi offices processed large numbers of refugees. For Manila, the Live-In Caregiver Program and Provincial Nominee Program were of increased importance. 132 Mr. Manicom also gave evidence regarding the Buffalo regional processing centre, which was responsible for applications out of the United States and Canada. Because many of the applications in Buffalo were by persons already in Canada, it was allocated a larger portion of the total FSW immigration targets. This is because applicants applying in Buffalo are often already studying, living and working in Canada. Addi- tionally, many of these applicants had arranged employment opinions or work permits which rendered them eligible for priority processing. 133 There is one element of the evidence which is particularly compelling on the question as to whether the difference in clearance rates is evidence of discrimination. Each visa office processes applicants from many different countries. For example, citizens of the United States, Great Britain and France represent a only a small percentage of cases processed at the Buffalo, London and Paris offices, 7%, 14% and 7% respectively. Appli- cants from India represent 26% of the cases processed in Buffalo and 21% of the cases processed in London. Applicants from China represent 18% of the total cases processed in Buffalo while applicants from Iran represent 9% of the cases processed at that post. Citizens of Pakistan represented 17% of all applications processed in London. 134 Having reviewed this evidence, I conclude that the applicants have not demonstrated that section 87.4 has had a disproportionate impact on the basis of national origin. The evidence is that CIC transferred files from high demand posts to lower demand posts in order to facilitate timelier processing. Additionally, the high clearance rate at the Buffalo post does not represent a bias towards applicants from the United States, as only 7% of the applicants at that office were in fact Americans. Rather, the Buffalo office managed time-sensitive and priority applications from individuals already lawfully in Canada. The applicants submit 40 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

that CIC discriminated against individuals from Asia, the Middle East and Africa; however, 69% of the applications processed in Buffalo, which had one of the highest clearance rates, were from citizens of those regions.

Perpetuation of Stereotype 135 Turning to the second part of the section 15 test, the evidence does not indicate that section 87.4 perpetuates a disadvantage through prejudice or stereotyping. The applicants contend that in failing to dedi- cate the necessary resources to the posts in Africa, the Middle East and Asia, CIC perpetuated the view that individuals in those countries are less worthy or desirable. Again, however, this argument fails under closer scrutiny. Persons from Africa and the Middle East represented about 23% of those who entered Canada in the economic class between 2002 and 2011. Half of all economic immigrants during that time were from Asia and the Pacific. In total, approximately 73% of Canada’s economic immigrants are from the very regions that the applicants argue are viewed as undesirable (Annex C). 136 The applicants have argued that section 87.4 perpetuates the mistaken belief that applicants who applied before February 27, 2008 are less qualified to immigrate. I accept the applicants’ evidence that there are many qualified applicants in the backlog. Notably, Mr. McNamee gave evidence that, even up to the date the backlog was terminated, the backlog was successfully mined to find qualified applicants for the Provincial Nominee Program. Additionally, approximately one-third of all FSW permanent resident visas in 2011 were issued to applicants in the backlog. These visas would not have been issued if the applicants were not qualified. However, the date of application is not an enumerated or analogous ground and so stereotyping on this basis does not constitute discrimination. 137 Section 87.4 must be considered in light of the wider immigration context. Visa offices do not only process FSW applications, but also a wide-range of visa applications, which have different priorities. Certain visa offices face unique challenges, such as weaker infrastructure, higher instances of fraud, or an influx of refugee claims. As the historical evidence consistently indicated, globally viewed, economic immigrants from Asia, the Middle East and Africa become Canadian permanent residents in large numbers. The evidence does not support the claim that section 87.4 is discriminatory. Tabingo v. Canada (MCI) Donald J. Rennie J. 41

Justification for Infringement 138 As I have found that no section 7 interest is triggered by the termination of the FSW files, and that section 87.4, in its purpose or effect, is not discriminatory within the meaning of section 15, I will not address section 1 of the Charter.

Mandamus 139 Mandamus is available to compel a public authority to perform a duty that it is obligated to do under its enabling statute. As I have found that section 87.4 of the IRPA unambiguous and constitutionally valid legislation, the applications are terminated and the respondent has no legal duty to continue to process them. There can be no order for mandamus. 140 The applicants have argued that, even before section 87.4 came into force, the respondent had already breached their rights to timely processing of their applications and that there must be some remedy for this past breach. This argument fails as mandamus cannot remedy a past breach when there is no present duty.

Humanitarian and Compassionate Relief 141 The applicants advance an alternative argument. They say that even if their files were terminated, they are entitled, under section 25 of the IRPA, to apply for humanitarian and compassionate (H&C) relief from the application of section 87.4. The applicants note that the Minister used a similar section to assist applicants who were issued visas in error even though their applications were captured by section 87.4. On the basis of the Minister’s own conduct, it is said that the applicants are entitled to H&C consideration 142 Section 25.2 allows the Minister to grant permanent resident status to a foreign national who is otherwise inadmissible or who does not meet the requirements of the IRPA if the Minister is satisfied that the decision is justified on public policy considerations. It is axiomatic that, save for the public policy exception, an H&C application is not a free-standing, independent vehicle for entry, rather it is an authority in the Minister to grant relief from requirements or provisions of the IRPA in an otherwise deficient application or claim. Here, there is no application, nor any requirements which could be waived on H&C grounds. 143 Applicants who were issued a visa in error were sent a letter inform- ing them that their visa was invalid. They were then sent a subsequent letter explaining that the Minister considered there to be public policy 42 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

considerations which warranted granting the visa and necessary exemp- tions. The letter asked the applicants to sign and date the letter to indicate that they wished to take advantage of the provision and to return it along with certain documents. 144 The applicants submit that if the underlying application had been terminated, then the Minister could not invoke section 25.2. Those individuals had already been issued permanent resident visas; some may have already landed in Canada. I see no conflict between the Minister’s decision under section 25.2 and his position in the present applications. The nature of the discretion conferred under section 25.2 is very broad, and, in any event, no request has been made to the Minister nor is there a refusal. The argument is thus premature.

The Application Fees 145 The applicants submit that subsection 87.4(4), which provides that the application fees will be returned, is outside of the jurisdiction of the IPRA because only the Financial Administration Act can bind the Trea- sury Board. However, I agree with the respondent’s submission that there is concurrent authority for this under the IRPA and the Financial Admin- istration Act. The applicants also argue that subsection 87.4(4) violates subsection 19(2) of the Financial Administration Act which provides that application fees cannot exceed the costs. They argue that the respondent is required to pay interest on the application fees. 146 There is no indication in the record that interest was earned or that the fees exceeded the costs associated with the applications. While the applications were not ultimately processed to conclusion, CIC still required resources to initially accept and manage the applications. In any event, even if there was an evidentiary foundation to the argument, any entitlement to interest was extinguished by section 87.4. For this reason, the applicants’ unjust enrichment argument must also fail: Authorson.

Conclusion 147 As noted earlier, the applicants have waited in the queue for many years only to find the entrance door closed. They see the termination of their hope for a new life in Canada to be an unfair, arbitrary and unneces- sary measure. However, section 87.4 is valid legislation, compliant with the rule of law, the Bill of Rights and the Charter. The applications have been terminated by operation of law and this Court cannot order mandamus. Tabingo v. Canada (MCI) Donald J. Rennie J. 43

148 In light of the serious issues raised and the general importance of this matter to many thousands of applicants the following questions will be certified: a. Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus? b. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA? c. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed. 2. The applications for judicial review in the following proceedings are dismissed for the reasons given in this proceeding: a. IMM-8669-12: Habibollah Abedi v Minister of Citizenship and Immigration; b. IMM-10307-12: Maria Sari Teresa Borja Austria v Min- ister of Citizenship and Immigration; c. IMM-4866-12: Ali Raza Jafri v Minister of Citizenship and Immigration; d. IMM-8302-12: Zafar Mahmood, Shabnum Zafar, Abdul Majid Zafar, Abdul Sammad Zafer v Minister of Citizenship and Immigration; e. IMM-3725-12: Sumera Shahid v Minister of Citizenship and Immigration; f. IMM-6165-12: Fang Wei v Minister of Citizenship and Im- migration; and g. IMM-8747-12: Yanjun Yin v Minister of Citizenship and Immigration. 3. These Reasons for Judgment and Judgment apply in respect of all files listed in Annex D hereto. 4. Leave is hereby granted to the parties to bring a motion beyond the ten day requirement specified in Rule 397 to vary the terms of 44 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

this judgment by amending Annex D to address any omissions or errors in that Annex. 5. The following questions are certified pursuant to subsection 74(d) of the IRPA: a. Does subsection 87.4(1) of the IBPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus? b. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IBPA? c. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Char- ter of Bights and Freedoms? 6. Submissions on costs are due within twenty days of the date of this decision Application dismissed.

Annex A

Immigration and Refugee Protection Act, SC 2001, c 27 Section 87.4 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. (2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012. (3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa. (4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund. Tabingo v. Canada (MCI) Donald J. Rennie J. 45

(5) No person has a right of recourse or indemnity against Her Maj- esty in connection with an application that is terminated under subsection (1).

Annex B

Canadian Bill of Rights, SC 1960, c 44 subsection 1(a) 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; subsection 2(e) 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridg- ment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to [...] (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

Annex C Exhibit “K” Facts and figures 2011 — Immigration overview: Permanent and temporary residents Permanent residents

Canada — Permanent residents by source country Number Source country 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Philippines 11,011 11,987 13,303 17,525 17,718 19,067 23,727 27,277 36,580 34,991 China, People’s Republic of 33,304 36,251 36,429 42,292 33,078 27,013 29,337 29,051 30,195 28,696 46 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Number Source country 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 India 28,838 24,594 25,573 33,141 30,746 26,047 24,548 26,117 30,252 24,965 United States 5,294 6,013 7,507 9,263 10,943 10,449 11,216 9,723 9,245 8,829 Iran 7,889 5,651 6,063 5,502 7,073 6,663 6,010 6,064 6,815 6,840 United King- dom 4,724 5,199 6,062 5,864 6,541 8,128 9,243 9,565 9,499 6,550 Halti 2,217 1,945 1,657 1,719 1,650 1,614 2,509 2,085 4,552 6,208 Pakistan 14,173 12,351 12,793 13,575 12,329 9,545 8,051 6,213 4,986 6,073 France 3,962 4,127 5,028 5,430 4,915 5,526 6,383 7,299 6,934 5,867 United Arab Emirates 4,444 3,321 4,358 4,053 4,100 3,368 4,695 4,640 6,796 5,223 Iraq 1,365 969 1,140 1,316 977 1,601 2,570 4,567 4,545 4,698 Korea, Republic of 7,334 7,089 5,337 5,819 6,178 5,866 7,246 5,864 5,539 4,573 Colombia 3,225 4,273 4,438 6,031 5,813 4,833 4,995 4,240 4,796 4,317 Morocco 4,057 3,243 3,471 2,692 3,109 3,789 3,906 5,221 5,946 4,155 Algeria 3,030 2,786 3,209 3,131 4,513 3,172 3,228 4,785 4,124 3,800 Mexico 1,918 1,738 2,245 2,854 2,830 3,224 2,831 3,104 3,866 3,642 Egypt 1,634 1,929 2,051 2,062 1,651 1,969 2,314 2,486 4,305 3,403 Sri Lanka 4,968 4,448 4,134 4,690 4,490 3,934 4,508 4,270 4,181 3,104 Nigeria 1,281 931 1,369 2,034 2,481 2,255 1,837 2,661 3,268 2,768 Ukraine 3,576 2,781 2,401 2,317 1,880 2,170 1,874 2,300 3,097 2,455 Bangladesh 2,615 1,896 2,374 3,940 3,838 2,735 2,716 1,854 4,364 2,449 Lebanon 1,723 2,600 2,673 3,122 3,290 3,018 2,827 2,531 2,453 2,335 Saudi Arabia 2,538 2,042 2,111 2,364 2,227 1,649 2,357 2,025 2,801 2,299 Germany 1,624 2,098 2,387 2,635 3,030 2,555 4,057 4,081 3,190 2,254 Ethiopia 802 1,326 1,439 1,370 1,647 1,424 1,473 1,212 1,746 2,038 Jamaica 2,457 1,983 2,130 1,880 1,686 2,113 2,312 2,427 2,256 2,021 Afghanistan 2,971 3,010 2,527 2,908 2,552 2,262 1,811 1,507 1,549 1,977 Israel 2,605 2,366 2,857 2,549 2,692 2,446 2,633 2,364 2,798 1,967

Annex D

Lead: Mae Joy TABINGO IMM-5635-12 1 Michael Rashin IMM-5481-12 2 Adewale Soneye IMM-5482-12 3 Kakaly Sultana IMM-5483-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 47

Lead: Mae Joy TABINGO IMM-5635-12 4 Salman Fazal Mohamed Elrafie Mus- IMM-5484-12 tafa Salih 5 Mamdouh Adib Ghattas Mikhail IMM-5485-12 6 Chih Ming Tseng IMM-5486-12 7 Mangala Janaki Rajapakse IMM-5487-12 8 Nabil Zein IMM-5490-12 9 Emmanuel Chinonyelum Uba IMM-5493-12 10 Arunangshu Dutta IMM-5494-12 11 Maria Adaku Obi IMM-5496-12 12 Odai Ja’afar Sadik IMM-5498-12 13 Ibrahim Mahmoud Abdel Rahman IMM-5499-12 Ibrahim 14 Ribhi As four IMM-5500-12 15 Farouk Abdel-Hamid Farid Mahmoud IMM-5501-12 16 Antonio Hilarion Manuel IMM-5502-12 17 Bolormaa Dorjpalam IMM-5503-12 18 Cheng Wah Cheow IMM-5505-12 19 Cherry Corpuz IMM-5506-12 20 Neil Smith IMM-5507-12 21 Sanja Culakovska IMM-5508-12 22 Abdelghani Ahmed Said IMM-5509-12 23 Dharmendra V Shunmugam IMM-5511-12 24 Qutaiba Soufi IMM-5512-12 25 Nowfal Hani Taha IMM-5514-12 26 Edwin Chime Oji IMM-5515-12 27 Thomas Thompson Talabi IMM-5516-12 28 Imran Muhammad Aslam IMM-5517-12 29 Mamour Ba IMM-5519-12 30 Flochova Jana IMM-5520-12 31 Nohra Eugenia Posada IMM-5521-12 32 Jyotinder Singh IMM-5524-12 33 Amith Krishnan IMM-5525-12 34 Jaime Garcia IMM-5526-12 35 Ramiz Raci IMM-5527-12 48 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 36 Kaan Alkan IMM-5528-12 37 Fareeha Rasool IMM-5529-12 38 Rahat Kazi IMM-5530-12 39 Sonia Rohama Gill IMM-5533-12 40 Ahmed Ismail IMM-5534-12 41 Bassem Koujak IMM-5540-12 42 Leslie, WhaiLee Low IMM-5541-12 43 OLUWATOYIN Muraina Lawal IMM-5542-12 44 Aigbe Olotu IMM-5543-12 45 Mahmoud Terri IMM-5544-12 46 Hana Al-Jarrah IMM-5546-12 47 Estela Aclan IMM-5547-12 48 Mahajaheen Shirazi IMM-5548-12 49 Venkatesh Subbiah IMM-5553-12 50 Vittal Reddy Suriyagari IMM-5555-12 51 Amrit Singh Randhawa IMM-5557-12 52 Azeem Adnan IMM-5558-12 53 Amit Singh IMM-5560-12 54 Willy Diakola Mvemba IMM-5562-12 55 AdelGaber Aly Mansi IMM-5564-12 56 Vijay Vishwabandhu Jobanputra IMM-5566-12 57 Swhail Najim Abbood Al-Jubouriy IMM-5567-12 58 Chetan Hirubhai Patel IMM-5568-12 59 Houda Kabalan EP, Omar Houssami IMM-5569-12 60 Nagalakshmi, Shanmugam IMM-5570-12 61 Lawrence Uchenna Oguejiofor IMM-5571-12 62 Watanjot Kaur IMM-5572-12 63 Zaid Abdulatteef Enayatullah Alemari IMM-5573-12 64 Oluwayemisi Ruth Oyewumi IMM-5574-12 65 Nidhi Sood IMM-5575-12 66 Sarafa Adetona Soyemi IMM-5576-12 67 Selma Elizabeth Malathi D’Souza IMM-5577-12 68 Hemantkumar Chhotalal Joshi IMM-5578-12 69 Ifeoluwa Dorcas Akintade IMM-5579-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 49

Lead: Mae Joy TABINGO IMM-5635-12 70 Tammy Patience Egwe IMM-5580-12 71 Sriram Raj Pande IMM-5581-12 72 Olusegun Olutobi Sobande IMM-5582-12 73 Pratap Sinha IMM-5583-12 74 Jacintha Victor IMM-5584-12 75 Esther Folashade Moronkeji IMM-5585-12 76 Emmanuel Onyedika Okpara IMM-5586-12 77 Adefemi Adetayo Adsina IMM-5590-12 78 Tigura Sankar Reddy IMM-5591-12 79 Jude Idemudia Okoh IMM-5592-12 80 Clifford Obiyo Ofurum IMM-5593-12 81 Asim Nasarullaha IMM-5594-12 82 Ada Chibuzor Emekoba IMM-5595-12 83 Ikechukwu Ufoeze IMM-5596-12 84 Henrykennedy Jide Onwuka IMM-5597-12 85 Farooq Akhtar IMM-5598-12 86 Oladunni Monsurat Akhtar IMM-5599-12 87 Olusola Kunle Egbesola IMM-5600-12 88 Victoria Zakka IMM-5602-12 89 Adeniran Ohifemi Adeyemi IMM-5604-12 90 Augustine Olusegun Iiori IMM-5607-12 91 Michael Tamuno-Hekima Kio IMM-5608-12 92 William Suico IMM-5609-12 93 Emilson Paul Madrid IMM-5610-12 94 Oluwagbemileke Adewumi IMM-5619-12 95 Adesodun Kolawole Olabiran IMM-5622-12 96 Farida Hassan Goronga IMM-5623-12 97 Dennis Tamunoipirinye Minimah IMM-5625-12 98 Anthony Lun IMM-5626-12 99 Johannes Petrus Louis Van den berg IMM-5627-12 100 Ras ha Salsaa IMM-5628-12 101 Ali Mabrouk Ghaith IMM-5629-12 102 Ambareen Ahmed IMM-5630-12 103 Shashi Ramnarain IMM-5631-12 50 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 104 Mayurkumar Prafulchandra Patel IMM-5633-12 105 Vikram Joachim Arouza IMM-5634-12 106 Irene Akpoegberibo Imoukhuede IMM-5637-12 107 Kirti Wardhen Sharma IMM-5638-12 108 Hitesh Sehgal IMM-5639-12 109 John Ohiolere Unuigboje IMM-5640-12 110 Padamprasad Upadhyay IMM-5641-12 111 Edwin Magtanum Tejon IMM-5642-12 112 Hakim Uddeen IMM-5643-12 113 Hany Mohamed Ahmed Khamis IMM-5644-12 114 Constantino Arcabos Lumanlan IMM-5646-12 115 Adewale Michael Badmus IMM-5647-12 116 Sajid Abdur Rahim IMM-5648-12 117 John Owuike Iheme IMM-5649-12 118 Charles Chukwuka Oranyeli IMM-5650-12 119 Anthony Abu Ikpea IMM-5657-12 120 Olusola Adeola Akinola IMM-5658-12 121 Patrick Ikechukwu Igbokwe IMM-5659-12 122 Innocent Uchechukwu Mmuoh IMM-5660-12 123 Rasheed Akinkunmi Adigun IMM-5662-12 124 Ahmed Nasr El Din Fathalla Ahmed IMM-5663-12 125 Ayman Al-khatab IMM-5667-12 126 Ibilola Aina Aridegbe IMM-5671-12 127 Abiola Oladipupo Fatukasi IMM-5674-12 128 Tarig Abel Magid Khalid Ibrahim IMM-5675-12 129 Omagbitse Emmanuel Ayavoro IMM-5676-12 130 Valiya Gangadharan IMM-5677-12 131 Dipakkumar Dhirubhai(Dipak) Patel IMM-5679-12 132 Ahmed Khaled Abdal Sadek Mohamed IMM-5680-12 Mohamed 133 Joshua Katebe Mwenya IMM-5681-12 134 Ambreen Ali IMM-5682-12 135 Christo Ludick IMM-5683-12 136 Ata Taher Abdul Aziz Ata IMM-5684-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 51

Lead: Mae Joy TABINGO IMM-5635-12 137 Jacques Ambrose Van Rensburg IMM-5686-12 138 Atique Ahmed Minhas IMM-5687-12 139 Gulamabbas Hassanali Chagani IMM-5688-12 140 Jignasa Dharmesh Desai IMM-5689-12 141 Mohammad Zubair IMM-5690-12 142 Sajeeda Murtadha Suleiman IMM-5691-12 143 Shereef Zaghloul IMM-5694-12 144 Isa Balarabe Salau IMM-5695-12 145 Rowland Ayodele Adeyemi IMM-5698-12 146 Nasreen Eisakhani IMM-5703-12 147 Ali Saadatpajouh IMM-5704-12 148 Amir Naraghizadeh IMM-5705-12 149 Moloud Faradjpour Tabrizi IMM-5706-12 150 Oluwaseyi Sunday Sowemimo IMM-5709-12 151 Khaled Ladki IMM-5712-12 152 Antonio Rios IMM-5716-12 153 Irene Allo Osamor IMM-5717-12 154 Esteban Macaraig Ramirez IMM-5718-12 155 Hiwot Gebremeskel Reda IMM-5719-12 156 Leila Dayan IMM-5723-12 157 Jorge Conrad Villacarlos IMM-5724-12 158 Ibe Godwin Egwuatuonwu IMM-5726-12 159 Samuel Walter Frederick IMM-5728-12 160 Sohail Akhtar Tiwana IMM-5730-12 161 Omolola Taiwo Segun-Idahor IMM-5731-12 162 Shahina Hanif IMM-5734-12 163 Celestina Uzoezi Ogba IMM-5735-12 164 Laeya (Laya) Moosaee IMM-5736-12 165 Omoverere Agarin IMM-5741-12 166 Seyed Sepher Saremi IMM-5778-12 167 Balraj Bhatt IMM-5779-12 168 Folake Lawal IMM-5781-12 169 Olufisayo Olayemi Dipeolu IMM-5783-12 170 Ebrima Njie IMM-5785-12 52 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 171 Hiam Nasrallah IMM-5866-12 172 Kambiz Kiamehr IMM-5867-12 173 Cherry Lee Chavez IMM-5869-12 174 Karim Salehi IMM-6030-12 175 Srividhya Rajagopaul IMM-6031-12 176 Sham M. J. Saadaldin IMM-6032-12 177 Fidelia Ometere Ofuje Ogoh IMM-6033-12 178 Wilbert Brako IMM-6034-12 179 Pat Eloka Onukwuli IMM-6036-12 180 Raymond Georges Ayaovi IMM-6467-12 181 Arturo Banez II Panaligan IMM-7388-12 182 Huda Mohammed Abdullaziz Al-Safar IMM-7389-12 183 Cherilyn Martinez IMM-7390-12 184 Samuel Aderemi Awoyinka IMM-7391-12 185 Ahmed Abdel Rahman Hashem IMM-7393-12 Khalifa 186 Stephen Talugende IMM-7394-12 187 Moronke Olupero Bamgbala IMM-7395-12 188 Timur Ergashev IMM-7396-12 189 AHMED Zahid IMM-7983-12 190 RAHMAN Mahbubur IMM-7987-12 191 RAHMAN Mustafizur IMM-7988-12 192 GHOSIAL Tapan Kumar IMM-7990-12 193 KNATNANI Sunilkumar Monandas IMM-7991-12 194 TUTEJA Poonam IMM-7992-12 195 ZGHEIR Khalid IMM-7993-12 196 MANNAN Farzana IMM-7994-12 197 AMAL Boutrous IMM-8151-12 198 SAMIR Yaakoub IMM-8154-12 199 ALAA Al-Tae IMM-8156-12 200 ESSAM Saleh IMM-8158-12 201 SAMIR Yousif IMM-8166-12 202 LOUAY Wahbi IMM-8170-12 203 SHERIF Ghobrial IMM-8171-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 53

Lead: Mae Joy TABINGO IMM-5635-12 204 SAMIH Yehia IMM-8173-12 205 MAHA Yehia IMM-8175-12 206 KHALID Abdouni IMM-8176-12 207 BADER Kabbara IMM-8178-12 208 FOUAD Safi IMM-8180-12 209 ASHRAF Habash IMM-8184-12 210 RIMON Gaid IMM-8186-12 211 Ahmad Todd Sameh (Moh’d Ali) IMM-8377-12 212 Ramy Shaker IMM-8378-12 213 Topia Olutoyin IMM-8379-12 214 Desai Hitesh Piyush IMM-8380-12 215 Farzana Begum IMM-8381-12 216 Veena Kumari Kaushal IMM-8382-12 217 Kishore Sangani IMM-8383-12 218 Ozair Khan IMM-8384-12 219 Ramir Varon IMM-8385-12 220 Suvra Sengupta Datta IMM-8386-12 221 Vijar Kumar Saini IMM-8388-12 222 Aamir Fareed Khan IMM-8390-12 223 Wael Mukalled IMM-8391-12 224 Mohammad Ali IMM-8392-12 225 Khalid Mahmood IMM-8393-12 226 Shehzard Ahmad IMM-8394-12 227 Amin Afridi IMM-8395-12 228 Muhammad Azam Khan IMM-8397-12 229 Olorunjube Ojomo IMM-8398-12 230 Md Talukder IMM-8399-12 231 Sean Mathews IMM-8401-12 232 Gagandeep Sidhu IMM-8402-12 233 Shaun Geen Bemados IMM-8403-12 234 Qing Wei IMM-8570-12 235 Md. Rashed Ali Khan IMM-8574-12 236 Shatha Saeed IMM-8575-12 237 Abed Saleh IMM-8577-12 54 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 238 Asif Zaman IMM-8580-12 239 Tammam Al-Sarraj IMM-8718-12 240 Kakuyo Kagumaho IMM-8803-12 241 Gill Mahanveer Kaur IMM-8804-12 242 Phatra Rupinder Singh IMM-8806-12 243 SandhuParamjiti Singh JMM-8807-12 244 Kushan Mandeep JMM-8809-12 245 Aomreore Atinuke JMM-8810-12 246 Abbas Shoaib JMM-8811-12 247 Olubobokun Samuel JMM-8812-12 248 Sarrosa Joel Landazabal JMM-8813-12 249 Casseeram Comalprasad JMM-8814-12 250 Urama Benedict JMM-8815-12 251 Tamang Jay Kumar Lopchan JMM-8817-12 252 Kerim Ragia Abdel JMM-8818-12 253 Villahermosa Pamela JMM-8819-12 254 Dsouza Keith JMM-8820-12 255 Taleb Mustapha JMM-8821-12 256 Hamed Mohammad JMM-8822-12 257 Albheisi Ismail JMM-8824-12 258 Lorenzo Luzviminda Paz-San JMM-8860-12 259 Luna Immanuel JMM-8861-12 260 Oyeniran Gbade Oluwayomi JMM-8864-12 261 Syeda Zahra JMM-8867-12 262 Idowu Ohifunmilola JMM-8870-12 263 Engelbrecht Jan-Michael JMM-8873-12 264 John Anil JMM-8875-12 265 Lamidi Adetunji JMM-8881-12 266 Abdullah Zead JMM-8882-12 267 Mehmood Mubashir JMM-8883-12 268 Eideh Shadi JMM-8885-12 269 Braudo Colette Carmel Deanna JMM-8887-12 270 Akash Mohamad JMM-9125-12 271 Arafeh Rim JMM-9126-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 55

Lead: Mae Joy TABINGO IMM-5635-12 272 Farahini Farhang Jalali JMM-9127-12 273 Ismail Zakaria JMM-9128-12 274 Tayarah Iyad JMM-9129-12 275 Khetarpal Shivani JMM-9130-12 276 MasriNisreen JMM-9133-12 277 Al-Droubi Mohamad Moussalam JMM-9134-12 278 Ahmad Zeina Ali JMM-9136-12 279 Atasi Kasem JMM-9137-12 280 Charanbir Sidhu JMM-9332-12 281 Nestor Guillermo JMM-9335-12 282 Paramjit Aulakh JMM-9338-12 283 Marjan Merat JMM-9339-12 284 Sameh William Melek Azab JMM-9341-12 285 Rajneet Kaur Sandhu JMM-9342-12 286 Zaman Ashraf JMM-9343-12 287 Omar Nazhat JMM-9347-12 288 Jose Johnny Jose JMM-9351-12 289 Amritpal Dhaliwal JMM-9391-12 290 Ashutosh Nath JMM-9393-12 291 Ujiro Bovi JMM-9395-12 292 Abiodun Seriki IMM-9398-12 293 Chinyere Amaechina IMM-9400-12 294 Ahmed Al-Quzweny IMM-9401-12 295 Siddarth Kapila IMM-9402-12 296 Gervase Oliver Percus IMM-9405-12 297 Drusilia Mukasa IMM-9407-12 298 Farhanaz Beg IMM-9410-12 299 Abdulaziz Mohammed IMM-9411-12 300 Joel Batarina Primero IMM-9412-12 301 Waseem Al-Shadeedi IMM-9415-12 302 Ester Wairimu Kamunya IMM-9417-12 303 Janak Thapa IMM-9419-12 304 Ahmed Mohamed IMM-9421-12 305 ManrajKaur Bhullar IMM-9423-12 56 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 306 Manu Sobti IMM-9427-12 307 Rekha Prasad IMM-9428-12 308 Annu Malhotra IMM-9429-12 309 Ella Olivier IMM-9430-12 310 Maher Jadallah IMM-9433-12 311 Waqas Hussain Tiwana IMM-9434-12 312 Antowan Hanna Shehata Samaan IMM-9438-12 313 Tendal Chikuku IMM-9440-12 314 Mahabub Sadik IMM-9442-12 315 Temitope Adenike Awe IMM-9444-12 316 Ahmad Golzadeh IMM-9531-12 317 Meynard Yuzon Gloria IMM-9533-12 318 Abu Saleh Md. Shabbir IMM-9534-12 319 Bhawna Parbhakar IMM-9535-12 320 Jaswinder Singh Rooprai IMM-9536-12 321 SYED MUHAMMAD SHAMSHAD IMM-9635-12 AKHTAR 322 SYED MUHAMMAD IRSHAD IMM-9636-12 AKHTAR 323 Muhammad Abbas Khan IMM-9637-12 324 SYED MUHAMMAD DILSHAD IMM-9638-12 AKHTAR 325 Ghazak Jamil IMM-9646-12 326 SYED MUHAMMAD NAUSHAD IMM-9648-12 AKHTAR 327 Ravinder Bilkhu IMM-10421-12 328 Amany Abdel Malek IMM-10415-12 329 Paul Olukayode Solola IMM-10416-12 330 Rahul Taneja IMM-10418-12 331 Chi-Ying Luo IMM-10419-12 332 Kirtan Varasia IMM-10420-12 333 Haleema Jihad IMM-10423-12 334 Hosam Bashandy IMM-10425-12 335 Aseel Shawqi IMM-10428-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 57

Lead: Mae Joy TABINGO IMM-5635-12 336 Anela Nazir IMM-10429-12 337 Gopala Pillai Sreekumar IMM-10430-12 338 Hafiz Muhammad Nadeem Majeed IMM-10431-12 339 Rolla Abou Hasera IMM-10432-12 340 Ravi Srinivasa IMM-10434-12 341 Wissam Ambriss IMM-10798-12 342 Alison Wilson IMM-10800-12 343 Abdelkarim Al-Raie IMM-10801-12 344 Ala Aldakak IMM-10803-12 345 Virk Simratjit IMM-11006-12 346 Ahmed Munawwar IMM-11008-12 347 Afshar Mohammad H.M. IMM-11011-12 348 Bahari Maha IMM-11012-12 349 Wajih Abbasi IMM-11355-12 350 PERVEZ AMIR Khambati IMM-11356-12 351 Seyi Awofeso IMM-11360-12 352 Hani AlSoufi IMM-11362-12 353 Samatha Katz IMM-11369-12 354 Kifah Samara IMM-11373-12 355 MYRNA Aouad IMM-11374-12 356 Elahee-Dinaully Roukayya Nessah IMM-11579-12 Rassool 357 Bissoondoyal Karuna Devi IMM-11585-12 358 Ping Sam Pong Sum IMM-11587-12 359 Aubeeluck Gunneeta IMM-11588-12 360 Appadoo Sarvapalli Balram IMM-11590-12 361 Dumur Toosmawtee IMM-11591-12 362 Samaye Monahar IMM-11592-12 363 MARIE-CLAIRE CHUNG CHIN KI- IMM-11594-12 OW YUEN ZING 364 Sang Fong Fong Ng Wing IMM-11596-12 365 VERONIQUE MAPJORIE LISEBETH IMM-11599-12 AH LEUNG 366 Ahyen Ng Tin Yun IMM-11600-12 58 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 367 Drioux Dolly IMM-11601-12 368 Muttur Bibi Rehana IMM-11602-12 369 Kin Suzy Chan IMM-11605-12 370 Thaman Rashmi IMM-11606-12 371 Brar Sawrnjit IMM-11607-12 372 Khon Li Live Chew Chong Tet IMM-11609-12 373 Aubeeluck Indira IMM-11610-12 374 Khan Farooq IMM-11611-12 375 Thomas Joseph Henrio IMM-11612-12 376 Peerbuccus Tahyab IMM-11626-12 377 Aumeer Komulpersad IMM-11627-12 378 Yelim Mary Joan Ng IMM-11631-12 379 Fat Marie Luisa Seu Yane Ah IMM-11633-12 380 Hok Men Kong Li Chen IMM-11634-12 381 Chin Lee Foon Fok Soy IMM-11651-12 382 Dhany Satcheedanand Singh IMM-11652-12 383 DEEPAK CHOPRA IMM-11665-12 384 HARITH AHMAD IMM-11666-12 385 SAIMA QAYYUM IMM-11670-12 386 HANAA ABD ELMALAK IS- IMM-11671-12 KANDER HANA 387 YASSER IBRAHIM HASSANEIN IMM-11676-12 388 ASHRAF KAMEL MOUSSA KAMEL IMM-11677-12 389 YAZID OUALI IMM-11678-12 390 RANDA HANI HASSAN MOST AH- IMM-11679-12 MED 391 MAGED NASSIF MORCOS RAFAT IMM-11680-12 392 REFAAT REFAAT KAMEL IMM-11681-12 393 KARIM MOHAMED ABDEL MOH- IMM-11682-12 SEN 394 MOHAMED ABDEL-KADER IMM-11683-12 ABDEL-ATIF NADA 395 NASHWA HELMY IMAM MORSY IMM-11684-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 59

Lead: Mae Joy TABINGO IMM-5635-12 396 NERMIN AHMED ALIM AL IMM-11685-12 SHAIBA 397 MERVETTE MOHAMED ELHAMY IMM-11686-12 HUSSEIN 398 ATEF SABRY MORGAN BESHAI IMM-11687-12 399 MINA SAMIR GAD BEN EL IMM-11688-12 SABAGH 400 ALAA MOHAMED EL IMM-11691-12 SALAMOUNY 401 MAGED MAGDY ISAAC MIKHAIL IMM-11692-12 402 SHAHEER FARAG SEUM FARAG IMM-11694-12 403 MAURICE GUIRGUIS IBRAHIM IMM-11697-12 GHOBRIAL 404 CHOUCRALLAH ABOU-SAMRA IMM-11698-12 405 HAZEM HAMDY AWADEL-ADLY IMM-11699-12 406 CHRISTINE NAGAH EMIL IMM-11702-12 MEKHAIL 407 LAMA ABDO IMM-11704-12 408 BALJINDER SINGH MANDER IMM-11705-12 409 MOHAMED ABDEL RAOUF IMM-11706-12 ABDEL AZIZ SHARSHAR 410 Dincecco Nevio IMM-11767-12 411 Jhita Lakhbir Singh IMM-11769-12 412 CANCEL JENNY IMM-11771-12 413 BIMAL KUMAR PRAMANIK IMM-11772-12 414 AMWER RAFIQUE IMM-11773-12 415 CHUKWUEBUKA OFOR IMM-11774-12 416 Khaled Mahmoud Lotfy Mahmoud Se- IMM-12857-12 lim 417 Carol Zouein IMM-12858-12 418 Delman Ali Ahmed IMM-12859-12 419 Rupinder Kaur IMM-12860-12 420 Eric Cajetan Dominique Fernandes IMM-12861-12 421 Ayman Adel Goubran Girgis IMM-12864-12 422 Malini Vanna Beeponee IMM-12865-12 60 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 423 Olugbenga Taiwo IMM-12866-12 424 Alexander Anda IMM-12867-12 425 Ammar Falih IMM-12870-12 426 Adham El Sayed IMM-12871-12 427 MOSHIRI Amir-Ehsan IMM-12930-12 428 ELUYINKA Awoyelu IMM-12933-12 429 BATBAYAR Erdenebayar IMM-12934-12 430 Hope Chijioke Amadi IMM-12937-12 431 GURJANT Sidhu IMM-12941-12 432 Tammy Jalboukh IMM-103-13 433 Vidhu Khanna IMM-104-13 434 Fatemeh Ghoulamipoor-Baroogh IMM-105-13 435 Geukjoon Park IMM-106-13 436 Sundeep Mehra IMM-107-13 437 Paul Thompson IMM-108-13 438 Mdna Elsayed IMM-109-13 439 Sung-Lung Shih IMM-110-13 440 Shadhon Kumar Ray IMM-112-13 441 Bassam Mura IMM-114-13 442 Kaweepoj Phacharintankul IMM-116-13 443 Kesiena Akpojetavwo IMM-281-13 444 Saulat Masood IMM-283-13 445 Bahman Farokhi IMM-284-13 446 Tamer Kirolos IMM-286-13 447 Maziar Nematpour IMM-287-13 448 Margaret Ralph Cabrai IMM-288-13 449 Fatma Mahmoud Mangoud El Sadany IMM-289-13 450 Edha Lilly D’Souza IMM-290-13 451 Lorriane D’Souza IMM-291-13 452 Lani Louise Hardy IMM-292-13 453 Barbhuiya Md Abdul Jalil IMM-378-13 454 Eldin Serag Fldin Adel Serag IMM-379-13 455 Sujan Naveen Bahar IMM-380-13 456 Bola Raywant Kaur IMM-381-13 Tabingo v. Canada (MCI) Donald J. Rennie J. 61

Lead: Mae Joy TABINGO IMM-5635-12 457 Sabet Iman IMM-382-13 458 Burbridge Craig Garth IMM-384-13 459 Barua Kiran IMM-385-13 460 Rahman A-K-M Mizanur IMM-388-13 461 Ayobami Olubiya IMM-486-13 462 Omar Ahmed Esmaeel IMM-668-13 463 SRIRAMACHANDRAN Srinivasan IMM-669-13 464 SHAHREZA Shahryar Niroomand IMM-804-13 465 SONIA PARVINDER KAUR SOHAL IMM-1101-13 466 VINCENTE EUGENIO IL- IMM-1103-12 LINGWORTH ASHTON 467 Karroum Yasser Bou IMM-1105-13 468 Tabch Amira IMM-1107-13 469 El-Omari Tarek IMM-1108-13 470 KHALIL Ahsan Mohiuddin IMM-1428-13 471 Ziauddin Qazi IMM-1769-13 472 MICHAEL EDWARD AZIZ Sawiris IMM-1927-13 473 Sanjaykumar Patel IMM-2096-13 474 Christian Hubert Gravelean IMM-2097-13 475 Meena Kashyap IMM-2098-13 476 Ranjit Singh Padda IMM-2100-13 477 Sushma Sharma IMM-2103-13 478 Kulwinder Kaur Nanglu IMM-2104-13 479 Narinder Jeet Jassi IMM-2107-13 480 Amanjit Kaur Padda IMM-2109-13 481 Harjeet Bala Heer IMM-2110-13 482 Rakesh Kumar Verma IMM-2112-13 483 Pankaj Kumar Sharma IMM-2113-13 484 Gurpiar Singh Dhami IMM-2114-13 485 Bhupinder Bhushan Dembla IMM-2132-13 486 Varinder Singh Sohal IMM-2133-13 487 Harjinder Singh Bhardwaj IMM-2134-13 488 Rupinder Kaur IMM-2135-13 489 Tricia Murray IMM-2313-13 62 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Mae Joy TABINGO IMM-5635-12 490 Enayat Boostanabadi IMM-2471-13 491 Mehra Jalili IMM-2472-13 492 Aroub Soubh IMM-2473-13 493 TEJASKUMAR JITENDRABHAI IMM-2560-13 PATEL 494 PARISA SADRI IMM-2562-13 Lead HaMbollah ABEDI IMM-8669-12 1 DABAL, MARAL IMM-8636-12 2 FATHIRAD, ATABAK IMM-8644-12 3 GHIGHANI, MASOUMEH IMM-8646-12 4 MOGHADDAM, NASSIM SAMADI IMM-8653-12 5 AGHILI, SEYED MAHDI IMM-8655-12 6 ROUHANI, SHOLEH IMM-8657-12 7 RASHTI, KOBRA TAJAD- IMM-8659-12 DODITALAB 8 POURAMINI, MOHAMMAD IMM-8661-12 9 MAHJOUBI, PARSA IMM-8662-12 10 AHMADI, NAJMEH IMM-8671-12 11 BASHIR RAD, ALIREZA IMM-8672-12 12 MAGHDOUR MASHHOUR, AU IMM-8674-12 13 HASSANZADEHNADERI, ABTIN IMM-8675-12 14 MKOUKAR, MEHRNAZ IMM-8679-12 15 CHECINI, GOSHTAB IMM-8688-12 16 MELIKA NASSIRI IMM-9094-12 17 ALIREZA SHENAVAEI IMM-9095-12 18 ZAHRA GHANADIAN IMM-9465-12 19 ROSHANAK LARY IMM-9914-12 20 REZA AZARIMOHEBI IMM-9915-12 21 SHAHLA AMRISAROUKOLAEI IMM-9916-12 22 FOROUZAN POURDAYIAMI IMM-9917-12 23 EBRAHIM GHORESHI IMM-9918-12 24 FARAHNAZ MATALEBI IMM-9919-12 25 AREZU EGHTEDARI IMM-9920-12 26 SAEED NAJARANTOUS IMM-9921-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 63

Lead HaMbollah ABEDI IMM-8669-12 27 SANAZ RAZMDIDEH IMM-11525-12 28 SHAHRAM KAHKOUEE IMM-11526-12 29 SYLVANA SEYFAIE IMM-11527-12 30 OSSIANI MARNANI ALI IMM-11528-12 31 PARISA NOROUZI IMM-11796-12 32 IRAJ TAKI IMM-11798-12 33 MOHSEN IMANI IMM-11800-12 34 SHAHRIAR MINAEE IMM-11801-12 35 AZADEH MAZAHERI TEHRANI IMM-11802-12 36 SHAHRAM TAHERI IMM-11803-12 37 ALIREZA SALIMIKHAH IMM-11806-12 38 KAVEH IRANZADEH BOOKANI IMM-11808-12 39 Rezaei, Ali IMM-12460-12 40 Saneei, Davood IMM-12461-12 41 Miripour, Arsham IMM-12462-12 42 RAEISI NOUR-MOHAMMAD IMM-852-13 43 FARZAD KHODSIANI IMM-855-13 44 KAMBOD EGHBAI TALAB IMM-857-13 Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 1 FAIZAN NAKHUDA IMM-5265-12 2 JAGDEEP HARIRAM MALHOTRA IMM-5267-12 3 WAFA JAWAD ABID JMM-5268-12 4 SARATHI BARDHAN IMM-5270-12 5 WISAM JASJM HILO IMM-5271-12 6 NURREIN MWATSAHU IMM-5272-12 7 SILPA SUMANTH TORANALA IMM-5273-12 8 MAEREG TAFERE ADHANOM IMM-5276-12 9 GRACE GHANTOUS IMM-5277-12 10 RESHIMA ANJUM IMM-5278-12 11 BAKER BASIL AL-BAHRI IMM-5279-12 12 JAGMOHAN SINGH IMM-5281-12 13 GEORGE REMON KASER IMM-5282-12 14 PAUL CRAAN IMM-5284-12 64 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 15 CHOWDHURY SHAKURUL IMM-5288-12 (SOHER) ISLAM 16 SHAHANA AFROSE CHOWDHURY IMM-5289-12 17 SIMON HODKINSON IMM-5290-12 18 NG SIEW KUAN IMM-5291-12 19 AUXEELIYA JESUDOSS IMM-5293-12 20 SUFIAN KHALIL ALOTAIBI IMM-5294-12 21 FATAI THOMAS ALAO IMM-5295-12 22 SANTHI KUMARAN IMM-5296-12 23 DHEFAF MOHAMED MOHSIN IMM-5297-12 24 DIEMI ESTHER AKPOTOR IMM-5298-12 25 COLIN VAZ IMM-5300-12 26 GODSON CHUKWUEMEKA JMM-5302-12 OKONWO 27 JOKOTADE CATHERINE AGBONY- IMM-5303-12 IN 28 RAMI AHMED FATHALLA IMM-5354-12 29 LANIE RAMOS IMM-5359-12 30 LORNA HARRIS IMM-5360-12 31 MICHAEL NSOBANI IMM-5361-12 32 MUHAMMAD FAHEEM JAMIL IMM-5362-12 33 SHEILA IFEOMA ONWUGHARA IMM-5363-12 34 HASSAN Y. HAMID IMM-5366-12 35 OLGA LOBO IMM-5367-12 36 MARW ANKACHEF IMM-5368-12 37 AHMAD A.H. MAH IMM-5369-12 38 AJAYI IFEDA YO FRANCIS IMM-5370-12 39 JOE KWABENA ASIEDU IMM-5372-12 40 GADA K. DHEA IMM-5424-12 41 Gursewak Singh Pannu IMM-8907-12 42 Pawan JyotiGhumman IMM-8908-12 43 Ravinder Singh Tamber IMM-8909-12 44 Reema Atwal IMM-8910-12 45 Parminder Jit Singh Gill IMM-8911-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 65

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 46 Rupinderjeet Kaur Ghuman IMM-8912-12 47 Sakinder Singh Gill IMM-8913-12 48 Rashpal Kaur Chahal IMM-8914-12 49 Neel Money Sharma IMM-8915-12 50 Rashpaul Singh Bhamra IMM-8916-12 51 Devinderjit Singh IMM-8917-12 52 Sardarjit Singh Aulakh IMM-8918-12 53 Usama Wasfy Roumany Gendy IMM-8919-12 54 Mohammed Salim-Ul-Mukim IMM-8920-12 55 Hargopal Singh IMM-8921-12 56 Rashpal Kaur IMM-8922-12 57 Prabhjit Kaur Brar IMM-8923-12 58 Rajdawinder Kaur Sandhu IMM-8924-12 59 Davinder Pal Singh Sapra IMM-8926-12 60 Prem Kumar IMM-8927-12 61 Paramjit Kaur Sandhu IMM-8928-12 62 Alpana Jayanand Rathod IMM-8930-12 63 Arpana Behla IMM-8931-12 64 Amir Shahzad Chaudhry IMM-8932-12 65 Harmandeep Kaur Dhaliwal IMM-8933-12 66 Syed Masood Ali IMM-8934-12 67 Vijay Kumar Thakur IMM-8935-12 68 Sukhmit Kaur Boparai IMM-8936-12 69 Aneet Pal Kaur IMM-8938-12 70 Twinklejit Kaur IMM-8939-12 71 Parminder Singh Randhawa IMM-8940-12 72 Anu Sharma IMM-8941-12 73 Gurmeet Kaur Loomba IMM-8942-12 74 Ajay Pal Singh Bhurji IMM-8943-12 75 Rahul Mukand IMM-8944-12 76 Satpal Singh IMM-8945-12 77 Amandeep Kaur Randhawa IMM-8947-12 78 Jagpal Kaur Sandhu IMM-8948-12 79 Deepak Issar IMM-8949-12 66 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 80 Sandeepkumar Amrarlal Patel IMM-8950-12 81 Puja Katyal IMM-8951-12 82 Ruplesh Kaur Mann IMM-8952-12 83 Jasjit Singh Ghatahra IMM-8953-12 84 Bhupinder Singh Sangatpuri IMM-8954-12 85 Narinderjit Singh Dhaliwal IMM-8955-12 86 Avinash Chander Pathak IMM-8956-12 87 Rajpal Kaur Brar IMM-8957-12 88 Harjinder Kaur Heer IMM-8958-12 89 Sandeep Kumar Vohra IMM-8959-12 90 Harpreet Singh Tung IMM-8960-12 91 Mahanbir Singh Randhawa IMM-8961-12 92 Inderpreet Kaur IMM-8962-12 93 Hussain Fida IMM-8963-12 94 Jagdish Kaur Sohi IMM-8964-12 95 Surinder Kaur IMM-8965-12 96 Devinder Pal Singh Pawar IMM-8966-12 97 Amit Puri IMM-8967-12 98 Clayton Baptist IMM-8968-12 99 Sanjeev Kumar Bedi IMM-8969-12 100 Dhiraj Nangia IMM-8970-12 101 Satwant Kaur Kaloty IMM-8971-12 102 Syed Navid Hasan Bokhari IMM-8972-12 103 Sukhbir Mann IMM-8973-12 104 Clement Udo Achor IMM-8974-12 105 Lakhwinder Kaur Saran IMM-8975-12 106 Kulwinder Singh Gill IMM-8976-12 107 Obaidur Rahman IMM-8977-12 108 Jagjit Singh Dhaliwal IMM-8979-12 109 Prabhjot Kaur Chahal IMM-8980-12 110 Sukhbir Kaur Randhawa IMM-8981-12 111 Rupinder Kaur Bajwa IMM-8982-12 112 Damanjeet Kaur Bhangu IMM-8983-12 113 Ravinder Kaur Kang IMM-8984-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 67

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 114 Amiteshwar Singh Chandok IMM-8985-12 115 Gurwinderbir Kaur IMM-8986-12 116 Adeel Ajaz IMM-8988-12 117 Bandral Manjunath Reddy IMM-8989-12 118 Randhir Singh Sagoo IMM-8990-12 119 Syed Asim Ali IMM-8991-12 120 Balbir Kaur Sandhu IMM-8993-12 121 Sawinder Singh Sandhu IMM-8996-12 122 Sher Singh Malhotra IMM-8997-12 123 Bhupinder Singh Kainth IMM-9001-12 124 Manjit Kaur Sandhu IMM-9002-12 125 Satinder Kaur Babrah IMM-9003-12 126 Rupinder Kaur Dhillon IMM-9005-12 127 Harwinder Kaur Baidwan IMM-9006-12 128 Shereen Adwer Abdel Meseeh Louka IMM-9021-12 129 Dimple Jha IMM-9026-12 130 Rajveer Kaur Bumrah IMM-9046-12 131 Baljeet Singh Batth IMM-9063-12 132 Satpal Singh Sidhu IMM-9068-12 133 Sodhi Singh Jhajj IMM-9070-12 134 Davinder Singh Bajwa IMM-9072-12 135 Jagmit Singh IMM-9074-12 136 Jiten Chopra IMM-9077-12 137 Kamal Kumar Badhan IMM-9080-12 138 Lalita Sharma IMM-9082-12 139 Gurinderjit Singh Pawar IMM-9083-12 140 Manpreet Kaur Sandhu IMM-9081-12 141 Puri Rajni IMM-9204-12 142 Lin Yih Liang IMM-9205-12 143 Justin Matthew Borja Austria IMM-9206-12 144 Jagmander Singh Sran IMM-9209-12 145 Harold Rabeca Rebuldela IMM-9210-12 146 Harjit Kaur IMM-9212-12 147 Krishnadas Thindiyath IMM-9213-12 68 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 148 Laveet Kaur Gill IMM-9215-12 149 Baljinder Kaur Aulakh IMM-9216-12 150 Sara Saleh IMM-9218-12 151 Rana Asim Sarwar IMM-9220-12 152 Sukhraj Singh Gill IMM-9221-12 153 Hassan Bahij Rahal IMM-9222-12 154 Manjit Kaur Gill IMM-9223-12 155 Amandeep Kaur Gill IMM-9224-12 156 Harbrinder Singh Chandi IMM-9225-12 157 Kabal Aingh IMM-9246-12 158 Tejpal Singh Sandhu IMM-9247-12 159 Sukhpal Veer Singh Mrahard IMM-9248-12 160 Sandeep Kaur IMM-9249-12 161 Gurpreet Singh Kainth IMM-9250-12 162 Parveen Sharma IMM-9251-12 163 Turna Navdeep Singh IMM-9265-12 164 Amandeep Kaur Gabi IMM-9266-12 165 Molokwu Azikiwe IMM-9267-12 166 Rajwinder Kaur Tatla IMM-9268-12 167 Bhupinderpal Singh Chumber IMM-9269-12 168 Zeyad Ahmed IMM-9270-12 169 Jagmohan Singh Bawa IMM-9271-12 170 Muller Sobhy Adeeb Matta IMM-9272-12 171 Peerzada Nusrat Aijaz IMM-9273-12 172 Manjeet Kumar Vishvkarma IMM-9274-12 173 Eseine Akhirebulu IMM-9275-12 174 Sylvester Okworu IMM-9276-12 175 Lalit Kumar Sharma IMM-9277-12 176 Mary Nassif IMM-9278-12 177 Kawaljit Zande IMM-9279-12 178 Karamjeet Kaur Sangha IMM-9280-12 179 Bal Rajwinder Singh IMM-9281-12 180 Fareedullah Fareedullah IMM-9282-12 181 Santhoshi Nallur Haleshappa IMM-9283-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 69

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 182 Tariq Ahmed Patoli IMM-9284-12 183 Harmandeep Singh Sandhu IMM-9285-12 184 Sukhbir Kaur Aulakh IMM-9286-12 185 Devinder Mohan Kaushal IMM-9288-12 186 Modaber Ahmed Khan IMM-9289-12 187 Vaneeta Mitul Mehta IMM-9290-12 188 Ekta Singh Bhupal IMM-9291-12 189 Maher Fayek Abd El Malek IMM-9292-12 190 Navdeep Singh Masoun IMM-9293-12 191 Monika Mengi IMM-9294-12 192 Surinder Pal Singh Multani IMM-9295-12 193 Rajwant Singh Sohi IMM-9296-12 194 Narinder Kaur Birdi IMM-9297-12 195 Amarjit Kaur Brar IMM-9298-12 196 Parveen Kumar Singla IMM-9299-12 197 Amritpal Kaur Gill IMM-9300-12 198 Amanpreet Kaur Manesh IMM-9301-12 199 Maher Al-Hasswy IMM-9302-12 200 Balwinder Singh Dhillon IMM-9303-12 201 Hartaj Singh Sidhu IMM-9305-12 202 Baljinder Kaur Gill IMM-9306-12 203 Rajinder Kaur Kahlon IMM-9307-12 204 Yashpal Kaur Cheema IMM-9308-12 205 Dhillon Jaswinder Kaur IMM-9309-12 206 Gurcharan Singh Saggu IMM-9310-12 207 Baljit Singh Jandu IMM-9311-12 208 Gurmail Singh Madahar IMM-9312-12 209 Jasanjeet Kaur Sishu IMM-9313-12 210 Rupinder Kaur Bhoi IMM-9314-12 211 Kiran Kumar Nangunoori IMM-9315-12 212 Kamaljeet Kaur Hundal IMM-9316-12 213 Avtar Singh IMM-9317-12 214 Pushvinder Kaur Khokhar IMM-9318-12 215 Baldev Singh Kahlon IMM-9319-12 70 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 216 Mandeep Kaur Sidhu IMM-9320-12 217 Inderpal Kaur Johal IMM-9321-12 218 Amarjit Singh Bhinder IMM-9322-12 219 Taranjeet Kaur Sethi IMM-9323-12 220 Surinder Pal Singh Kaler IMM-9326-12 221 Gamal Said M. H. Abu Daken IMM-9327-12 222 Baljit Singh IMM-9328-12 223 Gurmeet Kaur Dhillon IMM-9329-12 224 Dalbir Singh Sadiora IMM-9330-12 225 Kirandeep Singh Preet IMM-9331-12 226 Mandeep Singh Bilkhu IMM-9336-12 227 Gurdeep Singh Sekhon IMM-9337-12 228 Naveed Sarwar Rana IMM-9340-12 229 Ajaypal Singh Multani IMM-9344-12 230 Harminder Singh IMM-9345-12 231 Kaur Satpal IMM-9346-12 232 Baldev Singh Pandher IMM-9348-12 233 Gagandeep Kaur Rai IMM-9349-12 234 Stephen Baptist IMM-9350-12 235 AkshraKumari IMM-9352-12 236 Rangaswamy Jayaprakash IMM-9353-12 237 Korba Alakhras Shafik IMM-9354-12 238 Harbans Singh Jhajj IMM-10248-12 239 Nabila Rais IMM-10249-12 240 Eman Abd El Razek Mohamed Abd El IMM-10250-12 Razek 241 Chetan Singh Bisht IMM-10251-12 242 Vinay Sharma IMM-10252-12 243 Farhana Saeed IMM-10253-12 244 Jagjit Singh Hundal IMM-10254-12 245 Sukhdeep Kaur Sekhon IMM-10255-12 246 Ashfa Saeed IMM-10256-12 247 Emmanuel Ademola Adegboye IMM-10257-12 248 Davinder Kaur Loi IMM-10258-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 71

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 249 Sameh Sizostris Mikhail IMM-10259-12 250 Sujata Mahal IMM-10260-12 251 Njoud Haddad IMM-10261-12 252 Clifford Raymond Pereira IMM-10262-12 253 Ussama Francis Kamel Rezkalla Mega- IMM-10263-12 ly 254 Harpal Singh IMM-10264-12 255 Parmjit Singh Kackkar IMM-10265-12 256 Abdulkader Alshaar IMM-10266-12 257 Bhangu Manjeet Kaur IMM-10267-12 258 Harminder Kaur Hallan IMM-10268-12 259 Farah Ali IMM-10269-12 260 Pardeep Dhawan IMM-10270-12 261 Singh Darshan IMM-10271-12 262 Raminderjit Singh Minhas IMM-10272-12 263 Muhammed Bilal IMM-10273-12 264 Mamdouh Louis Samaan Shenoda IMM-10274-12 265 Masoud Gaffarian Asl IMM-10275-12 266 Jujhar Singh Sagoo IMM-10276-12 267 Rajwant Kaur Bhangu IMM-10277-12 268 Jhand Surinder Singh IMM-10278-12 269 Baljit Kaur Randhawa IMM-10279-12 270 Harjit Kaur Chohan IMM-10284-12 271 Gurdit Singh Sandhu IMM-10285-12 272 Basma Khalid Maged IMM-10286-12 273 Ashwani Kumar Bakshi IMM-10287-12 274 Inderbir Kaur Randhawa IMM-10289-12 275 Ritu Attri IMM-10290-12 276 Harpal Singh Randhawa IMM-10293-12 277 Mohammad Junaid Aziz IMM-10294-12 278 Vani Saini IMM-10295-12 279 Mukhvir Singh Badesha IMM-10296-12 280 Manjit Kaur Gill IMM-10298-12 281 Khaled Abdulfattah M. Al-Alusi IMM-10299-12 72 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 282 Titus Terhemba Agbecha IMM-10300-12 283 Jasbir Singh Khangura IMM-10301-12 284 Jagjit Singh Kainth IMM-10303-12 285 Wilson Lo Uy IMM-10304-12 286 Jokotade Catherine Agbonyin IMM-10305-12 287 Santokh Singh Sehmbi IMM-10308-12 288 Sher Singh Toorey [Sher Singh(2)] IMM-10310-12 289 Athman Salim Mwinyi IMM-10311-12 290 Naomi Eileen Garcia Tejero IMM-10312-12 291 Ranjeet Kaur IMM-10313-12 292 Chowdhury Shakurul (Sohel) Islam IMM-10314-12 293 Saeed Ahmed IMM-10316-12 294 Gulnaz Cyrus Mondegarian IMM-10317-12 295 Elizabeth Legaspi IMM-10318-12 296 Riaz Ahmed IMM-10319-12 297 Thaer Yousif Naom IMM-10320-12 298 Hameeduddin Ali IMM-10321-12 299 Jesus F. Dutong IMM-10323-12 300 Syed Muhammad Naved Ali IMM-10324-12 301 Rami Ahmed Fathalla Moustafa IMM-10327-12 302 Lin Zheng IMM-10328-12 303 Ng Siew Kuan IMM-10329-12 304 Godson Chukwuemeka Okokkwo IMM-10331-12 305 Harjap Singh IMM-10332-12 306 Dina Nour El Din Abdel Aziz Abdel IMM-10333-12 Rahman 307 Amandeep Kaur IMM-10334-12 308 Ibrahim El Hajj IMM-10335-12 309 Hassan Yous if Hamid IMM-10336-12 310 Youland Chamas IMM-10337-12 311 Claudine Stephenson IMM-10338-12 312 Ahmad A. H. Mah IMM-10342-12 313 Krithika Manoharan Devanand IMM-10346-12 314 Ogareet Khoury IMM-10348-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 73

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 315 Muthukumar Sudhakar IMM-10350-12 316 Mayaz Al Dalai IMM-10351-12 317 Cheong Yuen Foong IMM-10353-12 318 Lada Yzgiaev IMM-10356-12 319 Le Quoc Cuong IMM-10358-12 320 Josan Arvinder Jeet Kaur IMM-10360-12 321 Gurjinder Kaur Dang IMM-10361-12 322 Arvinder Kumar Gumber IMM-10362-12 323 Parminderjit Kaur Bains IMM-10363-12 324 Kanwaljit Kaur Chahal IMM-10364-12 325 Geoffrey Ezepue IMM-10368-12 326 Mukarram Bhagat IMM-10369-12 327 Baljeet Kaur Aujla IMM-10370-12 328 Vikram Karthick Ragupathy IMM-10373-12 329 Jagraj Singh Kaul IMM-10374-12 330 Bajwa Harjeet Kaur IMM-10375-12 331 Sarbjit Kaur Toor IMM-10378-12 332 Avtar Dingh Khaira IMM-10381-12 333 Parminder Singh Mangat IMM-10382-12 334 Tejpreet Singh Pannu IMM-10386-12 335 Gurvinder Kaur IMM-10389-12 336 Arvinder Kaur Soray IMM-10392-12 337 RIZALINA VHIAFUERTE ROSALES IMM-10516-12 v. MCI 338 REMONDA YOUSSEF RAFLA YAS- IMM-10761-12 SA 339 FAZELI HOKMABAD IMM-10762-12 340 Bansal Monika IMM-11024-12 341 Surinder Kaur Saini IIMM-11025-12 342 Harpreet Kaur Bhullar IMM-11026-12 343 Pararnjit Kaur Purewal IMM-11029-12 344 Parrnjit Kaur Sandhu IMM-11030-12 345 Nasir Raza Khan IMM-11031-12 346 Rakesh Kumar Garg IMM-11032-12 74 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 347 Narinder Singh Lobana IMM-11033-12 348 Harpal Kaur Bath IMM-11034-12 349 Chahal Bhupinder Singh IMM-11035-12 350 Narinder Kaur Aulakh IMM-11036-12 351 Shakti Suman IMM-11037-12 352 Malkit Singh Bajwa IMM-11038-12 353 Satinderjit Singh Daroch IMM-11040-12 354 Reena Chugh IMM-11041-12 355 Sukhwinder Singh Kaul IMM-11042-12 356 Narinderjit Kaur Sahi IMM-11043-12 357 Mandeep Singh Mann IMM-11044-12 358 Jaspreet Kaur Randhawa IMM-11046-12 359 Kamaljit Kaur Somal IMM-11047-12 360 Darbara Singh Sidhu IMM-11048-12 361 Bhardwaj Prem Sagar IMM-11049-12 362 Harbans Singh IMM-11050-12 363 Jaswinder Kaur Badesha IMM-11053-12 364 Kiran (Sharma) Rajpal IMM-11054-12 365 Savita Sidhu IMM-11055-12 366 Rimple Kaur Bath IMM-11057-12 367 Kanwaldeep Singh Gosal IMM-11058-12 368 Choudhary Kamaljeet Kaur IMM-11059-12 369 Ajit Kaur IMM-11060-12 370 Amandeep Dhillon IMM-11061-12 371 Harbinder Singh Gill IMM-11062-12 372 Gagandeep Kaur Bal IMM-11064-12 373 Parampal Kaur Sidhu IMM-11065-12 374 Balwinder Singh Verka IMM-11066-12 375 Aprajita Kapoor IMM-11068-12 376 Amrit Pal Singh Dhamrait IMM-11069-12 377 Davinder Kaur Bains IMM-11070-12 378 Dhillon Kulwinder Kaur IMM-11071-12 379 Sarabijit Kaur IMM-11072-12 380 Raminder Jit Kaur IMM-11077-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 75

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 381 Makkena Suresh IMM-11164-12 382 Vanita Arora IMM-11166-12 383 Sarbjit Kaur Birdi IMM-11169-12 384 Yuvrajbir Singh IMM-11170-12 385 Paramjit Singh Manes IMM-11171-12 386 Aabroo Mahal IMM-11172-12 387 Nokinka Kalhan IMM-11173-12 388 Neeta Singh IMM-11174-12 389 Simeon Ng Tan IMM-11175-12 390 Amarjit Singh Garha IMM-11176-12 391 Frederick Tan IMM-11177-12 392 Naginder Singh Bansal IMM-11178-12 393 Chi WiWelfred Chan IMM-11179-12 394 Alayo Adebisi Saheed IMM-11180-12 395 Akinwumi Tenritope Toyin IMM-11181-12 396 Khemraj Maharaj IMM-11183-12 397 Shams Ul Haq Khan Zai IMM-11184-12 398 Surinder Kumar Kakkkar IMM-11186-12 399 Harbinder Singh Thind IMM-11187-12 400 Tarsem Singh Gill IMM-11188-12 401 Surinder Kaur Saini IMM-11203-12 402 Paramjit Kaur Sandhu IMM-11204-12 403 Sarbjit Singh Randhawa IMM-11205-12 404 Poonam Sharma IMM-11206-12 405 Gurpreet Singh Sadhu IMM-11207-12 406 Rajni Sharma IMM-11210-12 407 Amrit Pal Singh Dhillon IMM-11211-12 408 Devgan Gagadeepkaur IMM-11212-12 409 Nirmal Singh Gill IMM-11213-12 410 Dilbagh Singh Bal IMM-11214-12 411 Rajwinder Kaur IMM-11215-12 412 Harjinder Singh Brar IMM-11227-12 413 Kanwaljit Kaur IMM-11228-12 414 Gill Sukpreet Singh IMM-11231-12 76 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 415 Satwinder Singh IMM-11233-12 416 Kuljeet Kaur Arora IMM-11234-12 417 Jojanpreet Kaur IMM-11236-12 418 Tarsem Singh Brar IMM-11237-12 419 Sukhwinder Singh IMM-11238-12 420 Rajwant Kaur Saran IMM-11239-12 421 Rajesh Kumar Banga IMM-11240-12 422 Patel Umeshkumar Manubhai IMM-11241-12 423 Tarsem Singh Kambo IMM-11242-12 424 Kashmir Singh Sandhu IMM-11243-12 425 Jamil Ammar IMM-11248-12 426 Abdul Karim Rustoum IMM-11250-12 427 Mohammed Hilili IMM-11253-12 428 Gurmeet Kaur Toor IMM-11257-12 429 Kanwalijit Singh Ahluwalia IMM-11258-12 430 Gurpreet Singh Gill IMM-11270-12 431 Naresh Kumar Arora IMM-11271-12 432 Mandeep Kaur Grewal IMM-11272-12 433 Sundeep Kaur Sidhu IMM-11273-12 434 Anoopjit Kaur Puar IMM-11274-12 435 Sangha Sukhwinderjit IMM-11275-12 436 Rajan Gupta IMM-11276-12 437 Ushvinder Kaur Popli IMM-11280-12 438 Harpreet Kaur Thind IMM-11282-12 439 Manjit Hampaul IMM-11283-12 440 Remigio Tiangco Jr. IMM-11998-12 441 Francis Jeyakumar Joseph IMM-11999-12 442 Juliet Puzon IMM-12001-12 443 Darshan Singh Mahal IMM-12898-12 444 BALJEET SINGH BAL IMM-12903-12 445 MOHJNDER SINGH MAAN IMM-12904-12 446 NIRVAN SINGH GILL IMM-12905-12 447 FAROOQ KHJMANI IMM-12911-12 448 MANDEEP KAUR GOHAL IMM-12913-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 77

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 449 BHAGWINDER SINGH GILL IMM-12915-12 450 MANISH KUMARRISHIRAJ IMM-12917-12 451 DHANJAL PARAMJEET KAUR IMM-12918-12 452 VIRPAL KAUR JOSAN IMM-12919-12 453 ARMAJTT KAUR OTHEE IMM-12963-12 454 GURVTODER SING SIDHU IMM-12964-12 455 SARABJEET KAUR DHINDSA IMM-12965-12 456 GEILAN HASSAN MOHAMED EL- IMM-12966-12 SEBILGY 457 PARAMJEET SINGH SAINI IMM-12967-12 458 SANJEEF KUMAR AARYAN IMM-12968-12 459 AMRDC SINGH IMM-12969-12 460 SUKHJINDER KAUR GJLL IMM-12971-12 461 OSAMA SAJD IMM-12972-12 462 SARTAJ SINGH KULAR IMM-12973-12 463 ARUN KUMAR ROHULA IMM-13057-12 464 CHARN PUSHPINDER SINGH IMM-13058-12 465 RAM PHAL RUHAL IMM-13059-12 466 NARINDER SINGH BHARDWAG IMM-13060-12 467 KANU PRIYA IMM-13061-12 468 MANDEEP SINGH PUNIA IMM-13063-12 469 RAJNI MISSRA IMM-13064-12 470 SARABJEET KAUR MANGAT IMM-13065-12 471 BHAWNA SHARMA IMM-13067-12 472 BINDHU NATARAJAN IMM-13068-12 473 EMAN ESMAT MAHMOUD SABRY IMM-13069-12 474 NANNUAN JUGBADAL SINGH IMM-13070-12 475 JASPREET SINGH DHALIWAL IMM-13072-12 476 GURSHARAN KAUR NAGPAL IMM-13074-12 477 CHARANJIT KAUR BEDI IMM-13076-12 478 JAGJTT SINGH PANDEY IMM-13078-12 479 RAJ KUMAR JAMAL IMM-13079-12 480 MOHAMED SAMY ELKHATIB IMM-13080-12 481 RAJPAL KAUR BHANGU IMM-13082-12 78 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 482 HARJEET KOUR IMM-13084-12 483 BALTEJ SINGH IMM-305-13 484 JONG YEOL KIM IMM-306-13 485 MEENU BALA SHARMA IMM-307-13 486 KAINTH AMANDEEP KAUR IMM-308-13 487 BAKER BASIL AU GHALIB AL- IMM-309-13 BAHRI 488 CHUN MIN SOOK IMM-310-13 489 BALWINDER KAUR IMM-311-13 490 KHO YOUNG KYU IMM-312-13 491 JONGHWA LEE IMM-313-13 492 JAGTAR SINGH CHAUHAN IMM-314-13 493 GURMIT SINGH BOPARAI IMM-315-13 494 MIRA OH IMM-316-13 495 YOUNG JA PAEK IMM-317-13 496 IN KI PARK IMM-318-13 497 VIPIN BALI IMM-319-13 498 DILWANDER SINGH GREWAL IMM-320-13 499 ROHIT SHARMA IMM-321-13 500 NASIB CHAND IMM-322-13 501 RANGIT SINGH SIDHU IMM-324-13 502 PARMJIT SINGH BADHAN IMM-325-13 503 SONIKA SHARMA IMM-326-13 504 SURINDER LAUR SAINI IMM-327-13 505 MAN MOHAN SINGH IMM-328-13 506 PARDEEP KAUR SAINI IMM-329-13 507 SONA CHOHAN IMM-330-13 508 KARNAIL SINGH IMM-332-13 509 MAKHAN SINGH GHARU IMM-333-13 510 KULDEEP SINGH SAIN IMM-334-13 511 DEVINDER SINGH BAIDWAN IMM-335-13 512 DEVINDER SINGH BAIDWAN IMM-336-13 513 TARANJIT KAUR GREWAL IMM-338-13 514 SURINDER SINGH GREWAL IMM-341-13 Tabingo v. Canada (MCI) Donald J. Rennie J. 79

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 515 MONA MAKARY IMM-342-13 516 NASIB KAUR SIMAK IMM-343-13 517 GAGANPAL SINGH SAHNI IMM-344-13 518 JAGJIT SINGH SANDHU IMM-345-13 519 CHOONRAK KIM IMM-346-13 520 LAKHWIND3ER SINGH IMM-347-13 RANDHAWA 521 GURMAIL SINGH KOROTANIA IMM-348-13 522 RUPINDER KAUR IMM-349-13 523 KULWANT SINGH GREWAL IMM-351-13 524 SANDEEP KAUR DHALIWAL IMM-352-13 525 SUKHWINDER KAURDHILLON IMM-353-13 526 HARDEEP SINGH SIVIA IMM-354-13 527 KAMAL CHAWLA IMM-355-13 528 JAG AMAN SINGH SHOKER IMM-356-13 529 KULWANT SINGH PATWALIA IMM-357-13 530 JASPAL KAUR BHUNDAR IMM-358-13 531 KAMALJEET SINGH SAINI IMM-359-13 532 RAJINDER KAUR PAWAR IMM-360-13 533 ASW ANIDATTA IMM-361-13 534 RANJIT KAUR SOHI IMM-362-13 535 HARPREET SINGH HUNDAL IMM-363-13 536 SHASHI BHUSHAN SHARMA IMM-364-13 537 JATINDER KAUR SAINI IMM-365-13 538 KIM DONG HEE IMM-366-13 539 YASER ABU SHAIP IMM-367-13 540 PARK KYUNG BAE IMM-368-13 541 LEE SONG HEE IMM-370-13 542 RITU SHARDA IMM-371-13 543 NIDHI BAJAJ IMM-387-13 544 HARDEEP SINGH DHILLON IMM-389-13 545 SHAMA KHAN IMM-390-13 546 NAGENDRA KUMAR GUPTA IMM-391-13 547 SUMANPREET KAUR IMM-392-13 80 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 548 KULYINDER KAUR ALIAS IMM-394-13 SIMRAN PARMAR 549 AMARJEET SINGH IMM-396-13 550 PARAMJIT KAUR HUNDAL IMM-397-13 551 WIN CHOPAL IMM-398-13 552 RAMANDEEP KAUR IMM-400-13 553 Farnoush Tarighat Manesh IMM-436-13 554 Reheana Mohammad Wasim Vakil IMM-437-13 555 Mohammad Zahidul Islam IMM-438-13 556 Noora Hassan Sami Merei IMM-439-13 557 Muhammad Rafiullah Masood IMM-440-13 558 Aaron Alexander Pinto IMM-441-13 559 Sushil Kumar Gambhir IMM-443-13 560 Kanwarjit Singh Johal IMM-444-13 561 Rupinder Toor IMM-445-13 562 Joonhoo Woo IMM-446-13 563 Jaskaran Singh Sandhu IMM-447-13 564 Harinderjit Singh Sidhu IMM-448-13 565 Daljit Singh IMM-449-13 566 Hardval Singh IMM-450-13 567 Dhuppar Mani Ram IMM-451-13 568 Vinor Kumari Sharma IMM-452-13 569 GLORIA KASIGAZI IMM-535-13 570 KULJEET SINGH SUDAN v. MCI IMM-619-13 571 SEEMA CHANDAN v. MCI IMM-621-13 572 BHUPINDER SINGH JANUA v. MCI IMM-622-13 573 GENIE M. AUSTRIA v. MCI IMM-623-13 574 SUKHJINDER SINGH BAL v. MCI IMM-812-13 575 ARORA VEETA RANI v. MCI IMM-813-13 576 Baljinder Ka`ur Heer v. MCI IMM-1008-13 577 Bhajan Singh Bhanbra v. MCI IMM-1010-13 578 PARMJEET SINGH SANDHU IMM-1251-13 579 Damodaran Mangannan IMM-1349-13 580 Maha Al-Qudwa IMM-1350-13 Tabingo v. Canada (MCI) Donald J. Rennie J. 81

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 581 Mohammad-Shadi, Rabah IMM-1783-13 582 Jagmohan Singh Bawa IMM-1784-13 583 Baljit Singh Brar IMM-1785-13 584 Umesh Dhupar IMM-2193-13 585 S.I.M.M. Hmahdy IMM-2194-13 586 Jagdeep Singh Sarai IMM-2195-13 587 Sivia Swaran IMM-2196-13 588 Sukhdev Singh Smagh IMM-2197-13 589 Jaswinder Singh IMM-2198-13 590 Sunil Ghandi IMM-2248-13 591 LTTA MORAGA HERAS IMM-2370-13 592 LILY DYCHYINGCO CHUA IMM-2372-13 593 SIMON SYKIANLIN IMM-2373-13 594 BRIGIDO SANTOS III IMM-2380-13 595 AILEEN UY TAN IMM-2382-13 596 JOAN LAO LIM IMM-2391-13 597 THERESA ALVAREZ IMM-2393-13 598 NATHANIEL COO CHUA IMM-2406-13 599 CAROLYN DELEGENCIA IMM-2418-13 600 AILEEN JANE CHUAHUICO YAO IMM-2421-13 LIM 601 LUIS VHIACERAN IMM-2377-13 602 RICHIE DY TAN IMM-2392-13 603 LUIS NOLASCO IMM-2390-13 604 RODNEY BRINGAIS IMM-2389-13 605 RIUO RAYMUNDO NISCE IMM-2388-13 606 ROSANNA SJY IMM-2387-13 607 RYAN JORDAN RAMOS IMM-2386-13 608 JAMES CHUAUNSU IMM-2385-13 609 GRACE THERESA ONG IMM-2383-13 610 ESTHER NG IMM-2381-13 611 JOHN LAO LIM IMM-2407-13 612 CHRISTOPHER BRIAN YU IMM-2409-13 613 RAMON ONG LIM IMM-2410-13 82 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Maria Sari Teres a Borja AUSTRIA IMM-10307-12 614 ROWENA (WINNIE) FERNANDEZ IMM-2420-13 615 Berry Lim Ongdueco IMM-2425-13 616 Greg Amanze IMM-2522-13 617 Narinder Singh Sandhu IMM-2523-13 618 Teddy Sy IMM-2524-13 619 Baljit Singh Gill IMM-2525-13 620 Jartinder Pal Singh Khosa IMM-2526-13 621 Dharminder Singh Mattu IMM-2527-13 622 MAHBOBEH TARAGHI IMM-125-13 623 NENA ADAME CACA YURIN IMM-12747-12 624 ARVTODER KAUR SAROY IMM-10392-12 625 KULWANT KAUR SANDHU IMM-2576-13 626 HENRY TOBY IMM-5365-12 Lead: ALI RAZA JAFRI IMM-4866-12 1 MARIA THERESA REINOSO IMM-4865-12 BELMONTE 2 REQNA NNENNA IGBOKO IMM-4869-12 3 LETIOA IGBOKO IMM-4868-12 4 DAVID CYRIL RILEY IMM-4870-12 5 PATRICK TOBIAS KUTEPA IMM-4871-12 6 MARCUS SAYWLU WLEHI IMM-4872-12 7 RAMAN THAKUR IMM-4879-12 8 CLAUDE BANZA NTOMBE IMM-4880-12 9 JITENDER BAHADUR SINGH IMM-4882-12 10 VINOD KUMAR GUNYA IMM-4883-12 11 GURJIT KAUR IMM-4884-12 12 PHILIP DAYSON IMM-6142-12 13 AHSANBIN ASLAM IMM-7306-12 Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 1 CHUANYUE XIE IMM-4619-12 2 MAN YANG IMM-4620-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 83

Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 3 JING YANG IMM-4624-12 4 SIU LAI WOO IMM-4625-12 5 HONGBING BI IMM-4626-12 6 XIANGYANG LIN IMM-4627-12 7 YING HUANG IMM-4628-12 8 XIANGNING DENG IMM-4634-12 9 SHANGSI LING IMM-4635-12 10 CHENGXIANG LIU IMM-4641-12 11 FAN ZHANG IMM-4642-12 12 YINGHONG ZHANG IMM-4644-12 13 ZDUN LIU IMM-4645-12 14 BAOQING ZHOU IMM-4646-12 15 ZHENDONG WANG IMM-4647-12 16 HUIQIANG PENG IMM-4648-12 17 YANG TIAN IMM-4649-12 18 CHANGYING CHEN IMM-4650-12 19 XIAOMIN ZENG IMM-4651-12 20 FEI ZHU IMM-4654-12 21 QIONG ZHANG IMM-4656-12 22 TINGTING ZHAO IMM-4657-12 23 YAN TU IMM-4658-12 24 JIAN HEI IMM-4659-12 25 YAN XU IMM-4662-12 26 FUCHUAN NI IMM-4663-12 27 XUEJUN WANG IMM-4666-12 28 YUN ZHOU IMM-4668-12 29 NING LI IMM-4669-12 30 XIN LI IMM-4670-12 31 PING GUO IMM-4671-12 32 HADUN LU IMM-4672-12 33 TONG QI IMM-4673-12 34 SHUNHUA YE IMM-4674-12 84 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 35 HONGQI LIN IMM-4675-12 36 KAMFAING IMM-4676-12 37 LIANG CHEN IMM-4677-12 38 BO LIU IMM-4678-12 39 ZHENGHUI XU IMM-4679-12 40 SONG LIN IMM-4680-12 41 XUANJIN ZHU IMM-4681-12 42 ZHIQIANG GUO IMM-4682-12 43 PLTFENG HAO IMM-4683-12 44 YING BAI IMM-4684-12 45 SHUXUN CHEN IMM-4685-12 46 YUN LI IMM-4686-12 47 LING XIAO IMM-4698-12 48 LIANZHU CHAI IMM-4700-12 49 YING ZHANG IMM-4703-12 50 SHAOPING CAO IMM-4704-12 51 GUIMEI J1NG IMM-4706-12 52 LIN ZHANG IMM-4707-12 53 WEI CHEN IMM-4709-12 54 PAN QIN IMM-4710-12 55 UNGUNG WENREN IMM-4712-12 56 YIDAN LU IMM-4713-12 57 GUI MA IMM-4714-12 58 XIAOXIAO LIU IMM-4715-12 59 YU SHEN IMM-4716-12 60 WEIJUAN WU IMM-4717-12 61 MINGYU WU IMM-4718-12 62 WENJUN XUE IMM-4719-12 63 BING ZHANG IMM-4720-12 64 KUN ZHU IMM-4721-12 65 CHUXIAO LI IMM-4722-12 66 XINYAN JIA IMM-4723-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 85

Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 67 JUAN LUO IMM-4724-12 68 CHUAN HUO IMM-4725-12 69 MINGMING LUI IMM-4726-12 70 TIAN FU IMM-4728-12 71 HUIXIAN LONG IMM-4730-12 72 XIAOJIAN YAN IMM-4733-12 73 HONGWEI YANG IMM-4735-12 74 YU HE IMM-4736-12 75 GEQI WENG IMM-4738-12 76 ERLI SUN IMM-4740-12 77 QIZHI FENG IMM-4741-12 78 SHAOCHI WANG IMM-4743-12 79 JIANZHONG TANG IMM-4747-12 80 CHUN CHU IMM-4749-12 81 LI LIANG IMM-4753-12 82 JIANCUN HUANG IMM-4754-12 83 XIAOYU LIU IMM-4755-12 84 DEJIAN LI IMM-4757-12 85 XUELIAN BIAN IMM-4759-12 86 RUOCHUN LI IMM-4760-12 87 RUI ZHANG IMM-4761-12 88 YANLING LIU IMM-4762-12 89 AIPING ZHANG IMM-4764-12 90 FFI WANG IMM-4766-12 91 WEN LU IMM-4770-12 92 LIPING QIU IMM-4772-12 93 JIANG LUO IMM-4774-12 94 YILI WANG IMM-4775-12 95 JIONG ZHANG IMM-4779-12 96 SHI SUN IMM-5841-12 97 JIONG WANG IMM-5842-12 98 XILEI SONG IMM-5843-12 86 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 99 MIN QIAN IMM-5845-12 100 JIANGPING LU IMM-5847-12 101 JIONG GU IMM-5848-12 102 GUOYIN WANG IMM-5972-12 103 LIJING XIAN IMM-5975-12 104 YUAN XU IMM-5986-12 105 YINZI GUAN IMM-5988-12 106 JIN LIU IMM-5995-12 107 LEI WU IMM-5996-12 108 ZHAOHUI SUN IMM-5997-12 109 XIAODONG HUANG IMM-5998-12 110 PING YU IMM-5999-12 111 YANGCHUN YANG IMM-6000-12 112 HUIMING HU IMM-6001-12 113 JJEMIN XIA IMM-6002-12 114 YAPING WANG IMM-6003-12 115 QUTING ZHANG IMM-6004-12 116 JIAWEI WANG IMM-6005-12 117 XIN LIU IMM-6006-12 118 JIE AN IMM-6009-12 119 PENG XU IMM-6011-12 120 MENG LUO IMM-6012-12 121 SHUNHONG YAN IMM-6013-12 122 CAIHUA YU IMM-6014-12 123 WUSAN DA IMM-6015-12 124 QIFENG HOU IMM-6016-12 125 DAYU LIU IMM-6040-12 126 HONGWEN TIAN IMM-6042-12 127 JIAJIA CHEN IMM-6044-12 128 CHENGGANG HUANG IMM-6045-12 129 YURONG BIAN IMM-6048-12 130 CHUNYANG HUA IMM-6049-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 87

Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 131 CHAO LI IMM-6051-12 132 JIE YI TIAN IMM-6052-12 133 YONG QIANG WU IMM-6054-12 134 SHAO RU HE IMM-6056-12 135 MING MING YANG IMM-6058-12 136 SHUN PING LI IMM-6060-12 137 YAN JIANG IMM-6061-12 138 PEIDE FU IMM-6062-12 139 YI HAI ZHONG IMM-6064-12 140 XINGFEN FANG IMM-6065-12 141 JIAN ZHOU IMM-6066-12 142 ZIEN LI IMM-6067-12 143 WEI NIU IMM-6069-12 144 YUTAO HE IMM-6070-12 145 RAN ZHOU IMM-6072-12 146 WEI FENG IMM-6073-12 147 YING WU ZHANG IMM-6074-12 148 XIAOLEI CHEN IMM-6076-12 149 XIAO LONG RAN IMM-6077-12 150 YONG LU ZUO IMM-6080-12 151 HAITAO LAN IMM-6083-12 152 XIAOZHONG HE IMM-6084-12 153 BIN MA IMM-6085-12 154 GUIPING RAN IMM-6087-12 155 HUAN LIU IMM-6091-12 156 JIE CAO IMM-6092-12 157 GUANGYING XIAO IMM-6098-12 158 MING CHEN IMM-6100-12 159 LKIA SHAO IMM-6103-12 160 ZHAOSAN YIN IMM-6104-12 161 BO HUANG IMM-6105-12 162 HUI YING HUAN IMM-6106-12 88 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Zafar MAHMOOD et al IMM-8302-12 Lead: Sumera SHAHID IMM-3725-12 Lead: Fang WEI IMM-6165-12 163 CHUN TING LI IMM-6107-12 164 XIANGXIAN LI IMM-6108-12 165 YAPESTG YANG IMM-6109-12 166 BING CHEN IMM-6110-12 167 FEI KONG IMM-6112-12 168 LI ZHANG IMM-6113-12 169 XIAO XIA LIU IMM-6121-12 170 PING DENG IMM-6157-12 171 JIAN XU IMM-6162-12 172 TING GAO IMM-6167-12 173 XIPING LUO IMM-6168-12 174 SONGMIN WANG IMM-6169-12 175 YIBO WANG IMM-6170-12 176 SHUMEI WANG IMM-6171-12 177 ZHI YI LI IMM-6172-12 178 SHIMIN DAI IMM-6173-12 179 JING LI IMM-6174-12 180 CHENXI ZHAO IMM-6175-12 181 YANG LIU IMM-6176-12 182 MEI ZHANG IMM-6177-12 183 MAN YI MICHFIIF TANG IMM-6178-12 184 XUELIN ZHANG IMM-6179-12 185 YANII WEI IMM-6180-12 186 JIN LIU IMM-6181-12 187 YUANYUAN DONG IMM-6182-12 188 ENNIAN JIN IMM-6183-12 189 ZHI LI IMM-6203-12 Lead: Yanjun YIN IMM-8747-12 1 Jiandong Yao IMM-3779-12 2 Yinhua Zhong IMM-3783-12 3 Qianqi Li IMM-3784-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 89

Lead: Yanjun YIN IMM-8747-12 4 Gang Sun IMM-3785-12 5 Xinyu Bai IMM-3786-12 6 Jinzhong Ma IMM-3787-12 7 Kai Zhang IMM-3788-12 8 Yang Shen IMM-3792-12 9 Xiaoyou Xu IMM-3796-12 10 Jianyi Chen IMM-3800-12 11 Yanjun Yin IMM-3801-12 12 Kefei Li IMM-3802-12 13 Jie Shen IMM-3804-12 14 Wenling Liu IMM-3807-12 15 Xi Long Cheng IMM-3838-12 16 Yang Liu IMM-3841-12 17 Wenqian Zhang IMM-3846-12 18 Wei Zhang IMM-3847-12 19 Pei Chen IMM-3848-12 20 Yanbin Zhang IMM-3850-12 21 Run Chen IMM-3852-12 22 Xin Yu IMM-3855-12 23 Tao Jiang IMM-3856-12 24 Shengxue Song IMM-6606-12 25 Lei Ma IMM-6610-12 26 Shengquan Duan IMM-6612-12 27 Dong Li IMM-6617-12 28 SEYED MAJID MOHAMMADIAN IMM-7335-12 ABKENAR 29 Jiao Jiang IMM-7337-12 30 Xiao Hua Su IMM-7338-12 31 Neeru Mittal IMM-7342-12 32 Jawed Akhter IMM-7343-12 33 Waqar Ahmed IMM-7347-12 34 AAMIR NAWAZ ALI KARIM IMM-7351-12 35 Allah Dino Khowaja IMM-7392-12 36 Rohinton Daruwalla et al. IMM-7397-12 90 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Yanjun YIN IMM-8747-12 37 Syed Mohammad Ali IMM-7398-12 38 Lubna Imran IMM-7401-12 39 Muhammad Sajjad Hassan IMM-7402-12 40 Mehdi Hasan IMM-7405-12 41 Imran Khalid IMM-7406-12 42 MANASKUMAR PAL IMM-7432-12 43 ANDREA PERES IMM-7437-12 44 ASF IQBAL BHATTI IMM-7438-12 45 YANRONG LIANG IMM-7491-12 46 CHUN CHENG WANG IMM-7492-12 47 LAI LING RITA SO IMM-7494-12 48 ZIHAN QUI IMM-7504-12 49 WEI WANG IMM-7506-12 50 YING JIANG IMM-7507-12 51 Fei Chen IMM-7531-12 52 Ying Zhao IMM-7532-12 53 Ailing Chen IMM-7534-12 54 Haijun Deng IMM-7535-12 55 Di Hou IMM-7536-12 56 Shuang Song IMM-7537-12 57 John Rizvi IMM-7582-12 58 Grace Hipona IMM-7586-12 59 Muhammad Tayyab IMM-7590-12 60 Li Xu IMM-7593-12 61 Ejaz Ahmed Ahmed IMM-7594-12 62 Jia Liu IMM-7597-12 63 Chuanxiang Jiao IMM-7598-12 64 HASEEN ABDULRAHIMAN IMM-7601-12 PADIYATH 65 NAEEM AHMAD IMM-8211-12 66 TINU BAJWA IMM-8893-12 67 F. MARK ORKIN ET AL IMM-9389-12 68 PRIYA KUNAN IMM-9483-12 69 Dawei Deng IMM-9574-12 Tabingo v. Canada (MCI) Donald J. Rennie J. 91

Lead: Yanjun YIN IMM-8747-12 70 Jin Zhang IMM-10132-12 71 Gurvinder Singh Bhatti IMM-10133-12 72 Parkash Kaur Hallan IMM-10202-12 73 DILPREET SINGH HOTHI IMM-10204-12 74 VIDA MODARRES NEJAD IMM-10464-12 75 Nathalia Elizabeth Jones IMM-10504-12 76 Shannon Joseph Jones IMM-10505-12 77 Shivan Raj Ayyanathan IMM-10506-12 78 Vivek Meenakshi Sundaram IMM-10507-12 79 Ramprasad Balasubramaniam IMM-10561-12 80 Samuel Moses Nelson IMM-10563-12 81 Ravi Shankar Kollengode Ramachan- IMM-10564-12 dran 82 Kamini Neville Bilimoria IMM-10566-12 83 CHRISTABEL MCPHERSON IMM-10599-12 84 DEVA MURALI IMM-10601-12 PURUSHOTHAMAN 85 LIU XIANGZHI IMM-10717-12 86 Melville Brooks IMM-10924-12 87 Ivan Alfonso Lozano IMM-10925-12 88 Reem Basheer Hassan Mahdi IMM-11365-12 89 Larson Manickam Lawrence IMM-11608-12 90 Joe Joseph IMM-11613-12 91 Helene Burger IMM-11620-12 92 Sudhir Anand IMM-11632-12 93 Paul Vijayan Basker IMM-11635-12 94 Robert Prathip Singh Michael IMM-11639-12 95 Lixia Shao IMM-11915-12 96 HARSHAD VUAYKUMAR DEW IMM-12509-12 ALIA 97 Cyrus Latifi IMM-139-13 98 Bahareh Deyed-Aghazadeh IMM-140-13 99 Chasem Fallahi IMM-167-13 100 Alireza Rashid-Beigi IMM-168-13 92 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Lead: Yanjun YIN IMM-8747-12 101 Sarah Vahidi IMM-169-13 102 Behrad Agah IMM-170-13 103 Namavar IMM-256-13 104 Fallah-Asharzadeh IMM-257-13 105 Pour-Jafar IMM-258-13 106 Zamanifard IMM-259-13 107 SABAHKETAN IMM-487-13 108 MERIE SAADTAWFIK TAWDROUS IMM-742-13 ELRAHEB 109 CHU-HUA IMM-745-13 110 Jaspreet Kaur IMM-878-13 111 Muhammad M. S. A. Y. Mosli IMM-879-13 112 BANAFSHEH GERANMAYEH IMM-1384-13 113 DIVYA GUPTA IMM-1457-13 114 MOHAMMAD TANVIR QURESHI IMM-1607-13 Ndjizera v. Canada (MCI) 93

[Indexed as: Ndjizera v. Canada (Minister of Citizenship and Immigration)] Jozikee Ndjizera, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6541-12 2013 FC 459 Donald J. Rennie J. Heard: April 8, 2013 Judgment: May 2, 2013 Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — Miscellaneous –––– Applicant was woman from Namibia — Applicant sought refugee protection on basis that she had been physically and sexually abused by her husband — Board refused applicant’s application — Applicant brought application for judicial review — Application granted — Decision was set aside, and matter was returned for reconsideration — Board breached procedural fairness by denying request from applicant’s counsel to reverse ordinary order of questioning — Order of questioning was detrimental to applicant — Board unreasonably commented on applicant providing greater details in response to questions from her counsel negatively in reasons for decision, faulted her for not providing this evidence in response to his original questioning, and drew unreasonable inferences as to her credibility — Board’s assessment of evidence demonstrated reliance on stereotypes regarding gender-related persecution. Cases considered by Donald J. Rennie J.: Alexander Rojas v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CF 849, 2011 CarswellNat 3650, 1 Imm. L.R. (4th) 255, 2011 FC 849, 2011 CarswellNat 2548, 37 Admin. L.R. (5th) 1 (F.C.) — referred to Thamotharem v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CarswellNat 2817, 64 Imm. L.R. (3d) 226, 60 Admin. L.R. (4th) 247, [2008] 1 F.C.R. 385, 2007 CarswellNat 1391, 2007 FCA 198, 2007 CAF 198, 366 N.R. 301, [2007] F.C.J. No. 734 (F.C.A.) — referred to

APPLICATION for judicial review of decision by Board rejecting applicant’s application for refugee protection.

Mr. Raoul Boulakia, for Applicant Ms Prathima Prashad, for Respondent 94 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Donald J. Rennie J.:

1 This application for judicial review of a decision by the Refugee Pro- tection Division of the Immigration and Refugee Board (the Board) is granted. The decision is set aside for breach of procedural fairness and, secondly, unreasonable findings of fact. 2 The applicant is a woman from Namibia who sought refugee protection on the basis that she had been physically and sexually abused by her husband. 3 The Board breached procedural fairness by denying a request from the applicant’s counsel to reverse the ordinary order of questioning. The Board rejected the request that the applicant’s counsel question her first, stating that he had extensive experience in handling sensitive cases and would not require the claimant to go into detail regarding incidents that could cause a re-emergence of serious symptoms. 4 Generally speaking, the presiding Board member questions a refugee claimant first. However, in certain circumstances fairness requires that a claimant’s lawyer begin the questioning: Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198 (F.C.A.), para 51. The Chairperson’s Guidelines Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division provides that the Board may vary the order of questioning in order to accommodate a vulnerable person. While this will not be required in every case, here the applicant provided a psychologist report demonstrating post-traumatic stress disor- der and a pattern of symptoms known as battered women syndrome. 5 Reversing the order of questioning is not intended to remedy a deficiency in the Board’s experience or expertise. Rather, as the Gender Guidelines state, women who have been subject to domestic violence may be reluctant to testify and face special problems making their case to authorities. Regardless of the questions asked, the hearing process itself may be expected to trigger the symptoms of post-traumatic stress disor- der. It is to be recalled the applicant provided evidence that she exper- iences disorganized mental functioning and “inner turmoil” which she “makes a valiant effort to conceal.” 6 In this case, the order of questioning was detrimental to the applicant. She provided greater details in response to questions from her counsel. The Board commented on this negatively in the reasons for decision, faulted her for not providing this evidence in response to his original questioning, and drew unreasonable inferences as to her credibility. Ndjizera v. Canada (MCI) Donald J. Rennie J. 95

7 Second, the Board’s assessment of the evidence demonstrated a reliance on stereotypes regarding gender-related persecution. On the issue of credibility, the Board noted that, “[u]nlike many claimants who claim refugee status relating to gender based mistreatment” the applicant speaks English, graduated from high school and made her own decisions regarding her flight to Canada. The Board erred in considering these factors relevant to assessing the applicant’s credibility, wrongly indicating that only less educated and meek women may be subject to intimate partner violence. 8 There were also errors in the Board’s plausibility findings. The Board faulted the applicant for not seeking medical attention in Namibia with the statement that that she could have done so without naming her assailant. The applicant had testified that her husband followed her and retali- ated against her when she sought the assistance of elders in their community. The Board disregarded this evidence. 9 It was also unreasonable for the Board to expect independent corroboration of the applicant’s testimony that her husband was a wealthy business person. There was no basis in the evidence to expect that this individual has, for example, a publicly traded company or some level of fame. It is difficult to understand what type of independent corroboration the Board expected; the applicant certainly cannot obtain her assailant’s financial records. The Board may not draw a negative inference from the lack of corroborating evidence unless that documentation would reasonably be expected: Alexander Rojas v. Canada (Minister of Citizenship & Immigration), 2011 FC 849 (F.C.), para 6. 10 The Board also faulted the applicant for failing to corroborate her testimony that she is on a waiting list for therapy in Canada. The applicant provided a psychologist report to corroborate her condition. The Board improperly discounted this report on the basis that it had been prepared at the request of applicant’s counsel and was therefore self-serving.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the Immigration Refugee Board for reconsideration before a different member of the Board’s Ref- ugee Protection Division. There is no question for certification. Application granted. 96 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Varga v. Canada (Minister of Citizenship and Immigration)] Janosne Varga, Szilvia Varga, David Szilveszter Varga (aka David Szilveszt Varga,) Gyorgy Varga, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8539-12 2013 FC 494 Donald J. Rennie J. Heard: April 24, 2013 Judgment: May 10, 2013 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicants were citizens of Hungary who claimed refugee protection on basis of Roma ethnicity — Refugee Protection Division of the Immigra- tion and Refugee Board of Canada (Board) found that applicants were not persons in need of protection or Convention refugees — Applicants brought application for judicial review — Application granted; matter remitted to Board — Board erred in failing to consider applicant’s evidence of gender-based persecution, namely domestic violence from ex-husband — Failure to consider ground of persecution was breach of procedural fairness — Ground was hinted at in Personal Information Form and was squarely raised in testimony and documentary evidence — Portions of evidence given in support of refusal had no relationship to evidence — Manner of questioning by member of Board fell short of standard and used language that was highly inappropriate and unfair — Pro- ceeding was unfair — Inappropriate examination created hostile environment and coloured appreciation of evidence. Cases considered by Donald J. Rennie J.: Galyana v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 1356, 2011 CF 254, 2011 FC 254, 2011 CarswellNat 527, [2011] F.C.J. No. 305 (F.C.) — considered Mersini v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 1088, 2004 CarswellNat 2673, 2004 CarswellNat 7457, 2004 CF 1088, [2004] F.C.J. No. 1364 (F.C.) — referred to R. v. Special Adjudicator Ex p. Kerrouche (No.1) (1997), [1997] EWCA Civ 2263, [1997] Imm. A.R. 610, [1998] I.N.L.R. 88 (Eng. C.A.) — followed Varga v. Canada (MCI) Donald J. Rennie J. 97

Viafara v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 4464, 2006 FC 1526, 2006 CF 1526, 2006 CarswellNat 5845, [2006] F.C.J. No. 1914, [2006] A.C.F. No. 1914 (F.C.) — referred to Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — pursuant to s. 97 — pursuant to

APPLICATION by refugee claimants for judicial review of decision denying them refugee status.

Marjorie L. Hiley, for Applicants Rachel Hepburn Craig, for Respondent

Donald J. Rennie J.:

1 This application to set aside a decision of the Refugee Protection Di- vision of the Immigration and Refugee Board of Canada (the Board) that the applicants are not Convention refugees or persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Pro- tection Act, SC 2001, c 27 (IRPA) is granted. 2 The adult applicant (the applicant) and her three children are Hun- garian and claimed protection in Canada on the basis of their Roma ethnicity.

Ground of Persecution 3 The Board erred in failing to consider the applicant’s evidence of gender-based persecution, namely domestic violence from her ex- husband. 4 The applicant indicated in her Personal Information Form (PIF) that she and her husband “quarrelled a lot”. She elaborated on this substan- tially at the hearing, describing attacks against her and her children. The applicant testified that her ex-husband continued to threaten her over the internet after she fled Hungary. This testimony was corroborated by her 98 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

divorce decree from a Hungarian Court where the justification for the divorce includes domestic violence, and a document confirming her at- tendance at a women’s shelter. The Board did not consider any of the applicant’s evidence on this issue. 5 Refugee claims involve fundamental human rights. Accordingly, it is critical that the Board consider any ground raised by the evidence even if not specifically identified by the claimant: Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.); Viafara v. Canada (Minister of Citizenship & Immigration), 2006 FC 1526 (F.C.), para 13. It is, in most circumstances, a serious and potentially fatal error to ignore part of a refugee claim: Mersini v. Canada (Minister of Citizenship & Immigration), 2004 FC 1088 (F.C.), para 6. 6 The failure of the Board to address a ground of persecution, raised on the face of the record, is a breach of procedural fairness, reviewable on a correctness standard. Reasonableness and deference can have no role when there is no assessment of the evidence. 7 In reaching this conclusion I do not detract from the basic proposition that the onus rests squarely on the claimants to make out their claim. Nor is the Board required to undertake “a microscopic” examination in an effort to uncover a risk (per Justice Russel Zinn in Galyana v. Canada (Minister of Citizenship & Immigration), 2011 FC 254 (F.C.), para. 9), or to re-characterize the evidence in an effort to fit it into a recognized ground of persecution. I agree with my colleague, Justice Zinn, that the proper description of the Board’s duties in this regard was described by the English Court of Appeal in R. v. Special Adjudicator Ex p. Kerrouche (No.1) (1997), [1997] EWCA Civ 2263, [1997] Imm. A.R. 610 (Eng. C.A.): The anxious scrutiny which has to be exercised in relation to all issues which could affect the safety of a refugee means that a more relaxed approach should be adopted in relation to procedural failures than would be the case if a less important issue were at stake. If therefore an appellate body, whether it is a Special Adjudicator, of the Tribunal, is aware or ought to be aware that an appellant has not relied upon a point which could materially improve the outcome of his appeal, then the appellate body is under an obligation either to deal with the point or at least draw it to the attention of the appellant. However appellate bodies naturally focus primarily on the cases which are presented before them. They cannot be expected to carry out an investigation themselves to see whether there are points which have not been relied upon by an appellant that could have been relied Varga v. Canada (MCI) Donald J. Rennie J. 99

upon. They are not required to engage in a search for new points. If however there is a readily discernible point which favours an appellant although he has not taken it, the Special Adjudicator or Tribunal should apply it in the appellant’s favour. 8 In this case, a ground of persecution was hinted at in the PIF and squarely raised in the testimony and documentary evidence.

State Protection 9 Portions of the reasons given in support of the refusal have no relationship to the evidence. For example, the Board faulted the applicant for not producing supporting documentation to corroborate her attempts to seek state protection. This is difficult to understand in light of the applicant’s evidence that she did not seek protection. The Board stated that supporting evidence was required “[i]n light of the finding that many aspects of the applicant’s claim were not credible.” However, the Board did not indicate that it disbelieved any aspect of the applicant’s testimony. 10 The Board also stated that the applicant “had sufficient time to obtain the documents needed to substantiate her claim,” referring to the lack of police reports. The applicant did not go to the police and obviously could not obtain non-existent police reports.

The Hearing 11 Finally, while the Board must test a claimant’s credibility, and do so at times vigorously, this must be done with sensitivity, professionalism and an open mind. In this case, the Board member’s manner of questioning fell far short of this standard. 12 The Board member first questioned the applicant’s children in order to establish their identities. To the applicant’s son, the Board member stated, “Okay, junior let’s see how well you do.” Later, the Board member asked, “What’s your date of birth? I can’t tell you. When’s your birthday? It’s not so easy now. [...] What’s your principal’s name? I’m just egging you on to tell you it wasn’t very easy for your sister to sit there. It’s not so funny now, is it? I didn’t think so.” Further, the Board member asked the boy, “How do you know she’s your mother? [...] Are you sitting there naked? What are you wearing?” 13 I consider this language to be highly inappropriate, especially as the witnesses are children. A Board member may not “egg a witness on,” or pepper his questioning with sarcastic remarks. 100 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

14 The Board member questioned the applicant regarding whether she is Roma. He stated, “I have people that come in here who are fair skin, blonde hair, blue eyes, and then they say they’re Tizigane (ph). So, how do I know anymore? And, look at me, do I look like I’m Tizigane (ph)?” 15 The applicant stated that the difference was “the way we talk and there are a lot of...” The Board member interrupted and again repeated, “I asked about me. Why don’t I look Tizigane (ph)? I have dark skin color. I have dark hair. I have brown eyes...” The applicant attempted to explain, “I can see who is gypsy [...] Based on the clothes they wear, the gestures...” Again the Board member insisted, “Okay, I’m talking about me. I’m not talking about anybody else. I’m talking about me. You can’t avoid the question. You went down that road, so here I am. So, I’m waiting for an answer. If you don’t want to give an answer, that’s fine.” The applicant explained that a “gypsy” in Hungary could not be appointed to sit on a tribunal such as the Board, to which the Board member replied, “Okay. So, that’s called avoiding the question again. Okay, so I take you don’t want to answer the question. Is that right?” 16 After further questioning on this topic, the Board member said, “So just for fun would you be able to tell where I’m from?” The applicant attempted to answer, and the Board member replied, “Not even close, so do you understand now? If you can’t tell where I’m from, my background, how do I know yours?” 17 This line of questioning is inappropriate. The Board member’s ap- pearance is of no relevance. Identifying the birth place or ethnicity of the Board member does nothing to advance the search for the truth. Needless to say, witnesses should not be questioned “just for fun”. These are serious issues, and Board members must, regardless of their view on whether the claim is genuine or not, maintain minimum standards of decorum and formality. A Board member may reasonably question a claimant regarding her knowledge of Roma culture, for example, but it is unacceptable to fixate on skin, hair and eye colour, which demonstrates minimal understanding of ethnicity. This was not a minor digression or one-off comment. Rather it went on for three pages of the transcript. 18 The Board member’s pursuit on this unfair and irrelevant questioning created a hostile atmosphere. Indeed, the applicant responded that she was nervous. To this, the Board member stated, “You don’t have to be nervous. You testified to certain things. I didn’t go there. You went. So, I’m trying to clarify in my mind and I’m using me as an example. But you won’t answer the question.” Varga v. Canada (MCI) Donald J. Rennie J. 101

19 Determination of ethnicity is a difficult task. The function of the Board is inquisitorial and Board members seldom have the assistance of counsel. Hard questions are necessarily asked and inconsistencies or omissions are not to be shied away from simply because to do so may upset sensibilities. But the questions asked must be relevant to the facts in issue, and the answers they elicit must have some potential probative value. Asking a witness to guess a Board member’s ethnicity meets neither of these criteria. 20 Ethnicity can be determined without resort to stereotypes and as- sumptions. Questions can and should be asked about family history, residence, language, religion, school, holidays, celebrations, special events, cultural associations and other objective indicia of ethnicity. The questioning in this case fell dramatically short of this standard. Appropriate questions directed to an objective determination of ethnicity were not asked. In the end, this entirely inappropriate examination gave rise to no breach of procedural fairness because the applicant’s ethnicity was accepted. However, this goes to the reasonableness of the decision, not the overall fairness of the hearing. As I have found that the inappropriate examination created a hostile atmosphere and coloured the appreciation of the evidence, the proceeding was unfair.

[Indexed as: Blackwood v. Canada (Minister of Public Safety and Emergency Preparedness)] Nikisha Blackwood, Jakkin Jeanelle St. Hill, Applicants and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: IMM-9496-12 2013 FC 567 John A. O’Keefe J. Heard: May 8, 2013 Judgment: May 29, 2013 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Removal orders — Stay of execution –––– Principal applicant, citizen of St. Lucia, first entered Canada in October 2000 as temporary resident — Oldest child followed and second child born in Canada in May 2001 — Appli- cant and oldest child unsuccessfully claimed refugee protection — Youngest child born in Canada in July 2007 — In May 2010, applicant detained, released and submitted application for pre-removal risk assessment (PRRA) — In June 2010, applicant applied for permanent residence as common law partner — PRRA refused, applicant detained and released on bond — Permanent residence application approved in principle, but later denied when spouse withdrew sponsorship — In April 2012, applicant applied for permanent residence on humanitarian and compassionate grounds (H and C) — Applicant directed to report for removal and requested deferral — Officer noted obligation to enforce removal orders as soon as possible and very limited discretion to defer — Officer also noted H and C application did not operate to delay removal from Canada — Officer considered evidence of establishment, hardship and best interests of children before finding no basis for deferral — Applicant applied for judicial review of decision denying request for deferral of removal — Application granted — Standard of review reasonableness — Court not entitled to intervene unless conclusion not transparent, justifiable and intelligible, and within range of acceptable outcomes on evidence — While H and C applications did not generally warrant deferral, possibility remained in cases of “special considerations” — Fact H and C application made after sponsorship withdrawn as result of termination of abusive relationship “special consideration” officer did not appear to have considered — Decision unreasonable and should be remitted for redetermination. Blackwood v. Canada (Minister of Public Safety) 103

Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Principal applicant, citizen of St. Lucia, first entered Canada in October 2000 as temporary resident — Oldest child followed and second child born in Canada in May 2001 — Applicant and oldest child unsuccessfully claimed refugee protection — Youngest child born in Canada in July 2007 — In May 2010, applicant detained, released and submitted application for pre-removal risk assessment (PRRA) — In June 2010, applicant applied for permanent residence as common law partner — PRRA refused, applicant detained and released on bond — Permanent residence application approved in principle, but later denied when spouse withdrew sponsorship — In April 2012, applicant applied for permanent residence on humanitarian and compassionate grounds (H and C) — Ap- plicant directed to report for removal and requested deferral — Officer noted obligation to enforce removal orders as soon as possible and very limited discretion to defer — Officer also noted H and C application did not operate to delay removal from Canada — Officer considered evidence of establishment, hardship and best interests of children before finding no basis for deferral — Applicant applied for judicial review of decision denying request for deferral of removal — Application granted — Standard of review reasonableness — Court not entitled to intervene unless conclusion not transparent, justifiable and intelligible, and within range of acceptable outcomes on evidence — While H and C applications did not generally warrant deferral, possibility remained in cases of “special considerations” — Fact H and C application made after sponsorship withdrawn as result of termination of abusive relationship “special consideration” officer did not appear to have considered — Decision unreasonable and should be remitted for redetermination. Cases considered by John A. O’Keefe J.: Baron v. Canada (Minister of Public Safety & Emergency Preparedness) (2009), 2009 CarswellNat 596, 2009 FCA 81, 387 N.R. 278, 79 Imm. L.R. (3d) 157, [2010] 2 F.C.R. 311, 2009 CAF 81, 2009 CarswellNat 5135, 309 D.L.R. (4th) 411, [2009] F.C.J. No. 314 (F.C.A.) — considered 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 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. 104 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

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 Ortiz v. Canada (Minister of Public Safety & Emergency Preparedness) (2012), 2012 FC 18, 2012 CarswellNat 14, 2012 CarswellNat 366, 2012 CF 18, [2012] F.C.J. No. 11 (F.C.) — referred to Ponce v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 429, 2012 FC 181, 2012 CarswellNat 1047, 2012 CF 181, [2012] F.C.J. No. 189 (F.C.) — referred to Williams v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), (sub nom. Williams v. Canada (Public Safety & Emergency Preparedness)) [2011] 3 F.C.R. 198, 89 Imm. L.R. (3d) 58, 2010 Car- swellNat 1406, 2010 CF 274, 2010 FC 274, 2010 CarswellNat 559, [2010] F.C.J. No. 318 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 48(2) — referred to s. 72(1) — pursuant to

APPLICATION for judicial review of decision denying applicants’ request to defer removal from Canada.

Clarisa Waldman, for Applicants Teresa Ramnarine, for Respondent

John A. O’Keefe J.:

1 This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision by an inland enforcement officer (the officer) of the Canada Border Services Agency on September 12, 2012, denying the applicants’ request for their removal from Canada to be deferred. 2 The applicants request that the officer’s decision be set aside and the application be referred back to the Canada Border Services Agency (CBSA) for redetermination.

Background 3 Nikisha Blackwood, the principal applicant, is a citizen of St. Lucia. She entered Canada on October 14, 2000 as a temporary resident. Her oldest child, also the second applicant, Jakkin Jeanelle St. Hill entered Canada on March 2, 2001 with the same status. The applicant’s second child was born in Toronto on May 24, 2001. On February 4, 2002 the Blackwood v. Canada (Minister of Public Safety) John A. O’Keefe J. 105

applicant and her oldest child claimed refugee protection. Their claim was rejected on July 30, 2003. 4 The applicant and her child did not appear for a pre-removal interview. The applicant’s second child returned to St. Lucia in 2004 and the applicant and her oldest child left Canada in July 2005. She legally changed her name and returned to Canada in September 2005. Her youngest child was born in July 2007. In February 2008, the applicant again departed from Canada and re-entered in December 2008. She was detained and then released on May 18, 2010. The applicants submitted a pre-removal risk assessment (PRRA) application on the same day. 5 The principal applicant applied for permanent residence as a common law partner on June 28, 2010. The PRRA application was refused on July 21, 2011. The principal applicant was detained for eight days and released on a bond. On September 19, 2011, the principal applicant’s spousal application was approved in principle. On January 30, 2012 a warrant was issued for her arrest due to violating the terms of her release of reporting all address changes. 6 On January 31, 2011, the spousal application was withdrawn due to the sponsor withdrawing the application. The principal applicant was detained on the same day, spending a month in detention before being released on a bond. She made a humanitarian and compassionate (H&C) application for permanent residence on April 10, 2012. 7 On August 10, 2012, the Ontario Superior Court of Justice granted the principal applicant full custody of all three children. 8 On August 31, 2012, the principal applicant received a direction to report for removal. She requested deferral of that removal the same day.

Officer’s Decision 9 The officer refused the deferral request on September 12, 2012. Madam Justice Elizabeth Heneghan of this Court granted a stay of removal pending the resolution of this application on September 14, 2012. 10 The officer’s reasons began with a recital of the principal applicant’s immigration history. The officer noted that CBSA has an obligation under subsection 48(2) of the Act to enforce removal orders as soon as is reasonably practicable. The officer emphasized how little discretion an enforcement officer has to defer removal. 11 The officer turned to the first ground for removal raised by the principal applicant, her outstanding H&C application. He noted the application 106 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

had been received by Citizenship and Immigration Canada (CIC) on April 10, 2012 and quoted the H&C application instruction guide which indicated that such an application did not delay removal from Canada. He also cited the IP 5 Manual indicating that an H&C application did not trigger a stay of removal. He found that removal would not render the H&C application moot, citing the same sources, and indicated counsel had not provided evidence that an H&C decision was imminent. The officer indicated that while it was beyond his authority to perform an H&C evaluation, he would consider the other factors brought forward in the deferral request. 12 The officer then turned to the family’s establishment in Canada. He excerpted the principal applicant’s submissions describing her employment and the child support orders in force for her family and noted that she had submitted documentary evidence including tax returns, a residen- tial lease and an employment letter. 13 The officer acknowledged that the removals process is difficult and that the principal applicant had worked to support her family in Canada and establish connections. He noted, though, the principal applicant was no longer eligible for a work permit due to being under an enforceable removal order and that she had not established she would be unable to receive child and spousal support payments after leaving Canada. The officer considered letters of support describing the principal applicant’s progress in overcoming the trauma she suffered at the hands of her ex- husband, but concluded that there was insufficient evidence to warrant a deferral. 14 The officer noted that the principal applicant had spent the majority of her life in St. Lucia and had left Canada to live there from February 2008 to December 2008, where she was employed as a personal support worker and attended school. The officer concluded that establishment was not a reasonable basis for deferral of removal. 15 The officer then turned to the ground of hardship upon return to St. Lucia. The officer noted the principal applicant’s submission that she was in a vulnerable psychological condition as a victim of abuse at the hands of her former spouse and her stepfather and had sought counselling in Canada. The officer canvassed the country conditions documents submitted by the applicants concerning violence against women in St. Lucia but concluded that this material was general in nature and did not speak to the principal applicant in specific terms. The officer also relied Blackwood v. Canada (Minister of Public Safety) John A. O’Keefe J. 107

on the applicants’ PRRA decision which spoke to serious efforts by the St. Lucian government to reduce crime. 16 The officer acknowledged the medical evidence submitted by the principal applicant concerning her counselling in Canada but concluded there was insufficient evidence demonstrating removal would be detrimental to her health or that she would be unable to access treatment in St. Lucia. He also considered her argument that she would not be able to support herself or her family in St. Lucia but noted that she had secured employment during her stay there in 2008. Therefore, hardship did not justify deferral of removal. 17 Finally, the officer turned to the ground of best interests of the children. He noted the applicants argued this ground justified deferral due to the children being in school in Canada and the poor country conditions for children in St. Lucia. He indicated he had considered country conditions evidence on this point. 18 The principal applicant had argued her children would not be able to attend St. Lucian public schools due to not having citizenship. The officer quoted a St. Lucian statute indicating citizenship was available based on parental citizenship, meaning that the principal applicant’s children could be registered as St. Lucian citizens. 19 The officer acknowledged the principal applicant’s evidence her children had used counselling services in Canada but noted there was no evidence they were currently doing so or that they would be unable to access such services in St. Lucia. The officer noted that all three children had lived in St. Lucia in some capacity since the principal applicant’s first arrival in Canada. 20 The officer concluded there was no reasonable basis for deferral and indicated the applicants were expected to report for removal.

Issues 21 The applicants submit the following points at issue: 1. What is the standard of review? 2. Did the officer err in failing to consider the special considerations involved in the applicants’ pending H&C application, namely, the issue of family violence and the timeliness of their application in light of their prior application for permanent residence under the family class? 108 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

3. Did the officer err in ignoring relevant evidence before him with respect to the best interests of the children? 22 I would rephrase the issues as follows: 1. What is the standard of review? 2. Did the officer err in refusing the request for deferral?

Applicants’ Written Submissions 23 The applicants argue the applicable standard of review is reasonableness. The applicants argue the officer has jurisdiction to defer removal and that the duty to remove as soon as practicable means the timing of removal must be reasonable and sensible. 24 The applicants rely on Baron v. Canada (Minister of Public Safety & Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311 (F.C.A.), for the proposition that an H&C application can justify deferral where there are special considerations. The applicants argue that such special considerations are present in this case due to the fact they had a previous permanent residence application approved in principle that was withdrawn due to the principal applicant ending the abusive relationship with her sponsor. Had the principal applicant not chosen to escape her abusive situation, she would not likely have faced removal proceedings. The IP 5 Manual specifically advises officers to be sensitive to the situation of a sponsored applicant leaving an abusive relationship. The officer makes no mention of these unique circumstances and does not consider them. 25 The applicants also argue the officer did not make any findings as to the timeliness of the H&C application, which was called for given that they submitted their application soon after the refusal of their sponsored application for permanent residence. The applicants submit these omissions render the decision unreasonable. 26 The applicants also request judicial review on the basis that the officer ignored evidence. The applicants argue the officer was not alert, alive and sensitive to the best interests of the children given his failure to consider the psychological hardship they would experience if removed from Canada and given their own evidence and the country conditions evidence concerning the lack of counselling and services available in St. Lucia. Disregarding the psychological effects of removal is contrary to the officer’s role. Blackwood v. Canada (Minister of Public Safety) John A. O’Keefe J. 109

Respondent’s Written Submissions 27 The respondent agrees that reasonableness is the appropriate standard of review and argues the refusal of the request was reasonable. 28 The respondent agrees that the officer’s responsibility was to consider the circumstances related to the H&C application and its potential impact on the removal order. The respondent argues the officer did exactly this by considering the principal applicant’s immigration history, the best interests of the child and hardship upon return. 29 The respondent notes that the IP 5 Manual requires that H&C officers, not removals officers, be sensitive to the withdrawal of a spousal application due to abuse. The removals officer has no delegated authority to make an H&C decision. 30 The respondent points out that the abuse against the principal applicant occurred in Canada and the abuser is in Canada. The officer was therefore reasonable in refusing the request. 31 The respondent argues the officer need not have considered whether the H&C application was timely as it was clearly not delayed due to a backlog in processing, as it had only been recently filed. 32 The respondent submits that the officer’s analysis of the best interests of the children was properly focused on short-term interests and that no evidence was ignored.

Analysis and Decision Issue 1 What is the standard of review? 33 Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see New Brunswick (Board of Management) v. Dun- smuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 57). 34 The standard of review applied to removals officers decisions on a deferrals request is reasonableness (see Ortiz v. Canada (Minister of Public Safety & Emergency Preparedness), 2012 FC 18 (F.C.) at paragraph 39, [2012] F.C.J. No. 11 (F.C.)). In reviewing the officer’s decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47, and Khosa v. 110 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59, [2009] 1 S.C.R. 339 (S.C.C.)).

Issue 2 Did the officer err in refusing the request for deferral? 35 In Baron above, the Court of Appeal held that generally, H&C applications will not warrant deferral of removal, but left open the possibility of “special considerations” (at paragraph 51): Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: • There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. • The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. • In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. Blackwood v. Canada (Minister of Public Safety) John A. O’Keefe J. 111

• Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. [emphasis added] I agree entirely with Mr. Justice Pelletier’s statement of the law. 36 Mr. Justice Russel Zinn wrote in Williams v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 274, [2011] 3 F.C.R. 198 (F.C.), that when evaluating such special considerations.”... it is the officer’s responsibility to consider the circumstances related to the H&C application” (at paragraph 38). While Mr. Justice Zinn went on to discuss an officer’s approach in considering backlogged H&C applications, I do not read his reasons as precluding considerations of other circumstances related to the timing of an H&C application. 37 The respondent does not dispute that such consideration is necessary, but argues that such consideration was performed by the officer in this case. Given that the officer’s reasons contain no discussion of the fact that the principal applicant’s previous application had been rejected due to the termination of an abusive relationship, I cannot agree. It is hard to imagine circumstances surrounding an H&C application that could cry out louder for analysis under the “special considerations” mentioned in Baron above. 38 An applicant for permanent residency, such as the present principal applicant, who suffers abuse at the hands of her sponsor faces an awful dilemma: leaving her abuser and foregoing her chance to obtain permanent status in Canada or remaining with her abuser, thereby risking her safety but leaving her application undisturbed. Either choice has serious, even mortal risks. 39 While the officer is not required to mention every piece of evidence or every argument, this argument was central to the applicants’ request for deferral and the officer only addresses it in boiler-plate language. This omission is significant enough to lead to an inference the officer made his finding without regard for that evidence (see Ponce v. Canada (Minister of Citizenship & Immigration), 2012 FC 181 (F.C.) at paragraph 35, [2012] F.C.J. No. 189 (F.C.)). 40 The officer’s failure to consider the circumstances of the H&C application renders the decision unreasonable. 41 As a result, I need not deal with the other issues raised by the applicants. 112 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

42 The application for judicial review is therefore allowed and the matter is referred to a different officer for redetermination. 43 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the officer is set aside and the matter is referred to a different officer for redetermination. Application granted.

Annex Relevant Statutory Provisions Immigration and Refugee Protection Act, SC 2001, c 27 48. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable. 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. Tran v. Canada (Minister of Public Safety) 113

[Indexed as: Tran v. Canada (Minister of Public Safety and Emergency Preparedness)] Trung Tran, Applicant and The Minister of Public Safety and Emergency Preparedness, Respondent Federal Court Docket: T-164-12 2013 FC 600 Mary J.L. Gleason J. Heard: April 18, 2013 Judgment: June 4, 2013 Administrative law –––– General principles — Miscellaneous –––– Applicant had over $10,000 in cash with him as he was about to board international flight to Vietnam from Vancouver — He was stopped by Canadian Border Services Agency (CBSA) officers because he failed to declare this fact — Applicant gave CBSA officers several conflicting explanations for how he came to be in possession of so much cash, and CBSA officers seized and retained money as forfeit under s. 18 of Proceeds of Crime (Money Laundering) and Terrorist Financing Act — Applicant applied for relief from forfeiture under s. 25 of Act, but Man- ager of Appeals Division, Recourse Directorate of CBSA (manager) denied application — Manager found applicant failed to provide sufficient evidence to establish legitimate origin of money under seizure and that documentary evidence he provided could not be directly linked to currency — Applicant brought application for judicial review of manager’s decision — Application dismissed — All that was necessary for manager to refuse relief from forfeiture was to be satisfied that funds were not from legitimate source — Fact that manager did not have proof funds were destined for terrorist activities or involved money-laundering was irrelevant. Administrative law –––– Standard of review — Reasonableness — Reasona- bleness simpliciter –––– Applicant had over $10,000 in cash with him as he was about to board international flight to Vietnam from Vancouver — He was stopped by Canadian Border Services Agency (CBSA) officers because he failed to declare this fact — Applicant gave CBSA officers several conflicting explanations for how he came to be in possession of so much cash, and CBSA officers seized and retained money as forfeit under s. 18 of Proceeds of Crime (Money Laundering) and Terrorist Financing Act — Applicant applied for relief from forfeiture under s. 25 of Act, but Manager of Appeals Division, Recourse Directorate of CBSA (manager) denied application — Manager found applicant failed to provide sufficient evidence to establish legitimate origin of money 114 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th) under seizure and that documentary evidence he provided could not be directly linked to currency — Applicant brought application for judicial review of manager’s decision — Application dismissed — There was more than ample basis for manager to conclude that applicant had not established legitimate source for seized funds, making manager’s decision reasonable — Evidence provided by applicant to manager regarding funds he claimed to have received from third parties consisted of photocopies of bank statements or withdrawal slips which were insufficient to establish legitimate source for funds — Evidence tendered to manager did not establish cash withdrawn from applicant’s mother-in-law’s account was actually from social benefit cheques — Applicant also failed to establish legitimate source for funds he claimed were withdrawn from his line of credit, rather his evidence consisted of receipt in name of different person. Cases considered by Mary J.L. Gleason J.: Admasu v. Canada (Minister of Public Safety & Emergency Preparedness) (2012), 2012 CarswellNat 1100, 2012 FC 451, 2012 CF 451, 2012 Car- swellNat 2147, 408 F.T.R. 143 (Eng.), [2012] F.C.J. No. 482 (F.C.) — considered Dag v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CarswellNat 660, 2008 FCA 95, 70 Admin. L.R. (4th) 214, 2008 CAF 95, 2008 CarswellNat 2413, 377 N.R. 212, [2008] F.C.J. No. 424 (F.C.A.) — referred to Dokaj v. Minister of National Revenue (2005), [2006] 2 F.C.R. 152, 282 F.T.R. 121 (Eng.), 2005 CarswellNat 3530, 2005 FC 1437, 2005 CF 1437, 202 C.C.C. (3d) 161, 2005 CarswellNat 4722, [2005] F.C.J. No. 1783 (F.C.) — referred to Dupre v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CF 1177, 2007 CarswellNat 4915, 2007 CarswellNat 3836, 2007 FC 1177, [2007] F.C.J. No. 1521 (F.C.) — referred to Eaton v. Brant (County) Board of Education (1996), 1996 CarswellOnt 5035, 1996 CarswellOnt 5036, 31 O.R. (3d) 574 (note), 41 C.R.R. (2d) 240, 142 D.L.R. (4th) 385, (sub nom. Eaton v. Board of Education of Brant County) 207 N.R. 171, (sub nom. Eaton v. Board of Education of Brant County) 97 O.A.C. 161, [1997] 1 S.C.R. 241, [1996] S.C.J. No. 98 (S.C.C.) — referred to Kang v. Canada (Minister of Public Safety & Emergency Preparedness) (2011), 2011 CF 798, 2011 FC 798, 2011 CarswellNat 2535, 2011 CarswellNat 3631, 393 F.T.R. 90 (Eng.), [2011] F.C.J. No. 1006 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Tran v. Canada (Minister of Public Safety) 115

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2004), 236 D.L.R. (4th) 648, 2004 CarswellNat 418, 2004 FCA 66, [2004] 2 C.N.L.R. 74, 317 N.R. 258, 247 F.T.R. 317 (note), 2004 CarswellNat 762, 2004 CAF 66, [2004] 3 F.C.R. 436, [2004] F.C.J. No. 277 (F.C.A.) — referred to Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005), 2005 SCC 69, 2005 CarswellNat 3756, 2005 CarswellNat 3757, [2006] 1 C.N.L.R. 78, 342 N.R. 82, [2005] 3 S.C.R. 388, 21 C.P.C. (6th) 205, 259 D.L.R. (4th) 610, 37 Admin. L.R. (4th) 223, [2005] S.C.J. No. 71 (S.C.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — 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 Satheesan v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 CarswellNat 877, 2013 FC 346, 2013 CF 346, 2013 Car- swellNat 2334, [2013] F.C.J. No. 371 (F.C.) — referred to Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 CAF 255, 2008 CarswellNat 5505, 82 Admin. L.R. (4th) 243, 2008 FCA 255, 2008 CarswellNat 3231, 297 D.L.R. (4th) 651, [2009] 2 F.C.R. 576, 382 N.R. 2, [2008] F.C.J. No. 1267 (F.C.A.) — considered Sidhu v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 92 Imm. L.R. (3d) 67, 2010 CF 911, 2010 FC 911, 2010 CarswellNat 3374, 374 F.T.R. 128 (Eng.), 2010 CarswellNat 4054, [2010] F.C.J. No. 1114 (F.C.) — referred to 116 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Tourki v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CarswellNat 4593, 2007 CAF 186, 2007 CarswellNat 1214, 2007 FCA 186, 284 D.L.R. (4th) 356, 223 C.C.C. (3d) 267, [2008] 1 F.C.R. 331, 367 N.R. 148, [2007] F.C.J. No. 685 (F.C.A.) — referred to Yang v. Canada (Minister of Public Safety) (2008), 2008 CAF 281, 2008 Car- swellNat 5746, 2008 CarswellNat 3367, 2008 FCA 281, 380 N.R. 387, [2008] F.C.J. No. 1321, [2008] A.C.F. No. 1321 (F.C.A.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1(4)(d) [en. 1990, c. 8, s. 5] — considered s. 57 — considered Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 Generally — referred to s. 3(a)(ii) — considered s. 12 — considered s. 12(1) — considered s. 12(2) — considered s. 12(3)(a) — considered s. 12(4) — considered s. 18 — referred to s. 18(1) — considered s. 18(2) — considered s. 24 — considered ss. 24-30 — referred to s. 24.1 [en. 2006, c. 12, s. 14] — considered s. 25 — considered s. 27(1) — considered s. 29 — considered s. 29(1) — considered s. 30 — considered Regulations considered: Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412 s. 2 — considered Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 117

s. 2(1) — considered

APPLICATION for judicial review of decision of manager denying relief from forfeiture under Proceeds of Crime (Money Laundering) and Terrorist Financ- ing Act.

Austin Nguyen, for Applicant Angela Fritze, for Respondent

Mary J.L. Gleason J.:

1 The applicant, Mr. Trung Tran, claims he decided to travel to Viet- nam to visit family and friends in January 2011. He had well over $10,000.00 in cash with him as he was about to board his international flight at the Vancouver airport, but failed to declare this fact as required by virtue of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 [the Act]. He was stopped by Canada Bor- der Services Agency [CBSA] officers and, because he gave several conflicting explanations for how he came to be in possession of so much cash, the CBSA officers seized and retained the money as forfeit to Her Majesty in Right of Canada under section 18 of the Act. 2 Mr. Tran applied to the respondent Minister, under section 25 of the Act, seeking relief from the forfeiture. In a decision dated December 20, 2011, the Minister’s delegate, the Manager of the Appeals Division, Re- course Directorate of CBSA, denied Mr. Tran’s application. She found the explanation Mr. Tran provided in support of his application for relief did “not bear any resemblance” to the explanations he had given to the CBSA officers at the Vancouver airport. She also held that Mr. Tran “failed to provide sufficient evidence to establish the legitimate origin of all the currency under seizure and the documentary evidence [he...] provided cannot be directly linked to [the] currency” (decision at p 3). She therefore concluded that it was not appropriate to exercise the discretion she possessed to provide relief from forfeiture. 3 In the present application for judicial review, Mr. Tran seeks to set aside the delegate’s decision. In his written memorandum, Mr. Tran pursued three arguments: first, that the Act is unconstitutional, presumably for allegedly being impermissibly vague (although it is difficult to precisely discern the basis for this argument from the submission, which is quite brief); second, that the Minister’s decision regarding a breach of the reporting requirements in section 12 of the Act was unreasonable; and, 118 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

finally, that the refusal to grant relief from forfeiture was also unreasonable. 4 At the hearing, counsel only pursued the final argument, which he was well-advised to do as neither of the other two arguments was properly before me. 5 As concerns the constitutional challenge, the applicant failed to serve a Notice of Constitutional Question on the federal and provincial Attor- neys General as is required by section 57 of the Federal Courts Act, RSC 1985, c F-7 [FCA]. The case law governing constitutional notices provides that where an applicant seeks to argue that a piece of legislation is unconstitutional, such notice is mandatory and cannot be waived by the Court, unless there is consent of the Attorneys General or de facto notice (Eaton v. Brant (County) Board of Education (1996), [1997] 1 S.C.R. 241 (S.C.C.), at 267; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2004 FCA 66 (F.C.A.) at para 76, rev’d on other grounds 2005 SCC 69 (S.C.C.)). Thus, the constitutional question could not have been argued. However, even if it had been, the argument would not likely have been successful as the Federal Court of Appeal has upheld the validity of the Act on constitutional grounds (Tourki v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FCA 186 (F.C.A.) [Tourki]). 6 The challenge to the Minister’s finding of a breach of the reporting requirements in section 12 of the Act was likewise not properly before me. In this regard, it is well-established that individuals who wish to challenge a Ministerial determination of a breach of the reporting requirements in section 12 of the Act must proceed by way of statutory appeal, under section 30 of the Act, and not by way of judicial review. Thus, an application such as the present is limited to considering the reasonableness of the refusal to grant relief from forfeiture (see Tourki at para 18; Kang v. Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 798 (F.C.) at paras 25-30 [Kang]; Dokaj v. Minister of National Revenue, 2005 FC 1437 (F.C.) at paras 33-51). In any event, this argument also had little chance of success because Mr. Tran admitted in a letter to the respondent (dated March 8, 2011) that he had failed to report being in possession of over $10,000 cash when he was en route to Vietnam, and admitted the same to a CBSA officer at the Vancouver airport on the day of the incident, thereby admitting to a breach of the reporting requirements in section 12 of the Act. Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 119

7 In terms of the argument that was pursued at the hearing, Mr. Tran argues the delegate’s determination to not grant relief from forfeiture was unreasonable for three reasons. First, he asserts there was no proof that he had engaged in money laundering or was funneling funds to terrorists. Second, he argues that he provided a reasonable and legitimate explanation for why he was carrying so much cash. Third, he asserts that he definitively established that the monies he took from his line of credit — and possibly from his mother-in law — were from legitimate sources. He argues that it is unreasonable to refuse relief from forfeiture (or not to impose a lesser penalty) when some of the funds are shown to come from legitimate sources. He argues that what he terms an “all or nothing” approach to the exercise of discretion under the Act is unreasonable. 8 For the reasons more fully detailed below, I have determined that none of these arguments has merit and that the delegate’s decision will therefore be upheld. To appreciate why this is so, it is useful to review the relevant statutory provisions and the background to Mr. Tran’s claim.

Statutory provisions 9 The Act is designed to curtail money laundering and terrorist activity financial offences, through imposition of a number of measures, including the imposition of reporting requirements. This is spelled out in section 3 of the Act, which provides in relevant part: The object of this Act is (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including [...] (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments, and La présente loi a pour objet: a) de mettre en oeuvre des mesures visant a` détecter et décourager le recyclage des produits de la criminalité et le financement des activ- ités terroristes et a` faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment: [...] 120 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(ii) etablir´ un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, 10 One of the types of transactions that must be reported is the importation or exportation of currency or monetary instruments equal to or greater than the value of $10,000.00 Canadian. This is made clear by section 12 of the Act and section 2 of the Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412. The relevant portions of these provisions state: Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. Limitation (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. Who must report (3) Currency or monetary instruments shall be reported under subsection (1) (a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; [...] Duty to answer and comply with the request of an officer (4) If a report is made in respect of currency or monetary instruments, the person arriving in or departing from Can- ada with the currency or monetary instruments shall (a) answer truthfully any questions that the officer asks with respect to the information required to be contained in the report; and Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 121

(b) on request of an officer, present the currency or monetary instruments that they are carrying or transporting, unload any conveyance or part of a conveyance or baggage and open or unpack any package or container that the officer wishes to examine. 12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer a` l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur egale´ ou supérieure au montant réglementaire. Exception (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) a` l’égard d’une importation ou d’une exportation si les conditions régle- mentaires sont réunies a` l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Déclarant (3) Le déclarant est, selon le cas: a) la personne ayant en sa possession effective ou parmi ses bagages les espèces ou effets se trouvant a` bord du moyen de transport par lequel elle arrive au Canada ou quitte le pays ou la personne qui, dans les circonstances réglementaires, est respon- sable du moyen de transport; [...] Obligation du déclarant (4) Une fois la déclaration faite, la personne qui entre au Canada ou quitte le pays avec les espèces ou effets doit: a) répondre véridiquement aux questions que lui pose l’agent a` l’égard des renseignements a` déclarer en application du paragraphe (1); b)a ` la demande de l’agent, lui présenter les espèces ou effets qu’elle transporte, décharger les moyens de transport et en ouvrir les parties et ouvrir ou défaire les colis et autres contenants que l’agent veut examiner. 122 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Cross-border Currency and Monetary Instruments Reporting Regu- lations, SOR/2002-412 2. (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2. (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit etreˆ déclarée doivent avoir une valeur egale´ ou supérieure a` 10 000 $. 11 An individual possessing funds or negotiable instruments in excess of the $10,000.00 ceiling and who is entering or leaving Canada must report the funds to the CBSA, typically on a form provided upon leaving or entering the country. Under subsection 18(1) of the Act, CBSA officers at a port of entry to or egress from Canada possess authority to seize as forfeit currency or monetary instruments where the officer “believes on reasonable grounds that subsection 12(1) [of the Act] has been contravened”. Subsection 18(2) states that the currency or monetary instruments so seized as forfeit may be retained if “the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of [the relevant section] of the Crimi- nal Code or funds for use in the financing of terrorist activities”. 12 The review process applicable once funds are seized and retained is set out in sections 24 to 30 of the Act. The portions of those provisions relevant to the present application for judicial review, provide as follows: Review of forfeiture 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 24.1 and 25. Corrective measures 24.1 (1) The Minister, or any officer delegated by the President for the purposes of this section, may, within 30 days after a seizure made under subsection 18(1) or an assessment of a penalty referred to in subsection 18(2), (a) cancel the seizure, or cancel or refund the penalty, if the Min- ister is satisfied that there was no contravention; or (b) reduce the penalty or refund the excess amount of the penalty collected if there was a contravention but the Minister consid- Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 123

ers that there was an error with respect to the penalty assessed or collected, and that the penalty should be reduced. Interest (2) If an amount is refunded to a person or entity under paragraph (1)(a), the person or entity shall be given interest on that amount at the prescribed rate for the period beginning on the day after the day on which the amount was paid by that person or entity and ending on the day on which it was refunded. Request for Minister’s decision 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. [...] Decision of the Minister 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. [...] If there is a contravention 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister may, subject to the terms and conditions that the Min- ister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Ser- vices is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. [...] 124 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Conditions de révision 24. La saisie-confiscation d’espèces ou d’effets effectuée en vertu de la présente partie est définitive et n’est susceptible de révision, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues aux articles 24.1 et 25. Mesures de redressement 24.1 (1) Le ministre ou l’agent que le président délègue pour l’application du présent article peut, dans les trente jours suivant la saisie effectuée en vertu du paragraphe 18(1) ou etablissement´ de la pénalité réglementaire visée au paragraphe 18(2): a) si le ministre est convaincu qu’aucune infraction n’a et´´ e commise, annuler la saisie, ou annuler ou rembourser la pénalité; b) s’il y a eu infraction mais que le ministre est d’avis qu’une erreur a et´´ e commise concernant la somme etablie´ ou versée et que celle-ci doit etreˆ réduite, réduire la pénalité ou rembourser le trop-per¸cu. Intérêt (2) La somme qui est remboursée a` une personne ou entité en vertu de l’aliné(1)a) est majorée des intérêts au taux réglementaire, calculés a` compter du lendemain du jour du paiement de la somme par celle-ci jusqu’à celui de son remboursement. Demande de révision 25. La personne entre les mains de qui ont et´´ e saisis des espèces ou effets en vertu de l’article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s’il y a eu contravention au paragraphe 12(1) en donnant un avis ecrit´ a` l’agent qui les a saisis ou a` un agent du bureau de douane le plus proche du lieu de la saisie. [...] Décision du ministre 27. (1) Dans les quatre-vingt-dix jours qui suivent l’expiration du dé- lai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). [...] Cas de contravention 29. (1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre peut, aux conditions qu’il fixe: a) soit restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci a` la date où le ministre Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 125

des Travaux publics et des Services gouvernementaux est in- formé de la décision, sur réception de la pénalité régle- mentaire ou sans pénalité; b) soit restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirmer la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute or- donnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires a` l’application des alinéas a) ou b). [...] 13 In this case, the Minister, through his delegate, was called upon to make a discretionary decision under subsection 29(1) of the Act. The op- tions open to the delegate were to return the money, impose some form of penalty or retain the money seized as being forfeited to Her Majesty in Right of Canada. The delegate chose the final option.

Background 14 With this statutory framework in mind, it is now possible to turn to what transpired in Mr. Tran’s case. As noted, he gave several different explanations to the CBSA officers who questioned him at the Vancouver airport. An officer searched Mr. Tran and found he was in possession of $6,700.00 in Canadian currency and $10,946.00 in U.S. currency. When questioned regarding how he came to be in possession of so much cash and why he had not declared it, Mr. Tran offered the following explanations: • He did not know why he failed to report the money and he was in a rush; • The money was all his and from his savings; • When confronted with his lack of income, he changed his explanation and stated that someone else had given him some of the money; • When queried who, he indicated that some of the money came from his sister-in-law and could not provide any explanation as to why he had said the money was his; • When asked how much money his sister-in-law had given him, he stated $2000.00; 126 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

• When next asked if anyone else had given him money, he replied “no”; • He was then removed to a room for further questioning and left alone for a few minutes. When two CBSA officers returned, Mr. Tran advised that he was taking money to Vietnam to give to people there; • Upon further questioning, he stated that the money was not from his line of credit or bank account, but rather from his savings; • When asked where he kept the money, he indicated he kept it hid- den above a ceiling panel in the unfinished basement of his house and that the money was from tips he earned as a waiter in the family’s restaurant and from savings made “here and there”; • When the CBSA officers pointed out that most of the cash was in $100.00 denominations (and that it therefore could not have come from tips), Mr. Tran changed his version of events and stated that he was carrying money for his mother-in-law, sister-in-law and a few friends. He claimed he had $1400.00 from his sister-in-law, $3000.00 from a friend (whose name he knew only to be “Long”), and $2000.00 from his mother-in-law. He explained that $9000.00 U.S. and $1000.00 Canadian dollars were taken from the ceiling in his basement; and • The CBSA officers then pointed out that the sums he had given were not equal to the amount of cash that Mr. Tran had with him. The only additional explanation Mr. Tran offered was that he was carrying an additional $500.00 to purchase jewellery for a friend. 15 One of the CBSA officers who conducted the interview indicated in his report that Mr. Tran became increasingly nervous as the questioning progressed. The officers also learned that Mr. Tran had purchased his airline ticket to Vietnam a few days earlier, using cash. Given Mr. Tran’s inability to provide a coherent explanation for where the cash came from and the shifting versions offered by him, the officers seized the funds and held them as forfeit, determining there were reasonable grounds to suspect the funds were proceeds of crime or for use in the financing of terrorist activities. 16 In the context of his application for relief from forfeiture, Mr. Tran gave yet another explanation of where the funds came from. He claimed the source of the $6,700.00 in Canadian currency he had with him was as follows: Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 127

• $2000.00 from his mother-in-law, drawn from her bank account from her old age security and pension cheques; • $3000.00 from his friend, Long Nguyen, of which $2800.00 was from Long’s bank account and $200.00 was in cash; • $500.00 from another friend, Vinh Le, who withdrew the sum from his bank account; • $460.00 from a co-worker, who wanted him to buy her a souvenir; • 300.00 from his brother-in-law; • $200.00 from another friend, Dai Nguyen: and • The remaining $240.00 was his. 17 As for the U.S. currency, he claimed it came from the following sources: • $1600.00 from his sister-in-law; • $1800.00 from his wife’s aunt, who sent a bank draft; • $2760.00 that he asked his son to purchase for him due to the pref- erential employee rate the son was able to obtain as a bank employee; • $4000.00 that he withdrew from his TD home equity line and put it into his chequing account to purchase U.S. funds; and • $840.00 of his own cash. 18 In his submissions to the Minister’s delegate, Mr. Tran claimed that most of the cash was intended as gifts for family and friends in Vietnam as part of the New Year celebrations. He elaborated that he took the funds in cash so those giving the gifts could avoid exchange fees charged by the banks or currency exchanges. He provided photocopies of various banking records with his submissions. However, as is more fully discussed below, these records do not establish the source of the funds and in some instances do not even correspond to Mr. Tran’s claims regarding the source of the funds.

The standard applicable to the review of the delegate’s decision 19 The standard applicable to the review of the delegate’s decision is that of reasonableness (Kang at para 24). The reasonableness standard is a deferential one and requires that a reviewing court not substitute its views for those of the administrative decision-maker if the reasons offered are transparent, intelligible and justified and the result reached “falls within a range of possible, acceptable outcomes which are defensi- 128 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

ble in respect of the facts and law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47; see also N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at paras 11-13). 20 The case law establishes that in exercising discretion under section 29 of the Act, the Minister or ministerial delegate must determine whether he or she is satisfied that the funds are not from proceeds of crime or for use in financing terrorist activities. Typically, to be satisfied that this is not the case, the claimant must prove to the delegate or the Minster that the funds came only from legitimate sources. If the claimant so establishes, the forfeiture should be set aside. Conversely, if the claimant does not so establish, the forfeiture may be maintained (see e.g. Kang at para 34; Sellathurai v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 255 (F.C.A.) at para 49 [Sellathurai]). The task for the Court on judicial review then involves determining whether the findings made regarding the source of the funds are reasonable.

Is the delegate’s decision unreasonable? 21 Here, as already noted, Mr. Tran makes three arguments in support of his claim that the delegate’s decision is unreasonable. He first argues that there was no proof that he had engaged in money laundering or was funneling funds to terrorists, and thus that the determination to maintain the forfeiture of the seized funds was unreasonable. In the second place, he argues he provided a reasonable and legitimate explanation for why he was carrying so much cash and that the delegate unreasonably ignored this explanation. Finally, he argues that he definitively established that the monies he took from his line of credit and received from his mother- in-law were from legitimate sources and that including these sums in the amount forfeited is unreasonable. He argues in this regard that the so- called “all or nothing” approach to the interpretation of the Act over- shoots that mark as it cannot be the intention of the legislation to allow for the forfeiture of Canadians’ currency from legitimate sources merely because these funds happen to be co-mingled with funds that a claimant cannot establish also originate from a legitimate source.

Must a decision be set aside if there is no proof that the funds were destined for terrorists activities or involve money-laundering? 22 Mr. Tran’s first argument can be summarily dismissed as it is contra- dicts well-settled case law from this Court and the Federal Court of Ap- Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 129

peal, which establishes that the Minister or his or her delegate need not be satisfied that the funds are from an illegitimate source to properly refuse relief from forfeiture. Rather, all that is necessary is that the Minster or the delegate not be satisfied that they are from a legitimate source. As Justice Pelletier, writing for the majority of the Federal Court of Appeal noted in Sellathurai at para 50: [...] The issue is not whether the Minister can show reasonable grounds to suspect that the seized funds are proceeds of crime. The only issue is whether the applicant can persuade the Minister to exercise his discretion to grant relief from forfeiture by satisfying him that the seized funds are not proceeds of crime. Without precluding the possibility that the Minister can be satisfied on this issue in other ways, the obvious approach is to show that the funds come from a legitimate source. That is what the Minister requested in this case, and when Mr. Sellathurai was unable to satisfy him on the issue, the Minister was entitled to decline to exercise his discretion to grant relief from forfeiture. 23 Thus, Mr. Tran’s first argument is without merit.

Is the decision to refuse relief from forfeiture unreasonable in light of the explanation provided by Mr. Tran? 24 Insofar as concerns Mr. Tran’s second argument, evaluation of the reasonableness of a decision to grant relief from forfeiture turns on whether there was a reasonable basis for the delegate to conclude she was not satisfied that Mr. Tran had established a legitimate source for the seized funds. This inquiry is a factual one. Paragraph 18.1(4)(d) of the FCA prescribes the yardstick by which the reasonableness standard is to be applied in matters of fact; to paraphrase the FCA, factual determinations of a tribunal may be set aside only if they are made in a manner that is perverse, capricious or without regard for the material before the tribunal and if the decision is based on them (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paras 3, 36, [2009] 1 S.C.R. 339 (S.C.C.)). 25 In the context of requests for relief from forfeiture under the Act, the case law establishes that a refusal to grant relief from forfeiture is made on a reasonable factual basis if all that an applicant does is show that the funds were drawn from a bank account because this does not prove where the money originally came from (Kang at para 40; Satheesan v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 346 (F.C.) at paras 50-52; Sidhu v. Canada (Minister of Public Safety 130 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

& Emergency Preparedness), 2010 FC 911 (F.C.) at para 41; Dupre v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 1177 (F.C.)at para 31). As Justice Mosley recently noted in Kang at paras 40-41: I do not accept the applicant’s argument that he is being held to an impossible standard of proof. The evidence submitted by the applicant does not establish the lawful origin of the funds. Although the bank withdrawals of the applicant’s uncle and cousin were amounts that could, theoretically, provide for loans to the applicant, there is nothing in the record, apart from their statements, to link those sums of money to that which was ultimately seized at the airport in Cal- gary. Evidence that cannot establish the lawful origin of the funds cannot be used as proof of such [...] The lack of proof, the contradictory stories which cast doubt on the applicant’s credibility and the prior enforcement actions for smug- gling controlled substances, taken together, make it reasonable that the Minister could not be persuaded that the currency did not come from proceeds of crime. It follows that the Minister’s decision to hold the currency as forfeit was reasonable. [Citations omitted.] 26 The evidence provided by Mr. Tran to the delegate regarding the funds he claims to have received from third parties consisted entirely of photocopies of bank statements or withdrawal slips, purportedly confirming the source of the withdrawal but which provided no detail regarding the originating source of the funds. Based on the foregoing case law, this is insufficient to establish a legitimate source for these funds. It is possible that proceeds of crime can be funnelled through and withdrawn from a bank account. Thus, the fact that cash is withdrawn from a bank account and provided to a claimant does not establish that the cash is from a legitimate source. Accordingly, the evidence filed by Mr. Tran does not establish that the funds he claimed he received from others were from legitimate sources. 27 In addition, as concerns the monies that Mr. Tran claims his mother- in-law gave him from her old age security and pension cheques, as counsel for the respondent correctly notes, the evidence tendered to the delegate does not establish that the cash withdrawn from the mother-in-law’s account was actually from government social benefit cheques. The bank statement for the mother-in-law shows that two direct deposits were made on November 24, 2012 for “Senior’s Benefit MSP/DIV” in the amount of $181.82 each, leaving a balance of $375.28 (Respondent’s Re- Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 131

cord at p 57). The statement also indicates that on December 2, 2012, a deposit of $2069.93 was made and an identical amount withdrawn the same day, leaving a balance of $383.98 (Respondent’s Record at p 58). Thus, the evidence does not show that the $2000.00 Mr. Tran claimed to have received from his mother-in-law came from government social benefit cheques. 28 Turning to consideration of the monies Mr. Tran alleges were withdrawn from his home equity line of credit, as counsel for the respondent likewise submitted, a careful review of the evidence indicates that there is no proof that $4000.00 was withdrawn on the line of credit by Mr. Tran. Rather, the evidence he submitted to the delegate consists of a receipt in the name of “Tran Thai”, and shows a $4000.00 withdrawal from a home line of credit made on March 2, 2010, some ten months before Mr. Tran’s trip to Vietnam. Thus, Mr. Tran failed to establish a legitimate source for these funds as well. 29 There was therefore more than ample basis for the delegate to have concluded that Mr. Tran had not established a legitimate source for the funds seized and held as forfeit and, accordingly, the delegate’s decision is reasonable. In short, it cannot be said that the delegate’s conclusion that she was not satisfied that the funds were not proceeds of crime or destined for terrorism was unreasonable because Mr. Tran failed to establish a legitimate source for the funds. And, indeed, if anything, the evidence tendered gives rise to greater doubt about where the monies came from. This, coupled with the shifting versions of events offered by Mr. Tran, provided the delegate a sound basis to refuse to exercise her discretion to set aside the forfeiture. Her factual determination cannot be said to be “perverse”, “capricious” or “without regard to the material” before her.

Did the delegate err in imposing an “all or nothing” approach to granting relief from forfeiture? 30 As is apparent from the foregoing, the third issue posed by Mr. Tran regarding the unreasonableness of a so-called “all or nothing” approach to the exercise of discretion under subsection 29(1) of the Act does not arise on these facts because contrary to what he asserts, he did not establish that the funds from his mother-in-law were from her governmental social benefits cheques or that he withdrew funds from his home equity line of credit as he claims to have done. Thus, there is no need to decide whether a refusal to grant relief from forfeiture is unreasonable when 132 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

some of the seized funds are proven to have come from legitimate sources. I would, however, note that in Admasu v. Canada (Minister of Public Safety & Emergency Preparedness), 2012 FC 451 (F.C.) at para 12-13, my colleague Justice Rennie recently determined that a ministerial decision refusing relief in such circumstances is not unreasonable in light of the provisions in the Act, which make it clear that the Minister cannot grant partial relief from forfeiture. 31 For these reasons this application for judicial review will be dismissed.

Costs 32 The respondent seeks an award of costs, but the applicant requests that in the event the application is dismissed, no award of costs be made as he and the individuals who provided him the funds are of modest means and should suffer no more than the forfeit of the funds seized. 33 There is no proof before me of the means of the applicant or those whom he alleges provided him the monies before me. I also note that most of the decided cases where applications such as the present were dismissed, the respondent was awarded its costs (see e.g. Sellathurai; Dupre; Sidhu; Yang v. Canada (Minister of Public Safety), 2008 FCA 281 (F.C.A.); Dag v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FCA 95 (F.C.A.)). (A rare exception appears to be the decision in Kang, where the respondent was found to have made a number of errors in its handling of the funds, and Justice Mosley exercised his discretion on that basis and awarded no costs.) 34 I see no reason to stray from the usual outcome on costs in this case as the respondent made no mistakes in its handling of the funds and was entirely successful in this application. I have accordingly determined that costs should be awarded to the respondent. In the event counsel for the parties cannot agree as to quantum, they may file written submission of no more than 5 pages in length with me by June 17, 2013.

Judgment THIS COURT’S JUDGMENT is that: 1. This application for judicial review is dismissed with costs; Tran v. Canada (Minister of Public Safety) Mary J.L. Gleason J. 133

2. In the event the parties cannot agree as to the quantum of the costs to be paid to the respondent, they may file written submission with me of no more than 5 pages in length by June 17, 2013. Application dismissed. 134 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

[Indexed as: Stephens v. Canada (Minister of Citizenship and Immigration)] Howard Seymour Stephens, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4898-12 2013 FC 609, 2013 CF 609 Yves de Montigny J. Heard: March 13, 2013 Judgment: June 6, 2013 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Procedural fairness –––– Applicant was citizen of Jamaica — Applicant claimed that his life was put in great danger by members of political gang — Board determined that applicant was not Convention Refugee or person in need of protection — At hearing, Board Member refused to grant request for postponement in light of fact that applicant’s counsel was not present — Applicant brought application for judicial review — Application dismissed — Board Member’s reasons for refusing to postpone hearing were unreasonable — Factors considered by Member were far from being sufficient to refuse delay requested — However, applicant failed to show that he was denied fair hearing as consequence of hearing proceeding in absence of his counsel — There was no evidence that applicant was prejudiced or that line of argument or piece of evidence was overlooked as result of his lawyer not being present at hearing — There was no indication that applicant had any difficulty understanding questions or providing information requested — Applicant was given opportunity to make submissions. Cases considered by Yves de Montigny J.: Clara Vazquez v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CF 385, 2012 CarswellNat 1013, 2012 FC 385, 2012 CarswellNat 1915, 10 Imm. L.R. (4th) 295, 407 F.T.R. 167, (sub nom. Clara Vazquez v. Canada (Minister of Citizenship and Immigration)) 407 F.T.R. 167 (Eng.) (F.C.) — referred to Guzun v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1324, 2011 CarswellNat 4772, 2011 CarswellNat 5498, 2011 CF 1324, [2011] A.C.F. No. 1615, [2011] F.C.J. No. 1615 (F.C.) — referred to Javadi v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 630, 2012 FC 278, 2012 CF 278, 2012 CarswellNat 1117 (F.C.) — referred to Stephens v. Canada (MCI) 135

Julien c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2010), (sub nom. Fritzner v. Canada (Minister of Citizenship & Immigration)) 366 F.T.R. 160 (Eng.), 2010 CarswellNat 794, 2010 FC 351, 2010 CarswellNat 2043, 2010 CF 351, [2010] F.C.J. No. 403, [2010] A.C.F. No. 403 (F.C.) — referred to Mervilus c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2004), 2004 CF 1206, 2004 CarswellNat 3104, 2004 CarswellNat 5673, 262 F.T.R. 186, 32 Admin. L.R. (4th) 18, 2004 FC 1206, [2004] F.C.J. No. 1460 (F.C.) — referred to Omeyaka c. Canada (Ministre de la Sécurité publique & de la Protection civile) (2011), 2011 CarswellNat 143, 2011 CF 78, 2011 CarswellNat 1026, 2011 FC 78, [2011] F.C.J. No. 83 (F.C.) — referred to Osagie v. Canada (Minister of Citizenship & Immigration) (2004), 262 F.T.R. 112, 2004 FC 1368, 2004 CarswellNat 3521, 2004 CarswellNat 5055, 2004 CF 1368, [2004] F.C.J. No. 1656 (F.C.) — referred to Philistin c. Canada (Ministre de la Sécurité publique & de la Protection civile) (2011), 2011 CarswellNat 6294, 2011 CF 1333, 2011 FC 1333, 2011 Car- swellNat 5924, [2011] A.C.F. No. 1860 (F.C.) — referred to Telez c. Canada (Ministre de la Citoyenneté et de l’Immigration) (2013), 2013 CF 102, 2013 CarswellNat 178 (F.C.) — referred to Wagg v. R. (2003), 2003 CarswellNat 2724, 2003 CAF 303, 2003 G.T.C. 1702, [2003] G.S.T.C. 120, (sub nom. Wagg v. Canada) [2004] 1 F.C.R. 206, 2003 FCA 303, 2003 CarswellNat 2128, (sub nom. Wagg v. Minister of National Revenue (Customs & Excise)) 308 N.R. 67, [2003] F.C.J. No. 1115 (F.C.A.) — referred to Yanez Tecuapetla v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 225, 2012 CarswellNat 400, 2012 CF 225, 2012 CarswellNat 3666, 405 F.T.R. 309 (F.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 97 — considered Rules considered: Federal Courts Rules, SOR/98-106 R. 81 — considered R. 81(2) — considered R. 82 — considered Refugee Protection Division Rules, SOR/2002-228 s. 48(4) — considered s. 48(4)(a) — considered s. 48(4)(g) — considered s. 48(4)(h) — considered s. 48(4)(i) — considered 136 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

s. 48(4)(j) — considered

APPLICATION for judicial review of decision by Board that applicant was not Convention Refugee or person in need of protection.

Stella Iriah Anaele, for Applicant Rafeena Rashid, for Respondent

Yves de Montigny J.:

1 Mr. Howard Seymour Stephens (the “Applicant”) seeks judicial review of the decision of Carolyn McCool (the “Board Member”), a member of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), dated April 26, 2012. At the hearing, the Board Member refused to grant a request for a postponement in light of the fact that the Applicant’s counsel was not present. She concluded in her decision that the Applicant is not a Convention Refugee or person in need of protection. 2 For the reasons set out below, I find that this application for judicial review ought to be dismissed. This case also raises a serious issue with respect to lawyers acting as witnesses, upon which I shall also comment as part of my reasons.

Background 3 The Applicant, born April 6, 1972, is a citizen of Jamaica. He arrived in Canada on or about July 7, 2005, and claims that he fled Jamaica fear- ing for his life. 4 The Applicant’s refugee claim is premised on a well-founded fear of persecution on the basis of his perceived political opinion and member- ship in a particular social group, as well as on the basis of risk under section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). The Applicant states that he was in danger in Jamaica because a businessman gave him a donation to assist with a youth soccer club that he started in 2004. Due to rumours that the money was in fact provided by a politician belonging to the Jamaica Labour Party (JLP) who was vying for political office, the Applicant’s life was allegedly put in great danger by members of a political gang operating in support of the com- peting People’s National Party (PNP). 5 The Applicant states that he moved from town to town in hiding before procuring the services of an agent who helped him travel to Can- Stephens v. Canada (MCI) Yves de Montigny J. 137

ada using false papers. Since moving to Canada, the Applicant has mar- ried. He and his wife each have a child from a prior relationship and the four live together as a family. The football club was dissolved when the Applicant left for Canada in 2005. 6 The record contains an affidavit from the mother of a former club member who was murdered on April 20, 2009, after reportedly resuming operation of the club in 2008. The mother notes that her son had been threatened by the PNP gang, that the police refused to take action, and that the police have not made any arrest in connection with her son’s murder. She does not directly comment on who she believes was responsible for the murder or any connection between the death and the football club, other than stating that the PNP gang threatened her son’s life once he began leading the team. 7 After arriving in Canada in 2005, the Applicant did not make his claim for refugee protection until September 2011. He states in his affidavit before this Court that he was told when he first arrived that people from the Caribbean Islands could not make refugee claims. An immigration consultant allegedly told him he would have to pay $6,000 in order to be represented and, having met his wife, she applied to sponsor him in 2009. At the time of the Applicant’s hearing, he stated that the spousal application had been refused and was pending before this Court. 8 The Applicant states that he attempted to file for refugee protection in 2010, but withdrew the claim on the advice of the woman working at the desk of the immigration office. According to him, she noted the existence of his sponsorship application and said that since his sponsorship looked very good, he should remove his refugee claim. He states that he accepted her advice since he was not familiar with the refugee system. 9 At the time he submitted his application and signed his Personal In- formation Form (PIF) in the fall of 2011, the Applicant was represented by an immigration consultant, Sandra Bowen. The RPD was advised that, due to disagreements and conflict between him and the consultant, he had retained Ms. Anaele as counsel on January 16, 2012; however, a request from Ms. Bowen to be removed as counsel of record was only received by the IRB on February 29, 2012 and granted on March 6, 2012. 10 On January 20, 2012, Ms. Anaele submitted a request for a postponement of the hearing date, which had allegedly been scheduled for March 12 by Ms. Bowen, since Ms. Anaele would be on vacation at that time. It is not entirely clear from the record when the Applicant and Ms. Anaele learned of the date scheduled for the hearing. Regardless, the Applicant 138 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

attests to the fact that he was not aware that the hearing had been scheduled when he retained Ms. Anaele. 11 A decision dated January 25, 2012 refused the initial request for postponement, holding that “claimants must choose counsel willing and able to proceed on the date scheduled; Guideline 6, Section 2.6” (Certified Tribunal Record (CTR), p. 46). The Applicant did not seek judicial review of this interim decision. 12 On February 6, 2012, both the Applicant and Ms. Anaele were sent a notice to appear for the March 12 hearing. The notice contained the following statement and instructions: You must be present and ready to proceed by the scheduled start time. If you or your counsel fail to appear as required, the RPD may, after giving you a reasonable opportunity to be heard, determine your claim to be abandoned. [...] When you hire counsel after a date has already been set for your hearing, you are responsible for making sure that your counsel is available and ready to proceed on the scheduled date. The RPD may not change the date or time of your hearing because your counsel cannot attend, therefore it may be necessary for you to hire new counsel who is available on the scheduled date. 13 On the day of the hearing, Ms. Anaele provided the Applicant with a letter stating that “due to urgent medical reasons” she would not be able to attend the afternoon hearing and requesting that the hearing be re- scheduled for a date in June 2012. She faxed the same document to the IRB. A review of the fax suggests it was received at 10:05 a.m. (CTR, p. 60). 14 The request for postponement was denied and the hearing proceeded, with reasons for the refusal given on the record. The record reveals that the Board Member considered the following: i) Ms. Anaele’s January 20, 2012 request for postponement due to her holiday schedule was denied, and the Applicant was required to choose counsel available for the date; ii) The Applicant claimed to have seen Ms. Anaele the morning of the hearing. He explained that she had decided to help his family despite her prior plans and that they were prepared to proceed on March 12 (having met the weekend before). The day of the hearing, however, she was really not feeling well and planned to visit Stephens v. Canada (MCI) Yves de Montigny J. 139

her doctor. She was at her office for the sole purpose of giving the Applicant her letter and had her daughter drive her there. 15 The Board Member found that the request was “not strong enough” to put off the date of the hearing, noting that she had concerns “about counsel who brings multiple requests for — that is numerous requests for a postponement of the hearing” (CTR, at p. 118). She noted that there was no evidence to persuade her that there were in fact urgent medical reasons for requesting the delay and that the fact that she was well enough to go in to her office raised questions, despite the Applicant’s claim that her daughter had driven her. 16 An affidavit submitted to this Court by the Applicant provides an explanation of the morning’s events, much of which merely recounts relevant information provided to the Applicant by his counsel. The affidavit suggests that Ms. Anaele cancelled her vacation plans when the Board refused her initial request and that, on the day of the hearing, she was very ill but went to her office for an emergency stay motion. 17 The affidavit states that she was driven to her office very early in the morning by her children and that, despite completing the stay hearing, she was unable to go to the afternoon hearing because she was very ill and had an appointment with her doctor. In addition to faxing the Board and providing the Applicant with a letter, the affidavit states that Ms. Anaele telephoned the Board and requested that the acting case officer contact her on her cell phone if there was a problem with the request for postponement, but that no such call was made. The affidavit states that the hearing was the first scheduled in the case and not peremptory and that the process affected the Applicant’s ability to present his case as it was unfair, unjust and very traumatizing. 18 The Applicant claims in his affidavit that he spoke to Ms. Anaele after the hearing, while she was at her doctor’s office, and that Ms. Anaele later informed him that it took her three days to obtain the name of the Board Member, following which her attempts to contact the Board Mem- ber and the acting case officer went unanswered. The Applicant argues that, due to the absence of his counsel, he was prevented from bringing out the salient issues in his claim and from presenting additional documentary evidence. 19 A letter from Ms. Anaele to the chairperson of the IRB, dated March 15, 2012 (Application Record, p. 29), clarifies that the health reasons which prevented Ms. Anaele from attending the hearing included dizzi- ness, cough and headache. The letter establishes many of the facts set out 140 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

in the Applicant’s affidavit, also indicating that Ms. Anaele was scheduled to see her doctor at 1:15 p.m. and that, after hearing the stay, she waited for her client (since she was already at the office and they had planned to meet there prior to the hearing) in order to explain her medical condition and provide him with the faxed letter. She further states as follows: I was not contacted by the IRB as such I presumed all was well. While at the doctor’s [office] at about 2pm, I decided to contact my client to find out what happened since nobody had contacted me and he informed me that the panel member proceeded with the hearing without me despite my letter. [...] I consider the panel member’s conclusion to be disrespectful of my professionalism and a stain on my reputation. I have 26 years of experience as a lawyer and have been practicing in Ontario for 16 years. I have a good and professional reputation which I have maintained and intend to continue to maintain. I am a lawyer in good standing with the Law Society of Upper Canada. I have always attended all the scheduled hearings except on occasions where I am ill. Furthermore, the fact that I earlier requested for an adjournment because I was scheduled for a vacation during this period has nothing to do with my medical condition. There is evidence that I have cancelled my vacation solely because of this hearing and would have been available for the hearing if not for my health reasons. My health is primary to me and I would not have been able to present the case or represent my client adequately due to my medical condition on the day of the hearing. [...]

Decision under review 20 The Board Member addressed the request for postponement as a preliminary matter, noting the denied request relating to counsel’s holidays and the events described by the Applicant. She stated that the request was denied for the reasons given on the record, which she summarized as follows: [5] [...] The panel noted the history of postponement requests, the fact that counsel first said that she was going to be on holidays this week, the lack of information as to the urgent medical matter, and the fact that counsel had been well enough to meet the claimant in her office the morning of the hearing. Stephens v. Canada (MCI) Yves de Montigny J. 141

[6] It was the decision of the panel that in all of these circumstances, the reasons for a postponement were not sufficient to justify putting the case off. The postponement request was denied and the hearing was held, without counsel present. 21 With respect to the refugee claim itself, the Board Member summarized the Applicant’s allegations, noting that he had submitted it was not possible to get a copy of the police report he claimed to have made in 2005. She also summarized the Applicant’s reasons for the long delay in claiming protection in Canada and his comments on the affidavit provided by the mother of the murdered Marcellino Almando Johnson, noting that there was nothing tying the circumstances of Marcellino to the Applicant. She noted also that no evidence has been provided from anyone who was involved with the football club in or after 2008. When asked what risk the Applicant would face in Jamaica now, after seven years, he could only point to the existence of a Don culture in Jamaica and to the fact that political violence in the country remains as endemic as ever. 22 According to the Board Member, the determinative issues in the case were those of (a) a delay in claiming, which goes to subjective fear, and (b) a lack of evidence demonstrating the objective basis of the claim as it arose in 2004-2005 and as it is alleged to still exist in 2012. The Board Member concluded that the Applicant had failed to prove on a balance of probabilities that he was in need of refugee protection. 23 She noted in respect of the first point that a delay in claiming of six years is “extremely significant” and fatal to the claim “in the absence of any explanation which is found to be reasonable” (para 18). The Appli- cant’s explanations were held not to be satisfactory as the Board Member found it unlikely that he would base decisions on when and how to apply on casual advice rather than seeking out competent advice “either from an official of the Government of Canada, or from a qualified lawyer, consultant or community worker” (para 19). The Applicant’s section 96 claim could not succeed due to a resulting lack of subjective fear. 24 With respect to the Applicant’s section 97 claim, the Board Member concluded that the Applicant did not believe that he would face the relevant risks due to the same unexplained delay. 25 As for the evidence provided, the Board Member acknowledged the Marcellino affidavit and the country conditions, but found that the documentary evidence simply did not bear out the Applicant’s assertions regarding risk in Jamaica. 142 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Issues 26 The Applicant does not take issue with the Board Member’s substantive finding relating to his refugee claim. The only question to be addressed on this application for judicial review is whether the RPD breached its duty of fairness in refusing the Applicant’s request for postponement.

Analysis 27 As a preliminary issue, the Respondent submits that the Applicant’s affidavit is based on statements provided to him by his counsel about events that she claims occurred. In the Respondent’s view, this is totally inappropriate and, as a result, she suggested that a number of paragraphs in the Applicant’s affidavit should be struck or given no weight. 28 I entirely agree with the position taken by counsel for the Respon- dent. Rule 82 of the Federal Courts Rules (SOR/98-106) explicitly for- bids a solicitor from both deposing to an affidavit and presenting argument to the Court based on that affidavit. When counsel’s own credibility is at issue, it is best for counsel to testify and to ask another counsel to represent his or her client. Indeed, this is precisely what the Law Society of Upper Canada recommends in such a situation. In the Commentary on Rule 4.02(2) of the Law Society of Upper Canada’s Rules of Profes- sional Conduct (forbidding a lawyer who appears as advocate to testify before the tribunal), it is stated: “[...] The lawyer should not in effect appear as an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer”. 29 In the case at bar, counsel indirectly infringed Rule 82 by having the Applicant swear an affidavit based at least in part on information that she provided to him and of which he had no personal knowledge. This cannot be condoned and is contrary to the spirit of Rule 82, as it puts counsel in the position of arguing on the basis of her own evidence: Osagie v. Canada (Minister of Citizenship & Immigration), 2004 FC 1368 (F.C.), at paras 22-23. Genuine affiants should not attempt to shield themselves from cross-examination by, in effect, appearing as unsworn witnesses. It is true, as argued by counsel for the Applicant, that some of the facts upon which he testified are based on documentary evidence, that is, on letters sent by counsel to the IRB. However, many paragraphs of his affidavit are based on hearsay, and are not confined to facts within the depo- nent’s personal knowledge as required by Rule 81. Stephens v. Canada (MCI) Yves de Montigny J. 143

30 To the extent that an affidavit purports to provide hearsay evidence, little or no weight ought to be afforded to it. I also note that Rule 81(2) of the Federal Courts Rules permits the Court to draw an adverse inference from a party’s failure to provide evidence from persons having personal knowledge of facts otherwise presented on belief. For those reasons, I agree that paras 19, 20, 21, 23, 25-29, 35 and 40-44 of the Applicant’s affidavit must either be struck or given very little weight, to the extent that they merely replicate what is already found in the documentary evidence or amount to hearsay. 31 With respect to the applicable standard of review, I also agree with counsel for the Respondent that the RPD’s decision to postpone or adjourn the Applicant’s refugee claim calls for deference. The decision of the RPD is a discretionary one, even if that discretion must be exercised in light of the factors listed in subsection 48(4) of the Refugee Protection Division Rules, SOR/2002-228 (now repealed). Therefore, the Court will not intervene unless it is found that the RPD was unreasonable in the application of the factors listed in subsection 48(4): see Philistin c. Canada (Ministre de la Sécurité publique & de la Protection civile), 2011 FC 1333 (F.C.) at para 8; Omeyaka c. Canada (Ministre de la Sécurité publique & de la Protection civile), 2011 FC 78 (F.C.) at para 13; Julien c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2010 FC 351 (F.C.) at para 33 [Julien]. Even then, the Court will only step in if an applicant can establish that the refusal to postpone or adjourn a hearing resulted in a breach of procedural fairness: see Telez c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2013 CF 102 (F.C.) at paras 17-18 [Telez]; Javadi v. Canada (Minister of Citizenship & Immigration), 2012 FC 278 (F.C.) at para 25 [Javadi]; Wagg v. R., 2003 FCA 303 (F.C.A.) at para 19 [Wagg]. 32 The Applicant and the Respondent obviously focus their arguments on different factors among those set out in Rule 48(4) of the RPD Rules. That provision reads as follows: Refugee Protection Division Rules (SOR/2002-228) [Repealed, SOR/2012-256, s. 73] In force from 2006-03-22 to 2012-12-14 CHANGING THE DATE OR TIME OF A PROCEEDING Factors 48 (4) In deciding the application, the Division must consider any relevant factors, including 144 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application; (b) when the party made the application; (c) the time the party has had to prepare for the proceeding; (d) the efforts made by the party to be ready to start or continue the proceeding; (e) in the case of a party who wants more time to obtain information in support of the party’s arguments, the ability of the Di- vision to proceed in the absence of that information without causing an injustice; (f) whether the party has counsel; (g) the knowledge and experience of any counsel who represents the party; (h) any previous delays and the reasons for them; (i) whether the date and time fixed were peremptory; (j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and (k) the nature and complexity of the matter to be heard. CHANGEMENT DE LA DATE OU DE L’HEURE D’UNE PROCEDURE´ El´´ ements a` considérer 48 (4) Pour statuer sur la demande, la Section prend en considération tout el´´ ement pertinent. Elle examine notamment: a) dans le cas où elle a fixé la date et l’heure de la procédure après avoir consulté ou tenté de consulter la partie, toute cir- constance exceptionnelle qui justifie le changement; b) le moment auquel la demande a et´´ e faite; c) le temps dont la partie a disposé pour se préparer; d) les efforts qu’elle a faits pour etreˆ prête a` commencer ou a` poursuivre la procédure; e) dans le cas où la partie a besoin d’un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d’aller de l’avant en l’absence de ces renseignements sans causer une injustice; f) si la partie est représentée; g) dans le cas où la partie est représentée, les connaissances et l’expérience de son conseil; Stephens v. Canada (MCI) Yves de Montigny J. 145

h) tout report antérieur et sa justification; i) si la date et l’heure qui avaient et´´ e fixées etaient´ péremptoires; j) si le fait d’accueillir la demande ralentirait l’affaire de manière déraisonnable ou causerait vraisemblablement une injustice; k) la nature et la complexité de l’affaire. 33 In her decision, the Board Member summarized her reasons for refusing the request for postponement as follows: 5 The panel denied the request for a postponement and gave reasons on the record. The panel noted the history of postponement requests, the fact that counsel first said that she was going to be on holidays this week, the lack of information as to the urgent medical matter, and the fact that counsel had been well enough to meet the claimant in her office the morning of the hearing. 34 It is true that the transcript of the hearing reveals that the Board Mem- ber also took into consideration the reasonableness of the delay requested, and that the Applicant was in Canada for six and a half years. Nevertheless, one can safely assume that the factors summarized in her reasons were the most important factors underlying her decision to refuse the request for postponement. 35 In my view, these factors were far from being sufficient to refuse the delay requested. It appears that the Board Member’s decision was very much tainted by the fact that counsel had previously made a request to change the date of the hearing because she had planned a vacation before being retained by the Applicant. In fact, it is clear that counsel did not depart on her planned vacation and had no apparent reason not to attend the hearing if not for her ill health. Indeed, the fourth factor outlined by the Board Member (that counsel was well enough to meet the Applicant in her office the morning of the hearing) suggests that she accepts that counsel had not gone on holidays. It was therefore entirely inappropriate to dwell on this factor as justification to deny the request for postponement on the day of the hearing, as counsel made herself available when her first request was rejected. 36 As for the lack of information regarding her medical condition, it would obviously have been preferable for counsel to provide additional information regarding her circumstances. I note, however, that this Court has found in previous decisions that it may be both unreasonable and unfair to question the truthfulness of reasons provided by a representative 146 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

for another lawyer’s absence: see Telez, above, at para 13. One would expect that this would apply to at least an equal degree where the reason for absence is offered by counsel themselves (whether in writing or in person). Besides, the decision regarding the postponement was made on the spot and the final decision seems to have been written the day after the hearing, so any medical document corroborating counsel’s inability to attend the hearing would most likely have been to no avail if only obtained when she attended her physician’s office on the afternoon of the hearing. Finally, the fact that counsel was well enough to meet the Appli- cant at her office the morning of the hearing should not necessarily have been held against her. First of all, although the Board Member was not aware of the stay motion, there is a huge difference between attending a hearing by phone in one’s office (or attending at your office to communi- cate with your client and request a postponement from the RPD) and rep- resenting a client in a formal hearing at the Immigration and Refugee Board in person. Moreover, an argument could be made that counsel’s participation in the hearing of a stay motion on behalf of a client speaks to her professionalism, as time was much more of the essence in such a proceeding than in the hearing of a refugee claim. As a matter of fact, the same can be said of her attempt to arrange for a postponement of the hearing before the Board Member on that same day. 37 In addition, the Applicant submits that the Board failed to consider other relevant factors found in Rule 48(4) of the RPD Rules before making its decision. For instance, the medical reason clearly amounted to an exceptional circumstance (Rule 48(4)(a)), there had been no previous delays in the hearing of the claim (Rule 48(4)(h)), counsel has over 15 years of experience and no questions were raised regarding her reputation (Rule 48(4)(g)), the hearing date was not marked peremptory (Rule 48(4)(i)), and the request to adjourn would not unreasonably delay the proceedings (Rule 48(4)(j)). 38 This is not to say that the Applicant was entitled to a postponement of his hearing. As previously mentioned, this is a discretionary decision that is best left to the Board Member. That being said, the Board has an obligation to deal with a request for an adjournment in a principled way. The Board had an obligation to consider the factors enumerated in Rule 48(4), and could not legitimately deny the request solely because counsel had previously made a request which was refused. While the Board Member did not explicitly say so, her reasons read as if she did not believe that counsel acted in good faith and that she was just coming up with another pretext to avoid proceeding on the scheduled date of the Stephens v. Canada (MCI) Yves de Montigny J. 147

hearing. On the basis of the record before the Court, and in the absence of any further explanations, the Board Member’s reasons for refusing to postpone the hearing are therefore unreasonable. 39 In and of itself, however, this is not sufficient to quash the decision. As this Court stated in Javadi, above, at para 25: The Court recalls that the power to grant a postponement request is within the Board’s discretion. Pursuant to the Federal Court of Ap- peal’s decision in Vairamuthu v Canada (Minister of Employment and Immigration) (FCA), [1993] FCJ No 772, 42 ACWS(3d) 108, the Court may only criticize a Tribunal for having denied a request for adjournment if it is clear that a breach of natural justice or fairness has resulted from the decision. When a Tribunal refuses an adjournment, the Court will thus analyze the circumstances specific to each case in order to determine if there was any breach of the principle of natural justice (Julien v Canada (Minister of Citizenship and Immigration), 2010 FC 351 at para 28, [2010] FCJ No 403). 40 In the case at bar, the Applicant argues that he was prevented from properly and fairly presenting his case and denied the opportunity of presenting submissions and being examined in a way that would have elucidated his claim. The Applicant also argues that the principles of natural justice were breached when the Board Member failed to call Ms. Anaele’s cell phone to alert her to the fact that the request was refused and when the Board failed to immediately disclose the Board Member’s name in response to Ms. Anaele’s request. 41 It is trite law that the right to counsel is not absolute in the context of immigration proceedings. The absence of counsel will only render a decision invalid when such an absence translates into a denial of a fair hearing: see, for ex., Wagg, above, at para 19; Mervilus c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2004 FC 1206 (F.C.) at paras 20-21; Julien, above, at paras 28-29; Guzun v. Canada (Minister of Citizenship & Immigration), 2011 FC 1324 (F.C.) at para 13; Clara Vazquez v. Canada (Minister of Citizenship & Immigration), 2012 FC 385 (F.C.) at para 10; Yanez Tecuapetla v. Canada (Minister of Citizenship & Immigration), 2012 FC 225 (F.C.) at para 25. 42 Accordingly, it is incumbent upon the Applicant to show that he was denied a fair hearing as a consequence of the hearing proceeding in the absence of his counsel. On that score, the Applicant utterly fails. Counsel for the Applicant argued vaguely that she could have examined the Ap- plicant, that she could have explored many issues, that she could at least have requested the opportunity to file written submissions after the hear- 148 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

ing, but she did not provide any concrete examples of evidence or arguments that she could have put forward and that could have had an impact on the final result. To the extent that the determinative issues in this case were the delay in claiming and the lack of evidence demonstrating the objective basis of the claim, it is indeed difficult to surmise what exactly counsel could have said or done to modify the outcome. 43 The onus was on the Applicant to demonstrate that the hearing was unfair as a result of proceeding without his counsel. He has not dis- charged that burden. A careful reading of the transcript shows that the Applicant was given an opportunity to correct the record at the beginning, and that the Board went over his affidavit and ascertained the bases of his claim. There is no indication that he had any difficulty understanding the questions or providing the information requested. He was also given an opportunity to make submissions at the end. There are, in short, no indicia that the hearing was anything but thorough and fair. This is not to say that the Applicant would not have benefited from his counsel’s presence, but there is no evidence that he was prejudiced or that a line of argument or a piece of evidence was overlooked as a result of his lawyer not being present at the hearing. 44 Given that the sole issue raised by the Applicant is an alleged breach of procedural fairness arising from the RPD’s refusal to grant his request for a change of time and date of his refugee claim, resulting in his counsel not being able to attend his hearing, this application for judicial review must accordingly fail.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question is certified. Application dismissed. McCurvie v. Canada (MCI) 149

[Indexed as: McCurvie v. Canada (Minister of Citizenship and Immigration)] Hubert Alexander McCurvie, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8546-12 2013 FC 681 James Russell J. Heard: April 9, 2013 Judgment: June 18, 2013 Immigration and citizenship –––– Exclusion and removal — Removal from Canada — Appeals and judicial review — Judicial review — Miscellane- ous –––– Breach of procedural fairness by Immigration Appeal Division — For- eign national, aged 50, was citizen of Jamaica, and immigrated to Canada in 1983 as dependant of his mother — Foreign national accumulated significant criminal record, resulting in removal order which was successfully appealed — Removal order was again issued against foreign national on basis of serious criminality after he was convicted of uttering forged document — Foreign national unsuccessfully appealed to Immigration Appeal Division (IAD) of Immi- gration and Refugee Board — Appeal had been heard by videoconference, and decision-maker had repeatedly mentioned need to finish hearing on time — For- eign national brought application for judicial review — Application dismissed — There was no breach of procedural fairness in this case — Foreign national provided no evidence or specifics about anything he was not able to present at hearing — Foreign national and his counsel would have known immediately if they had not been allowed to present case adequately in time available — There was no evidence of failure of communication during videoconference that had led to some material omission or mistake in decision — Foreign national had not raised issue before decision-maker and so could not do so now. Immigration and citizenship –––– Exclusion and removal — Inadmissible classes — Criminality –––– Foreign national was citizen of Jamaica and immigrated to Canada in 1983 — Foreign national had convictions in Canada for fraud, possession of prohibited weapon, and attempting to obstruct justice — Foreign national had successfully appealed past removal order — Removal order was again issued on basis of serious criminality after foreign national was convicted of uttering forged document — Foreign national unsuccessfully appealed to Immigration Appeal Division (IAD) of Immigration and Refugee Board — Foreign national brought application for judicial review — Applica- 150 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

tion dismissed — IAD had not erred in considering foreign national’s entire criminal record — Fact that foreign national had previously been granted stay of removal order did not mean issue estoppel applied to criminal record considered at that time since different IAD panels had dealt with different evidence and convictions — Foreign national’s personal history and possibility of rehabilitation were relevant factors, so consideration of his criminal history was unavoidable — IAD had been fully aware of and took into account long gap between foreign national’s previous criminal activities and his latest criminal activities. Cases considered by James Russell 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.) — referred to 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.) — considered Boulis v. Canada (Minister of Manpower & Immigration) (1972), 1972 Car- swellNat 431, [1974] S.C.R. 875, 26 D.L.R. (3d) 216, 1972 CarswellNat 431F (S.C.C.) — referred to C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — considered Charabi c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile) (2011), 2011 CarswellNat 4404, 2011 CF 1184, 2011 CarswellNat 5224, 2011 FC 1184, [2011] A.C.F. No. 1491 (F.C.) — considered Chieu v. Canada (Minister of Citizenship & Immigration) (2002), 37 Admin. L.R. (3d) 252, [2002] 1 S.C.R. 84, 2002 SCC 3, 2002 CarswellNat 5, 2002 CarswellNat 6, 18 Imm. L.R. (3d) 93, 208 D.L.R. (4th) 107, 280 N.R. 268, [2002] S.C.J. No. 1, REJB 2002-27421 (S.C.C.) — considered E.C.W.U., Local 916 v. Atomic Energy of Canada Ltd. (1985), 7 C.H.R.R. D/3232, 86 C.L.L.C. 17,012, 64 N.R. 126, 24 D.L.R. (4th) 675, 17 Admin. L.R. 1, [1986] 1 F.C. 103, 1985 CarswellNat 164, 1985 CarswellNat 651 (Fed. C.A.) — considered Harkat, Re (2011), 2011 CarswellNat 139, 2011 FC 75, 2011 CF 75, 2011 Car- swellNat 338, 382 F.T.R. 274 (Eng.) (F.C.) — considered Hawthorne v. Canada (Minister of Citizenship & Immigration) (2002), 2002 CarswellNat 3444, 2002 FCA 475, 222 D.L.R. (4th) 265, [2003] 2 F.C. 555, McCurvie v. Canada (MCI) 151

24 Imm. L.R. (3d) 34, 235 F.T.R. 158 (note), 2002 CarswellNat 4276, 297 N.R. 187, 2002 CAF 475, [2002] F.C.J. No. 1687 (Fed. C.A.) — referred to Iamkhong v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 838, 2011 FC 355, 2011 CF 355, 2011 CarswellNat 2484, 386 F.T.R. 297 (Eng.) (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.) — considered Legault v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 747, 212 D.L.R. (4th) 139, 288 N.R. 174, 20 Imm. L.R. (3d) 119, 223 F.T.R. 159 (note), [2002] 4 F.C. 358, 2002 CAF 125, 2002 CarswellNat 746, 2002 FCA 125, [2002] F.C.J. No. 457 (Fed. C.A.) — referred to Medina v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 33, 120 N.R. 385, 1990 CarswellNat 66, [1990] F.C.J. No. 926 (Fed. C.A.) — referred to Mohammadian v. Canada (Minister of Citizenship & Immigration) (2000), [2000] 3 F.C. 371, 4 Imm. L.R. (3d) 131, 2000 CarswellNat 410, 185 F.T.R. 144, 2000 CarswellNat 3255, [2000] F.C.J. No. 309, [2000] A.C.F. No. 309 (Fed. T.D.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Omeyaka c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile) (2011), 2011 CarswellNat 143, 2011 CF 78, 2011 CarswellNat 1026, 2011 FC 78, [2011] F.C.J. No. 83 (F.C.) — referred to Patel v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 1753, 2012 FC 686, 2012 CarswellNat 2726, 2012 CF 686 (F.C.) — referred to Qureshi v. Canada (Minister of Citizenship & Immigration) (2012), 6 Imm. L.R. (4th) 241, 2012 CarswellNat 463, 2012 CarswellNat 1666, 2012 FC 238, 2012 CF 238 (F.C.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered 152 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Toro v. Canada (Minister of Employment & Immigration) (1980), [1981] 1 F.C. 652, 1980 CarswellNat 127F, 1980 CarswellNat 127, [1980] F.C.J. No. 192 (Fed. C.A.) — referred to Yassine v. Canada (Minister of Employment & Immigration) (1994), 172 N.R. 308, 27 Imm. L.R. (2d) 135, 1994 CarswellNat 219, [1994] F.C.J. No. 949 (Fed. C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 36(1) — considered s. 36(1)(a) — considered s. 67(1) — considered s. 67(1)(c) — considered s. 68(1) — considered s. 72(1) — pursuant to

APPLICATION by foreign national for judicial review of decision of Immigra- tion Appeal Division of Immigration and Refugee Board, which refused foreign national’s appeal from removal order.

Yehuda Levinson, for Applicant Manuel Mendelzon, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, dated 24 July 2012 (Decision), which refused the appeal of Hubert Alexander McCurvie from a removal order made against him because he is a person described in paragraph 36(1)(a) of the Act.

Background 2 The Applicant is a 50-year-old citizen of Jamaica. He moved to the U.S. at the age six or seven, and in 1983 immigrated to Canada as a dependant of his mother. The Applicant has seven children in Canada all of whom have different mothers. He also has several step-children. The children all live in Ontario. 3 The Applicant began to get into trouble with the law around 1986, and in 1990 moved to the U.S., at least partially to avoid further criminal McCurvie v. Canada (MCI) James Russell J. 153

convictions in Canada. While in the U.S., he was convicted of conspiracy to sell narcotics. He was sentenced to two years, and spent one year in detention. He was deported from the U.S. in 1994, after which he went back to Jamaica for a month and then returned to Canada. 4 Upon his return to Canada, the Applicant was arrested on charges stemming from incidents that occurred prior to his departure in 1990. In 1995, he was convicted of possession of a restricted weapon, and sentenced to 15 months imprisonment. In 1999, he was issued a deportation order by reason of serious criminality. He appealed to the IAD, and in 2004 his appeal was allowed and his removal order was quashed. 5 In 2005, the Applicant moved from Ontario to Alberta to pursue work opportunities. On 24 October 2007, in applying for an Alberta Operators Licence he used a wrong birth date. As a result, the Applicant was charged with uttering a forged document and was sentenced to pay a fine of $2,500. This resulted in a removal order being issued against him on 28 March 2011. 6 The Applicant again appealed to the IAD, asking it to exercise its discretionary jurisdiction to grant special relief. The Applicant has not challenged the legal validity of the deportation order. The IAD denied his appeal on 24 July 2012.

Decision Under Review 7 The IAD cited the Ribic factors to be considered when exercising its discretion as laid out in Chieu v. Canada (Minister of Citizenship & Im- migration), 2002 SCC 3 (S.C.C.). 8 The IAD noted that when the Applicant was before a provincial judge in the matter leading to his deportation order, he said that he gave the false birth date because he needed work. At the IAD hearing, he changed his story and said that he owed approximately $8,000 in fines in Ontario, $3,800 of which is still outstanding, and to avoid those fines he moved to Alberta and tried to obtain an operators license. The Applicant indicated in his testimony, and his counsel submitted, that he did not think his offence was very serious. The IAD thought this showed a “lack of insight and perhaps a sense of entitlement;” this was not an inadvertent act and the Applicant had a history of fraud. Still, the IAD noted that the offence was not violent, and taken in isolation was not on the serious end of the spectrum. 9 The Applicant’s past convictions in Canada included an incident with a past girlfriend, three counts of fraud relating to bad cheques, possession 154 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

of a prohibited weapon, attempting to obstruct justice, possession of an unregistered restricted weapon and failing to attend court. After fleeing Canada, the Applicant was charged with a drug-related offence in the U.S. The IAD noted that the information about his offences in the U.S. only came out in cross-examination; the Applicant testified that he visited Jamaica for one month, but he failed to disclose that the one-month visit involved deportation from the U.S. before he could obtain permis- sion to re-enter Canada. 10 The IAD thought that throughout his testimony the Applicant mini- mized his offences and deflected blame. It viewed the Applicant’s reluc- tance to provide details about his past as demonstrating that he considered his criminal past a bit of a nuisance and not worthy of sincere reflection. The IAD did not find the Applicant remorseful, and did not have confidence that he showed a substantive possibility of rehabilitation. 11 The IAD also found the Applicant’s work history unclear. There was a large difference between what he told the IAD was his business income and what was stated as his income on submitted Notices of Assessment. Between the years 2005-2008, his stated income ranged from $7,866 to $13,821. The Applicant testified that he pays $600-$700 a month in child support, that he owns $40,000 worth of tools, owns a truck worth $6,000, as well as $1,300 in Registered Retirement Savings and $600 in a Tax- Free Savings Account. He also purchased a home in Edmonton in 2008, and paid $5,000 as a down payment. The Applicant could not provide his company’s name, where and when he works, or any work references. He collected social assistance in 1996, immediately after his release from detention. 12 To the IAD, this did not add up, and it was not convinced that the Applicant was a hard worker or that he paid his fair share in taxes. The Applicant still owed $3,800 on his Ontario fines, which have been remitted to a collection agency. He was asked why he paid $5,000 for a down payment on his home instead of paying his fines, and he replied that he did not think of it. The IAD thought this indicated the possibility of rehabilitation was remote, and that this was a negative factor in his appeal. 13 The Applicant said that he paid $5,000 for a down payment on the house and that his monthly mortgage payments are $2,800. The title of the home he submitted says that the original principal amount of the mortgage was $490,000. The IAD found it unclear how the Applicant would be able to afford this. It found that although his many years in McCurvie v. Canada (MCI) James Russell J. 155

Canada were a positive factor in his appeal, this was offset by his limited establishment. Overall, it found that this was a neutral factor. 14 The Applicant is father to seven children, all from different women. None of his children reside in Alberta. The Applicant is currently single. Carolyn Keel, an ex-girlfriend and mother of one of his children flew to Alberta from Ontario to support the Applicant and testify at the hearing. She testified that she has known him for 25 years, and said that he is a good father to all five of her children, although he is not the biological father to four of them. 15 The last time that the Applicant saw any of his children was two years ago. He did not know the whereabouts of two of the children, one he had not seen since she was ten, and one he had little information about. Only two of the children remained minors, one of whom he had never lived with. The Applicant testified that he regularly talks to his youngest child on the phone, and the child’s mother wrote a letter of support for the Applicant in which she states that he has a special bond with his son. Also submitted were five letters from the Applicant’s children or step- children, four of whom were from Ms. Keel’s children. 16 In terms of financial support, the Applicant testified that he puts $300 a month directly into Ms. Keel’s bank account. When asked for receipts, he replied that it would be the receiver of the money who would have to provide them. This did not make sense to the IAD. Ms. Keel testified that she had received $200, $100 and $150 over the past three months. The IAD found that the Applicant might send money to the children, but did not believe that he sends regular payments of $300 or that anyone relies on his support. The Applicant moved to Alberta for work, but even when he experienced a “severe slowdown in his business” he chose to remain there. He said that he speaks with some of his children regularly on the phone. The IAD placed little weight on the best interests of any child affected by this decision because the Applicant would still be able to speak with the children on the phone if deported. 17 The Applicant said that he goes to church occasionally, but there was no other evidence of community support. He testified that he has four sisters in Canada with whom he is no longer in contact. Although he had some support from Ms. Keel’s family in Ontario, the IAD found that the lack of evidence of a daily routine or community involvement in Alberta, where he has lived since 2005, was a negative factor in his appeal. 18 As regards the hardship of deportation on the Applicant, the IAD noted that he has been self-employed for years and that these skills 156 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

would be transferable to Jamaica. The Applicant stated that he has no family in Jamaica, but he is unable to visit his family in the U.S. and has no involvement with his siblings in Canada. He has only had physical visits with his children every couple of years, and there was nothing preventing his children from visiting him in Jamaica. He would be able to maintain regular phone contact from Jamaica. 19 In summary, the IAD noted that the offence that gave rise to the removal order was not serious or violent, but the Applicant has a long and serious criminal record. The IAD thought his attitude to his criminal record showed little insight and remorse. The Applicant’s work history was hazy, but he managed to purchase a home and truck while ignoring his debt to Ontario for outstanding fines. The IAD acknowledged that he has been in Canada for almost 30 years, but he demonstrated very little community support and limited involvement with his family. There was no documentation to evidence the provision of any financial support. The IAD found that the most hardship any of the Applicant’s family members would suffer would be some emotional upset. 20 The IAD noted that the onus was on the Applicant to show sufficient humanitarian and compassionate (H&C) factors to warrant special relief from the removal order against him. The Applicant had already been deported from the U.S. and had faced a previous deportation order in Can- ada, yet chose again to break the law. The IAD found that because the Applicant demonstrated little remorse and insight into his behaviour he was not a good candidate to comply with the conditions of a stay of the removal order, and dismissed the Applicant’s appeal.

Issues 21 The Applicant raises the following issues in this application: 1. Did the IAD breach the rules of natural justice by failing to conduct the hearing in a manner that offered a fair opportunity to the Applicant to present his case? 2. Did the IAD err in its consideration of the Applicant’s criminal record prior to the granting of a stay and the successful appeal upon which that was based in 2001? 3. Did the IAD misconstrue facts, draw unreasonable inferences, and make determinations with adequate evidence? McCurvie v. Canada (MCI) James Russell J. 157

Standard of Review 22 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 23 The first issue raised is a matter of procedural fairness. In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Canada held at paragraph 100 that it “is for the courts, not the Min- ister, to provide the legal answer to procedural fairness questions.” Fur- ther, the Federal Court of Appeal in Sketchley v. Canada (Attorney Gen- eral), 2005 FCA 404 (F.C.A.) at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review applicable to the first issue in this application is correctness. 24 The second and third issues go to the IAD’s consideration of whether an act of serious criminality was committed by the Applicant, and whether H&C relief is warranted under the circumstances. These are issues of mixed fact and law, and are reviewable on a reasonableness standard (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 58 [Khosa]; Iamkhong v. Canada (Minister of Citizenship & Immigration), 2011 FC 355 (F.C.) at paragraph 27; Omeyaka c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile), 2011 FC 78 (F.C.) at paragraph 14). 25 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, trans- parency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa, above, at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 158 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Statutory Provisions 26 The following provisions of the Regulations are applicable in this proceeding: Serious criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Can- ada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. Appeal allowed 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. [...] Removal order stayed 68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. [...] McCurvie v. Canada (MCI) James Russell J. 159

Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants: a)etre ˆ déclaré coupable au Canada d’une infraction a` une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction a` une loi fédérale pour la- quelle un emprisonnement de plus de six mois est infligé; b)etre ˆ déclaré coupable, a` l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction a` une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, a` l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction a` une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. Fondement de l’appel 67. (1) Il est fait droit a` l’appel sur preuve qu’au moment où il en est disposé: a) la décision attaquée est erronée en droit, en fait ou en droit et en fait; b) il y a eu manquement a` un principe de justice naturelle; c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales. [...] Sursis 68. (1) Il est sursis a` la mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché— des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales. [...] 160 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Arguments The Applicant Procedural Fairness 27 The Applicant says that, throughout the hearing, the IAD continually pressed him and his counsel to proceed as quickly as possible and so allowed inadequate time for the proper hearing of his case. 28 During the hearing, the IAD said: IAD: I have a few instructions for you. We are limited in time and I know this appeal hearing is very important to you, but we are limited in time and so we want to hear the best evidence that you have. [...] IAD: If — if you are asked a question and you’re going to answer it, I am going to ask that you answer the question as directly as possible. By that I mean, because we’re limited in time, you’ve got to trust your counsel, and he is certainly competent, that he’s going to — he’s going to take you into areas that is relevant and important to your appeal. [...] IAD: Why? And be — just be quick because we’re running the time here. [...] IAD: All right. Okay. If you would just answer some questions, please, I’m really concerned about the time, so I’m just going to turn it over to the Minister’s counsel, all right? [...] IAD: That’s it? All right. Oh boy, we’re going to get kicked out of there very soon, out of that courtroom. Rick, are you there? UNKNOWN SPEAKER: Yes, ma’am. IAD: What — how much — when — when do we have to be packed up out of there? UNKNOWN SPEAKER: At quarter after four. IAD: Quarter after four, all right.... [...] IAD: All right. Okay. Just keep in mind the time. If — you have to be out of there at quarter after and so if — I don’t know how McCurvie v. Canada (MCI) James Russell J. 161

long your — how long do you think your submissions will take? [...] IAD: Okay, we just—I—I just don’t want you to be escorted out there. I don’t want Rick having to struggle with all of you, so — all right? [...] IAD: All right. Mr. Thind, I’m just going to ask you, we need to push on here. It’s already 2:15 or pushing that, so perhaps, sir, you can just describe the children, all right? You say you got a slew of children, let’s go through each one of them if we could, please. Their dates of birth and where they live, all right? 29 The Applicant also points out that his hearing took place by videoconference and that he testified from Edmonton while the IAD was in Vancouver. The Applicant submits that it is apparent that the IAD could not hear the Applicant’s testimony very well: IAD: I can’t — I apologize, but I can’t hear — I can’t hear. [...] IAD: Okay. Mr. Thind, I couldn’t hear the question, so I apologize to you, but I couldn’t hear it. [...] COUNSEL: Speak up, please. APPLICANT: I think four or five times. COUNSEL: She has to hear, not me. [...] IAD: I need you to speak up nice and clearly for me because it is very difficult to hear over — I speak very loudly, so you can probably hear me clearly, but it’s very difficult the other way around to hear, so you need to... speak up for me, all right? [...] IAD: I’m sorry — I’m really sorry to interrupt. I can’t hear and it’s — it’s going to be very difficult if I have to keep repeat- ing or asking to you to repeat. 30 The Applicant argues that the IAD’s constant pressing of the Appli- cant and his counsel to proceed quickly impaired his opportunity to present his case fairly. This, in combination with the poor auditory facilities of the video connection, resulted in a breach of natural justice and proce- 162 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

dural fairness (Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.)).

The Reasonableness of the Decision 31 The Applicant submits that the IAD made serious factual errors in the Decision, thus rendering it unreasonable. The offence which resulted in the removal order, and hence the Applicant’s appeal, was the act of the Applicant providing a wrong birth date when he applied for an Alberta Operator’s License. The Applicant was fined $2,500, of which there is $400 owing. 32 In the Decision, the IAD states that the Applicant told the judge at his criminal proceeding that he gave the wrong birth date because he needed work, but before the IAD he changed his story and stated that he did this to avoid fines of $8,000 that he had incurred in Ontario, of which $3,800 is still owing. The Applicant submits that there is no evidence that the Applicant told the judge that he needed work and then changed his story, and that there was only $3,800 on the Ontario fines at the time of the hearing. 33 The IAD conceded that the offence was not one of violence, that it occurred in isolation and was not at the serious end of the spectrum. The Applicant submits that this should have been the IAD’s primary consideration. The Applicant had previously succeeded on appeal with respect to his previous criminal history, the last offence of which occurred in 1995. This was approximately 15 years prior to the offence which resulted in the hearing before the IAD. 34 The Applicant submits that the IAD erred in its consideration of the totality of the Applicant’s criminal record in view of the exceptionally long time between his past history and the current offence, which the IAD admitted was not at the serious end of the spectrum. The Appli- cant’s previous criminal history (which had already been dealt with) and the current offence were not related, and the IAD stated that the current offence was an isolated incident. The Applicant submits that this should have been considered in the IAD’s application of the Ribic factors, and that the IAD erred by failing to distinguish between the Applicant’s criminal history and the offence which was the subject of the appeal. McCurvie v. Canada (MCI) James Russell J. 163

35 The IAD also concluded that it did not find the Applicant remorseful. However, the Applicant made the following statements during the hearing: Your Honour, I understand that I really made a mess of things right here, but it was never my intention to defraud or do anything out of the context with anyone. In — in terms of purchasing my house, I would not have — would not have done that. That’s why I went directly to get something legally in my name to do that. I didn’t want — I wasn’t trying to — I only came here because of job and I — I really am sorry about that. I know it’s costing me job and eve- rything, but I came to say I’m — [...] No ma’am, I’m not being that ignorant and say something like that. I’m not saying that. It’s just that I’m just saying I am more scared now than anything else in the world and it’s like that wasn’t even something that I — I was more thinking about. I’m not sure if that explanation works for you, but it’s all I know. [...] Your Honour, I — in my — in my most sincerest apologies, I don’t — I know I made an error, but I’m asking if you could forgive me and this matter and I don’t — I don’t have any — anywhere to go. This is where all my life has been and my children and my grandchildren, so this is the only life I know and I’m just asking for leniency. 36 The Applicant submits that the IAD’s conclusion on this issue was unreasonable based on the facts before it and his testimony. The IAD impugned the Applicant’s remorse because his criminal history in the U.S. did not become known except through cross-examination. The Ap- plicant says that he was not asked about this conviction except by the Respondent’s counsel and the negative inference drawn concerning his remorse was unreasonable. The Applicant submits that his testimony demonstrates sincere remorse and appreciation of the error he had committed. 37 The IAD also took issue with the Applicant’s work history. The Ap- plicant explained that his finances were prepared by an accountant, and that the declared amounts of his income reflected his net personal income after his business deductions, but the IAD did not take this into account. The IAD also ignored his evidence that he had a registered retirement savings plan and a tax-free savings account. 164 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

38 The Applicant submits that the evidence showed that, except for a very brief period of time just after he was released from detention in 1996, he has never received social assistance and has supported himself as a carpenter and home renovator. Nevertheless, the IAD concluded that “the possibilities of rehabilitation appear to be remote; this is a negative factor in his appeal.” The IAD went on to find that the years the Appli- cant has been in Canada are a positive factor in his appeal, but this is offset by his limited establishment for that number of years. The Appli- cant submits that these conclusions were capricious and made without regard to the evidence that was before the IAD. See (Toro v. Canada (Minister of Employment & Immigration), [1980] F.C.J. No. 192 (Fed. C.A.)). 39 The IAD also said that the Applicant had no association with his current church and did not identify it. The Applicant says that this is incorrect; he testified that his church was Beulah Church. 40 With regards to his relationship with his children, the Applicant has traveled back to Toronto where most of his family lives four or five times since 2005. He did not go back recently as he was under the impression that he could not leave Alberta pending the resolution of his case. The Applicant’s evidence was that for a period of time he raised his daughter born of his relationship with Charmaine Reid, as well as Ms. Reid’s daughter from another relationship. His daughter Tamara went to live with the Applicant in Alberta for approximately six months in 2010. He also testified about frequent contact with his daughters Renee and Victoria. The Applicant says that the IAD appeared to have no regard for this evidence. 41 With respect to his son, Caden, the Applicant testified that he provides financial support to him on a monthly basis by depositing cash directly into his mother’s account. This is why he did not have any record of these transactions. The Applicant also had close relations with the other children of the mothers of his children, including Chantal, Keisha, Everton, Nishi and Cheneeka. Prior to moving to Alberta, the Applicant also had a close relationship with his nephews and nieces. Carolyn Keel, mother of the Applicant’s daughter Jamella, testified that the Applicant was involved with her children from other fathers, and that they call him dad and that none of her other children’s fathers are involved in their lives. The Applicant also provides support to her whenever she needs it. He had provided support in each of the months preceding the hearing. Also, contrary to what the IAD said, the Applicant saw four of his chil- McCurvie v. Canada (MCI) James Russell J. 165

dren and step-children last year when he paid for their plane tickets to Alberta. 42 The Applicant has extensive family in Canada, and submits that he maintains close relationships with almost all of his children and a number of the mothers of these children, as well as with his step-children. Up until his last criminal charge he had visited his children approximately once a year since he moved to Edmonton in 2005. Since then, four of his children and step-children had visited him in Edmonton. He also maintains his relationship with them by Skype or telephone. The Applicant submits that, based on the evidence that was before the IAD, its conclusion that he can maintain his relationship with his children equally well from Jamaica is capricious and without regard to the best interests of the children (Baker, above, at paragraphs 43, 53). 43 The Applicant also points out that he has no family in Jamaica or any basis upon which to become established there. The Applicant submits that for the above reasons the IAD erred in law and that this application ought to be granted.

The Respondent Procedural Fairness 44 The Respondent says that the Applicant is attempting to manufacture a breach of procedural fairness by taking portions of the transcript out of proper context. There is no evidence of a breach of procedural fairness in this case and the Applicant has waived his right to object on this basis. 45 The Federal Court of Appeal has held that an applicant has the burden of making this kind of issue known at the earliest possible moment, rather than waiting until the release of a tribunal’s decision. In Yassine v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No. 949 (Fed. C.A.) [Yassine], the issue was whether waiver results if an objection to the RPD’s procedure for receiving additional information is not raised at the hearing. At paragraph 7, the Court found as follows: It must also be noted that no objection was taken to the procedure that the Presiding Member adopted for receiving the additional information. That procedure consisted of a direction of November 20, 1990 that the Refugee Hearing Officer make copies of the material available to the appellant’s legal counsel and of giving such counsel a period of two weeks within which to submit representations by way of “reply”. That procedure was followed. No such reply was submitted. Nor did the appellant raise an objection of any kind as to this 166 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

way of proceeding. That surely was the time to raise an objection and to ask the panel to reconvene the hearing, assuming that the information could not otherwise be received. The appellant was then in possession of all of the new information and was aware that the panel intended to take notice of it. Not only was no objection made at that time, which I would regard as the “earliest practicable opportunity” to do so (In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.), per MacGuigan J., at pages 113- 14), the appellant remained silent until after the Refugee Division’s decision was released on April 18, 1991. Thus, even if a breach of natural justice did occur, I view the appellant’s conduct as an implied waiver of that breach. 46 In Mohammadian v. Canada (Minister of Citizenship & Immigra- tion), [2000] 3 F.C. 371 (Fed. T.D.) [Mohammadian], the issue was whether waiver results if an objection to the quality of interpretation is not raised by the applicant during the hearing. At paragraph 29, the Court found as follows: In this case, I find that the question of the quality of the interpretation should have been raised [page384] before the CRDD because it was obvious to the applicant that there were problems between him and the interpreter. His affidavit refers to the difficulty he had understanding the interpreter and says that at times he did not understand what was being said. This is sufficient to require him to speak out at the time. His failure to do so then is fatal to his claim now.... 47 It follows that in the absence of a timely objection made before the Board, a claimant is precluded from raising it later. As Justice Richard Mosley said in Benitez v. Canada (Minister of Citizenship & Immigra- tion), 2006 FC 461 (F.C.) [Benitez] at paragraphs 220-221: From the above discussion, I would take the principle that an applicant must raise an allegation of bias or other violation of natural justice before the tribunal at the earliest practical opportunity. The earliest practical opportunity arises when the applicant is aware of the relevant information and it is reasonable to expect him or her to raise an objection. In the present cases, counsel for the applicants would have been aware of the implementation of Guideline 7 from December 7, 2003. If they were of the view that its application in a particular case would result in a denial of their client’s right to a fair hearing, the earliest practical opportunity to raise an objection and to seek an exception from the standard order of questioning would have been in advance of each scheduled hearing, in accordance with rules 43 and 44, or McCurvie v. Canada (MCI) James Russell J. 167

orally, at the hearing itself. A failure to object at the hearing must be taken as an implied waiver of any perceived unfairness resulting from the application of the Guideline itself. 48 In all these cases, the Federal Court and the Federal Court of Appeal applied the common law test for waiver as set out in E.C.W.U., Local 916 v. Atomic Energy of Canada Ltd. (1985), [1986] 1 F.C. 103 (Fed. C.A.) at page 113: However, even apart from this express waiver, AECL’s whole course — of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Com- mission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object. 49 The Respondent submits that the Applicant cannot hold an objection on procedural fairness in reserve in order to use it at some future time. The Applicant had an obligation to raise the alleged breach of procedural fairness at the earliest opportunity and failed to do so. As such, the Ap- plicant has waived his right to object on the basis of the video-conferenc- ing or the time allotted for the hearing. No objections were raised by counsel at the hearing and there is no evidence that the Applicant was not able to present the evidence he wanted or that the video conference issues were not immediately corrected by the Applicant speaking in a loud and clear voice. The Respondent submits that was no breach of procedural fairness.

The Reasonableness of the Decision 50 The Respondent points out that the Applicant takes no issue with his inadmissibility to Canada, or the validity of his deportation order. He is simply asking the Court to reweigh the evidence on the Ribic factors and come to a different conclusion; this is not the function of judicial review. The IAD considered the Ribic factors and found that there were insufficient humanitarian considerations to warrant relief. The onus was on the Applicant to establish the “exceptional” reasons why he should be al- 168 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

lowed to stay in Canada, and he did not meet this onus (Chieu, above, at paragraph 57). 51 The IAD considered all the Ribic factors, and when the Decision is read as a whole it is clear that the IAD had a grasp of the issues and the evidence before it and that no injustice was done (Medina v. Canada (Minister of Employment & Immigration) (1990), 120 N.R. 385 (Fed. C.A.); Boulis v. Canada (Minister of Manpower & Immigration) (1972), 26 D.L.R. (3d) 216 (S.C.C.)). 52 The Applicant’s actions weighed heavily against granting relief. He has demonstrated a consistent pattern of criminal behaviour and continued his criminal ways after having gone through this process on one other occasion. It was reasonable for the IAD to find that his actions were serious and the Applicant takes no material issue with these findings. It is trite law that the seriousness of the criminal history or a mis- representation can be weighed against the other H&C factors (Qureshi v. Canada (Minister of Citizenship & Immigration), 2012 FC 238 (F.C.) at paragraph 20). 53 The IAD’s weighing of the H&C factors was reasonable and the H&C considerations in this case were not especially compelling, given the lack of evidence submitted by the Applicant. The Applicant’s arguments amount to nothing more than a disagreement over the weight that the IAD chose to give to the various factors. Furthermore, the vast majority of his arguments are without foundation on a reasonable reading of the Decision and transcript (Patel v. Canada (Minister of Citizenship & Immigration), 2012 FC 686 (F.C.)). 54 For example, at pages 232-233 of his Memorandum of Argument the Applicant incorrectly argues that he did not change his story regarding the reasons he uttered the forged documents in Alberta. This is clearly wrong; in his criminal proceedings he told the judge that he did it because he needed a job, or it was necessary for the job and he was not trying to hide himself (see page 161 of the CTR at lines 20-22). Before the IAD the Applicant testified that he had to utter the forged document because his Ontario drivers licence had been suspended for his failure to pay his fines and that he was trying to avoid paying the fines temporarily (page 46 of the CTR at lines 17-23). The Applicant also said that it was just a mistake, and tried to downplay his criminal acts (page 46 of the CTR at line 7), and then claimed he needed the identification to buy a home (page 50 of the CTR at line 5). The Applicant’s contention that the McCurvie v. Canada (MCI) James Russell J. 169

reasons he gave to the criminal court and the reasons he gave to the IAD were not inconsistent is simply incorrect. 55 Furthermore, the Applicant’s claim that the fine amount identified by the IAD is incorrect is also wrong. The IAD clearly acknowledges that the amount of the fine owing at the time of the hearing was $3,800, and that the Applicant testified that he had approximately $8,000 in fines (page 46 of the CTR at line 33). There was no error made in this regard. 56 The Applicant also claims that the IAD should have given more weight to the alleged remorse he claimed to show during the hearing. However, the reality is that throughout his testimony the Applicant continually tried to downplay his past criminal involvement and continued to break the law after being given a second chance when the first deportation order against him was quashed. It was open to the IAD to assess the level of remorse and prospects of rehabilitation and it is not for this Court to reweigh explanations which were given by the Applicant. 57 At paragraph 15 of his Memorandum of Argument the Applicant claims that the IAD erred in its consideration of his time in Canada, his work history and his alleged income. The Respondent submits that this argument is without merit. The Applicant clearly failed to provide a statement of business income and has not provided such evidence in this application. He provided a few years of personal income but did not provide any statement of business expenses to demonstrate his claimed business income, or that the business pays its taxes or pays any employees. Further, given the low level of personal income that the Applicant reports it is difficult to understand how he is able to own a home or support himself. The IAD’s conclusions in this regard are sound and based on the evidence before it and the IAD was entitled to consider his time in Can- ada as a neutral factor. 58 The Applicant also argues that the IAD should have placed more weight on the evidence that he presented regarding his relationship with his children. The Respondent submits that the best interests of the children were considered in this case, and while it is an important factor it is not determinative (Hawthorne v. Canada (Minister of Citizenship & Im- migration), 2002 FCA 475 (Fed. C.A.)). The IAD acknowledged the hardship that may be caused by the Applicant’s removal from Canada, but noted that his son would still have the support of his mother and family in Canada and that his interests would be protected. The IAD also thought, given the limited contact the Applicant has with his children, seeing them once every few years and providing a little money on occa- 170 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

sion, that this can continue if he is removed from Canada. There was no evidence that his children could not visit or that he could not maintain communication with them or provide the same meager level of support. The fact that the Applicant would have preferred that this be a determinative factor in his favour does not warrant this Court’s intervention (Legault v. Canada (Minister of Citizenship & Immigration), 2002 FCA 125 (Fed. C.A.)). 59 The Applicant also claims that the IAD erred in considering his criminal history in its assessment of whether he is entitled to discretionary relief on H&C grounds. The Applicant’s entire immigration and criminal history are factors that need to be weighed in determining whether there are sufficient H&C factors to warrant granting the special relief he was seeking. The Respondent submits that the fact that the deportation order was properly made in relation to the most recent charges does not preclude the IAD from considering the Applicant’s criminal record. 60 The Respondent also submits that the Applicant’s allegation that evidence was ignored is not borne out by a review of the Reasons. All the evidence he cites was expressly discussed at paragraphs 8-17 of the De- cision. Again, this is simply a disagreement about the weight ascribed to evidence. The Respondent requests that this application be dismissed.

The Applicant’s Reply 61 In response to the Respondent’s argument that the Applicant waived his right to complain about the hearing, the Applicant submits that the cases relied on by the Respondent can be distinguished. In Yassine, the Board was relying on a statutory provision for the alleged breach. In Mohammadian, it was evident from the transcript that the applicant was having problems with the translator during the hearing. In Benitez, the applicants clearly had ample opportunity to object. In the Applicant’s case, there was not a particular event or concern that can be pointed out. Rather, the problem arose from the IAD conducting the hearing in a rapid and pressing manner. This is less tangible, and the impact of it cannot be easily assessed at the time. Hence, the Applicant submits there cannot be an implicit waiver of this type of breach of procedural fairness. The Applicant further submits that the Respondent has failed to deal with the factual distinctions between the cases cited and the case of the Applicant. 62 The Applicant also says that the Respondent has failed to address the error of the IAD in relying on the Applicant’s criminal record from 17 McCurvie v. Canada (MCI) James Russell J. 171

years earlier. The Applicant submits that if the IAD erred in this respect then its findings of fact upon which the Respondent relies are all tainted. Furthermore, the Respondent has not addressed the fact that the IAD admitted that the only offence for which the Applicant was being deported was not serious. 63 The Respondent also claims that the Applicant’s family connections were adequately dealt with by the IAD. The Applicant says that, aside from making bald assertions, the Respondent fails to deal with the significant evidence on this point, which shows that the conclusion of the IAD that the Applicant’s seven children would not be unduly affected by his deportation was unreasonable. The Applicant states that the Respon- dent’s arguments make statements without reference to the facts which specifically refute the findings of the IAD.

Analysis 64 As regards procedural unfairness, the Applicant says that the IAD allowed inadequate time for the hearing of his case and that the IAD could not hear his testimony very well because the hearing took place by videoconference. However, the Applicant has provided the Court with no evidence or specifics about what he was not able to present at the hearing, and he did not raise any problems with the IAD. He and his counsel would have known immediately if they had not been allowed to present the case adequately in the time available, and there is simply no evidence of a failure of communication during the videoconference that has led to some material omission of mistake in the Decision. 65 The jurisprudence of the Court is clear that, in the absence of a timely objection made before the tribunal, a claimant is precluded from raising it later. See, for example, Benitez, above, at paragraphs 220 and 221. If the Applicant and his counsel felt disadvantaged by the time constraints, they could have placed this before the IAD. They cannot now raise it with the Court as a ground of review when they failed to raise it at the appropriate time. There was no breach of procedural fairness in this case. 66 The Applicant also says that the IAD should not have examined and taken into account his criminal record prior to the stay and successful appeal that was granted in 2001. In fact, in oral argument before me, the Applicant raises issue estoppel and says that the issue of his earlier criminality has already been considered and decided, so that it cannot again become a factor before the IAD in this case. He says that, in considering 172 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

his criminality, the IAD should have left out of account his activities and convictions that came before the IAD in 2001. 67 As regards his prior criminal record, the Applicant cites no authority for the proposition that his entire criminal record should not be taken into account, and it is difficult to see how the Ribic factors could be properly considered and weighed without reference to the Applicant’s entire immigration and criminal history. The Applicant’s personal history and the possibility of rehabilitation are specifically laid out as factors in the Ribic analysis, and the Applicant’s criminal history is an unavoidable part of these considerations. The discretion offered to the IAD under paragraph 67(1)(c) of the Act is broad, and the Supreme Court reaffirmed in Khosa, above, at paragraph 65, that the Ribic factors are not exhaustive, and the analysis will always be highly factspecific. 68 Furthermore, Justice Yvon Pinard dealt with this issue at paragraphs 21-22 of Charabi c. Canada (Ministre de la S´ecurit´e publique & de la Protection civile), 2011 FC 1184 (F.C.) [Charabi] where he said: 21 In my opinion, the IAD properly assessed the evidence by taking into account the entire history of the case. Moreover, because of the discretion granted to this panel under subsection 67(1) of the Act and because of its expertise, this Court must review its findings with a high degree of deference (Khosa and Gonzalez). The applicant has therefore failed to discharge his burden of establishing exceptional grounds justifying a stay (Camara v. Minister of Citizenship and Im- migration, 2006 FC 169; Bhalru v. Minister of Citizenship and Immi- gration, 2005 FC 777). 22 It is well established that the weight to be accorded to each factor will vary according to the particular circumstances of the case (Ribic, above, decision cited with approval by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 77). The respondent is correct in maintaining that the IAD was justified in taking the old convictions into account in light of the jurisprudence that indicates that it must consider what gave rise to the removal order. The applicant benefited from the privileges of a stay for a ten-year period. He only had to carefully comply with the conditions set out in the stay order, which he failed to do. 69 It is my view that issue estoppel does not arise on the facts of this case, and the Applicant cites no authority to support his case on this issue. Different IAD panels were dealing with different removal orders, different evidence and different criminal convictions. It would make no McCurvie v. Canada (MCI) James Russell J. 173

sense to prevent the IAD from considering his previous convictions on the basis of issue estoppel but to say that the IAD could take into account the whole of his immigration history for the purposes of other Ribic factors. 70 I certainly agree with the Applicant that the long gap between his previous criminal activity that came before the IAD in 2001 and his latest criminal activities was a matter the IAD had to address in applying the Ribic factors on this occasion, but my reading of the Decision leads me to conclude that the IAD is fully aware of this issue and takes it into account. 71 The mistakes and omissions alleged by the Applicant are not borne out by a reading of the Decision as a whole. Essentially, the Applicant disagrees with the Decision and thinks that more weight should have been given to factors that favour his case. The Court cannot interfere on this basis. See Iamkhong, above, at paragraFCA/CAFph 46. The reasons are intelligible and clear and fall within the Dunsmuir range. 72 The Applicant raises the following question for certification: In applying the Ribic factors should the IAD leave out of account a prior criminal record that has already been considered by a prior IAD panel in a previous positive appeal and dealt with as part of the prior IAD panels decision? 73 Justice Simon No¨el summarized the law of the certification of questions in Harkat, Re, 2011 FC 75 (F.C.), where he said at paragraph 9: In Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89, at para 11, the Federal Court of Appeal framed the question as follows: is there a serious question of general importance which would be determinative of the appeal? Hence, there are two aspects to be considered: 1) whether the question is serious and of general importance; and 2) is this question determinative of the appeal? An important question was determined to be one that transcends the im- mediate interests of the parties involved in the litigation in order to contemplate issues of “broad significance or general application” (Canada (Minister of Citizenship and Immigration) v Liyanagamage (1994), 176 N.R. 4 (F.C.A.), at para 4). Not only do these factors arise from case law, they are also couched in the very terms of section 82.3 of the IRPA. 74 Although the issue of whether an applicant’s criminal history may be considered as part of the Ribic analysis could transcend the facts of this specific case, it is a question that has already been answered (see 174 IMMIGRATION LAW REPORTER 18 Imm. L.R. (4th)

Charabi, above). As such, the question is not one of “broad significance,” and I see no reason to certify it.

Judgment THIS COURT’S JUDGMENT is that 1. The application is dismissed. 2. There is no question for certification. Application dismissed.